■t- UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY fU^ U^ /v ^ /^f^- ^^ PRECEDENTS AND RULES OF PLEADING IN CIVIL ACTIONS IN THE COUNTY AND DISTRICT COURTS OF TEXAS. "'To combine with the refjnisite certainty and precision, tlie greatest possible brevity, is now justly considered as the perfection of pleading." — Steph. on PI. 422. BY JOHN SAYIvES, LL.Da Ml ST. LOUIS, MO. : THE GILBERT BOOK CO. 1893. *,' ' ■/> . T Sd. 996 ^ 1693 Entered according to Act of Congress in tlie j-ear 1893, by THE GILBERT BOOK COMPANY, 'a the office of the Librarian of Congress, at Washington, D. 0, * C4S^ TABLE OF CONTENTS. Chapter. Pagb. 1. Commencement of Petitions 9 2. Actions on Accounts 15 3. " " Promissory Notes 30 4. " " Bills of Exchange 54 5. " "Contracts 68 6. " for Money and Personal Property Had and Peceived 77 7. Action " Damages on Account of Fraud or Deceit 84 8. Actions " Damages for Breach of Contract. ... 92 9. " on Policies of Insurance 107 10. " for Indemnity 124 11. " on Judgments 136 12. " Against Common Carrier and Bailees. . . 140 13. " for Injuries to Property 154 14. Action " Conversion of Personal Property.. 161 15. Actions " Willful and Malicious Injuries 167 16. " " Personal Injuries by Negligence. . . 187 17. " " Divorce 215 18. " on Contracts Relating to Land 221 i9. " to Set Aside Conveyances of Real Estate 235 20. " for Specific Performance of Contracts Relating to Land 245 21. Action of Trespass to Try Title 262 22. Proceeding by Quo Warranto 273 23. Actions for a Certiorari 280 24. " " Equitable Relief 289 iii 3V TABLE OF CONTEXTS. Chapter. Page, 25. Answers, Including Exceptions and Pleas 337 " in the Action of Trespass to Try Title 359 System of Pleading in Texas 373 Parties to Suits 395 Venue of Suits 414 2G. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. General Rules of Pleadinij 419 Eules Which Lead Simply to the Production of an Issue 441 " Tend to Secure Singleness or Unity in the Issue 454 to Secure Certainty in Pleading 462 " " Consistency in Pleadings 485 *' Prevent Surplusage in Pleading 489 ' " Secure Conformity Between the Plead ings and Evidence 504 Averments in Actions for General Relief 514 Of the General Division of Pleadinos 542 The Petition 547 Of the Answer 573 " Pleas to the Jurisdiction 582 " " in Abatement 593 " " " Bar 62a " Special Pleas in Bar 626 " Pleadings in Reconvention 664 Pleas of Intervention and Interpleader 672 Verification of Pleadings 679 Amendment of Pleadino-s 690 Pleadings in Action of Trespass to Try Title. 721 Removal of Civil Suits from a State Court to the Federal Courts 778 51. Precedents of Pleadings in the Circuit Court of the United States 798 52. Rules of Pleading and Practice in Equity Cases 825 PREFACE. The substance of this work was delivered in the summer of 1857, in the form of lectures, to the law class of Baylor University, then under the charge of Hon. R, T. Wheeler, Chief Justice of the Supreme Court, and Hon. R. E. B. Baylor, Judge of the Third Judicial District. At the re- quest of these distinguished jurists the lectures were re- written, embracing additional matter, and were read to the law classes of 1858 to 1860. On the reorganization of the law class, in 1867, these lectures were repeated during sev- eral terms, and were published in 1872. The substance of that work was incorporated in the "Texas Pleading and Prac- tice,"' published in 1882. In 1886, the provisions of the Revised Statutes, and the decisions of the Supreme Court relating to pleading and practice in courts of record, were incorporated in a work styled: "The Texas Practice Acts." The "Treatise on the Principles of Pleading in Civil Actions," published in 1872, has been made the basis of the present work, all of which, however, has been re-written, and the decisions of the Supreme Court relating to that topic, and found in Dallam and eighty-three volumes of the Texas Reports, have been incorporated in the text or notes. A large number of precedents in pleading, with copious notes, have been prepared, in addition to those contained in previous editions of the works above mentioned. In the notes to the forms of pleading, references are made to the decisions relating to each special action. It is believed that this arrangement will lighten the labors of the practitioner who may desire to consult adjudicated cases, relating especially to the matter under consideration, without a reference to the more general rules embodied in V PREFACE. VI the text, and illustrated by the cases cited. In some in- stances the same cases may, therefore, be cited under the forms and in the text. In submitting the present volume to the profession, I beg to return my grateful acknowledgment for the kind man- ner in which my labors, extending over a period of thirty- five years, have been received, and to ask an indulgent consideration for that which is now offered. The task of examining and comparing so many decisions of technical questions, requiring a careful scrutiny of the facts on wiiich they are based, in order to deduce there- from a general rule, has been very great. I cannot hope, in all instances, to have stated the rule with sufficient full- ness or accuracy, but these errors will be readily detected and corrected by a reference to the adjudicated cases, which is necessary to determine the correspondence of the facts in the reported case with those of the particular case under consideration, I also desire to acknowledge my indebtedness for many valuable suggestions to the lectures of Hon. O. M. Roberts, on "The Elements of Texas Pleading," delivered to the law class of the Texas University, and published in 1890. While that work was specially prepared for students, it is equally valuable to the busy lawyer engaged in active prac- tice. Its clear exposition of the general principles of plead- ing, which are elementary, and express the science of the law, will relieve him from the necessity of a reference to the larger works on pleading, or to the reports, which necessarily consumes time needed for other purposes. To the author of that elegant treatise, the legal profession of this state is also greatly indebted for the Rules of Plead- ing and Practice, adopted by the Supreme Court in 1877, and which have contributed so largely to secure a uniform and easily comprehended mode of procedure in pleading and practice in all courts. TOfTN ^AVT F^ Abilene, January, 1893. KEY TO REFERENCE FIGURES USED IN THE FORMS, 1 Marginal venue. 2 Term of court. 3 The address. The commeucement, showing the names of the parties and tbeii' residences. * The count or statement of the cause of action. 8 The prayer. ^ The signature. 8 Indorsements on the petition. 8 FORMS OF PETITIONS AND COUNTS IN CASES DEMANDING LEGAL OR EQUITABLE RELIEF. Ch. 1. — Commencement of Petitions. §1. Formal requisites of .a petition. 2. Commencement of petition. (a) Wtiere there are several parties not partners. (b) Where plaintiffs are partners. (c) Where plaintiff is a domestic corporation. (d) Where plaintiff is a foreign corporation. (e) Where plaintiff is a national bank. (/) Where plaintiff is administrator or executor, (gr) Where defendant is administrator or executor, (/i) Where defendant is a corporation. §1. Formal requisites of a petition. ^The State or Texas, > ^ Court, County of . 5 Term, a. d. 18 — . ^ To the court of said county : *A. B., plaintiff, complaining of C. D., defendant, rep- resents that plaintiff resides in the county of , and de- fendant in the county of , in said state. ^That heretofore, to- wit: On the day of , a. d. 18 — , the defendant made his certain promissory note in writing, beating date on the day and year last aforesaid, whereby he promised to pay two months after the date thereof to the plaintiff or order, the sum of dollars, with interest thereon after said date at the rate of per cent, per annum, and on the same day delivered said note to plaintiff, whereby he became liable and promised plaint- iff to pay him the sum of money in said note specified ac- cording to the tenor and effect thereof. Ch. 1.] COMMENCEMENT OF PETITIONS. [§2. That said sum of money is now due, and defendant, though often requested, has refused and still refuses to pay the same, or any part thereof, to plaintiff's damage dollars. ^Wherefore plaintiff prays that defendant be cited to answer this petition, and that he have judgment for his debt, interest and costs of suit. 7 , Att'y for Plaintiff. ^(^Indorsement on plaintijfs ^^etition.) JSTo. . A. B., Plaintiff, V. C. D., Defendant. Filed , A. D. 18 — . Clerk Court, County. -, Att'y for Plaintiff. § 2. Commencement of petition. (a) Where there are several parties not partners. ^A. B. and C. D., plaintiffs, complaining of E. F. and G. H. , defendants, represent that the plaintiffs reside in the county of ; that the defendant, E. F., resides in the county of , and the defendant, G. H., resides in the county of , in said state. (6) Where plaintiff's are partners. *A. B. and C. D., plaintiffs, complaining of E. F. , defendant, represent that plaintiffs reside in the county of , and the defendant resides in the county of , in said state. That at the date of the transactions hereinafter men- tioned plaintiffs were and still are partners in business, un- der the firm name and style of A. B. & Co. All partners must join, except dormant and nominal partners, not privy to the contract, and persons not com- petent to contract, who need not be jomed. 10 Cb. 1.] COMMENCEMENT OF PETITIONS. [§2. Speake v. Prewitt, 6 T. 252; Shelby v. Perrin, IS T. 515; Shipman v. Allee, 29 T. 17; Tynburg v. Cohen, 67 T. 220; Richardson v. Hutchins, 68 T. 81; Lindsay v. Jaffray, 55 T.- 626. Where suit is brought in a firm name, the names of the partners being stated, it is not necessary to prove who com- posed the firm, unless the partnership is denied under oath. (c) Wliere plaintiff is a doinestic corporation. ^The company, plaintiff, complaining of B., de- fendant, represents that at the date of the transactions hereinafter mentioned, plaintiff was and now is a private corporation duly incorporated and existing under the laws of this state, and has its principal ofiice and place of bus- iness in the city of , in the county of . That is president, is secretary, and is treasurer of said corporation. That the defendant resides in the county of , in said state. The statute, Art. 1223, authorizes process to be served on the president, secretary or treasurer of a corporation, or upon its local agent in the county in which suit is brought. Sun Ins. Co. v. Seeligson,59 T. 3; G., H. & S. A. Ry. Co. v. Gage, 63 T. 568; see Ry. Co. v. Burke, 55 T. 323; Jones v. Jefferson, 66 T. 676; Waco. Lodge v. Wheeler, 59 T. 554. ; Ry. Co. v. Smith, 81 T. 489. ' (cZ) Where plaintiff is a foreign corporation, ■^The company, plaintiff, complaining of E. F. , defendant, represents that plaintiff is a private corporation duly incorporated and existing under the laws of the State of : that heretofore, to-wit: on the day of , 18 — , plaintiff filed in the ofiice of the secretary of state of the State of Texas, a duly certified copy of its articles of incorporation, and thereupon said officer issued to plaintiff a permit to transact business in said state. That the de- fendant resides in the county of aforesaid. See Act April 3, 1889, 21 Leg. p. 87. The provisions of this act do not apply to corporations created for the pur- pose of building or operating a railway, or to corporations 11 Ch. 1.] COMMENCEMENT OF PETITIONS. [§2. required to procure permits to do business from the com- missioner of agriculture, etc.* As to life and fire insurance companies, see Civ. Stat. Arts. 2943- 2971a; actof AprilS, 18S9, 21 Leg. p. 98; act July 13, 1891, 22 Leg. p. 177. (e) Where 2'i^O'i'i^iiff is a national bank. ^That plaintiff is a national bank, organized and author- ized to transact business under the acts of congress, and has its office and place of business in , county of , in said state. (/") Wlien 2^l(ii'ntiff is administrator or executor. A. B., plaintiff, complaining of E. F., defendant, rep- resents that both parties reside in the county of . That on or about the day of , 18 — , C. D. de- parted this life, and that thereafter, to- wit: on the day of , 18 — , letters of administration [o)% testa- mentary] on the estate of said C. D., were duly granted to A. B., the plaintiff, by the County Court of county, Texas, and that thereupon plaintiff duly qualified as such administrator \_or^ executor]. That administration on the estate of said is still open and pending. ^ As a general rule, while administration is pending on an- estate, the heirs of the decedent cannot sue. Coctiran v. Thompson, 18 T. 652; Giddings v. Steele, 28 T. 74S; Sanders v. Devereux, %b T. Sup. 12; Rogers v. Kennard, 54 T. 30; Lee V. Turner, 71 T. 2G4. In a suit by one claiming to act as administrator in its in- stitution, the representative capacity of the plaintiff need not be proven in the absence of a proper plea denying the right thus to sue. Dolson V. De Gauahl, 70 T. 620. An heir of a decedent may sue when there is no adminis- trator appointed or acting, and there are no debts against the estate. Giddings v. Steele, 28 T. 732; Cochran v. Tliompson, IS T. 652; Webster v. Willis, 56 T. 468; Walker v. Abercrombie, 61 T. 71; Fort V. Fitts, 66 T. 593. 12 Ch. 1.] COMMENCEMENT OF 'PETITIONS, l§^' When an administration has been closed, the property vests in the heirs, who alone are authorized to sue. Hurt V. Hortou, 12 T. 285; Fisk v. Noivel, 9 T. 13; Martin v. Kobinson, G7 T. 3GS; Giddiugs v. Steele, 28 T. 732. But a second administration may be granted of an estate de bonis non. Grande v. Herrera, 15 T. 533; Brockenborough v. Melton, 55 T. 49?, After a lapse of twelve years from grant of administra- tion, it was presumed that the administration has been closed, and a subsequent administration in another county was held to be void. Wardrup v. Jones, 23 T. 489 ; see Brockenborough v. Melton, 55 T. 493; Lindsay v. Jaffray, 55 T. 626; Martin v. Robinson, 67 T, 368; Paul V. Willis, 69 T. 261. While an administration is pending, a suit for the recov- ery of the property of the estate should be brought by the administrator. Civ. Stat. Art. 1201; Russell v. Railway Company, 68 T. 646; Bog- gess V. Brownson, 59 T. 417. To this rule the following exceptions exist: 1, When the administrator cannot or will not act for the protection of those beneficially interested. 2. When land aiversely pos- sessed by those claiming under the administrator, through deeds made in his individual and representative capacity, is sued for by the heirs or those claiming under them, Rogers v. Kennard, 54 T. 30. After the lapse of three years without administration, a widow was permitted to bring an action of debt on a judg- ment, the property of herself and deceased husband. Walker v. Aber(;rombie, 61 T. 09. Suit for the recovery of personal property, debts or dam- ages, and suit for title or for the possession of lands, or for any right attached to or growing out of the same, or for any injury or damage done thereto, may be instituted by an executor, administrator or guardian ai)pointcd in this stnt*?, and the judgment therein is as conclusive as if rendered in favor of or against the testator or intestate. Such judg- 13 Ch. 1.] COMJMEI^ CEMENT OF PETITIONS. [§2. ment may be set aside by any person interested, for fraud or collusion on the part of such executor or administrator. Civ. Stat. Art. 1201; Cobb v. Norwood, 11 T. 556; Blackman v. Green, 17 T. 322; Cherry v. Speight, 28 T. 503; Davis v. Phillips, 32 T. 564; Wood v. Evans, 43 T. 175; Simpson v. Foster, 46 T. 618; Moseby V. Burrow, 52 T. 396; Terrell v. Crane, 55 T. 81. (,9) Wlien defendant is administrator or executor. In a suit against the estate of a decedent involving the title to real estate, the executor or administrator, if any, and the heirs, must be made parties defendant. Civ. Stat. Art. 1202; Russell v. Railway Company, 68 T. 646. This provision of the statute applies only to suits in which the title of the estate to land is brought in contro- versy, and not to such as merely seek to enforce a lien upon it. The heirs are not necessary parties to a suit brought against an independent executor by a lien creditor to en- force his lien against the land of the estate. Howard v. Johnson, 69 T. 655. (/i) Where defendant is a corporation. In a suit against an incorporated company, the fact of incorporation must be distinctly alleged. Life Ins. Co. v. Davidge, 51 T. 244. But it is not necessary that the charter should be set forth, or that it should be alleged by what authority the defendant was incorporated. Water Works v. Kennedy, 70 T, 233. 14 Ch. 2. — 'Actions on AccotTisrTS. §3. Goods sold aud delivered, the price not agreed upon. 4. Goods sold at an agreed price on credit by a firm. 5. Goods sold, suit by surviving partner. 6. Goods sold, suit against surviving partner. 7. Goods sold, suit against surviving partner and administrator of deceased partner. 8. Balance due on a stated account. 9. Debt contracted by wife for necessaries. 10. Money loaned. 11. Money paid to use of defendant. 12. For price of goods sold by commission merchant. 13. For price of goods sold under a del credere commission. 14. For labor of a child, by parent. 15. For labor and services, price agreed on. 16. By employ^, wrongfully discharged. 17. By teacher for tuition, etc. 18. By attorney for fees. 19* By physician for services. 20. For rent of a house. 21. For hire of personal property. * §3. Goods sold and delivered, price not a^eed upon. ^That heretofore, to-wit: on the day of , a. D. , and on divers days before that time, plaintiff, at the special instance and request of defendant, sold and deliv- ered to him, at the several times specified in the account, marked Exhibit A, hereto annexed and made a part of this petition, certain goods, wares and merchandise in said ac- count mentioned, in consideration whereof the defendant then and there promised to pay plaintiff, on demand, so much money as the said goods, wares and merchandise were reasonably worth; that the said goods, wares and mer- chandise were, at the time of the sale and delivery thereof, reasonably worth the several sums of money charged therefor in said account specified, amounting to the sum of dollars. Yet, though often requested, defendant has not paid said sum of money, or any part thereof, though 15 Ch. 2.] ACTIONS ox ACCOUNTS. [ § 4. long since due, but has refused and still refuses so to do, to plaintiff's damage dollars. §4. Goods sold at an agreed price on credit by a firm. ^That heretofore, to-wit: on the day of , A. D. , plaintiffs were and now are partners, doing business as merchants, under the firm name of ; that plaintiffs, on said day, at the special instance and request of defend- ant, sold and delivered to him certain goods, wares and merchandise, specified in the account marked Exhibit A, hereto annexed and made a part of this petition, in consid- eration whereof the defendant then and there promised plaintiffs to pay them the said several sums of money charged therefor in said account specified, amounting to the sum of dollars, at the expiration of four months thereafter, with interest thereon at the rate of per cent, per annum, from said day of , a. d. . Yet, though often requested, defendant has not paid said sum of m'oney, or any part thereof, though long since due, but has refused and still refuses so to do, to plaintiff's damage dollars. An open account upon which an action or defense is founded, verified as required by the statute, \b prima facie evidence, unless its correctness is put in issue by a verified denial. Civ. Stat. Art. 1265 (11), 1206, 2266. The term account applies to transactions between persons in which, by sale upon the one side and purchase upon the other, the title to personal property is passed from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing. It does not apply to one or more isolated transactions resting upon special con- tract. McCaniant v. Batsell, 59 T. 363; H. & T. C. R. Co. v. Hays, 1 App. §759; T. & St. L. Ry. Co. v. Smith, 2 App. §51. 16 Ch. 2.] ACTIONS ON" ACCOUNTS. [§5. The following accounts have been held not to be within the statute : For money paid by plaintiff as surety on a note of de- fendant. McCamant v. Batsell, 59 T. 363. Damages occasioned by loss or destruction of goods by a common carrier. H. & T. C. K. R. Co. V. White, 1 App, §164. Damages occasioned by failure of carrier to ship goods. G., H. & S. A. Ry. Co. v. Gilden, 2 App. §271. Damages resulting from a tort. H. & T. 0. Ry. Co. v. Hays, 1 App. §759; Id. v. Morris, 1 App. §777; T. & P. Ry. Co. V. Looby, 1 App. §577. An account for personal services. T. & St. L. Ry. Co. v. Sinitli, 2 App. §51 ; Murray v. McCarty, 2 App. §107; G., H. & S. A. Ry. Co. v. Schwartz, 2 App. §758. A verified account is only prima facie evidence, and the defendant, without filing a controverting affidavit, may, un- der proper pleadings, show that the debt has been paid. Bach V. Giuocchio, 1 App. §1316. But he cannot show that any of the items are incorrectly stated. Robinson v. Bogardus, 2 App. §828; Cahn v. Salinas, 2 App. §104. In an action upon a parol statement of accounts, the orig- inal accounts must be stated in an exhibit or otherwise, with such circumstantiality as to apprise the defendant of the accounts adjusted, in order that he may plead specially any matter of defense. iNeyland v. Neyland, 19 T. 423; Hill v. Newlee, 3 App. §219; Hei- denheimer v. Ellis, 67 T. 426. §5. Goods, etc., by svirvivins partner. ^That heretofore, to-wit : on , and on divers days be- fore that time, plaintiff and one A., who was then alive, but since deceased, and whom plaintiff hath survived, were partners in the business of selling merchandise, under the firm name and style of , and sold and delivered to de- (2— Plead. Forms.) 17 Ch. 2.] ACTIONS ox ACCOUNTS. [§6. fendaut, at bis request, certain goods, wares and merchan- dise, mentioned in the account annexed, marked Exhibit A., and made a part of this petition; that said goods, wares and merchandise were delivered at the times and were rea- sonably worth the sums of money in said account partic- ularly specified, amounting in the aggregate to the sum of dollars, and defendant, in consideration thereof, prom- ised the plaintiff and the said A. to pay them so much money as said goods were reasonably worth, with interest thereon from on demand. Yet, though often requested, said defendant has never paid the said sum of mouc}', or any part thereof, to the plaintiff, and the said A. , in his lifetime, or since his death, to plaintiff, but refused, and still refuses so to do, to plaintiff's damage dollars. §6. Goods, etc., against a surviving' partner. ^That heretofore, to-wit : on, etc., and on divers days before that time, plaintiff sold and delivered to defendant and one B., who was then alive, but since deceased, and Avhom de- fendant hath survived, partners in trade, under the firm name and style of , at their request, certain goods, wares and merchandise, mentioned in the account annexed, marked Exhibit A., and made a part of this petition; that said goods, wares and merchandise were delivered at the times, and were reasonably worth the sums of money in said ac- count particularly specified, amounting in the aggregate to the sum of dollars, and in consideration thereof the defendant and said B. promised the plaintiff to pay him so much money as said goods were reasonabh'^ worth, with in- terest thereon from on demand. Yet the defendant and the said B. have hitherto, though often requested, wholly failed and refused, and the defendant still refuses to pay the said su;m of money, or any part thereof, to the plaintiff's damage dollars. 18 Ch. 2.] ACTIONS ox ACCOUNTS. [§7. §7. Against a surviving' partner and the administrator of tlie deceased partner. ^A., plaintiff, complaining of B. and D., defendants, rep- resents that plaintiff resides in the county of , B. in the county of , and D. in the county of ; that D. is administrator of the estate of C, duly appointed by the County Court of county at the term, a. d. of said court, and that administration on said estate is still open and pending in said court. ^That heretofore, to-wit: on, etc., and on divers days be- fore that time, plaintiff sold and delivered to said B. and C, partners in trade, under the firm name and style of , at their request, certain goods, wares and merchandise men- tioned in the account annexed, marked Exhibit A., and made a part of this petition ; that said goods, wares and merchandise were delivered at the times, and were reason- ably worth the sums of money in said account particularly specified, amounting in the aggregate to the sura of dollars, and that in consideration thereof the said B. and C. promised the plaintiff to pay him so much money as said goods were reasonably worth, with interest thereon f rom ^ on demand. Yet, though often requested, said B. and C, or either of them, in the lifetime of the said C, or since his death, the said B. has never paid the «aid sum of money, or any part thereof, but the same still remains due and unpaid; that heretofore, to-wit: on the day of , A. D. , plaintiff presented the account annexed, duly authenticated as required by law, to the said D. for acceptance and allowance as a claim against the estate of said C, and the said D. then and there refused to allow said claim or any part thereof, and by his memorandum in writing indorsed thereon and signed by him, rejected the same, and by reason of the premises plaintiff has been damaged dollars. *^AVheref ore he prays that said defendants be cited to an- swer this petition, and that he have judgment for his debt, 19 Ch. 2.] ACTIONS ON ACCOUNTS. [§ 8. interest and costs of suit, and that the same may be estab- lished as a claim against the estate of the said C. , and for general and equitable relief. §8. Balance due on a stated account. ^That heretofore, to-wit: on, etc., defendant being in- debted to plaintiff in a large sura of money, plaintiff and defendant had an accounting, the items of which are set out in Exhibit A., herewith filed as a part of this petition, and it was then and there ascertained that the sum of was due to plaintiff, and in consideration thereof, defendant promised plaintiff to pay him the said sum of money on the day of A. D. , with interest thereon at the rate of per cent, per annum from said day until paid. Yet, though often requested, defendant has never paid said sum of money, or any part thereof, but has refused so to do, to plaintiff's damage dollars. When the plaintiff relies upon a parol statement of ac- counts, he must set forth the original accounts by exhibits, or otherwise, with such circumstantiality as to apprise the defendant of the particular accounts adjusted, that it may be seen by defendant whether the action is subject to the bar of the statute of limitations, and in order that defend- ant may Tbe able to plead specially any objections he may have to urge to the statement of the account. Neylund v. Neyland, 19 T. 423. The petition alleged the sale and delivery of goods by the plaintiff t6 the defendant, with the prices thereof, on a. bill of particulars annexed ; that they were to be paid for by defendant on delivery ; that the parties had an account- ing, and accounted and agreed that a designated sum was due thereon; that the defendant wrote an acknowledgment on the paper containing the account that such designated sum .was due the plaintiff, and delivered it to plaintiff. It was held that the averments show a stated account. Heidenheimer v. Ellis, 67 T. 426. 20 Ch. 2.] ACTIONS ox ACCOUNTS. [§9. §9. Debt coiitractcd by wife for uecessaries. ^Tliat at the times hereinafter mentioned, defendants were and still are husband and wife. That on the day of , A. D. 18 — , and at various times since that date, particularly mentioned in the account hereto an- nexed, marked Exhibit A, and made a part of this petition, plaintiff, at the special instance and request of the said M. B., sold and delivered to her, the said M. B., certain goods, wares and merchandise particularly mentioned" in said Ex- hibit A. That said goods, wares and merchandise were necessaries for the use of said M. B. and her children, and were reasonably worth the several sums of money partic- ularly mentioned and specified in said exhibit, which said sums of money said defendants became liable, and prom- ised to pay to plaintiff on the day of , 18-^, but to pay the same, or any part thereof, have refused and still refuse, to plaintiff's damage in the sum of dollars. Plaintiff further alleges that the said I. B. does not own any property, separate or community, and that he is insolv- ent. That the defendant, M. B., as plaintiff is informed and believes, owns and holds as her separate estate the fol- lowing described property : ^Wherefore plaintiff prays that defendants be cited to answer this petition. That he have judgment against said defendants for his debt, interest and costs of suit, and for its payment out of her separate estate, and for general and equitable relief. If the wife has no separate estate which can be subjected to the payment of a debt for necessaries, she then is not a proper party to the suit. The husband alone is responsible for the debt.. ' Walling V. Haunig, 73 T. .580. Civ. Stat. Art. 1206. The debt must have been contracted by the wife or by her express authority. Christmas v. Smith, 10 T. 123; Milburn v. Walker, 11 T. 329; Stans- biiry V. Nichols, 30 T. 145; Sorrel v. Clayton, 42 T. 188; Warren v. Smith, 44 T. 245; see Pope v. Graham, 44 T. 196. 21 Ch. 2.] ACTIONS OX ACCOUNTS. [§§10,11. Must be necessaries for herself or children. Brown v. Ector, 19 T. 346; Magee v. White, 23 T. ISO; Harris v. Williams, 44 T. 124. Or for the benefit of her separate property. Butler V. Robertson, 11 T. 142; Carothers v. McNese,43 T. 221; Cov- ingtons V. Burleson, 28 T. 36S; Smotridge v. Lovell, 35 T. 58; Grant V. Whittlesey, 42 T. 320; Wright v. Blackwood, 57 T. 644; Ikard v. Thompson, 81 T. 285. A suit may be maintained ao^ainst husband and wife for slanderous wbrds spoken by her, and a general judgment \A\\ be rendered against both — her separate estate to be first exhausted before sale of the husband's. Zeliff V. Jennings, 61 T. 458. When the plaintiff seeks to make a wife's property li- able, upon principles of equity and independently of the statute, he must show, by averments and proof, tlie condi- tion and amount of her estate, and the value of its issues and 23rofits, in order that the court may be informed as to the proper decree to be entered. Haynes v. Stovall, 23 T. 625, citing Christmas v. Smith, 10 T. 128; Brown v. Ector, 19 T. 346; McFaddin v. Grumpier, 20 T. 374, §10. Money loaned. ^That heretofore, to-wit: on the day of , a. d. •, plaintiff loaned to defendant the sum of dol- lars, which sum defendant then and there promised to re- pay to plaintiff on demand, with interest from said date until paid, at the rate of per cent, per annum. That afterwards, to-wit: on the day of , 18 — , plaint- iff demanded of defendant the payment of said sum, but to pdij the same, or any part thereof, defendant refuses and still refuses, to plaintiff's damage dollars. §11. Money paid to use of defendant. ^That heretofore, to-wit: on the day of , a. d. — , plaintiff, at the special instance and recjuest of de- fendant, and for and in his behalf, paid off and discharged 22 Cll. 2.] ACTIOXS ox ACCOUNTS. [§12. a certain debt then due and owinii' '>v defendant to one , and anionnting to the sum of dolhirs : and thereupon defendant, in consideration of the premises, promised plaintiff to repay to him on demand the amount so paid, with interest thereon from said dale at per cent, per annum. That afterwards, to-wit : on the day of , A. D. , pUiintiff requested defendant to repay to him said sum of money and interest, but to pay the same, or an}^ part thereof, defendant refused and still refuses, to plaintiff's damage dollars. As to the recovery of money paid by mistake, see Taylor v. Hall, 71 T. 213. §12. Action for price of goods sold by coiiiiiiission mercliaiit. ^That heretofore, to-wit: on the day of , 18 — , plaintiff consigned to defendant at Dallas, Texas, defend- ant being then and there engaged in the business of selling goods and merchandise upon commission, certain goods and merchandise belonging to plaintiff, to be by defendant sold for and in behalf of plaintiff, said goods and merchan- dise being particularly mentioned and described in Exhibit A. hereto attached and made a part of this petition, and defendant then and there received said ijoods, and aijreed to sell the same for plaintiff, and to account to plaintiff for the proceeds of such sale, less a just and reasonable com- mission to defendant for his services in and about the sale thereof. That thereafter, and before the day of , 18 — , but on what particular day or days plaintiff has no knowl- edge, nor any information sufficient to enable him to form a belief, defendant sold the goods and merchandise afore- said for the sum of dollars, and received said sum therefor; that a just and reasonable compensation to de- fendant for commissions and expenses in and about said sale amounts to the sum of dollars and cents, and DO more; that the balance remaining after deducting said 23 Ch. 2.] ACTIONS ox ACCOUNTS. [§13 charges, to-wit : dollars and cents, has become due and payable to this plaintiff by defendant. Yet, though often requested, defendant has refused, and still refuses to pay the same, or any part thereof, to plaintiff's damage dollars. §13. Action for price of goods sold under a del credere commission. ^That heretofore, to-wit: on the day of , A. d. plaintiff employed defendant, who was then carrying on the business of a commission merchant at the city of Dallas, Texas, to sell certain goods and merchandise be- longing to the plaintiff, being particularly mentioned and described in Exhibit A. hereto attached, and made a part of this petition ; that said goods and merchandise w^ere of the value of dollars, and the same w^ere delivered to defendant, who thereupon promised and agreed to sell the same at a commission of per cent, on the proceeds thereof, and that for and in consideration of said commis- sion he would be responsible to the plaintiff for the price received, the same to be not less than the value above stated. That defendant has sold said goods and merchandise for the sum of dollars, but wdiether or not he has collected the money therefor, or whether said sale was made for cash or on credit, plaintiff has no knowledge, nor any informa- tion sufficient to enable him to form a belief ; but plaintiff says that by reason of the premises defendant has become responsible and is liable to him for the proceeds of said sale, to-wit: the sum of dollars, less dollars and cents, being his commission aforesaid. But though the same has often been demanded of defendant, defend- ant has neglected and refused, and still neglects and re- fuses to pay said sum to plaintiff, to his damage dollars. 24 Ch. 2.] ACTIONS ON ACCOUNTS. [§14:- §14. Count for labor of a child, by parent. ^That heretofore, to-wit : on, etc., the defendant, in con- sideration that plaintiff, at his special instance and request, had permitted B., the infant son and servant of the plaint- iff, to labor for and serve the said defendant in his hus- bandry and business from the day of , a. d. , to the day of , a. d. , promised the plaintiff to pay him so much money as his services were reasonably worth, on demand ; that said services were reasonabl}^ worth the sum of dollars; jet, though often requested, de- fendant has refused, and still refuses to pay said sum of money, or any part thereof, to plaintiff's damage dol- lars. § 15. Count for labor and services, price agreed on. ^That the defendant, on the day of , a. d. contracted with the plaintiff to pay him the sum of — dollars per month for each and every month that the plaint- iff should serve the defendant in and about the business of (stating it); that, pursuant to said contract, plaintiff has served said defendant in and about said business for the period of months from said day of , a. d. — ^— , whereby defendant became liable, and promised plaintiff to pay him the sum of dollars ; but to pay the same, or any part thereof, although often requested, has refused, and still refuses, to plaintiff's damage dol- lars. §16. By employee wrongfully discharged. ^That the defendant, on the day of , a. d. , employed plaintiff to serve him in and about his business as a merchant, for the period of months, from and after the day of , a. d. , for which services defendant then and there promised and agreed to i)ay plaintiff the sum of dollars, payable monthly in equal installments of dollars, for each and every month ; Ch. 2.] ACTIONS ox ACCOUNTS. [§17. that plaintiff, on the day of , a. d. , entered upon and duly discharged his duties under said employ- ment until the day of , when he was, without any just cause, discharged by defendant, and prevented from further performing his said duties, which he was at all times ready and willing to do. That defendant, by reason of the premises, is justly indebted to him in the sum of dollars, for the said term of months as afore- said, but to pay the same, or any part thereof, although often requested, defendant has refused and still refuses, to plaintiff's damage in the sum of dollars. A person who has been stopped in the performance of a contract by the default or by the direction of his employer, is entitled to compensation for the losses he sustains, but he is entitled to compensation only, and not to the gross amount he would have received from his employer had the contract been fulfilled. It is not necessary to anticipate and answer matters of defense. Thus, in a suit by an employe against his em- ployer, it is not necessary for the plaintiff to allege that he could not have saved himself from the consecjuences of the default of the defendant by obtaining work elsewhere. Porter v. Burkett, 65 T. 383. The employe may recover the reasonable value of the services rendered in a suit commenced when he is discharged, or he may wait until the expiration of the time specified in the contract, and may, on proof of inability to obtain other employment, recover the entire contract price. Hearn v. Garrett, 49 T. G19. §17. Coimt for tuition, etc., by a teacher. ^That plaintiff, at , in the county of and state aforesaid, during the year commencing , 18 — , by himself and his assistants and teachers in the school kept by him, and located at aforesaid, rendered to the de- 2G - ' Cil. 2.] . ACTIONS OX ACCOUNTS. [§18. fendant, at his special instance and request, services in in- structing his children, to- wit: one , a boy of the age of years, and one , a girl of the age of years, in various useful branches of learning, and did at like request furnish to said children board and lodging and \_state articles furnished, such as books, stationery, etc. ] ; that the defendant agreed to pay for said tuition, board and lodging the sum of dollars per year, payable in four equal installments, one at the close of each term; that the amount for the first of said terms was paid by defend- ant, but the amounts payable for the second and third terms of said year, though long since due and payable, have never, nor has any part thereof, been paid by de- fendant. Plaintiff says that the books, stationery, etc., furnished by plaintiff to said children of defendant as aforesaid, as well as the dates when furnished and the prices charged therefor, appear by the itemized statement annexed to this petition, and marked Exhibit A [or, are as follows, to-wit: inserting them'], and that the prices therein charged are reasonable, and that said account is now due and wholly unpaid. §18. Count for fees of an attorney. °That heretofore, to-wit: on the day of , a. d. -, and on divers days before that time, the plaintiff, in his business as an attorney-at-law, at the request of said de- fendant, did and performed certain labor and services in and about the drawing divers deeds, and making divers journeys, and giving attendance about the business of said defendant; and in and about the prosecuting and defend- ing divers suits in courts of law in this state, as specified in the account annexed, marked Exhibit A, and made a part of this petition; that said services were performed at the times, and were reasonably woith the sums of money, amounting in the aggregate to dollars, in said account 27 Ch. 2.] ACTIONS ox ACCOUNTS. [§19. Specified; that in consideration of the premises, defendant became liable and promised plaintiff to pay him on demand so much money as said services were reasonably worth ; yet, though often requested, said defendant has not paid the same, or any part thereof, but refuses so to do, to plaintiff's damage dollars. §19. Count for physician's account. ^That heretofore, to-wit: on, etc., and on divers days be- fore that time, the plaintiff, in his business as a physician, did and performed divers labor's and services, at the request of said defendant, in healing and curing him and other per- sons of his family of divers bruises, wounds and diseases, and also provided and administered divers medicines, and made and performed divers journeys, and attendances, as mentioned in the account annexed, marked Exhibit A., and made a part of this petition; that the same were reasonably worth the sums of money specified in said account, amounting in the aggregate to the sum of dollars ; that in consid- eration of the premises def endfint became liable, and prom- ised plaintiff to pay him on demand so much money as said services and said medicines were reasonably worth ; yet, though often requested, defendant has not paid the same, or any part thereof, and refuses so to do, to plaintiff's damage dollars. ^o §20. Count for rent of house. ^That heretofore, to-wit : on the day of , a. d. — , plaintiff leased to defendant certain premises, the prop- erty of plaintiff, known and described as (here insert a de- scription sufficient to identify the premises) for the term of — • — months, commencing on the day of , a. d. , and in consideration thereof, defendant then and there promised plaintiff, and agreed to pay to him on the first day of each and every month, in advance, the sum of 28 Ch. 2.] ACTIONS ON ACCOUNTS. [§21, dollars, as rent for said premises, for each month. That the rent for the months of , 18 — , to-wit : the sum of dollars, is now due, but defendant, though often requested, has refused, and still refuses to pay the same, or any part thereof, to plaintiff's damage dol- lars. §21. Count for hire of personal property. •^That heretofore, to-wit : on the day of , plaint- iff hired to defendant one pair of horses, andta carriage and a driver, for days, and for the use of the same defendant then and there promised plaintiff to pay him the sum of dollars for each and everyday; that defend- ant is justly indebted to plaintiff in the sum of dol- lars for the hire as aforesaid, but to pay the same, or any part thereof, though often requested, has refused, and still refuses, to plaintiff's damage dollars. "29 Ch. 3. — Actions on Promissory Notes. §22. Note payable on demand. 23. Note set out as an exhibit. 24. Notes, one bearing interest from date, the other from ma- turity. 25. Note executed by partners, one of whom is a transient person, with a prayer for attachment. 26. Note barred by the stt^tute of limitations, and revived by a new promise. 27. Note payable to bearer, by the holder against administrator of maker. 2S. Note payable on demand, by administrator against maker. 29. Non-negotiable note by assignee against maker. 30. Indorsed note, by indorsee, surviving partner, against maker. 31. Indorsed note, by indorsee against maker, who is surviving partner and indorser. 32. Indorsed note, by indorsees, partners, against indorsers, part- ners, with averment of suit against maker. 33. Averment of insolvency of maker, to excuse suit. 34. Averment of non-residence of rftaker. 35. Averment of death of maker. 36. Indorsed note, by second indorsee against maker. 37. Note j)ayable by installments, by payee against maker. 38. Note payable by installments, in force for whole amount, on non-payment of any installment. 39. Note payable by installments, for interest, principal not due. 40. Lost note. 41. Note payable at a particular place. 42. Note to wife while sole, suit by husband. 43. Note of wife while sole, against husband and wife. 44. Note secured by lien on real estate. 45. Note indorsed after payment of part. 46. Note payable in casli notes. 47. Note which mai/'he discharged in cash notes. 48. Note which may be discharged in specific articles. 49. Note payable in specific articles. 50. Note for specific articles. §22. Promissory note, payable on demand. ^That heretofore, to-wit : on the day of , a. d. — , defendant executed and delivered to plaintiff his 30 Ch. 3.] ACTIONS ON TROMISSORY "NOTES. [§^'^- promissory note in writing, bearing date on the day and year aforesaid, and thereby promised plaintiff to pay him, or his order, on demand, the sum of dollars, with le- gal interest thereon from said date until paid ; that on the day of , A. D. 18 — , plaintiff demanded payment of said sum, yet defendant has never paid said sum, or any part thereof, to plaintiff's damage, etc. In an action on a promissory note, the petition alleged that the defendant had made, executed, and delivered the note, a copy of which was set out, but there was no allega- tion that the plaintiff was the owner, holder, or bearer of the note sued on, and on error, a judgment by default was reversed on the ground that the petition did not show that the plaintiff had any right to a judgment. Miilone V. Craig, 22 T. 609; Gray v. Osborne, 24 T. 157; Thigpen v. Mundine, 24 T. 282; Colbertson v. Beeson, 30 T. 76; Moody v. Beuge, 28 T. 545. In a petition on a promissory note, it w\as alleged that defendant was indebted to plaintiff in the sum of $100, by promissory note made, executed, signed and delivered to plaintiff for a valuable consideration. There being no di- rect averment that the defendant executed or delivered the note to plaintiff, the petition was held insufficient to support a judgment by default. Parr v. Nolen, 28 T. 798. An allegation in a petition on a due-bill, that the defend- ant "gave plaintiff his due-bill or instrument in writing, in words and figures as set out in the petition," was held equivalent to averring that the defendant made and executed, or signed and delivered the instrument to the plaintiff, and is a sufficient averment of its execution and delivery by the defendant to the plaintiff. Barnard v. Mosely, 28 T. 543; Blount v. Ralston, 20 T. 132. In Rutherford v. Smith, 28 T. 322, the petition alleged that the defendant made, executed, and delivered to H. 0. his obligation in writing, giving a substantial copy of the 31 Ch. 3] ACTIONS ON PROMISSORY NOTES. [§23. note payable to H. C. or bearer; that said note was on the day of its execution transferred by indorsement to your petitioner, etc., and it was held that the title in the latter Avas sufficiently alleged. The mere possession of a non-negotiable note by a plaintiff, who sues as assignee, without proof of any assign- ment, or that he gave a consideration therefor, is not suf- ficient to entitle him to judgment. Merril v. Smith, 22 T. 53; JJoss v. Smith, 19 T. 171; Gregg v. .John- son, 37 T. 558; Ball's Heirs v. Hill, 38 T. 237. The possession by plaintiff of a note payable to order, and indorsed in blank, and held by him before maturity, constitutes a 'prima facie case entitling him to recover. This being shown, the burden of proof is then upon de- fendant. Guerin v. Patterson, 55 T. 124. §23. Promissory note, set out as an exhibit. ^That heretofore, to-wit : on the day of , a. d. 18 — , defendant executed and delivered to plaintiff his cer- tain promissory note, bearing date on the day and year aforesaid, and hereto attached, marked Exhibit A., and made a part of this petition, and thereby promised plaintiff to pay him the sum of dollars, on or before the day of , next thereafter; that said note is now due, and defendant, though often requested, has never paid the same, or any part thereof, to plaintiff's damage dol- lars. An attachment suit may be brought upon a debt evidenced by a promissory note not due. But if suit is brought as upon a debt over-due, the attachment will be quashed on the ground of variance, and if no other cause of action re- mains, the suit should be dismissed. Cox V. Reinhardt, 41 T. 591; Seligsou v. Hobby, 51 T. 149; Martin V. Tucker, 59 T. 249 ; Avery v. Zander, 77 T. 207. 32 Ch. 3.] ACTIONS ON PROMISSORY NOTES. [§§-i, 25. 111 a proceeding by attachment upon claims, part of which is due, and part not due, it is not necessary that tlie affida- vit should show in terms how much of the debt was clue, and how much was not due, when the petition and affidavit, which refer to each other, contain the requisite data for makins; certain that fact by calculation. This case is distinguished from the earlier cases al)ove cited. Willis V. Mooring, 63 T. 340. See 79 T. 318. §24. One note bearing' interest from date, the other from maturity. ^That heretofore, to-wit : on the day of , 18 — , defendant, by his negotiable promissory note of that date, by him duly executed, and delivered to plaintiff, promised for value received to pay to plaintiff in months after said date the sum of dollars, with interest from date thereof at the rate of per cent, per annum, till paid. Said note is herewith filed and marked Exhibit A. That said note has long since raatui-ed, and the whole amount, principal and interest, is due and unpaid. 'Plaintiff further alleges that defendant, on the day of , 18 — , by his negotiable promissory note of that date, by him duly executed, and delivered to plaintiff, prom- ised, for value received, to pay to plaintiff, in days after said date, the sum of dollars, with interest from the maturity thereof, at the rate of per cent, per an- num, said note being filed herewith, and marked Exhil)it B. That said note has long since matured, and remains wholly unpaid. § 25. Note executed by partners, one of whom is a transient person, with a prayer for attachment. ■^Theodore Miller, plaintiff, complaining of John Nye and William T. Smith, defendants, represents that plaintiff resides in the county of , the defendant Nye in the county of , and that the defendant Smith is a transient person, who is now to be found in the county of . (3— Plead. Forms.) 33 Cb. 3.] ACTIONS ox PROMISSORY NOTES. [§25. ^That on the day of , a. d. 18 — , defeiidauts were partners in trade, under the firm name of N^-e & Smith, and on the same day, under the firm name, executed and delivered to phiintiff their certain promissory note in writing, bearing date on the day and year hist aforesaid, and thereby promised and became liable to pay six months after the date thereof, to plaintiff or order, at the ofiice of -, in the city of , the sum of dollars, .with interest at per cent, per annum from said date until paid. That said cit}'^ of , in said note mentioned, is situated in the county of aforesaid. That said defendants, though often requested, have never paid said sum of money, or any part thereof, and the same now remains due and wholly unpaid. Plaintiff further represents that defendants are about to dispose of their property with intent to defraud their cred- itors; wherefore he prays for a writ of attachment against the property of the defendants suflicicnt to satisfy his debt, interest and costs of suit, which he avers will amount to the sum of dollars ; that defendants be cited to answer this petition, and that he have judgment for his debt, interest and costs, for the foreclosure of the lien upon all property seized under the writ of attachment issued in this case, and for an order directing the sale of the same in satisfaction of the judgment herein rendered, and for general relief. — '■ , Att'y for Plaintiff. Before the undersigned, clerk of the court in and for the county aforesaid, personally appeared Theodore Miller, plaintiff in this suit, to me well known, who, being duly sworn, says that the matters set forth in the foregoing petition are true; that the defendants, Nye & Smith, are justly indebted to him in the sum of dollars, with inter- est thereon from the day of , a. d. 18 — , at per cent, per annum; that the defendants are about to dis- pose of their property with intent to defraud their creditors ; that the attachment is not sued out for the purpose of 34 Ch. 3.] ACTIONS ox PROMISSORY NOTES. [§25. injuring or harassing the defendants, andthat he, the plaint iff, will probably lose his debt unless such attachment is issued. Theodore Millp:r. Sworn to and subscribed before me, this day of , A. D. 18 — . , Clerk — — Court, County. Unless restricted by law, a corporation may give a prom- issory note to carry out the ends of its creation. Mottv. Hicks, 1 Cowen,513; McCulloughv. Moss, 5 Denio, 567; Mut. Benefit Life Ins. Co. v. Davis, 12 X. Y. 569. An attachment may issue for the recovery of a debt or demand. A writ of attachment will not issue in actions founded on tort. It may be issued in cases when unliqui- dated damages are demanded, when the contract affords a certain measure or standard for ascertaining the amount recoverable and the amount does not depend upon uncertain contingencies unprovided for by the contract. Devoe v. Stewart, 32 T. 712; Grabentieimer v. Blum, 63 T. 369; Wright V. Ragland, 18 T. 289; Barbee v. Holder, 24 T. 225. When an affidavit is made by an agent, he should be so described. Willis V. Lyman, 22 T. 268. But that fact need not be sworn to. Evans v. Lawsou, G4 T. 199. Affidavits stating different and distinct facts maybe made by different persons, and will be considered together. Lewis V. Stewart, 62 T. 352. Facts must be stated positively and not as matters of belief. Sydnor v.Totman,6T. 189; Diinnebauni v. Schram. 59 T. 281 ; Lewis V. Stewart, 62 T. 352; City Nat. Bank v. Flippen, 66 T. 610. Or in the alternative. Hopkins V.Nichols, 22 T. 206; Garner v. Burleson, 26 T. 348; Culbert- son v. Cabeen, 29 T. 247; Carpenter v. Tridgen, 40 T. 32; Dunnebaum V. Schram, 59 T. 281; Pearre v. Hawkins, 62 T. 434. Petition or affidavit must show when the claims were due. Avery v. Zander, 77 T. 207. 35 Ch. 3.] ACTIONS ox PROMISSORY NOTES. [§26. It is sufficient when the petition and affidavit, which refer to each other, contaiD the requisite data for making certain that fact by calcukition. Willis V. Mooring, 63 T. 340. A verified petition and affidavit will be construed together. Gray V. Steedman, 63 T. 95; Cleveland v. Boden, 63 T. 103; Willis V. Mooring, 63 T. 340; Munzenheimer v. Cloak and Suit Co., 79 T. 31S. A variance between the petition and affidavit is fatal, and the defect may be reached by a motion to quash or by plea in abatement. Evans v. Tucker, 59 T. 249; Joiner v. Perkins, 59 T. 300. Wh^n the petition and affidavit stated the same sum of money as being due from the defendant, on an account consisting of many items attached to the petition as an ex- hibit, and it was found on a correct addition tbat they did not aggregate, by a small amount, the sum alleged to be due, the variance was held to be immaterial. Donnelly v. Elser, 69 T. 282. An attachment is abated by dismissal of the suit in which it w^as issued, and a proceeding for the trial of the right to property seized under the writ is also abated thereby. Wills Point Bank v. Bates, 76 T. 329. §26. Note barred by limitations, and revived byanew^ promise. ^That heretofore, to-wit; on the day of , a. d. 18 — , defendant executed and delivered to plaintiff his promissory note in writing, bearing date on the day and year aforesaid, and thereby promised plaintiff to pay him or his order, two months after said date, the sum of dollars, wnth legal interest thereon from said date until paid. That afterwards, to-wit: on the day of , 18 — , the defendant, by a writing signed by him, acknowledged the justness of said debt and promised to pay the same. That by reason of the premises defendant became liable and promised plaintiff to pay him the sum of money in said 36 Ch. 3.] ACTIONS ON PROMISSORY NOTES. [§27. note mentioned, according to its legal tenor and effect, but to pay the same, or any part thereof, though often requested, defendant has refused and still refuses, to plaintiff's dam- age dollars. An acknowledgment of the justness of a claim, made sub- sequent to the time it became due, must be in writing and signed by the party to be charged. Civ. Stat. Art. 3219; Coles v. Kelsey, 2 T. 541 ; Mitchell v. Clay, 8 T. 443; Smithv. Fly, 24T.345; Leigh v. Linthecum, 30 T. 100; McDonald V. Grey, 29 T. SO; but see Mense'bach v. Half, 77 T. 1S5. An acknowledgment must be clear and unequivocal, and not qualified by conditions or limitations. If the new prom- ise is upon a condition, the plaintiff must allege or prove a cou)pliauce with or the happening of the condition. McDonald v. Grey, 29 T. SO; Laiige v. Caruthers, 70 T. 718. A promissory note, payable one day after date, upon which suit was brought, appeared to be barred by limitation. The defendant by special exception set up the bar of limi- tation as a defense. By amendment, the plaintiff alleged that at the date of the execution of the note sued upon, and of the transfer of the note, plaintiff was a minor. It was held that as but one date was alleged for the making and the transfer of the note, it was equivalent to an allegation of the transfer upon the date of the note, and the transfer beinsf thus alleg-ed as made to the minor before the statute began to run, it would avoid the statute, the continuance of his minority until within four years of the filing of the petition appearing. Grounds v. Sloan, 73 T. 662. §27. Xote payable to bearer, by the holder against administrator of maker. *A., plaintiff, complaining of B., defendant, represents that said defendant is administrator of the estate of C, late of the county of , deceased, duly appointed by the County Court of county, in which court 37 Ch. 3.] ACTIONS ON PROMISSORY NOTES. [§^8. said administration is still open and peudiug, aud that plaintiff aud defendant reside in the county of . ^That heretofore, to-wit: on the day of , a. d. , the said C, by his promissory note of that date, by him subscribed and delivered to one D. for value received, promised said D. to paj^ him or bearer the sum of dol- lars on demand; and the said D. thereafterwards on the same day transferred and delivered the said note, then and still unpaid, to the plaintiff, who thereby became the law- ful bearer thereof; by reason whereof the said C. became liable, and promised the plaintiff to pay him the sum of money in said promissory note mentioned, according to the tenor and effect thereof, yet said C, though requested, hath never paid said sum, but refused so to do. And af- terwards, to-wit: on the day of , a. d. , the said C. departed this life, and thereafter, to-wit: on the day of , a. d. , plaintiff presented said promissory note, then due and wholly unpaid, properly authenticated, to said defendant, administrator as aforesaid, for allowance as a just claim against the estate of the said C, but said defendant refused to allow said claim for any part thereof, and by his memorandum in writing indorsed thereon and signed by him, rejected said claim. It is sufficient to aver the presentation of the claim, properly authenticated. It is not necessary to aver spec- ially the making of the affidavit required by the statute. In an action against joint administrators, it is sufficient to allege the presentation to and rejection by one of the administrators. Dean v. Duffield, 8 T. 235; Keowne v. Love, 65 T. 152. §28. Xote payable on demand, by adiu. against maker. *A. , plaintiff, complaining of B., defendant, represents that plaintiff is administrator of the estate of C, late of the county of , who died intestate on the day 38 Ch, 3.] ACTIONS ON PROMISSORY NOTES. [§29. of 18 — , tluly appointed by the County Court of said county of , at tlie term, a. u. , of said court, and the plaintiff brings into court his letters of administra- tion ; that plaintiff resides in the county of , and de- fendant in the county of . °That heretofore, to-wit: on the day of , a. D. 5 defendant executed and delivered to said C. his promissory note in writing, bearing date on the day and year aforesaid, and thereby promised said C. to pay him or his order on demand the sum of dollars, with legal interest thereon from said date until paid, but defendant never paid said C. said sum, or any part thereof, nor since the death of said C. paid plaintiff, administrator as afore- said, though often requested so to do, said sum of money, or any part thereof, to plaintiff's damage, etc. § 29. A non-negotiable note by assignee against maker. ^That heretofore, to-wit: on the day of , a. D. 18 — , the defendant executed and delivered to one D. his certain promissory note in writing, bearing date on the day and year last aforesaid, whereby he promised to pay to the said D. two months after the date thereof the sum of dolhirs, with interest thereon after said date at the rate of per cent, per annum. That afterwards, to-wit: on the same day, the said D., for a valuable consideration to him paid by plaintiff, as- signed, transferred and delivered said note to plaintiff. That said note is due and wholly unpaid. That by reason of the premises the defendant became liable, and promised plaintiff to pay him the sum of money in said note mentioned, according to its leijal tenor and effect, but to pay the same, or any part thereof, has refused and still refuses, to plaintiff's damage dollars. An assignee of an accommodation note received with no- tice of its true character, and that it Avas made under an agreement that designated collaterals should be held to 39 Ch. 3.] ACTIOXS ox TROMISSORY NOTES. [§§30, 31. secure its payment, and that such agreement had been vi- olated, cannot enforce payment against the maker. Smith V. Traders' National Bank, 74 T. 457. § 30. Indorsed note, by indorsee, who is a surviving partner, against maker. *A., plaintiff, complaining of B., defendant, represents that plaintiff resides in the Parish of , State of Louis- iana, and the defendant in the said county of ; that plaintiff is the surviving partner of one C, now deceased, lately doing business under the firm name and style of A. &C. ^That heretofore, to-wit: on the day of , a. d. , the said B., by his promissory note of that date, by him subscribed and delivered to one D., for value received, promised said D. to pay him or his order the sum of dollars tnontJis after date, with lawful interest there- for until paid ; and the said D. thcreafterwards on the same day indorsed and delivered the said note to the said A. & C, who were then and there partners in trade as aforesaid, by reason whereof, the said B. became liable, and promised the said A. & C. to pay them, and since the death of said C. became liable and bound to pay plaintiff the sum of money in said promissory note mentioned, according to the tenor and effect thereof; yet, though requested, said de- fendant has never paid said sum, but refuses so to do. See Fi-eeraan v. Campbell, 55 Cal. 197; McGregor v. Cleveland, 5 Wend. 475. Unless the contrary is shown, the indorsement will be presumed to have been made before maturity. Pinkerton v. Bailey, S Wend. 600; Nelson v. Cowing, 6 Hill, 336; Leening v. Wise, 64 Cal. 410. §31. Indorsed note, l).y indorsee ajjainst maker, wlio is surviving: partner and indorser. ^A., plaintiff, complaining of B. andC, defendants, rep- resents that plaintiff and defendants reside in the county of ; that B. and one D. in his lifetime, l)ut now de- 40 Cb. 3.] ACTIONS ON PROMISSORY NOTES. [§§31, 32. ceased, and whom the said B. hath survived, were partners at the date of the transaction hereinafter mentioned, doing business in the firm name and style of B. & Co. ^That heretofore, to-wit: on the day of , a. D. , said B. & D. by their promissory note of that date, by them executed and delivered to said C, under their firm name and style, for value received, promised the said C. to pay him or his order the sum of dollars, one month after date; and the said C. thereafterwards on the same day indorsed and delivered the said note to the plaintiff; and that afterwards, when the said note became payable, to-wit: on the day of , a. d. , the said note was duly presented to said B. & Co. at their usual place of business, and payment of the said sum according to the tenor of the said note was then and there duly re- quired of the said B. & Co., who then and there refused to pay the same, or any part thereof, of all which the said C. thereafterwards, to-wit: on the same day, had notice; and that afterwards, on, etc., said D. departed this life; wherefore, by reason of the premises aforesaid, the de- fendants became liable, and promised the plaintiff to pay him the sum of money in said note mentioned according to its legal tenor and effect; yet, though requested, said defendants have never paid said sum, but refuse so to do. The liability of an indorser of a negotiable promissory note, and of the drawer or indorser of a bill of exchange, may be fixed by protest or by suit. Civ. Stat. Arts. 262-276. If his liability is not fixed by the institution of the suit within the time prescribed by law, the facts by which his liability is fixed must be alleged in the petition. Kainpiuuu v. Williams, 70 T. 508. §32. Indorsed note, l[>y indorsees, partners, against indorsers, partners, with averment of suit against maker. ^A. & B. plaintiffs, complaining of C. & D., defendants, represent that plaintiffs reside in the county of , and 41 Ch. 3.] Aci"IOXS ox PROMISSORY NOTES. [§§33, 34. defendants in the county of , that plaintiffs are partners in trade, doing business under the firm name and stvle of A. & Co., and defendants are partners in trade, doing bus- iness under the firm name and style of C. ^That heretofore, to-wit: on the day of , a. t>. , one E., by his promissory note of that date, by him executed and delivered to defendants, for value received, promised said defendants, under their firm name and style, to pay them or their order the sum of dollars, one year afterdate; and the said defendants thereaftervvards, on the same day, under their firm name and style, indorsed and delivered said note to plaintiffs. That afterwards, when the said note became payable, to-wit: at tlie term, a. D. , of the court of county, plaintiffs insti- tuted suit on said note, then unpaid, against said E., and recovered judgment against said E. for the full amount of said note and interest, and said note and judgment are now due and wholly unpaid; by reason wdiereof said defendants became liable, and promised the plaintiffs to pay them the sum of money in said note mentioned, when thereunto re- quested; yet, though requested, said defendants have never paid said sum, but refuse so to do. §33. Averment of iusolvency of maker, to excuse suit against him. ^And plaintiff further represents, that when said note became due and payable, to-wit: on, etc., said E. (the maker) was insolvent, and from thence until the present time has so continued, by reason whereof said defendants became liable, and promised the plaintiffs to pay them the sum of money in said note, when thereunto requested : yet, though requested, said defendants have never paid the same, but refuse so to do. §34. Averment of non-rcsidcnce of maker. ^And plaintiffs further represent, that when said note became due and payable, to-wit : on, etc., said E. resided 42 Ch. 3.] ACTIONS ox rilOMISSORY NOTES. [§§35, 36. beyond the limits of the State of Texas, and from thence until the present time has so continued to reside, by reason whereof, etc. §35. Averment of death of maker. ^And pUiintiffs further represent, that* when said note became due and payable, to-wit: on, etc., said E. had de- parted this life, by reason whereof, etc. §36. Indorsed note, by second indorsee against maker, ^That heretofore, to-wit: on, etc., the defendant, by his promissory note of that date, by him subscribed and deliv- ered to one C, for value received, promised said C. to pay him or his order the sum of dollars, within three months after the date of said note, wuth lawful interest thereon from said date until paid; and the said C. there- after, on the same day, by his indorsement of the said note in writing, appointed the contents thereof, then unpaid, to be paid to one D. , or to his order, according to the tenor and effect of said note; and the said D. thereafter, on the same day, by his indorsement of the said note in writing, appointed the contents thereof, then unpaid, to be paid to the plaintiff; of all which the said defendant had notice, and thereby became liable, and promised the plaintiff to pay him the sum of money in said note mentioned, accord- ing to the tenor and effect thereof ; yet, though requested, etc. At common law, a suit could not be maintained by the assignee of a part only of a note, with a reservation of the balance due to the original payee. Under the blended law and equity jurisdiction of our courts, two parties can maintain a suit upon a promissory note of which a part only has been af-sigued to each, if together the two assign- ments transfer afl that is due on the note. Goldmau v. Blum, 58 T. «30; Harris County v. Campbell, GS T. 22; Kailway v. Gentry, 69 T. 625; Moore v. Minerva, 17 T. 20; Faulk v. Faulk, 23 T. G53; Stachely v. Peirco, 28 T. 328; Lanes v. Squyres, 45 T. 383. 43 Ch. 3.] ACTIONS ON PROMISSORY NOTES. [§§37, 38. A partial assignment of a chose in action is good in equity, though the legal title remains with the* assignor, and such holder of the legal title may sue thereon in his own name. The equitable owner is a proper, but not a necessary party, unless the debtor have some legal de- fense as against him alone. Kailway v. Gentry, 69 T. 625. § 37. Payable by installments, by payee against maker. ^That heretofore to-wit: on, etc., defendant, hy his promissory note of that date, by him subscribed and de- livered to plaintiff, for value received, promised plaintiff to pay him or his order dollars in manner following, to-wit: dollars on the of next thereafter, dollars on the of next thereafter, and dollars on the of next thereafter; that the said sum of dollars, payable on the of , and the said sum of dollars, payable on the said of , has become due ; yet, though requested, defendant has never paid the same, but refuses so to do, etc. § 38. Payable by installments, and on non-payment of any installment, note to be in force for the whole amount. ''That heretofore, to-wit: on, etc., defendant, by his promissory note of that date, by him subscribed and de- livered to plaintiff, for value received, promised plaintiff to pay him, or bearer, dollars in manner following, to-wit: dollars on the day of next there- after, dollars on the day of next thereafter, and dollars on the day of next thereafter; and in default of payment of any or either of said sums, or any part thereof, as the same became due and payable, the said note to be in full force for the whole of said sum of dollars ; and plaintiff represents that defendant has never paid him said sum of dollars due and payable 44 Ch. 3.] ACTIONS OS PROMISSORY NOTES. [§§39, 40, on said dav^of , whereby defendant became li- able, and promised plaintiff to pay him the said .sum of dollars, with legal interest from said day of . Yet, etc. §39. Payable in five years, interest payable annually, for three years' interest, principal not due. ^That heretofore, to-wit: on, etc., defendant, by his prom- issory note of that date, by him suljscribed and delivered to plaintiff, for value received, promised plaintiff to pay him, or his order, the sum of dollars, in five years from the said date, with legal interest thereon from said date until paid, the said interest, to-wit : the sum of dollars, to be paid yearly, and at the end of each and every year, during said term; that three years of the said term have long since expired, yet defendant, though requested, has never paid the interest of said sum, nor of any part thereof, for the said three years, but refuses so to do. §40. Count on a joint and several note, alleged to have been lost. ^That heretofore, to-wit: on, etc., said defendant and one C., by their promissory note of that date, by them sub- scribed and delivered to plaintiff, for value received, jointly and severally promised the plaintiff to pay him, or his order, dollars one month after date ; yet, though often requested, the said defendant and saidC, or cither of them, have not paid the said sum, but they, and each of them, have wholly refused so to do. That said note, after its execution and delivery, was lost or destroyed, and is still out of the possession and control of plaintiff. In a suit on a lost note, alleged to have been executed by several, the plaintiff assumes the burden of proving that the note, with all the signatures upon it, as described in 45 Ch, 3.]. ACTIONS ox PROMISSORY NOTES. [§§41, 42. his petition, once existed. After doing this, he is not required to prove the genuineness of the signatures or tlie binding force of the note on all of the defendants. If he prove the execution of the note by some of those whom he alleged made it, he may recover against them, and judg- ment may be rendered in favor of those defendants against whom no proof is made, or the suit may be dismissed as to them. He is not bound to prove that all the defendants are bound in order to recover against any of them. Keithley v. Seydell, 60 T. 78; Stevens v. Gainesville Nat. Bank, 62 T. 499. §41. When the place of payment is mentioned. ^That heretofore, to-wit : on the day of , a. d. •, said defendant made and delivered to plaintiff his promissory note in writing, bearing date on the day and year aforesaid, whereby he promised to pay plaintiff, or order, at the First National Bank, in the city of , in said state and county, six months after the date thereof, the sum of dollars; yet, though often requested, defendant has not paid said sum of money, or any part thereof, but the same now remains due and wholly unpaid, etc. §42. Note given to wife while single, by husband, against surviving maker. ^A., plaintiff, complaining of B., defendant, represents that plaintiff and defendant reside in the county of ; that heretofore, to-wit: on, etc., plaintiff intermarried with one D., wdio is still his wife. ^ That heretofore, to-wit: on, etc., the said defendant and one C, then living, but now deceased, by their prom- issory note of that date, by them subscribed and delivered to said D., for value received, promised said D., then sole, to pay her or order the sum of dollars on demand; yet, though often requested, the said B. & C, or either of them, in the lifetime of said C. or since his death, the said 46 Ch. 3.] ACTIONS ox PROMISSORY NOTES. [§^3. B. never paid the same to the said D. when sole, nor to tlie phiiutiff since his intermarriage with said D. Moffatt V. Sydnor, 13 T. 62S; Holloway v. Holloway, 30 T. 164; Clay V. Power, 24 T. 304; T. C. Ry. Co. v. Burnett, 61 T. 63S; San Antonio Street Railway Co. v. Helm, 64 T. 147; Lee v. Turner, 71 T. 264; Tel- egraph Co. V. Cooper, 71 T. 507; See Milliken v. Snaoot, 64 T. 171. §43. ]N^ote of wife while sole, against liusbaud and wife. *A. B., plaintiff, complaining of C. D. and E., his wife, defendants, represents that the plaintiff and defendants re- side in the county of . ^That heretofore, to-wit: on, etc., the said E. while sole and unmarried, by her promissory note of that date, by her subscribed by the name of F. and delivered to plaintiff, promised plaintiff to pay him or order the sum of dol- lars on demand, with interest thereon from said date ; yet, though requested, the said E. while sole, and the said de- fendants since their intermarriage, have not paid the same, but wholly refuse so to do. Plaintiff further alleges that the said E. owns and holds, as her separate property, the following described land. (See, ante, §9.) ^Wherefore he prays that said defendants be cited to answer this petition, and that he have judgment for his debt, interest and costs of suit, and that he have his ex- ecution therefor against the community property of the said defendants, or in case the same be insufficient to sat- isfy said judgment, then to be levied upon the separate property of the said E., and for such other and further re- lief as he may be entitled to. The husband is not liable for the debts of the wife con- tracted before marriage. Siese v. Malsch, 54 T. 855. The community property of husband and wife may be subjected to the payment of debts of the wife contracted before marriage. Taylor v. ]\Iuri)by, .^)0 T. 2!)1 ; See Nash v. George, 6 T. 236; Booth V. Cotton, 13 T. 359; Roundtree v. Thomas, 32 T. 288. 47 Ch. 3.] ACTIOXS ox PROMISSORY NOTES. [§44. §44. Note secured by lien on real estate. ^That heretofore, to-wit: oa the day of , 18 — , the defeudant, by his promissory note of that date, by him subscribed and delivered to phiintiff, for vahie received, promised plaintiff to pay him, or his order, on demand, the sum of dollars, with lawful interest thereon from that date until paid. That said note was given for a part of the purchase money of a certain lot, situated in the town of , in the county of , fronting on street, thirty feet, and running back ninety feet, and known and described on the plat and map of said town as lot No. in block No. -^ ; .that said lot was heretofore, to-wit: on, etc., conveyed by 2)laintiff to defendant, by his deed of writing of that date, in consideration, among other things, of the note herein described, and that in said deed of conveyance a lien was reserved thereon to secure the payment of said note ; that de- fendant, though often requested, has never paid said note, or any part thereof, but the same remains still due and unpaid. *^ Wherefore, he prays that defendant be cited to answer this petition, that he have judgment for his debt, inter- est and costs of suit, and for the foreclosure of his lieu on the above described premises, and that they be decreed to be sold according to law ; that the sheriff, or other officer, executing said order of sale, shall place the purchaser of the property sold under the same in possession thereof, within thirty days after the day of sale, and for general and equitable relief. Civ. Stat. Art. 1340a. When land is purchased in the name of a married woman, and the notes of herself and husband are given for the pur- chase money, with a lien on the land, in a suit on the notes no other judgment should be rendered against her than a fore- closure of the lien. Lynch V. Elkee, 21 T. 229; Farr v. Wright, 27 T.96; See Hall v. Dot- son, 55 T. r)20; Kutch v. llolley, 77 T. 220; Menard v. Syilnor, 29 T. 257; Khode.s V. Gibbs, 39 T. 432; Harris v. Williams, 44 T. 124; Warren V. Smith, 44 T. 245; Walling v. Hanuey, 73 T. 580. 48 Ch. 3.] ACTIONS ON PROMISSORY NOTES. [§45. The transfer of a note payable to bearer and secured by the vendor's lien as collateral to secure a less sum than the note so transferred, carries with it the transfer, the lien, and also the right to priority of payment out of the suji realized on such collateral and the security therefor. The priority of payment out of a note and its security, ■jyhich passes by the transfer of a note payable to bearer, and transferred as collateral to secure a less sum, can be en- forced as to the security against a lien of equal standing retained by the party so transferring such collateral. AVhite V. Downs, 40 T. 225. In Salmon v. Downs, 55 T. 243, the ruling in White v. Downs is limited to cases where the preference is given by contract, and it was held that when a vendor of land takes notes for the purchase money, and holds a vendor's lien as security, and afterwards assigns one of the notes and retains the other, and the land is sold to pay the purchase money, the indorser and assignor is entitled to share in the pro- ceeds of the sale with the holder of the assigned note, whether they be sufficient to satisfy the assigned note or not, unless it clearly appears that it was the intention that the assignee should be first paid. This case is followed and approved in Wooters v. Hollingsworth, 58 T. 371, and McMicliael v. Jarvis, 78 T. 671. §45. Note indorsed for residue, after a payment of part. ^That heretofore, to-wit: on, etc., defendant, by his promissory note of that date, by him subscribed and de- livered to one A., for value received, promised said A. to pay him, or his order, the sum of dollars, in three months from the date of said note; and the said A. after- wards, on the same day, indorsed said note in writing across the back thereof, and delivered the same to one B., to whom said defendant on, etc., paid the sum of dol- (•4— Plead. Forms.) 49 Cb. 3.] ACTIONS ON PROMISSORY NOTES. [§46. lars, in part payment of said note, and afterwards, to-wit: on the same day, said B. indorsed the said note in writing across the back thereof and delivered the same to plaintiff, and thereby appointed the residue of the sum of money specified in said note, then and still unpaid, to be paid to plaintiff, and said defendant thereby became liable, and promised plaintiff to pay him the residue of said sum, ac- cording to the tenor of said note, and the effect of said in- dorsements. Yet, etc. § 46. Note payable in casli notes. ^That heretofore, to-wit: on the day of , A. D. 18 — , the defendant, for'a valuable consideration to him paid, executed and delivered to plaintiff his certain writing obligatory, bearing date on the day and year aforesaid, whereby he promised, one day after said date, to pay plaint- iff or order the sum of dollars, in good cash notes, due since the day of , a. d. 18 — . That by the term cash notes, mentioned in said obligation, was meant and intended the notes of individuals, payable in cash, and said notes were at the maturity of said obligation reason- ably worth the sum of cents on the dollar for each and every dollar due and payable thereon. That plaintiff was, at the maturity of said obligation, ready and willing to receive and accept said cash notes, yet defendant, though requested, never delivered the same, or any part thereof, but wholly failed and refused so to do. That by reason of the premises, defendant became liable, and promised plaintiff to pay him the reasonable value of said cash notes, which he avers to be dollars, with legal interest thereon from the maturity of said obligation; but to pay the same, or any part thereof, the defendant, though often requested, has refused and still refuses, to plaintiff's damage dollars. Fleming v. Nail, 1 T. 246; Roberts v. Short, 1 T. 373; De Wees v. Lockhart, 1 T. 535; Chevallier v. Buford, 1 T. 503; Ward v. Lattimer, 2 T. 245; Smith v. Fahvell, 21 T. 400; Burleson v. Grant, 36 T. 60; Short V. Abernathy, 42 T. 94; Bummel v. City, etc., 58 T. 10. 50 Ch. 3.] ACTIONS ON PROMISSORY NOTES. [§47. §47. jVote wiiicli may be discliarged in cash notes. ^That heretofore, to-wit: on the day of , A. d. 18 — , the defendant, for a valuable consideration to him paid, executed and delivered to plaintiff his certain writing obligatory, bearing date on the day and year aforesaid, whereby he promised, on the day of , A. D. 18 — , to pay plaintiff or order the sum of dollars, with in- terest at per cent, after maturity, which may be dis- charged in good cash notes on solvent, punctual men liv- ing in county ; that at the maturity of said obligation plaintiff was ready and willing to receive and accept the notes mentioned in said obligation ; yet defendant, though often requested, never delivered the same, or any part thereof. That by reason of the premises, the defendant became liable, and promised plaintiff to pay him said sum of dollars, with interest thereon at per cent, from and after the day of , 18 — ; but to pay the same, or any part thereof, though often requested, has refused and still refuses, to plaintiff's damage dollars. A promise to pay a certain amount in money, with a stip- ulation that the debt may be discharged in some other com- modity, becomes an absolute promise to pay, if payment is not made in the alternative commodity, on the day ap- pointed. Baker v. Todd, 6 T. 273; Dumas v. Hardwick, 19 T. 238. It.is not necessary for the plaintiff to allege a demand, and the obligor claiming the right to pay in the commod- ity, must in his answer allege that he was ready at the time and place to discharge the obligation as stipulated, and that before the maturity of the obligation he notified the payee that he elected to discharge the obligation in that way. Dumas v. Hardwick, 19 T. 238; Grant v. Burleson, 38 T. 214; Baker V. Todd, 6 T. 273; Blount v. Ralston, 20 T. 132; Smith v. Falvvell,21 T. 466; Short v. Abernathy, 42 T. 94; Bummel v. Houston, 68 T. 10. 51 Ch. 3.] ACTIONS ON PROMISSORY NOTES. [§§48, 49. The rule, that an obligation dischargeable in specific property cannot be paid with less than the amount in spe- cie, or its equivalent in property, does not apply to a note made payable in "bank notes," "currency of the coun- try," or any other paper currency, whether circulating at par or not. Such contracts will be construed according to the usage of the community, as the best evidence of the intention of the parties. Williams v. Amis, 30 T. 37. §48. Note which may be discharged in specific articles. ^That heretofore, to-wit : on the day of , a. D. 18 — , the defendant, for a valuable consideration, ex- ecuted and delivered to the plaintiff his certain writing ob- ligatory, bearing date on the day and year aforesaid, whereby he promised, on or before the day of , A. D. 18 — , to pay to the order of plaintiff dollars, which may be discharged in groceries at at cash sell- ing prices. That defendant did not on the said day of , A. D. 18 — , or at any other time, deliver to plaint- iff said groceries, or any part thereof; and, though often requested, has wholly failed to pay said sura of money, or any part thereof, and still refuses, to plaintiff's damage dollars. § 49. Note payable in specific articles. ^That heretofore, to-wit: on the day of , a. D. 18 — , the defendant, for a valuable consideration, ex- ecuted and delivered to the plaintiff his certain writing obligatory, bearing date on the day and year aforesaid, whereby he promised, on or before the day of , A. D. 18 — , to pay to the phiiutiff or bearer of said writing dollars in good cows and calves. That the defendant did not deliver to the plaintiff said cows and calves at the maturity of said obligation, or at any other time, and by reason of the premises the defendant became liable and 52 Ch. 3.] ACTIONS ox PROMISSORY NOTES. [§50. promised the plaintiff to pay him said sum of dollars, with interest thereon from the day of , a. d. 18 — ; but to pay the same, or any part thereof, though often requested, defendant has hitherto refused and still refuses, to plaintiff's damage dollars. §50. Note for specifle articles. ^That heretofore, to-wit: on the day of , A. D. 18 — ; the defendant, for a valuable consideration to him paid, executed and delivered to the plaintiff his certain writing obligatory, bearing date on the day and year aforesaid, whereby he promised, on or before the day of , A. D. 18 — , to pay to plaintiff, or order, good cows and calves. That good cows and calves, at the time of delivery mentioned in said obligation, were reasonably worth the sum of dollars for each cow and calf. That plaintiff, on said day of , A. d. 18 — , was ready to receive such cows and calves mentioned in said obligation ; yet defendant, though often requested, has never delivered the same, or any part thereof. That by reason of the premises, the defendant became liable, and promised the plaintiff to pay him the reasonable value of said cows and calves as aforesaid, amounting in th© aggregate to the sum of dollars, with interest thereon from the day of , a. d. 18 — , but to pay the same, or any part thereof, though often requested, has refused and still refuses, to plaintiff's damage dollars. 53 Ch. 4. — Actions on Bills or Exchange, §51. Payee against acceptor. 52. Payee against drawer on default of acceptance. 53. Want of presentment for acceptance excused. 54. Want of presentment for payment excused. 55. Drawee against acceptor, witli averment of wrong date. 56. Indorsee against indorser, maker being insolvent. 57. Holder against drawer. 58. Second indorsee against drawer and acceptor. 59. Indorsee against drawer on foreign bill protested for non. acceptance. 60. Drawer against acceptor, on protested bill paid for honor of drawer. 61. Drawer against acceptor, for whose honor he paid. 62. Drawee against Indorser, for whose honor he accepted. 63. Payee against an acceptor on an accepted order. 64. Payee against drawer on an order not paid. 64o. By acceptor who has paid an accommodation acceptance. §51. Payee against acceptor. ^That heretofore, to-wit: on, etc., one A. made his cer- tain bill of exchange in writing of that date, directed to the defendant, and thereby requested said defendant to pay to said plaintiff, or his order, the sum of dollars three months after the said date, for value received, and delivered said bill of exchange to said plaintiff ; and the said defend- ant afterwards, to-wit: on, etc., on sight thereof, accepted the same; by reason whereof said defendant became liable, and promised the plaintiff to pay him the sum of money specified in said bill of exchange, according to the tenor and effect thereof, and his acceptance aforesaid ; yet, to pay the same, or any part thereof, though often requested, said defendant has refused and still refuses, to plaintiff's dam- age dollars. Three days of grace are allowed on all bills of exchange assignable or negotiable by law. Civ. Stat. Art. 276; Watkins v. Willis, 56 T. 521; Moore v. Holla- mans, 25 T. Sup. 81; Young v. Benthuysen, 30 T. 762; Campbell v. Lane, 25 T. Sup. 93. 64 Ch. 4,] ACTIONS ON BILLS OF EXCHANGE. [§-^2. A draft payable on demand or on sight becomes due on the date of its acceptance, or as soon thereafter as demand for payment can reasonably be made. A note payable on demand is not entitled to days of grace. Brown v. Chancellor, 61 T. 437. In a suit by the holder against an assignor, drawer or in- dorser, on a non-negotiable instrument, brought to the third term after a cause of action thereon accrued, a petition which does not state a legal excuse for the delay, is subject to exception. Kampmann v. Williams, 70 T. 568. A petition on a bill of exchange, drawn under a promise to accept such bill when made, need not allege an accept- ance. It is sufficient to allege a promise to accept and a refusal. Barney v. Worthington, 37 N. Y. 112. It is not necessary to aver that the acceptance was in writing. Wakefield v. Greenhood, 29 Cal. 597. An allegation that certain drafts were accepted by a cor- poration by their treasurer, includes an averment of authority to the treasurer to accept the drafts. Partridge v. Badger, 25 Barb. 14G. §52. Payee against drawer, on default of acceptance. ^That heretofore, to-wit: on, etc., the said defendant made his certain bill of exchange in writing of that date, directed to one B., and thereby requested the said B., three months after the date thereof, to pay to the plaintiff or order the sum of dollars, for value received, and delivered the said bill to said plaintiff;* that afterwards, and before the sum of money specified in said bill was payable, to-wit: on, etc., the said bill of exchange was presented and shown to the said B. for his acceptance thereof, and the said B. was then required to accept the same; but the said B. did not then, or at any time since, accept or pay the same, but wholly refused so to do ; of all which the said defendant on OO Ch. 4.] ACTIONS ON BILLS OF EXCHANGE. [§§53, 54. the day last aforesaid had notice, by reason whereof the said defendant became liable, and promised the plaintiff to pay him the said sum of money specified in the said bill, when thereunto afterwards requested. Yet, etc. (*) See next form. §53. Averment to excuse want of presentment for ac- ceptance, that clraAVce could not be found; to be inserted at [ * ] in tlie preceding form. ^And jjlaintiff further represents that afterwards, and be- fore the maturity of said bill, to-wit: on, etc., and at divers other times between that day and the time when said bill became due, and also when said bill became due, to-wit: on, etc., dilig" nt search and inquiry was made after the said B. at and sewhere, in order that said bill might be pre- sented to the saidB. for his acceptance and payment thereof ; butthesaid B. could not on such search and inquiry be found ; nor hath the said B. at any time hitherto accepted the said bill or paid the said sum of money therein specified ; of all which defendant afterwards, to-wit: on, etc., had notice, and thereby became liable, etc. A draft drawn by an agent on his principal, in the usual course of his business, is as if drawn by the principal on himself; such a principal is not entitled to protest, notice or other diligence necessary to bind indorsers. Raymond v. Mann, 45 T. 301 ; see Friedlander v. Cornell, 45 T. 585. §54. Averment to excuse want of presentment for payment, that defendant had dispensed therewith. ^And plaintiff further represents that afterwards, when said bill of exchange became due, to-wit: on, etc., he was ready and willing to present the same to the said B. for payment thereof, and to demand of him the sum therein specified, and would liave presented the same and demanded payment thereof accordingl}'; l)ut said defendant then and there in writing,* requested plaintiff not to present said bill 56 Ch. 4.] ACTIONS ON BILLS OF EXCHANGE. [§55. to said B. for payment thereof, and wholly dispensed with and discharged plaintiff from the presentment of said bill to said B. for payment ; by reason whereof, after said bill became pay able according to the tenor thereof, said defendant became liable, and promised, etc. (*) Fost^ §55, note. To fix the liability of the drawer of a bill of exchange, the bill must be presented to the drawee, or facts shown which excuse the failure to present. Thus, it may be alleged that the bill w^as drawn without funds. Wood V. McMeans, 23 T. 481. See 1 App. C. C, §1215. But the drawer may allege and prove facts which show that the bill was drawn in good faith, and he -was, there- fore, entitled to strict notice. Cole V. Wintercort, 12 T. 118. The minority of the holder of a note does not exempt him from the use of due diligence. Hanrick v. Alexander, 51 T. 494. §55. Payable to plaintiff or order, with averment of a wrong date, by drawee against acceptor. ^That heretofore, to-wit: on the day of , A. d. 18 — , plaintiff made his certain bill of exchange in writing, directed to the defendant, and thereby requested the de- fendant to pay to the plaintiff the sum of dollars, three months after the date of said bill of exchange. That, by mistake, said bill of exchange bore date on the day of A. D. 18 — , instead of said day of , A. D. 18 — , which was its true date; all of which was well known to defendant. That afterwards, to-wit : on the day of , a. d. 18 — , defendant, on sight thereof, accepted said bill, by reason whereof he became liable, and promised plaintiif to pay him said sum of money specified in said bill of exchange, according to the tenor and effect thereof, and his accept- ance aforesaid ; yet, to pay the same, or any part thereof, 67 Cll. 4.] ACTIONS ON BILLS OF EXCHANGE. [§56. thoiio-h often requested, said defendant has refused and still refuses, to plaintiff's damage dollars. Where an instrument is not negotiable, there is no neces- sity for protest to fix the liability of an indorser. Kampmanu v. Williams, 70 T. 5GS. In order to hold the assignor of a negotiable note as surety for its payment, the assignee must use due dil- igence to collect the same. Parol testimony is inadmis- sible to prove that the assignee, drawee or indorsee of such instrument has released the holder from his obligation to use due diligence to collect it, which is the same as that required in negotiable instruments under the law merchant. Civ. Stat. Arts. 267-S; Thompson v. Payne, 21 T. 625; Kampmann V. Williams, 70 T. 568. §56. Indorsee against indorser, when maker is in- solvent. ^That heretofore, to-wit: on the day of , a. D. , one A. B. made his certain bill of exchange of that date, directed to one E. F., and thereby requested the said E. F., three months after the date of said bill, to pay to said G. H., or order, the sum of dollars, for value received, and then and there delivered said bill to the said G. H., and the said G. H. thereafterwards, to-wit: on the same day, indorsed and delivered said bill to plaint- iff; and plaintiff avers that afterwards, to-wit: on, etc., said bill of exchange was presented to said E. F. for pay- ment thereof, according to its tenor and effect, but the said E. F. did not pay the said bill, but then refused and still wholly refuses so to do ; that when said bill became due and payable, to-wit: on, etc., said A. B. was notoriously in- solvent, and from thence until the present time has so con- tinued, by reason |whereof defendant became liable, and promised plaintiff to pay him the sum of money specified in said bill when thereunto requested. Yet^ etc. Jones V. Ritter, 32 T. 717; Fisher v. Phelps, 21 T. 551; Insall v. Robson, 16 T. 128; Stratton v. Johnston, 36 T. 90. 58 Ch. 4.] ACTIONS ON BILLS OF EXCHANGE. [§57. §57. By holder against drawer. ^That on the day of , 18 — , defendant drew his certain bill of exchange, dated at the city of , in the State of , on said date, whereby he requested one K. S., of the city of , in the State of , in three days after sight thereof, to pay to the order of G. H. the sum of dollars, and charge the same to the account of defendant; that thereupon G. H. indorsed and delivered the same to plaintiff for value, and plaintiff thereupon caused said bill of exchange to be presented to said R. S., and acceptance of the same to be demanded; that thereupon said R. S. refused to accept said bill of exchange; where- upon plaintiff caused the same to be protested for non- acceptance, and due notice of said presentment, demand and protest to be given to said G. H. and to defendant. And plaintiff further says that in due time thereafter, to-wit : on the day of , 18 — , plaintiff caused the same to be presented to said R. S., and payment thereof to be demanded, and that thereupon said R. S. refused pay- ment of said bill of exchange, whereupon plaintiff caused the same to be duly protested for non-payment, and due notice of said presentment, demand of payment and pro- test to be given to said G. H. and to defendant. Said bill of exchange together with the several protests thereof are herewith filed, and marked respectively Ex- hibits A, B and C. Plaintiff alleges that he is still the owner and holder of said bill of exchange and that no part thereof has ever been paid to him, either by defendant or said R. S. or G. H. ; but that the amount thereof together with the dam- ages of protest are still due him. ^Plaintiff prays that defendant be cited to answer this petition and that he have judgment for said sum of dollars, together with ten per cent, damages of protest thereon, and interest on said ajjsrejjate sum from the day of , 18 — , and for costs of suit and for general relief. 59 Ch. 4.] ACTIONS ON BILLS OF EXCHANGE. [§§58, 59. §58. Second indorsee against drawer and acceptor. ^That heretofore, to-wit: on the day of , a, d. 18 — ,the defendant A. made his certain bill of exchange of that date, directed to the defendant B., and thereby requested the said B., two months after the date thereof, to pay to C F., or order, the sum of dollars, and on the day and 3^ear aforesaid delivered said bill to the said C. F., which said bill the said B. thereafter wards, to-wit: on the same day, accepted in writing as follows: "accepted, B. ;" that afterwards, to-wit: on the day of , 18 — , the saidC. F. indorsed the said bill, then and still unpaid, and delivered the same to oneR. S., and afterwards, on the same day, the said R. S. indorsed said bill, then and still unpaid, and delivered the same to plaintiff ; that afterwards, to-wit : on the day of , 18 — , said bill was presented to defendant B. for payment thereof, according to the tenor and effect of said bill, and of his said indorsement thereon, but the said B. did not pay the said sum, nor hath at any time since, but wholly refuses so to do; whereupon, after- wards, to-wit: on, etc., said bill was duly protested for non- payment thereof, of all which said defendant A. then and there had notice ; and that by reason of the premises de- fendants are liable, and promised plaintiff to pay the sum of money specified in said bill, according to the tenor and effect thereof, and of said acceptance. Yet, etc. §59. Count on a foreign bill protested for non-accep- tance, l>y indorsee against drawer. ^That heretofore, to-wit: on the day of , a. b. 18 — , in the city of , in the State of Texas, the de- fendant made his certain bill of exchange of that date, directed to one A.B., of the city of , in the State of , and therein requested the said A. B., two months after the date of that, his, the said defendant's, bill of exchange, to pay to one E. F. or order the sum of dollars, value received, and then and there delivered said bill to the said E. F. ; and 60 Ch, 4,] ACTIONS ox BILLS OF EXCHANGE. [§<30. the said E. F. thereafter wards, to-wit: on the same da}', indorsed and delivered said bill to plaintiff. That after- wards, to-wit: on, etc., said bill of exchange, then and still unpaid, was presented to the said A. B. for his acceptance thereof; but the said A. B. did not, at the said time when the said bill was presented as aforesaid, or at any other time, accept or pay the same, but wholly refused so to do, whereupon said bill thereafterwards, to-wit : on the day and year last aforesaid, was duly protested for non-accep- tance thereof, of which the said defendant afterwards and on the same day had notice; that at the date of the trans- actions aforesaid the said was a merchant, and the said A. B. was his agent or factor, living in said state of ; by reason whereof defendant became liable, and promised plaintiff, when thereunto requested, to pay him the sum of money specified in said bill with interest, and damages at the rate of ten per cent, on the amount of said bill, and costs of protest, which he avers is the sum of dollars. Yet, though requested, etc. §60. Count on a bill paid after protest, l>y a third per- son to whom the drawer was obliged to pay the principal, with charges, by drawer against acceptor. ^That heretofore, to-wit: on, etc., plaintiff made his cer- tain bill of exchange of that date, directed to defendant, and thereby requested said defendant, at two months after the date thereof, to pay to one E. or order the sum of dollars, value received, which said bill plaintiff, on the day aforesaid, delivered to said E., and the said E. thereafter, on the same day, indorsed and delivered said bill to one G. ; that afterwards, to-wit: on, etc., the said defendant, upon sight thereof, accepted said bill. Plaintiff further avers that afterwards, to-wit: on, etc., said G. caused the said bill so accepted and indorsed as aforesaid, to be presented to the said defendant for payment thereof, according to the tenor and effect of said bill and of his acceptance there- 61 Ch. 4.] ACTIONS ON BILLS OF EXCHANGE. [§^1- of, and of the said indorsements thereon ; but the said defendant did not then, or at any other time whatsoever, pay to the said G. the sum of money specified in said bill, but wholly refused so to do ; whereupon said bill of ex- change, on, etc., was protested for the non-payment thereof; and afterwards, to-wit: on, etc., one H. appeared before M. N., then being a notary public in and for the county of , and the same by whom the said bill of exchange was so protested, and then and there declared be- fore said notary that he would pay said bill under said protest for the honor and on account of the plaintiff, the drawer of said bill, holding the said drawer and said acceptor, and all others whom it might concern, always obliged unto him, the said H., for his reimbursement; and thereupon the said H. paid said bill according to his said declaration, together with the charges of protest, amount- ing to the sum of dollars; and afterwards, to-wit: on, etc., the said H. returned said bill so protested to plaintiif ; and the said plaintiff, on the day last aforesaid, was obliged to pay, and did pay, to the said H., for the said bill and for the exchange and re-exchange of the money therein con- tained, and the charge of protest, commission and other charges attending the non-payment of the said bill, a large sum of money, to-wit: the sum of dollars; by reason whereof defendant became liable, and promised plaintiff to pay him said sum of money so paid to the said H. as afore- said, when thereunto requested. Yet, etc. §61. Count on a bill taken up by the drawer after ac- ceptance, by drawer against acceptor. ^That heretofore, to-wit : on the day of , A. D. 18 — , plaintiff made his certain bill of exchange of that date, directed to defendant, and thereby requested said de- fendant, three months after said date, to pay to the order of C. E. the sum of dollars. 62 Ch. 4.] ACTIONS ON BILLS OF EXCHANGE. [§62. "Which said bill, on the day and year aforesaid, plaintiff delivered to the said C. E., and the said defendant after- wards, to-wit: on the same day, upon sight thereof, ac- cepted the same. Plaintiff further represents that after- wards, when the said bill became due, according to the tenor and effect thereof, to-wit: on, etc., said bill was presented to said defendant for payment thereof, according to the tenor and effect of the same, and of said defendant's ac- ceptance; but said defendant did not pay said sum, nor hath he since paid it, but wholly refused to pay the same, and thereupon said bill on the day last aforesaid was returned to plaintiff for non-payment thereof, and said plaintiff was then and there forced to pay the said C. E. the sum specified in said bill ; of which said defendant then and there had notice and became liable, and promised plaint- iff to pay him the sum so specified in said bill, according to its legal tenor and effect, when thereunto requested. Yet, though requested, etc. §62. Count upon a bill of exchange, by drawee who accepted upon protest for non-payment, against an in- dorser, for whose honor he accepted. °That heretofore, to-wit: on, etc., one A. B. drew his certain bill of exchange of that date, directed to plaintiff, and therein requested plaintiff to pay one E. or order the sum of dollars, two months after date, for value re- ceived, and delivered said bill to said E., who afterwards, on the same day, indorsed and delivered the same to de- fendant, who on the same day indorsed and delivered the same to one H. ; that afterwards, to-wit: on, etc., the said H. caused said bill of exchange to be presented to plaintiff for payment thereof, according to the tenor and effect of the same, and of said indorsement thereon, which plaintiff refused to make; whereupon the said H., on, etc., caused said bill of exchange to be duly protested for non-payment ; and thereupon the plaintiff afterwards, to-wit: on, etc., 63 Ch. 4.] ACTIONS ON BILLS OF EXCHANGE. [§63. upon the said protest, and for the honor of said defendant, indorser of the bill aforesaid, paid to the said H. the sum of money specified in said bill, together with a large sum of money, to-wit : the sum of dollars, for the costs of protest and charges attending the non-payment of said bill of exchange ; nevertheless the said defendant and the said drawer, and all others whom it might concern, always obliged unto the plaintiff for his reimbursement in due form of law; of all which defendant had notice, and by reason thereof became liable, and promised plaintiff to pay him the sum of money specified in said bill of exchange, and the costs of protest and charges paid by the plaintiff afore- said, when thereunto requested. Yet, etc. §63. Count on an accepted order, Tby payee against acceptor. ^That heretofore, to-wit: on, etc., one B. drew his order in writing, under his hand, of that date, directed to the said defendant, therein and thereby requesting the said defend- ant to pay the plaintiff, or his order, the sum of dol- lars on demand, for value received of the plaintiff by the said B., and charo;e the same to said B.'s account, and then and there delivered the same to plaintiff ; and the plaint- iff thereafterwards, on the same day, presented the said order to the said defendant for his acceptance, who on the day last aforesaid duly accepted the same, whereby he be- came liable, and promised the plaintiff to pay him that sum on demand. Yet, etc. An action can be brought against one promising to ac- cept a bill, by a plaintiff who has taken the bill on the faith of such promise. The practical difference between an ac- tion upon an acceptance, and one upon a promise to accept is, that the former may be brought by the holder of the bill, while the latter suit can only be sustained by the party to whom the promise is made. National Bank v. National Bank, 80 T. 648. 64 Ch. 4.] ACTIONS ON BILLS OF EXCHANGE. [§84, t In a suit against the acceptor of a bill, who accepted it to be paid "so soon" as the acceptor "should find himself in funds," it must be alleged and proved that the acceptor was in funds to pay the bill ; and this condition is not ful- filled by his having property other than money in his hands more than sufficient in value to pay the bill. Carlisle v. Hooks, 58 T. 420. A draft payable on demand becomes due on the date of its acceptance, or as soon thereafter as demand for pay- ment can be reasonably made, and an allegation in a suit brought to recover the amount, to the effect that the debt became due at a period long subsequent when demand for payment was made, will not have the effect of preventing it from being payable until that time. Exceptions properly lie to a petition brought to the third term after a cause of action accrues on a non-negotiable instrument, in favor of the assignor, drawer, or indorser, when sued by the holder, when no legal excuse for the delay is set forth in the peti- tion. Kampmann v. Williams et al., 70 T. 568. §64. Count by payee against drawer, on an order not paid. ^That heretofore, to-wit: on, etc., the said defendant, for value received of the plaintiff, drew his order in writing under his hand of that date, directed to one B. , therein and thereby requesting the said B. to pay the plaintiff, or his order, the sum of dollars on demand, and charge the same to the account of the said defendant, and then and there delivered the same to plaintiff, and that plaintiff, on, etc., presented the said order to the said B. for his acceptance and payment, which the said B. then refused; of which the said defendant then had notice and was rc(j(uested to pay the same, by reason whereof said defendant became liable, and promised, etc. (6— FleaU. Forms.) 66 Ch. 4.] ACTIONS ON BILLS OF EXCHANGE. [§64a. i In order to charge the drawer in case of dishonor of a check, it must bepresentedfor payment within a reasonable time, and notice given to the drawer within a like reasonable time. Harker v. Anderson, 21 Wend. 372; Stewart v. Smith, 17 Ohio St. 82. As against the drawer, the fact of the drawee's insolvency is sufficient to dispense with presentment and notice. Lovett V. Cornwell, 6 Wend. 369. §64a. By acceptor who has paid an accommodation acceptance. ^That on the day of , a. d. 18 — , defendant made his certain draft, or order, in writing, for the pay- ment of money, commonly called a check, bearing date the day and year last aforesaid; and then and there directed his said draft or check to plaintiff, and thereby requested plaint- iff to pay to the order of the sum of dollars, and charge the same to account of him, the said defendant. That said defendant then and there delivered said draft to said , who thereupon, on the day and year aforesaid, indorsed said draft in blank on the reverse side thereof, and presented the same to plaintiff, who paid said sum of money specified in said draft to said , according to said request of said defendant, and then and there took posses- sion of said draft, which was delivered to him by said . That at the time plaintiff paid said draft, said defendant had no effects or money in the hands of plaintiff; that plaintiff did not owe said defendant any sum of money, and paid said draft upon the credit of said defendant and at his request as aforesaid. That by reason of the premises defendant is indebted to plaintiff in said sum of money, with interest thereon from said date, but to pay the same, or any part thereof, has refused and still refuses, to plaintiff's damage dollars. Sublett V. McKinney, 19 T. 438. 66 Ch. 4.] ACTIONS ON BILLS OF EXCHANGE. [§64a. The action of an accommodation acceptor who has paid the bill is "grounded" upon a contract in writing, within the statute limiting the right of action to four years when it is grounded upon a contract in writing, and to two years when it is not grounded upon a contract in writing. Sublett V. McKinney, 19 T. 438. The payment of a note by a surety is not as between him- self and principal, an extinguishment of the same, and his right of action against the principal is upon the note and not on an implied assumpsit. Tutt V. Thornton, 57 T. 35; Rush v. Bishop, 60 T. 177; Carpenter v. Minter, 72 T. 370. 67 Ch. 5. — Actions on Contracts. §65. By architect for services, compensation agreed upon. 66. By architect for services, compensation not agreed upon. 67. For improvements made under a verbal contract, not to be performed within one year. 68. On agreement, to be answerable for price of goods sold to another. 69. On guarantee of a precedent debt. 70. By surety against principal. 71. By surety on a lease. 72. On written contract modified by parol, with claim for extra work. 73. On promise of a reward in a newspaper. §65. Action by architect for services — Compeusation agreed upon. °That on or about the day of , 18 — , defend- ant employed plaintiff to render services to him as architect in forming and drawing plans and specifica- tions, and making estimates for, and superintending the erection of, a dwelling-house located at , for which defendant promised to pay plaintiff the sum of dollars ; that plaintiff has duly performed and rendered the services aforesaid, whereby said sum of dollars has be- come due him from defendant ; but defendant, though often requested, has failed to pay him said sum, or any part thereof. When the contract does not in terms include the cost of superintending the construction of the building, that item is not included in a contract to "furnish sketches and estimates" therefor. Smith V. Dickey, 74 T. 61. §66. Action by architect for services — Compensation not agreed upon. ^That between the day of , 18 — , and the day of , 18 — , plaintiff rendered service to defendant 68 Ch. 5.] ACTIONS ox CONTRACTS. [§^7. at his special instance and request as architect, in forming and drawing plans (as stated in preceding section). That in consideration of the premises, defendant promised plaintiff to pay him on demand such sum of money as said serv- ices were reasonably worth ; that said services are reasonably worth the sum of dolhirs, and afterwards, viz: on the day of , plaintiff demanded payment of said sum, but to pay the same, or any part thereof, defendant refused, and still refuses, to plaintiff's damage dollars. §67. For improvements made under a verbal contract not to be performed within one year. *A., plaintiff, complaining of B., defendant, represents that defendant is administrator of the estate of C, late of the county of , deceased, duly appointed by the county court of said county, in which said administration is still open and pending, and that plaintiff and defendant reside in said county of . ^That the said C, in his lifetime, to-wit: on the day of , A. D. , was indebted to plaintiff' in the sum of dollars for the labor and services of plaintiff by him before that time done and performed in and about the business of the said C, at his request, in this, that there- tofore, to-wit: on the day of , a. d. , it was verbally agreed by and between plaintiff and said C, that plaintiff should manage, control and keep a certain stock of neat cattle, the property of said C, for the term of five years from and after the day of then next fol- lowing; that plaintiff should erect a dwelling-house and other necessary out-buildings, pens and enclosures, upon a certain tract of land situated in the county of , the property of said C, and that plaintiff should receive as com- pensation for his care and labor in managing and keeping said stock, one-fourth of its annual increase, to be set apart as the property of plaintiff' from year to year, at the seasons usual and proper for marking and branding ; that in consideration G9 Ch. 5.] ACTIONS ON CONTRACTS. [§68. of the agreement aforesaid, and at the special instance and request of said C. plaintiff did, on the day and year afore- said, proceed to erect said dwelling-house, out-buildings, pens and enclosures, and did and performed in and about said building, etc., work and labor which was reasonably worth the sum of dollars ; that afterwards, to-wit : on the 1st day of , the said C. departed this life, by rea- son whereof plaintiff was prevented from carrying out and completing his contract aforesaid; that afterwards, to-wit: on the day of , a. d. , plaintiff presented said account properly authenticated to defendant, adminis- trator as aforesaid, for allowance, but defendant refused to allow said account, or any part thereof, and by his memo- randum in writing indorsed thereon and signed by him, re- jected the same. In Ray v. Young, 13 T. 550, and Lee v. Boutwell, 44 T. 151, the plaintiff recovered for services rendered the de- fendant under a contract which was void by the statute of frauds. In these cases the action was not brought to en- force the void contract or for damages on account of its breach, but to recover compensation for work and labor expended under it. §68. On agreement, to be answerable for price of goods sold to another. ^That heretofore, to-wit: on the day of , a. d. , plaintiff, at the request of defendant, sold to one R. S., on a credit of months, certain goods, wares and merchandise, of the value of dollars, the items of which, and the prices therefor, as well as the dates at which the same were sold, appear from the itemized account hereto annexed and marked Exhibit A ; that defendant, in consideration that plaintiff should sell to said R. S. the goods aforesaid, promised in writing, dated the day of , 18 — , and signed by defendant, to be answerable to the plaintiff for the payment by said R. S. of the prices 70 Ch. 5.] ACTIONS ox CONTRACTS. [§69. of the goods so sold [o?* goods sold to an amount not ex- ceeding a total credit at any one time of dollars, or whatever the guaranty viay 6e], which said writing is here- with filed and marked Exhibit B \or, which said promise was written on the account aforesaid, which is filed as above]. That the goods aforesaid were sold and delivered to said R. S. on the faith of said guaranty of defendant, and plaint- iff duly notified defendant thereof ; that at the expiration of said period of credit, to-wit : the day of , 18 — , payment of said sum was duly demanded from said R. S., but he totally failed to pay the same, or any part thereof, of all which the defendant had due notice, wherebv defend- ant became liable to pay the same ; but though often re- quested, he has ever failed, etc. When an agreement is made for the sale of a thins; not specified, as of an article to be manufactured or of a certain quantity of goods in general without a specific identification of them, or an appropriation of them to the contract, as it is technically termed, the contract is an executory agree- ment, and the property does not pass. In such a case the purchaser may countermand the order before delivery, be- ing liable for damages resulting from the breach of the contract. Tufts V. Lawrence, 77 T. 526. §69. On guaranty of precedent debt. ^That one R. S. was, on the day of , 18 — , in- debted to plaintiff in the sum of dollars, then due and payable; that defendant, on said day, in consideration of \_state the consideration~\, by his agreement in writing by him signed, promised plaintiff to pay said indebtedness of R. S. ; which said writing is herewith filed, marked Exhibit A. Said guaranty was accepted by plaintiff, of which ac- ceptance defendant had due notice. That no part of said indebtedness has ever been paid him, either by said R. S. or by said defendant. Civ. stilt. Art. 2464 (2). 71 Ch. 5.] ACTIONS ON CONTRACTS. [§§70, 71. §70. By surety against principal. ^ That on the day of , 18 — , defendant as princi- pal, and plaintiff as surety, executed and delivered a cer- tain bond or writing obligatory, whereby they and each of them promised to pay to R. S. the sum of dollars upon condition as follows, to-wit: [hei'e insert the condition of the bond~\ . That defendant failed to perform the said condition, and thereupon both plaintiff and defendant became liable to pay said sum of dollars, and plaintiff, as the surety of defendant, was compelled to pay, and did pay, said sum on the day of , 18 — , of all of which defendant had on said day due notice. That no part of the sum so paid has been repaid to plaint- iff, and by reason of the premises defendant has become justly indebted to him in the sum of dollars. An acceptor is regarded as a surety, and, on payment of the indebtedness, is entitled to protection and the benefit of all collaterals. Sublett V. McKinney, 19 T. 438; Mitchell v. Dewitt, 25 T. Sup. 180. One of several sureties who voluntarily pays a note, the principal debtor being insolvent, may enforce contribution against his co-sureties to recover from each his aliquot proportion of the original debt. Acres v. Curtis, 68 T. 423; see Boyd v. Bell, 69 T. 735; Bell v. Boyd, 76 T. 133; Civ. Stat. Art. 1207, 2017a. An action against a principal and surety on a note cannot be discontinued as to the former only, unless he is dead, in- solvent, or bej'ond the jurisdiction of the court. Unger v. Anderson, 37 T. 550. The payee who endorses a note and afterwards pays and takes it up, stands in the same position as if he had never parted with it, and his action is upon the note. Williams v. Durst, 25 T. 667; Tutt v. Thornton, 57 T. 35; see Beck v. Tarrant Gl T. 402; Glasscock v. ILimilton, G2 T.-143. §71. By surety on lease. That on the day of , 18 — , defendant took a lease of certain premises in the city of , and thereupon 72 Ch. 5.] ACTIONS ON CONTRACTS. [§72. defendant duly signed the lease for said premises, whereby he agreed to pay the sum of dollars for each quarter's rent of the premises mentioned in said lease ; that thereupon^ and at the request of defendant, plaintiff signed said lease as the surety of defendant, and thereby became liable to pay the installment of rents due thereon in case the same were not promptly paid by the defendant as they became due. That said lease so as aforesaid executed by defendant as principal, and by plaintiff as surety, was delivered to G. H., the lessor, and thereupon, and in consideration thereof, de- fendant obtained and had possession of the premises in said lease described, and became liable to pay to the said G. H. the installments of rent therein named. That a portion of said rents, to-wit: the installment of dollars, which became due on the day of , 18 — , was not paid by defendant, and on the day of , 18 — , plaintiff was compelled to pay, and did pay, the same to said G. H., whereby defendant became liable to repay to him the said sum of dollars. But plaintiff says that though he has often requested defendant to repay to him said sum, the defendant has ever failed and refused, and still fails and refuses, to pay the same, or any part thereof, and is now justly indebted to plaintiff in said sum of dollars. §72. On written contract modified byi>arol,witli claim for extra work. ^That on the day of , 18 — , plaintiff and defend- ant entered into a contract in writing duly executed, and being in words and figures as follows, to-wit \Jiere insert copy of contract verbatim'\ : which said contract is herewith filed and marked Exhibit A. That thereafter, and before the day of , 18 — , the date mentioned in said contract upon which the work was to be completed, plaintiff duly performed all the con- ditions of said contract upon his part to be performed, 73 Ch. 5.] ACTIONS ON CONTRACTS. [§'2. except as follows, to-wit : that he did, at the request of the defendant, cover the roof of the building in said contract mentioned with slate instead of with shingles, for which services rendered in modification of said contract defendant promised to pay plaintiff a reasonable sum in addition to the price named in said contract; and further, that at de- fendant's request plaintiff omitted to put shutters upon the rear of the building, upon agreeing with defendant that a reasonable deduction be made from the price named in said contract by reason of such omission. And plaintiff further says that, at defendant's instance and request, he did build an addition to said building for the purpose of a stable, said building beins; of the following dimensions [here insert same^ ; and that defendant agreed to pay therefor the sum of dollars in addition to the price named in said con- tract; and also by reason of said additions and alterations and other considerations moving defendant thereto, defend- ant agreed to extend the time for the completion of said building for two weeks from and after the date of said con- tract mentioned, to-wit: until the day of , 18 — , on which last mentioned date plaintiif had fully completed all the work to be done by him under said contract and its modifications. Plaintiff says that dollars is a reasonable sum to be paid him in addition to the price named in the contract for covering the roof of said building with slate instead of with shingles, and that the sum of dollars is a reasonable deduction to be made on the price named in said contract for the omission to put shutters on the building. Plaintiff further says that during the progress of said work defendant paid to hitn the sum of dollars, leav- ing due as part of the contract price in said petition men- tioned the sum of doHars, from which should be deducted the sum above mentioned for omission to put the shutters upon the rear of the building as aforesaid ; that 74 Ch. 5.] ACTIONS ON CONTRACTS. [§73. for said remaining sum, to-wit : dollars, defendant is justly indebted to him, and in addition thereto for dollars for the slate roof as aforesaid, and dol- lars agreed to be paid to plaintiff for the erection of the stable aforesaid. And for a f uther cause of action plaintiff says that, while said work was in progress, to-wit: between the day of and the day of , 18 — , plaintiff rendered to defendant services and furnished for him materials out- side of the contract aforesaid, in and about the \_7iere state the work done outside and indeiyendent of the contracf^j the items of which, together with the dates on which the materials were furnished and the services rendered, and the prices charged therefor, appear by the itemized account hereto annexed and marked Exhibit B. That the prices charged for the said services rendered and materials fur- nished are reasonable and proper, and that the total thereof, being dollars, is justly due to plaintiff from defendant. §73. On promise of a reward in a newspaper. ^For that whereas, on, etc., divers goods and chattels, to the value of dollars, were, on, etc., feloniously taken and carried away by certain persons unknown, from the residence of defendant, as the defendant caused to be re- ported and published on, etc., in , a newspaper pub- lished in , and defendant, in consideration that plaintiff, or any other person, would give notice where said goods were, so that the same, or any part thereof, were restored again, promised that he would pay the person or persons so discovering said goods dollars, or proportionably for any part thereof; that in consideration of the premises plaintiff did, on, etc., give notice to defendant of the greatest part of the goods so lost as aforesaid, to-wit: of so much of them as came to the value of dollars, so that the same goods, and of the value of dollars, did, 76 Ch. 5.] ACTIONS ON CONTRACTS. [§73. on, etc., by reason of said notice, come to and were restored again to the possession of defendant ; whereby defendant ought, according to his promise as aforesaid, to have paid to phiintiff dollars, being a proportionable part of the reward so promised by defendant to be by him paid as aforesaid. Yet, etc. 76 Ch. 6. — Actions for Money and Personal. Property Had and Eeceived. §74. To recover money had and received, services not per- formed. 75. To recover money paid on a judgment afterwards reversed. 76. To recover money realized from sale of property under a judgment, afterwards reversed. 77. To recover amount of note pledged as collateral security, by pledgor against pledgee. 7S. For repayment of deposit, on a contract for the purchase of real estate not performed. 79. For not delivering money to a third person, according to promise. 80. For not redelivering goods pawned, the redemption money being tendered. 81. For not returning a note delivered to the defendant for safe keeping. 82. For not redelivering a bill of exchange left for acceptance. §74. To recover money had and received — services not performed. °That on the day of , 18 — , plaintiff employed defendant to render services as for one year from said date, for which services he agreed to pay defendant dollars ; that he thereupon paid defendant in advance, and on account of said services so to be rendered by defendant, the sum of dollars. That defendant wholly failed and neglected to render said services, though this plaintiff has ever been ready and willing to receive and pay for the same, and defendant has never repaid to plaintiff the sum advanced as aforesaid, nor any part thereof, but the same is justly due him from defendant. §75. To recover money paid ona judgment afterwards reversed. ^That on or about the day of , 18 — , defendant recovered against plaintiff in an action pending in the Dis- 77 Ch. G.] ACTIONS FOR MOXEY, HAD AXD RECEIVED. [§76. trict Court of county, wherein the defendant was plaintiff and this plaintiff Avas defendant, judgment for the sum of dollars and costs of suit. That afterwards, to-wit : on the day of , 18 — , an execution on said judgment was duly issued out of said court, and was by the sheriff of county levied upon the property of this plaintiff situated therein, and said officer was about to advertise and sell the same. That afterwards, on the day of 18 — , plaintiff, in order to prevent the sale of said property under said ex- ecution, was compelled to pay, and did pay, to the defendant the sum of dollars, in satisfaction of said judgment. That after said payment such proceedings were had in said action that on the day of , a. d. 18 — , by the judgment of our Court of Civil Appeals for the first su- preme judicial district, sitting in the city of Galveston, said first mentioned judgment was duly reversed and set aside, and thereafter was of no force or effect, whereby defend- ant became liable to pay plaintiff the said sum of money with interest thereon; but to pay the same, or any part thereof, although so requested to do by this plaintiff on the day of , a. d. , has refused and still does refuse, to his damage, etc. See Galveston Co. v. Gorham, 49 T. 279; G. G. Co. v. County of Gal- veston, 54 T. 287 ; Ked v. Johnson, 53 T. 284. §76. To recover money realized from sale of property under a judgment afterwards reversed. ^That on or about the day of , 18 — , defendant recovered judgment against plaintiff in the court of the county of , in an action wherein this defendant was plaintiff and tliis plaintiif was defendant, for the sum of dollars; that thereafter an execution was issued on said judgment and levied upon the property of the plaintiff, and thereafter, to-wit: on the day of , a. d. , said property was sold under and by virtue of said 78 Ch. 6.] ACTIONS FOR MONEY, HAD AND RECEIVED. [§ 76. judgment and execution, and the amount of said judgment, interest and costs, was realized therefrom, the same amount- ing to dollars. That after said judgment was so satisfied out of plaintiff's property, such proceedings were had in said aforesaid action, that on the day of , 18 — , by the judgment of our Court of Civil Appeals for the first supreme judicial dis- trict, sitting in the city of Galveston, said first mentioned judgment was duly reversed and for naught held. Plaint- iff says that no part of the amount paid by him in satisfac- tion of said judgment has been repaid to plaintiff, but de- fendant is indebted to plaintiff therefor in said sum of dollars, together with interest thereon from the day of , 18 — \_the day on wliich the money was realized on the execution'\. Where the property of a defendant in execution was sold at sheriff's sale, and the defendant afterwards recovered it from the purchaser, on the ground that it was exempt from execution as his homestead, the purchaser has the right to recover back his money from the defendant in execution, for whose benefit the money was paid. Stone V. Darnell, 25 T. Sup. 430. A purchaser at a void judicial sale, when the money paid by him was applied to the discharge of a valid judgment, having a lien on the land, is entitled to be reimbursed the amount paid, before eviction. French v. Grenet, 57 T. 273; Elam v. Donald, 58 T. 316; Thomp- son V. Comstock; 59 T. 318. And SO where property is sold pending an appeal, a pur- chaser at the void sale is entitled to be refunded the pur- chase money applied to the payment of his debt. Burns v. Ledbetter, 5G T. 282; Johnson v. Caldwell, 38 T. 217. A purchaser at a void tax sale cannot, when sued for the land, recover the amount of taxes paid by him, although lawfully assessed upon the land and paid by his purchase. McCormick v. Edwards, 69 T. 106; see French v. Grenet, 57 T. 273; Cole v. Bammel, 62 T. 108. 79 Ch. 6.] ACTIONS FOR MONEY, HAD AND RECEIVED. [§ 77. §77. To recover the amount of a note pledged as col- lateral security, l>y pledgor against pledgee. ^That on the day of , 18 — , plaintiff being then indebted to the defendant in the sum of dolhirs, in- dorsed and delivered to him as collateral security for the pavuient of said debt a certain promissory note made by one M. N., for dollars, bearing date on the day of , 18 — , and payable to plaintiff at six months after date, with interest at per cent, from and after . That at the maturitv of said note the sum of monev due thereon was collected by defendant, and by the appli- cation of moneys so received by him said indebtedness was wholly paid and extinguished. That after payment of said indebtedness there remained in the hands of defendant a balance of dollars belonging to plaintiff, which defend- ant then and there was liable, and promised to pay plaintiff on demand ; that plaintiff demanded of defendant payment of said sum of money on the day of , 18 — , but to pay the same, or any part thereof, the defendant has wholly failed, and refused and still refuses, to his damage, etc. §78. For repayment of deposit, on a contract for the purchase of real estate, not performed. ^Thaton the day of , 18 — , defendant and plaintiff entered into a contract in writing, whereby it was mutually agreed that defendant should sell to plaintiff a certain tract of land situated in the county of , containing acres, and known as , for the sum of dollars, to be paid therefor by plaintiff ; that defendant should make a good title to said tract of land, and deliver a deed therefor on the day of , 18 — ; and that plaintiff should pay to defendant the sum of dollars, and the balance of the purchase money upon the delivery of the deed as aforesaid. That in pursuance of said agreement, plaintiff, on the day of , 18 — , paid to the defendant the said sum 80 Ch. 6.] ACTIONS FOR MONEY, HAD AND RECEIVED. [§79. of dollars, to be to and for the use of the defendant, and to be retained by him on account of the purchase money, if plaintiff should complete his purchase and receive the deed of said premises ; but to be to and for the use of the plaintiff, and to be returned to him, if the defendant should fail to fulfill his agreement as aforesaid, and give a deed of the premises at the time and pursuant to the agreement hereinbefore set forth. That plaintiff has always been ready and willing to do and perform everything in the aforesaid agreement con- tained on his part, and on the said day of , 18 — , was ready and willing, and duly offered to the defendant, to accept and take the deed of said premises puj-suant to said agreement, and to pay to him the balance of the purchase money due therefor ; and the defendant did not on said day of , 18 — , nor has he at any other time whatsoever^ given the plaintiff a deed of said premises pursuant to said agreement, but on the contrary has wholly failed and refused so to do. That on the day of plaintiff demanded of de- fendant the said sum of dollars, but defendant re- fused and still refuses to pay the same, or any part thereof, to his damage, etc. §79. For not delivering money to a third person according to promisco ^That heretofore, to-wit: on, etc., defendant, in con- sideration that plaintiff had then delivered to him dollars, promised plaintiff to deliver the same on the same day to one D., at ; yet the said defendant, not regard- ing his said promise, did not deliver the said sum of money on the same day to the said D., but neglected and still wholly neglects so' to do ; by reason whereof plaintiif has been sued for the same by the said D., and put to great charges, to-wit: the sum of dollars; all which is to the damage of plaintiff, etc. (6— Plead. Forms.) 81 Ch. 6.] ACTIONS FOR MONEY, HAD AND RECEIVED. [§80. §80. For not redelivering goods pawned, tlie redemp- tion money being tendered. ^That heretofore, to-wit: on, etc., plaintiff pawned and delivered to defendant, at his special request and as security for the sum of dollars then advanced by him to plaintiff, certain goods and chattels, to-wit: , of the value of dollars; that in consideration of the premises, defendant on the day and year aforesaid promised plaintiff to take due and proper care of said goods and chattels, and to permit the plaintiff to redeem the same on request, and on such redemption to redeliver the same to plaintiff. That afterwards, to-wit: on, etc., plaintiff was ready and willing, and tendered and offered to redeem said goods and chattels, and to pay all and every sum of money due the said de- fendant upon and for redemption of the same; but said defendant, when so requested" as aforesaid, would not suffer or permit plaintiff to redeem said goods and chattels, or any part thereof, but refused to accept the money tendered as aforesaid, and to redeliver said goods, or any part thereof, and converted the same to his own use, to plaintiff's damage dollars. §81. For not returning a note delivered to the defend- ant for safe keeping. ^That heretofore, to-wit: on, etc., plaintiff delivered to and deposited in the hands of defendant, and at his special request, a certain promissory note for dollars, executed by one A. B. in favor of one C. D., and by said C. D. indorsed to plaintiff, which said note was for the sum of dollars ; and in consideration thereof said defendant, on the day and year aforesaid, promised plaintiff that he, said defendant, would return said note, or the value thereof, to-wit: the sum of dollars, to plaintiff", upon rc(|uest ; that afterwards, to-wit: on, etc., plaintiff requested de- fendant to return said note, or its value, but defendant wholly refused and still refuses so to do, to plaintiff's damage dollars. S2 Ch. 6.] ACTIOXS FOR MOXEY, HAD AND RECEIVED. [§ 82. §82. For not redelivering a bill of exchange left for acceptance. ^That heretofore, to-wit: on, etc., plaintiff was possessed of a certain bill of exchange, of the value of dollars, purporting to be drawn by one A. B. upon defendant for the sum of dollars, to be paid to one P. or his order, which said bill was then and there indorsed by said P. ; and defendant then and there, in consideration that plaintiff, being so possessed thereof, at the special request of him, the said defendant, would deliver to him the said bill and leave the same with him, promised plaintiff to redeliver the same upon request, and plaintiff, relying on said promise of defendant, did then and there deliver to him said bill ; that afterwards, to-wit: on, etc., plaintiff requested de- fendant to redeliver to him said bill, but defendant refused and still refuses so to do, to plaintiff's damage dollars. 83 Ch. 7. — Action FOR Damages ON Account of Fraud or Deceit. §83. For deceit in the exchange of horses. 84. For affirming a note to be made by R. R. of B-, and assign- ing it as such, when in fact it was made by R. R. of A., who was insolvent. 85. For deceit, in affirming T. to be a man of substance, and thereby inducing plaintiff to sell him mules on credit. 86. For fraudulent representation as to credit, etc. 87. For fraudulent lourchase of goods. 88. For fraudulently representing value of good will. 89. For fraudulent representation as to value of stock sold. 90. Fraudulent representation as to title to personalty sold. 90a. Same, where property has been recovered by suit. 91. For damages in the sale of wool deceitfully packed, and not merchantable. § 83. For deceit in the exchange of horses. ^That heretofore, to-wit: on, etc., defendant being pos- sessed of a pair of horses, one of which was unsound and infected with a bad and incurable disease, which rendered him worthless, and plaintiff being then also possessed of another pair of horses, of the value of dollars, he, the said defendant, to induce plaintiff to exchange horses with him, did then and there falsely and fraudulently affirm to plaintiff that his, the said defendant's horses, so far as he knew, were then well, good and sound horses ; whereupon plaintiff, giving full credit to defendant's said affirmation, was instantly induced to and did then and there deliver his said horses to defendant, in exchange for said defendant's horses, then delivered to plaintiff by defendant; that at the time of the delivery, exchange and affirmation aforesaid, the said horses of defendant were not well, sound or good; but one of them was then infected with and labored under a bad and incurable disease, which made him utterly unfit for any service, and good for nothing, all which defendant then well knew; that by means of the premises, defendant hath greatly injured and defrauded plaintiff, to his damage, etc. / 84 Ch. 7.] ACTIOX ox FRAUD OR DECEIT. [§§84, 85. §84. For afflrming a note, to be made by R. R. of B., and assigTiing It as such, when in fact it was made by R. R. of A., who was insolvent. ^That heretofore, to-wit: on, et. 18 — , at the term of said court, said claim was dis- approved by an order duly entered of record in said court. In Holliman v. Rogers, 6 T. 91, it was held that one of several makers of a promissory note, who had paid it, could not maintain an action upon the note, but his remedy was on the implied assumpsit. 128 Cll. 10,] ACTIONS FOR INDEMNITY. [§116. In Williams v. Durst, 2i) T. 667, it is held that the payee of a note who indorses it, and afterwards pays it and takes it up, stands with reference to the maker as if he had never parted with it. His remedy is upon the note, and not upon an account for money paid to the use of the maker. In Sublett v. McKinney, 19 T. 43, it is held that the action of an accommodation acceptor, who had paid the bill, was grounded on the written contract, and that he was to be regarded as the surety of the drawer. As such he was entitled to be substituted to the very debt itself, and to all collateral securities. In Mitchell v. DeWitt, 25 T. Sup. 180, it is held that when the original principal in a debt prosecuted a writ of error, and the original surety or indorser of the note afterwards paid the debt, he was entitled to have the judg- ment ao:ainst the orio-inal defendant and sureties on the supersedeas bond assigned to him, upon the general prin- ciple that a surety is entitled to the assignment of all collaterals, and that the second surety may have put him in a worse condition. In Taul V. Epperson, 38 T. 492, it is held that the surety upon an error bond, executed by one of several joint defend- ants, paying the debt after the judgment had been affirmed, is subrogated to the rights of the plaintiff against all of the defendants. One or more of several sureties may pay a note of an insolvent principal, and maintain an action against the other surety or sureties for contribution. Jackson V. Murray, 77 T. 644. Ordinarily there is no liability for contribution to a co- surety who voluntarily pays the debt after it is barred by limitation, yet if he pays it after judgment in a suit began before limitation has run, such payment, after the bar would have been complete if suit had not been brought, will ren- der his co-surety liable for contribution. Glasscock v. Hamilton, 62 T. 143. (9— Plead. Forms.) 129 Ch. 10.] ACTIONS FOR INDEMNITY. [§§117, 118. §117. By surety against principal, for debt contracted for his benefit and paid by surety. ^That on the day of , 18 — , plaintiff, at the re- quest of defendant, bought of one M. N., to be delivered to the defendant and to his use, certain goods and chattels, viz. : of the value of dollars, and the same were thereafter delivered to the defendant, who failed to pay for the same. That on the ■ day of , 18 — , in a suit brought to recover from plaintiff the price of said goods, said M. N. recovered, in the District Court of county, judgment against this plaintiff for the sum of dollars and costs of suit. That on the day of , 18 — , plaintiff was com- pelled to pay, and did pay, to said M. N. the sum of dollars, the amount of said judgment, interest and costs; but to pay the same, or any part thereof, to plaintiff, the de- fendant, though often requested, has refused, and still refuses, to plaintiff's damage, etc. §118. By maker of accommodation note paid by liim. ^That on the day of , 18 — , plaintiff executed and delivered to defendant his promissory note in writing, bearing date on the day and year aforesaid; whereby, etc. (setting out note according to its legal tenor and effect). That plaintiff never received any consideration for said note, but it was an accommodation note, made and given to the defendant at his request, and upon his promise that he would pay the same at maturity. That as this plaintiff is informed and believes, the defend- ant thereafter, and before the maturity of said note, nego- tiated the same for value. That the defendant failed to pay said note at maturity, and plaintiff was thereupon compelled to pay it, and did, on the day of , a. j). 18 — , pay the same to one 130 Ch. 10.] ACTIONS FOR INDEMNITY. [§§119, 120. M. N., the holder thereof, and that no part of the same has been paid to plaintiff, but defendant is now justly indebted to him in the sum of dollars, with interest, etc. §119. By indorser of a note, having paid the same, to recover from maker the aniovmt paid. ^That on the day of , a. d. 18 — , the defendant executed and delivered to plaintiff his certain promissory note in writing, bearing date on the day and year afore- said; whereby, etc. (setting out note according to its legal tenor and effect). That afterwards, viz. : on the same day, plaintiff, for a valuable consideration, transferred and delivered said note to one M. N. That at the maturity of said note the same was duly pre- sented for payment, but was not paid, whereof plaintiff had due notice, and that thereafter plaintiff w^as compelled to pay, and on the day of , 18 — , did pay to said M. N., the holder of said note, on account of the amount due thereon from the defendant, the sum of dollars; that thereby defendant became liable, and promised plaintiff to pay him said sum of money, with the interest thereon from said date; but to pay the same, or any part thereof, to plaintiff, the defendant, although often requested, refused, and still refuses, to plaintiff's damage dollars. §120. On a promise to pay the debt of another. ^ That heretofore, to-wit: on, etc., one H. was indebted to plaintiff in the sum of dollars, with interest thereon from at the rate of per cent, per annum, and be- ing so indebted, plaintiff was about to institute a suit against the said II. for the recovery of said sum and inter- est ; and thereupon, to-\v*it: on, etc., said defendant, in consideration that plaintiff, at the special request of him, the said defendant, would forbear to sue the said H. for the purpose and cause aforesaid, by his writing of that date 131 Cb. 10.] ACTIONS FOR INDEMNITY. [§120. by him signed and delivered to plaintiff, promised plaintiff to pay liim said sum of money and the interest due thereon, owing as aforesaid by said H. to plaintiff; that confiding in the promise of said defendant, plaintiff hath hitherto fore- borne to sue the said H., and the said sum of money, with interest thereon, so owing from the said H. as aforesaid, is still due and unpaid ; that although a reasonable time for the payment of the same has long since elapsed, yet said defendant, though often requested, hath never paid the same, but wholly neglects and refuses so to do, to plaint- iff's damage dollars. By the statute of frauds a promise to answer for the debt, default or miscarriage of another, or some memoran- dum thereof, must be in writing, and signed by the party to be charged therewith, or by some person thereunto law- fully authorized. Civ. Stat. Art. 2464. To bring a promise, not in writing, to pay the debt of an- other, within the statute of frauds, the debt must be a sub- sisting and continuous one, and the undertaking collateral and auxiliary to that debt. Hill V. Frost, 59 T. 25. If the former debt is discharged in consequence of the promise, the undertaking is an original contract, and need not be in writing. This fact must be alleged in the plead- ing. Bason v. Hughart, 2 T. 476; Warren v. Smith, 24 T. 484. When the main purpose of the promissor is not to an- swer for the debt of another, but to subserve some purpose of his own, his promise is not within the statute of frauds, although it may be in form a promise to pay the debt of another, and although the performance of it may inci- dentally have the effect of extinguishing the liability of an- other. Lemmon v. Box, 20 T. 329; Wallace v. Freeman, 25 T. Sup. 91; Mc- Creary v. Van Hook, 35 T. 631; McCown v. Schrimpf, 21 T. 22; Spann V. Cochran, 63 T. 240. 132 Ch. 10.] ACTIONS FOR INDEMNITY. [§121. The liability of a guarantor cannot be extended, by im- plication or otherwise, beyond the actual terms of his en- gagement. A letter of guaranty addressed to two persons, and delivered to one only, who acted upon it, does not bind the guarantor to the one who alone acted on the letter. Smith V. Montgomery, 3 T. 199. A verbal guaranty, made at the request of a firm to cer- tain of its creditors, to pay certain subsisting demands against the partnership, followed by payment, though made after and with notice of the dissolution of the partnership, constitutes a good cause of action against the firm. Although the verbal guaranty was not legally binding, by reason of the statute of frauds it constituted an obligation morally binding, and the debtors had no right to ask the guarantors to violate the obligation by refraining from pay- ment, or interposing the defense of the statute- of frauds. A request made by one of the firm, after dissolution, would not authorize a guaranty, unless there had been a similar course of business between the parties, and the payment was made without notice of the dissolution. Lee V. Stowe, 57 T. 444. An agreement which is not to be performed within the space of one year from the making thereof, must be in writing. Civ. Stat. Art. 2464. When an agreement may or may not be performed within a year, it is not required to be in writing. Thouvenin v. Lea, 26 T. 614; Thomas v. Hammond, 47 T. 42. In Gonzales v. Chartier, 63 T. 36, it is held that it is not necessary to allege in the pleading that a contract not to be performed within the year was in writing, such being mat- ter of proof. See Railway v. Scott, 72 T. 78. §121. Against factor for price received for g^oods sold. ^That on the day of , 18 — , plaintiff emplovcd defendant to sell bales of cotton, weighing pounds, on commission, and thereupon delivered the same to him. 133 Ch. 10.] ACTIONS FOR INDEMNITY. [§122, That afterwards, and before the day of , 18 — , but upon what particular day plaintiff is not informed, de- fendant sold said cotton for the sum of dollars, which sum he thereupon received. That the just charges of the defendant for commissions and expenses in and about said sale amount to the sum of dollars, and no more. That the sum of dollars. being the balance of said price remaining after deducting the charges, became due and payable to this plaintiff by the defendant on the day of ,18 — ; but the defendant, though often requested, has wholly refused to pay the same, or any part thereof, and still refuses, to the plaintiff's damage, etc. §122. For not rendering an account of goods de- livered to be sold on plaintiff's account. ^ That heretofore, to- wit: on, etc., in consideration that plaintiff had delivered to him fifty bales of cotton, of the value of dollars, the property of plaintiff, to be sold and disposed of for a reasonable reward, defendant under- took, and then and there faithfully promised plaintiff, to sell and dispose of said cotton for plaintiff, and to render a true and just account of the sale thereof to plaintiff, and pay over the moneys arising from said sale whenever after the sale thereof defendant should be thereunto requested ; that defendant did afterwards, on, etc., sell and dispose of said cotton, for and on account of plaintiff, for the sum of dollars; and although plaintiif afterwards, on, etc., requested defendant so to do, yet the defendant, not regard- ing his said promise and undertaking, has not rendered to the plaintiff a just and true or other account of the sale of said cotton, or any part thereof, or paid over the moneys arising from such sale, or any part thereof , but has hitherto wholly refused and still refuses so to do, to plaintiff's damage dollars. 134 Ch. 10.] ACTIONS FOR IXDEMNITY. [§ 123. §123. For not accounting for goods consigned to he sold. ^ That heretofore, to-wit: on, etc., in consideration that plaintiff, at the special instance and request of the defend- ant, had sent and consigned to him divers goods and chat- tels of the said plaintiff, of the value of dollars, de- fendant undertook, and then and there faithfully promised plaintiff, for a reasonable commission and reward to de- fendant in that behalf, to sell and dispose of said goods and chattels for and on account of plaintiff, and to render a just and reasonable account of the sales thereof to plaintiff, in a reasonable time then next following, and to pay over the proceeds of such sales to plaintiff when thereunto reasonably requested; that defendant then and there received said goods and chattels for the purpose aforesaid, and after- wards, on, etc., and on divers other days and times after- wards, sold the same, for and on account of plaintiff, for a large sum of money, to-wit: for the sum of dollars; and, although a reasonable time for the defendant to render such account, as aforesaid, and pay over the proceeds of said sales to the plaintiff, has long since elapsed, yet the de- fendant, although he was afterwards, on, etc., requested so to do, has not rendered to the plaintiff a just and reason- able account of said sale, or paid over the proceeds thereof to plaintiff, but has hitherto wholly neglected and refused so to do, to plaintiff's damage dollars. 135 Ch. 11. — Actions on Judgments. §124. On a domestic judgment of a court of record. 125. On a judgment of a justice of the peace. 126. On a foreign judgment. 127. By assignee of a judgment. §124. On a judgment of a court of record of this state. ^That on the day of , a. d. 18 — , at the — ^ term, a. d. 18 — , of the District Court in and for the county of , in a certain cause therein pending, wherein the said A. B. was plaintiff and the said CD. was defend- ant, by the consideration and judgment of said court duly given, the said A. B. recovered against the said C. D. the sum of dollars, with interest thereon from the said day of , at the rate of per cent, per annum, besides his costs of suit, which amount to the sum of dollars, as by the record and proceedings of said cause re- maining in the district clerk's office of said county of more fully appears ; that no execution has been issued on said judgment within tAvelve months after the rendition thereof; that said judgment has not been paid in whole or in part, still remains in full force and effect, not reversed or otherwise vacated, and by reason of the prem- ises defendant is now justly indebted to plaintiff in the sum of dollars, with interest thereon from said date at the rate of per cent, per annum, but to pay the same, or any part thereof, has refused, and still refuses, to plaintiff's damage dollars. When a general exception to a petition is sustained and the plaintiff declines to amend, a judgment thereon rendered against him is final. Girardin v. Dean, 49 T. 243; Dixon v. Zadek, 59 T. 529; Parker v. Spencer, Gl T. 155; Bomar v. Parker, 08 T. 435. 13G Ch. 11.] ACTIONS ON JUDGMENTS. [§124. But when a general exception is sustained and plaintiff takes leave to amend, he virtually asserts that he has not set up his whole case in his petition, and the leave to amend takes from the judgment the quality of finality which is necessary to make it an estoppel, and thus sets the matter at large. If thereafter the plaintiff takes a non-suit, nothing is concluded between the parties. Seherff v. Mo. Pac. Ey. Co., SI T. 471. It is the duty of the court to construe a foreign judg- ment upon which suit is brought. In the absence of an averment in the petition on a foreign judgment of a law, custom or procedure in the court where the judgment was rendered, requiring a different construction, such judgment will be construed to have the same legal effect as if it had been rendered in our own courts. Porcheler v. Bi'onson, 50 T. 555; Railroad v. Moody, 71 T. 614. In an action on a judgment of a court of this state it is not necessary for the plaintiff to state the proceedings in the suit anterior to the entry of final judgment. Bullock V. Ballew, 9 T. 498; McFaddin v. Lockhart, 7 T. 573; Schleicher v. Markward, 61 T. 99. If the judgment be void the defendant may plead the matters which show its nullity, and for this purpose he may bring before the court the proceedings anterior to its ren- dition. Bullock V. Ballew, 9 T. 498. It maybe shown in defense that a judgment was obtained by fraud. Driukard v. Ingram, 21 T. 650. A judgment is conclusive upon the parties thereto and their privies of every fact determined by it. It is not necessary that the issues should have been taken upon the precise point which it is proposed to controvert in a collat- eral action, if such point was essential to the former judg- ment. Lee V. Kingsbury, 13 T. 68; T. P. Ry. Co. v. Johnson, 76 T. 421; Brown v. Gay, 76 T. 444. 137 Ch. 11.] ACTIONS ON JUDGMENTS. [§§125, 126. In order that a judgment rendered at the suit of a third party against the vendee of property sold with warranty of title may, in an action upon the warranty, be conclusive or even admissible as evidence of any fact necessary to show failure of title, there must have been a request to the warrantor to defend the action in which the title to the property was in controversy. Clark V. Mumford, 62 T. 535; Buchanan v. Kauffman, 65 T. 235; Grain v. Wright, 60 T. 515; Johns v. Hardin, 81 T. 37. §125. On a jiiclginent of a justice of the peace. ^That on the day of , 18 — , in an action before G. H., a justice of the peace in and for precinct No. , in the county of , in this state, wherein this plaintiff was plaintiff and the defendant herein was defendant [or vice versa, as the case may 6e], being an action to recover dollars \_state the amount and the facts showing juris- diction of the justice^, judgment was duly rendered by said justice of the peace in favor of this plaintiff and against the defendant herein for the sum of dollars [or "for costs," etc.] ; that no execution has been issued on said judgment within twelve months after the rendition thereof; that the same has not been paid, nor any part thereof, and defendant is now justly indebted to plaintiff thereon in the sum of dollars, with interest from said date; wherefore plaintiff prays judgment, etc. §126. On a foreign judgment. ^That on the day of , 18 — , he instituted against defendant an action for \_state the nature of the action] in the court in and for the of , in the state of , the same being a court of general jurisdiction, and having jurisdiction of the person of defendant and of the subject matter of said action ; that defendant was duly served with process in said action, and appeared thereto by his duly authorized attorney [if there was service only, or ap- 138 Ch. 11.] ACTIONS ON JUDGMENTS. [§127. pearance only, omit the one or the other of these averments^ according to the fact'\ ; that such proceedings were had in said cause that afterwaids, to-wit: on the day of , 18 — , a judgment was by said court rendered in favor of this phiintiff and against the defendant herein for [state the amount or effect of the judgment~\ ; that no part of said judgment has been paid \if anything has been paid on it add: except, etc.]. A transcript of said judgment and proceedings, duly authenticated under and in accordance with the act of congress, is herewith filed, marked, etc. In a suit on a judgment of a justice of the peace of another state, it must be alleged that the justice had juris- diction of the person and subject matter, and that his court was created by and held by him under the authority of the statutes of such state, which must be set out and proven. Grant v. Bledsoe, 20 T. 456; Beal v. Smith, 14 T. 305. §127. By assignee of a judgment. ^That on the day of , 18 — , in an action pending in the court of county, Texas, wherein one R. S. was plaintiff and the defendant herein was defendant, a judgment was duly rendered in favor of said R. S. against the defendant for the sum of dollars ; that thereafter, and on the day of , 18 — , said R. S., for value, duly assigned said judgment to this plaintiff, of which assignment the defendant had due notice; that no execu- tion has been issued on said judgment within twelve months after the rendition thereof; that the amount of said judgment, or any part thereof, has not been paid either to plaintiff or to said R. S. , and defendant is now justly indebted to plaintiff thereon in the sum of doHars, with interest from the said day of , 18 — \_date of the judgmenf] . 139 Ch. 12. — AcTioisrs Against Common Carrier and Bailees. §128. For the value of goods lost. 129. On a promise to carry to C, and forward to G. 130. Against a railroad company for not delivering goods. 131. Against a railroad company for damages by reason of failure to carry and deliver live-stock with reasonable diligence. 132. For failure to deliver at time agreed upon, with special damage. 133. To recover bacli excess of freight exacted. 134. For penalty for cliarging or collecting excessive rates of freight by railroad company. 135. Against a warehouseman for refusal to deliver goods. 136. Against an iun-keeper for loss of trunk. 137. Against an inn-keeper for suffering plaintiff's horse to stray away. §128. For tlie value of goods lost. ^ John Brown, Henry Smith and Levi Schofiekl, plaintiffs, complaining of Oliver Griffith, defendant, represent that plaintiffs reside in the county of , and the defendants in the county of . ^That at the time hereinafter next mentioned, plaintiffs were merchants and traders, carrying on their said business under the firm name and style of John Brown & Co., and were the owners of the several articles or packages of goods and merchandise which they had occasion in the due course of their said business to consign, send and convey from the town of to the town of , in county, for one S. H. Green, to the care and direction of certain persons trading and doing business in said place in the firm name and style of A. & N., with which said Green said plaintiffs had bargained and agreed for the sale of said goods and merchandise, to be delivered by the plaintiffs to him as aforesaid. 140 Cll. 12.] ACTIONS AGAINST COMMON CARRIER, ETC. [§128. That on or about the day of , defendant was, and carried on the business of, a common carrier of goods and merchandise for hire; that on the day aforesaid, at the town of , phiintiffs delivered to defendant, and defend- ant then and there accepted and received from phuntiffs, as such common carrier, on board of a certain wagon of the defendant, the following described goods and mer- chandise, to-wit: etc., of the value of dollars, to be safely and securely taken and conveyed by defendant for plaintiffs from the town of to the town of , afore- said, on board the wagon of defendant, and at afore- said to be safely and securely delivered to the said A. & N. for the said S. H. Green, for a certain reward to be paid for the same on the delivery thereof as aforesaid ; that on the delivery to defendant of the goods and merchandise aforesaid, said defendant executed and delivered to plaint- iffs his certain receipt or bill of lading bearing date on the day and year aforesaid, whereby defendant acknowledged that he had, on said day, received from plaintiffs nine boxes of merchandise marked S. H. G., care of A. & N., , and there and then as-reed to deliver the same in like good order and without delay to A. & N. at . That the nine boxes of merchandise mentioned in said receipt were marked and directed as above stated by plaint- iffs, and contained the goods and merchandise above de- scribed. That the said defendant did not safely or securely carry and convey from the town of to , on board his said wagon or otherwise, nor did he safely or securely de- liver to the said A. & N. nor to the said S. H. Green, nor to any person for them or either of them, for said plaint- iffs, the said goods and merchandise above mentioned, or any part thereof; whereby the said property of plaintiffs above mentioned became wholly lost to them, and the sale of the same to the said S. H. Green, and all benefit and advantage which they might and would have derived from 141 Ch. 12.] ACTIONS AGAINST COMMON CARRIER, ETC. [§128. the sale and safe and secure delivery of said goods and merchandise as aforesaid, to their damaoe dollars. •"Wherefore, they pray that defendant be cited to answer this petition, and that they have judgment for the value of said goods and merchandise, and damages as aforesaid, and for costs of suit. Haynie v. Baylor, 18 T. 498; Chevallier v. Strahan, 2 T. 115; Phillio V. Saiiford, 17 T. 227. The carriers of animals are common carriers, subject to the same responsibilities as carriers of other property. They cannot contract for exemption from a liability result- ing from negligence in the transportation of freight within this state. Railway V. Harris, 67 T. 166; Railway v. Cornwall, 70 T. 611; M. P. R. R. Co. V. Fagan, 72 T. 127. A limitation on the common law liability of a carrier, for the proper transportation and delivery of freight beyond the limits of this state is valid, when shown to be reason- able. Railway v. Harris, 67 T. 16G; G. C. & S. F. Ry. Co. v. Baird, 75 T. 256. In the absence of stipulations to the contraiy, a railway company making a contract for through carriage is re- sponsible for a loss or injury on connecting lines. G., C. & S. F. Ry. Co. v. Baird, 75 T. 256; G., H. & H. Ry. Co. v. Allison, 59 T. 193. It may lawfully limit its liability to its own line^ and stipulate that its liability shall cease with the safe delivery of the freight to the next carrier. G., C. & S. F. Ry. Co. v. Baird, 75 T. 256; Ft. Worth & Denver City Ry. Co. V. Williams, 77 T. 121; see G., H. & H. Ry. Co. v. Allison, 59 T. 193. When goods are lost by some agency excepted by the carrier in the bill of lading, the plaintiff has merely to aver and prove that they were delivered to the carrier, and were not received at the point of destination. This makes a prima facie case of negligence. To avoid liability, the carrier must show that the loss was caused by one of the 142 Ch, 12.] ACTIONS AGAINST COMMON CARRIER, ETC. [§ 128. excepted agencies, and must also rebut the presumption of negligence. If the goods are lost by the act of God, the burden is upon the carrier to prove that his negligence did not contribute to the loss. Kyaa v. M., K. & T. Ry., 65 T. 13; Mo. Pac. Ry. Co. v. China Mfg. Co., 79 T. 26. This is in accordance with the rules of evidence, and with the important rule that the burden of proof is on him who best knows the facts. Chevallierv.Strahan, 2 T. 115; Philleo v. Sanford, 17 T. 227; Arnold V. Jones, 26 T. 335; H. & T. C. R. Co. v. Adams, 49 T. 748. A railway company is liable for the acts of all persons to whom it confides the management and control of its roads, as fully as though operated under the immediate control of the agencies provided by its charter. A company cannot, without authority of law, lease its road so as to absolve itself from liability. Railroad v. Moody, 71 T. 614; Railroad v. Eckford, 71 T. 274; Rail- road V. Lee, 71 T. 538; Ry. Co. v. Underwood, 67 T. 589; Ry. Co. v. Morris, 68 T. 59. If a shipper practices a fraud on the carrier by concealing the value of the article shipped, the carrier is discharged. Ry. Co. V. Burke, 55 T. 323. When a common carrier fails to transport produce des- tined for market, in the condition in which he received it and without unnecessary delay, the owner is entitled, among other elements of damage, by way of indemnity, to legal interest on the value of the commodity from the time it should have been delivered at its market destination. IT. & T. C. Ry. Co. v. Jackson, 62 T. 209; Wolfe v. Lacy, 30 T. 349. In Heidenheimer v. Ellis, 67 T. 426, it is held that inter- est, when allowed as damages, rests in the discretion of the jury, under proper instructions of the court. The net value of the article shipped at the place of des- tination is in general the criterion of damages, subject to the qualifications stated above. 143 Ch. 12.] ACTIONS AGAINST COMMON CAKRIER, ETC. [§129. In case of partial loss, the measure of damage is the dif- ference between such value less the freight and the value at the place of destination. Wolfe V. Lacy, 30 T. 349; M. P. R. R. Co. v. Fagan, 72 T. 127. §129. On a promise to carry to C. and. forward to G. ^That at the time 'of the transaction hereinafter men- tioned, defendant wa's a common carrier of goods and chat- tels for hire ; that on the day of , 18 — , plaintiff being possessed of certain goods, to-wit: (naming them) of the value of dollars, delivered the same to defend- ant, to be carried and conveyed by defendant from to C, and thence to be forwarded to Messrs. at G. ; and said defendant, for a reasonable reward for his care and trouble in this behalf, then and there paid, promised plaint- iff safely and securely to take care of, carry and convey said goods, and forward the same accordingly ; and although said goods might have been carried and conveyed to said C, and thence forwarded to said G., and although said de- fendant hath been often requested so to do, yet said defend- ant hath not yet carried, conveyed or forwarded the same in manner aforesaid ; and for want of due care, and through the mere neglect of said defendant, said goods have been and are wholly lost to plaintiff, etc. §130. Ag-ainst a railroad company for not delivering- goods. ^A. B., plaintiff, of the county of , complaining of the Railway Company, defendants, represents that de- fendant is a corporation, duly incorporated by an act of the legislature of the State of Texas; that is pres- ident and secretary of said company, and that the principal office of said company is in the city of , in the county of ^ . '^That heretofore, to-wit: on the day of , 18 — , defendant owned and possessed a certain railroad extending 144 Ch. 12.] ACTIONS AGAINST COMMON CARRIER, ETC. [§ 131, from to , and was then and still is engaged in the business of running railroad cars, and transporting freight on said road as a common carrier for hire. That on the day of , 18 — , at , in consid- eration of the sum of dollars then paid (or agreed to be paid) to defendant by plaintiff (or of a reasonable com- pensation then agreed to be paid to defendant by this plaintiff, or in consideration that this plaintiff delivered to defendant certain goods hereinafter mentioned), the de- fendant agreed safely to carry from to , and then deliver to or order, certain goods, the property of plaintiff, of the value of dollars, consisting of {here describe the goods) ^ which plaintiff then and there de- livered to defendant, who received the same upon the agree- ment and for the purposes before mentioned. That defendant did not safely carry and deliver the said goods pursuant to said agreement; but, on the contrary, so negligently conducted and misbehaved in regard to the same, in its calling as common carrier, that they were wholly lost to plaintiff, to his damage, etc. §131. Against a railroad company, for damages by reason of a failure to carry and deliver live-stock witli reasonable diligence. ^That heretofore, to-wit: on, etc., defendant owned and possessed a certain railroad extending from to , and was then, and still is, engaged in the business of run- ning railroad cars, and of transporting sheep and other live- stock and freight on said road, as a common carrier for hire. That on the day and year aforsaid, at aforesaid, plaintiff delivered to defendant fat sheep, worth dollars, which defendant then and there accepted, to be safely and securely carried and conveyed over said road, from to , with reasonable diligence and speed, and on the same day to be safely and securely delivered to (10— Plead. Forms.) 145 Ch. 12.] ACTIONS AGAINST COMMON CARRIER, ETC. [§ 131. plaintiff by defendant at aforesaid, for a reasonable re- ward, to be paid on the delivery thereof as aforesaid. That defendant wrongfully and negligently acting in the premises, did not on the day aforesaid deliver said sheep to plaintiff at , or to any one for him, but neglected and refused so to do ; and did not with reasonable diligence and speed carry and convey said sheep from to afore- said ; but, on the contrary, so carelessly and negligently con- ducted itself in the premises that by and through its negli- gence, default and carelessness said sheep were delayed a long time, to-wit: forty-eight hours beyond the usual and ordinary time of passage over said road ; by means whereof plaintiff was subjected to great loss and expense in consequence of said sheep wasting away, from want of food and drink, and becoming sick and refusing to eat, by reason of being confined in said cars, and in cojisequence of being compelled to keep them for a long time after their arrival at to recruit said sheep and restore them to their former market- able condition ; and in consequence of the depreciation of the market value of said sheep, between the time they should have arrived and that of their arrival at , and in conse- quence of the expense and loss of time to which plaintiff was thereby subjected, amounting in all to the sum of dollars. * Carriers of animals are common carriers, subject to the same responsibilities imposed by law on carriers of other property, except as this rule is modified by the inherent character of such property. Railway v. Corawall, 70 T. 611. A railway company, in a suit to recover damages against it for neoli'Tence in failing to deliver cattle within a reason- able time, set up a special contract in its answer, by which it was agreed that as a condition precedent to the plaintiff's right to recover damages for the loss or injury to the cat- tle, the shipper should give notice in writing of his claim to the officers of the company, or its nearest station agent, 14G Ch. 12.] ACTIONS AGAINST COMMON CARRIER, ETC. [§ 132. before the cattle were moved from their place of destination, and before they were mingled with other stock. The line of railway did not extend to the point of destination, and both contracting parties understood that the carrier would transport the cattle from its own road over a connecting road. Held : (1) The contract was a limitation on the liability of the carrier at common law. (2) A limitation on the common law liability of a car- rier for the proper delivery of articles to a point beyond the limits of Texas, to be recognized must be reasonable. (3) The reasonableness of the limitation must appear from the matters set forth in the answer. (4) The failure of the answer to show that the carrier had an officer or agent so situated that the contract to give notice to such officer or agent was reasonable, was fatal on demurrer. (5) No presumption can be indulged that the carrier had an officer near the place of destination. (6) It is doubtful whether, under any circumstances, such a contract, which fails by its terms to specif}^ wlio is the officer or agent to whom notice shall be given, when the carrier is a corporation, and the cattle are to be delivered in a distant state beyond the line of its road, should ever be sustained. Railway Company v. Harris, 67 T. IGG; Railway v. Cornwall, 70 T. 611. §132. For failure to deliver at the time agreed, with special damage. ^ That at the time hereinafter mentioned defendant was a common carrier of goods for hire between the places hereinafter mentioned. That on the day of , 18 — , at , plaintiff de- livered to defendant bales of cotton, weighing pounds, of the value of dollars, the property of plaint- 147 Ch. 12.] ACTIONS AGAINST COMMON CARRIER, ETC. [§132, iff, which defendant, in consideration of dollars (or of a reasonable compensation to be) paid him by plaintiff, agreed safely to carry to the city of , and there deliver to this plaintiff, on or before the day of , 18 — , (or within a reasonable time after the receipt thereof). That defendant did not fulfill his agreement to safely carry and deliver the same in the city of on said day (or within a reasonable time after the receipt thereof , wdiich plaintiff avers was on or before the day of , 18 — ) ; but, on the contrary, although the period between the said (day of delivery to defendant) and said (day on which they should have been delivered to plaintiff) w\as a reasonable time for carrying the same from to the city of , yet the defendant so negligently and care- lessly conducted, that he failed to deliver the same in until the day of , 18 — . That the market value of said cotton in the city of , on the day of , 18 — , was dollars, but on the {day of actual delivery') was only dollars. That plaintiff would have been able to sell said cotton in the city of on the day of . 18 — , for its reason- able market value, to-wit: the sum of dollars; but by reason of the failure of defendant to deliver said cotton in on said day, plaintiff was unable to sell the same. And afterwards, to-wit: on the day of , 18 — , did sell said cotton in the city of for the sum of dollars, said sum being the market value of said cotton in on said day. And that by reason of the premises plaintiff was damaged — - — dollars. In an action for damages for delay in transporting machin- ery, by reason of which special damage was sustained, there was no allegation that the carrier knew of the necessity of an immediate performance of his contract, and that a fail- ure to perform promptly would cause suspension of business, or other special damage upon the part of the consignor, and it was held that evidence of these facts was inadmis- Ch. 12.] ACTIONS AGAINST COMMON CARRIER, ETC. [§ 133. sible. The damage ordinarily recovered is that which arises in the usual course of things from the breach itself, or was contemplated by the parties, at the time of con- tracting, as the probable result of its breach. Pac. Express Co. v. Darnell, 62 T. G39. §133. To recover back excess of freight exacted. ^That on the day of , 18 — , the defendants agreed with plaintiff to transport from to , and to deliver there to this plaintiff certain goods and chattels, the property of plaintiff, for a reasonable sum. That in pursuance of said agreement defendants trans- ported said goods, for which service dollars is a reason- able sum ; and upon their arrival at , plaintiff demanded said goods of the defendants, and offered to pay them for transporting the same said sum of dollars; but the defendants refused to deliver said goods unless plaintiff W'Ould pay to the defendants the sum of dollars for transporting the same. That the plaintiff was thereby compelled to pay, and on the day of , 18 — , and before the delivery of said goods, did pay, to the defendants the sum of dollars, which sum this plaintiff paid under protest, and expressly denying defendants' right to claim such sum. That on the — — day of , 18 — , plaintiff demanded from defendants the sum of dollars, being the excess paid ; but to pay the same, or any part thereof, the defend- ants refused, and still do refuse, to plaintiff's damage, etc. §134. For penaltj^ for charging- or collecting excessive rates of freight hy railroad company. ^That at the times of the transactions hereinafter men- tioned, the defendants owned and possessed a certain rail- road extending from to , and was then and still is engaged as a common carrier in the business of operating 149 Ch. 12.] ACTIONS AGAINST COMMON CARRIER, ETC. [§ 134. said road and transporting freight thereon between the points mentioned. That on the day of , a. d. , plaintiff de- livered to defendant, in said city of , certain goods, wares and merchandise, the property of plaintiff, of the value of dollars, and defendant then and there agreed to transport the same to for the sum of dollars, and deliver the same to plaintiff upon the payment of said freight, and thereupon defendant executed to plaintiff its bill of lading, specifying therein the said sum of dollars as the charjjes on said freight. That defendant transported said freight to the cit}'' of , and afterwards, on ,the day of , a. d. 18 — , plaintiff tendered to defendant, its officers and agents, at its depot in said city of , the said sum of dollars, and demanded the delivery of said goods, wares and merchan- dise; but the defendant, its officers and agents, then and there refused to deliver the same to plaintiff, and continued so to refuse, and did refuse to deliver the same to plaintiff, until the day of , a. d. 18 — , when the same were delivered to plaintiff, who thereupon paid the freight charges due thereon, as specified in said bill of lading. That by reason of the premises the defendant became liable to pay plaintiff the sum of dollars for each and every day that defendant refused to deliver said goods to plaintiff, as heretofore alleged, amounting in the aggregate to the sum of dollars. ''Wherefore plaintiff prays, etc. Civ. Stat. Art. 425S«; H. & T. C. Ry. Co. v. Harry, 63 T. 25G. In G. C. & S. F. Ry. Co. v. Dwyer, 75 T. 572, it is held that the statute imposing a penalty for charging or collect- ing more freight than specified in the bill of lading applies only when the railway company that is sought to be charged in damages has either itself executed the bill of lading, or authorized another company to execute it, or has ratified it by some voluntary act on its part ; as our statutes make it 150 Ch. 12.] ACTIONS AGAIXST COMMON CARRIER, ETC. [§ 135. obligatory upon any railway company in this state to draw over their road, without delay, the passengers, merchandise and cars of every other railway company which may enter the state and connect with their road, the mere receipt of freight from another railway company at a point within the state would not constitute an affirmance of the original contract made for the shipment of freight. § 135. Against a wareliouseman for refusal to deliver goods. ^That on the day of , 18 — , at , defendant, in consideration of the sum of dollars then and there paid (or agreed to be paid to him, or of a reasonable com- pensation agreed to be paid) to him by plaintiff, agreed to store and safel}^ keep in his warehouse, at , certain goods and merchandise, the property of plaintiff, of the value of dollars, consisting of (here describe the goods) then and there delivered to defendant, until the same should be called for by plaintiff months from said date, and then safely to deliver said goods to plaintiff, at his request. That afterwards, to-wit : on the day of , 18 — , plaintiff requested defendant to redeliver to him said goods, yet defendant has not as yet delivered said goods and mer- chandise, or any part thereof, to plaintiff, but has refused and still refuses so to do, and unjustly detains the same from plaintiff, to his damage in the sum of dollars. § 136. Against Inn-kceper for loss of baggage. ^That on the day of , 18 — , defendant was an inn-keeper, and as such kept a hotel and common inn for the entertainment of the public in the city of , known as the House; that on the said date plaintiff was re- ceived by defendant in his said inn as a traveler and guest, together wnth a trunk then and there belonging to plaintiff, and containing \_/tere describe the contents, or such of them 151 Cll. 12,] ACTIONS AGAINST COMMON CARRIER, ETC. [§ 137. as loere Josf], all being the property of plaintiff, and of great value, to-wit : dollars ; that defendant and his servants so negligentlj^ and carelessly conducted them- selves in the care and keeping of said trunk and con- tents that the said trunk was taken away \_or, was broken open, and said articles above mentioned were taken awayl from the room of plaintiff, while he so remained at said inn, by some person or persons to plaintiff unknown, whereby the same became wholly lost to plaintiff, to his damage in the sum of dollars. For property committed to his custody, an inn-keeper, in the event of its loss, can relieve himself only by showing that he used extreme diligence. He is not liable if the loss is occasioned by the want of reasonable care on the part of the guest. Howth V. Franklin, 20 T. 79S; Hadley v. Upshaw, 27 T. 547. § 137. Against an inn-keeper for suffering plaintiff's liorse to stray away. ^That before and at the time of the loss hereinafter men- tioned defendant was, and from thence hitherto has been, and still is, an inn or hotel keeper, and as such has, for and during all that time, kept and still does keep, for the re- ception, lodging and entertainment of travelers, a certain inn, commonly called or known by the name of , in the town of , in said county. That heretofore, to-wit: on, etc., plaintiff put up and was received into said inn as a traveler by said defendant, and brought to said inn and delivered to said defendant, as such inn-keeper, a certain gelding of the value of dol- lars, then and there to be safely kept; yet said defendant, not regarding his duty as such inn-keeper, dicj not keep said gelding safely ; but, on the contrary, did so negligently keep the same that afterwards, and whilst plaintiff so abided in said inn as aforesaid, to-wit : on the day and year af ore- 152 Cll. 12.] ACTIONS AGAINST COMMON CARRIER, ETC. [§ 137. said, said gelding went forth and wandered from said inn, whereby the same was wholl}^ lost to plaintiff; and defend- ant, though often requested so to do, has not delivered said gelding to plaintiff, but hitherto hath refused and still doth refuse so to do, or make him any satisfaction for the same, to his damage, etc. 153 Ch. 13. — Actions for Injuries to Property. §138. For damages resulting from the construction of a water-pipe under a bouse. 139. For damages resulting from the construction of an elevated railroad. 140. For damages from trespassing on plaintiff's land. 141. For negligently kindling a Are on defendant's land which destroyed timber on plaintiff's land. 142. For leasing a house to be used as a place of prostitution. §138. For damages resulting- from the construction of a water-pipe under a liouse. ^ That plaintiff is, and at all the times hereinafter men- tioned was, the owner of a lot or tract of ground in the city of , known and designated as Lot No. , Block, No. That upon said lot there had been, prior to the grievances herein complained of, and now is a two-story building, com- posed of brick and stone, and used by the tenants of plaint- iff as a place of residence. That on or about the day of , 18 — , defendant was engaged in supplying the inhabitants of said city with water by certain mains and pipes, through and along the streets of said city, and from said streets into the buildings situated thereon. That at the request of plaintiff, and for the purpose of introducing water into said building by means of pipes connected with its mains, the defendant cut and removed a part of the foundation by which said build- ing was supported, and afterwards replaced the foundation and wall of said building so removed. That said work was not done by defendant with proper care and skill ; but, on the contrary, was done so carelessly and negligently as to cause said building to settle in the ground at and near the place where said foundation wall was cut and removed, and 154 Ch. 13.] ACTIONS FOR INJURIES TO PROPERTY. [§138. the walls of said building to crack and burst open in several different places, thus occasioning to said building serious injury and damages, to-wit: in the sum of dollars. Where an act is unlawful, as when done without the con- sent of the party injured, an action therefor can be main- tained as soon as the tort is committed, and an action for the damages resulting from the act will be barred by limita- tion, although the damages resulting therefrom may not be developed within the period required to complete the bar. But if the act is in itself lawful as to the person who bases an action on injuries subsequently accruing from and con- sequent upon the act, the cause of action does not accrue until the injury is sustained. Water Works v. Kennedy, 70 T. 233. A suit for damages was instituted by a merchant for the destruction of his store-house and injury to his stock. The store and lot belonged to the community estate of himself and his deceased wife. Held : (1) Plaintiff was a tenant in common with the children of himself and wife, as to the house and lot, and could not maintain an action to recover for himself the entire damages done to the common estate. May V. Slade, 24 T. 205; Parks v. Dial, 56 T. 261. (2) That the premises were used before and after the death of the wife as a place of business, might entitle the husband to recover for injury to the right of present pos- session ; but the children, to the extent of their present right to a future possession, suffered injury, and their cause of action could not be barred by a judgment in favor of their father. (3) A failure to file a plea in abatement to the defect of parties, did not deprive defendants of the right to have plaintiff restricted, in his recovery, to compensation for the injury done to his own estate. Railroad Co. v. Knapp, 51 T. 592; Rowland v. Murpiiy, G6 T. 534; I. & G. N. Ry. Co. V. Ragsdale, 67 T. 24; Lee v. Turner, 71 T. 264. 155 Ch. 13.] ACTIONS FOR INJURIES TO PROPERTY. [§139. "When, ill a suit by children for damages to real estate, the separate property of their deceased mother, the father joins as next friend of one of the heirs, he is estopped from thereafter asserting a claim for damages by the same act to his life estate in one-third of the land. Lee V. Turner, 71 T. 264. § 139. For damages resulting- from the construction of an elevated railroad. ^That plaintiff is and was at all the times hereinafter mentioned the owner of a lot or tract of ground in the city of , having a front of feet, on street, in said city, and known and designated as Lot No. — ; that upon said lot there had been, prior to the grievances herein com- plained of, and still is, a four-story building used by plaint- iff \_or, his tenants] for the purposes of ^state the use to which the building is puf]. That defendant has constructed and is now operating on said street, in said city, an elevated railroad, the rails of which are laid on stringers and ties which are elevated on posts above the surface of said street, the tracks of said road being level, or nearly level, with the second'Story windows of the said building on plaintiff's lot; that on said road and tracks defendant is using, and has for a long time past, to-wit : for the space of one year, been using cars drawn by locomotives propelled by steam-power, said loco- motives generating gas, steam and smoke, and distributing in the air cinders, dust and ashes, and other noxious and deleterious substances ; that said structure upon which said tracks are laid, and said locomotives and cars, interrupt, and have ever since their erection interrupted, the free passage of light and air to and from said premises of plaintiff. Whereby \_state any special annoyance arising^, and the rental value of the plaintiff's premises has become greatly diminished. Plaintiff further alleges that by reason of the premises he has been damaged in the sum of dollars, etc. 156 Cll. 13.] ACTIONS FOR INJURIES TO PROPERTY. [§140. §140. For damages froiu trespassing ou plaintiff's land. ^That on the day of , 18 — , the defendant unlaw- fully broke and entered the close of the plaintiff, situated (describing the land), and there cut down and carried away the trees and timber of plaintiff, converted and disposed of the same to his own use (or with horses and cattle or o^Ae**- wise trod down and destroyed the grass and crops of plaintiff), to his damage dollars. Prior occupancy is sufficient title to support an action for damages resulting from trespass on land. Wilson V. Palmer, 18 T. 592; Kolb v. Bankhead, 18 T. 228; Alexan- der V. Gilliam, 39 T. 227; see Parker v. Kailway, 71 T. 132. The lessee can maintain an action against a trespasser. Reynold v. Williams, 1 T. 311. One tenant in common may maintain an action against a trespasser. Van Sickle v. Catlett, 75 T. 404. It is not necessary to allege the value of the timber cut and carried off the plaintiff's land. The injury done to the plaintiff's possession is the gist of the action, and the value of the timber is admissible in proof of the damage sus- tained. Kolb V. Bankhead, IS T. 228. In case of a wrongful trespass, accompanied by acts of aggravation, the plaintiff may recover exemplary damages. Kolb V. Bankhead, 18 T. 228; Hedgepeth v. Robertson, 18 T. 858. One who points out land not his own, and sells to another the timber standing on it, which he has no right to sell, is responsible as a trespasser for a cutting by his vendee, which the vendor knew was intended when he sold. Kolbv. Bankhead, IS T. 232. But the real owner of land cannot maintain an action of trespass against the vendor, unless it appeared that he acted in concert with his vendee in the illegal act, or that the injury was the natural and proximate result of some act done by him. McClanahan v. Stephens, 67 T. 354. 157 Cll. 13.] ACTIONS FOR INJURIES TO PROPERTY. [§14| §141. For negligently kindling a fire on defendiMit's land, whicli destroyed timber on plaintiff's land. 5 That heretofore, to-wit : on, etc., defendant waspG6*essed of a certain tract of land adjoining another trace of land belonging to plaintiff, both Ij^ing in the county of , and each having large quantities of brush, grass and other combustibles on them, as said defendant well knew; that said defendant carelessly and negligently set fire to the brush on his, the said defendant's, tract aforesaid, which burned with great violence, and soon consumed said defend- ant's brush, and being carelessly managed by said defend- ant, spread, and for want of care in said defendant, caught the brush, j^oung trees and wood on plaintiff's land, and burnt fifty trees thereof and large quantities of fallen tim- ber, all of the value of dollars, to plaintiff's damage, etc. The statute requires a statement of the facts constituting the cause of action. In action for damages resultinir from the negligence of the defendant, the petition must state the act done or omitted which is relied on to constitute negligence. When from the nature of the case the plaint- i:ff may not know the exact cause or the precise negligent act which becomes the cause of injury, and the facts are peculiarly in the knowledge of the defendant, he would not be required to allege the particular cause. In such a case it would be sufficient to allege the fact in a general way, as that there was a defect of machinery or structure, or want of skill in operating on the part of defendant or its servants, or some such fact as would give the defendant notice of the character of proof that would be offered in the plaintiff's case. Mo. P:ic. Ry. Co. v. Hennessey, 75 T. 155; Railway v. Brinker, 68 T. 502; Williams v. Railway, 60 T. 200. If the injury occurs under such circumstances that a negligent act on the part of the defendant cannot be alleged 158 Cb. 13.] ACTIONS FOR INJURIES TO PROPERTY. [§142. or proved, and no relation between tbe parties exists tbat demands immunity from injury, tbere can be no recovery. Mo. Pac. Ry. Co. v. Hennessey, 75 T. 155, citing Railway v. Crowder, 61 T. 262; Id. 70 T. 223; and see Railway v. Crowder, 76 T. 499. As to wbat constitutes negligence, so as to impose upon a railway company a liability for damage caused by fire in the use of its engines : See H. & T. C R. R. Co. v. McDonough, 1 Civ. App. §§652-654; G., C. & S. F. Ry. Co. V. Holt. 1 Civ. App. §§S36-S38; G., C. & S. F. Ry. Co. V. Lowe, 2 Civ. App. §§649, 650; Ry. Co. v. Ratliffe, 2 Civ. App. §§681, 682; Ry. Co. v. France, 2 Civ. App. §703; Ry. Co. v. Fields, 2 Civ. App. §794; Ry. Co. v. Land, 3 Civ. App. §50; Ry. Co. v. Ervay, 3 Civ. App. §47; Ry.Co. v. Johnson, 3 Civ. App. §123. §142. For leasing a liouse to be used as a place for prostitution. ^That heretofore, to-wit: on or about the day of , 18 — , plaintiff was the owner of Lot 2, Block 384, in the city of , and established thereon his residence homestead. That from said date until the present time plaintiff, with his family, has continuously occupied, and now occupies, said premises, and the houses thereon, as his homestead for the residence of his family. That hereto- fore, to-wit : on or about the day of , 18 — , de- fendant became the owner of Lot 1, in said Block 384, ad- joining the lot of plaintiff above mentioned, and shortly thereafter erected on said lot three houses, built close to each other, and covering the w'hole of said lot, without leaving yard room, and in close proximity to plaintiff's res- idence on said Lot 2. That immediately after the completion of his said houses, to-wit : on or about the day of , 18 — , the defend- ant began to rent, and has ever since continuously rented, them to public and notorious prostitutes, to be used by them as places of prostitution. That during all said time prostitutes and base men and women have resorted to said houses for the purposes of prostitution, which has been well known during all of said time to said defendant. 159 Ch. 13.] ACTIONS FOR INJURIES TO PROPERTY. [§ 142. That during said time the occupants of said houses have engaged in the use of vulgar and obscene language, which at all hours of the day and night has been heard by plaint- iff and the other members of his family. That by reason of the use of said premises, and of the character of the persons resorting thereto, friends and as- sociates of the plaintiff, and of his wife and family, have re- fused to visit at his house, and by reason thereof plaintiff has been deprived of their company and association. Plaintiff further alleges that by reason of the premises he has sustained great damage, to-wit : in the sum of five thousand dollars. ^Plaintiff prays that the defendant be cited to answer this petition, and that he have judgment for his damages as aforesaid, and for costs of suit. Marsan v. French, 61 T. 173. 160 Ch. 14. — Action for Conversion of Personal Prop- erty. §143. For taking and converting personal property. 144. For taking and carrying away personal property from plaint- iff, who held as bailee. 145. For converting plaintiff's property, when a demand and re- fusal should be alleged. 146. For recovery of specific personal property by heir, with a prayer for a writ of sequestration. §143. For taking and converting- personal property. ^That on the day of , a. d. 18 — , plaintiff owned and possessed the following described property, of the value as follows : (Here set out a description and the value of each specific article.) That afterwards, to-wit: on the same day, defendant unlawfully took possession of said property and converted the same to his own use. That by reason of the premises plaintiff has sustained damage in the sum of dollars. In a suit involving the ownership of property, its owner- ship may be alleged in general terms. The facts which constitute the cause of action are matters of evidence and not of pleading. Rains v. Herring, 68 T. 468; Tillman v. Fletcher, 78 T. 673; Stall v. Wilbur, 77 N. Y. 15S; Swift v. James, 50 Wis. 50. It is not error to join in the same suit claims for property converted, and for damages proximately resulting from a breach of contract, when the matters relied on for a recovery are connected with and grew out of the same cause of action and subject matter in dispute. In such an action it is proper to join all the parties as plaintiffs or defendants who have so participated in the transaction as to render them interested in the determination of the suit, Milliken v. Callahan, 69 T. 206. 16X Ch. 14.] ACTION ON PERSONAL PROPERTY. [§143. An administrator de bonis non may maintain an action against the representatives of his deceased predecessor in the administration to recover amounts collected or received ar.d not accounted for. A suit was brought against a bank, in which the first administrator had deposited money be- longing to the estate. The bank not denying its liability to the estate, made the representative of the deceased ex- ecutor party to the suit, so that it might be protected by the judgment of the court in the payment of the contested sum. Dwyer v. Kalteyer, 68 T. 554. An action was brought by the husband for the recovery of the separate property of the wife. There was no aver- ment of any facts which made the property community property. The prayer was for the recovery of the property as the separate property of the wife, or as the community property of the plaintiff and his wife. There was evidence tending to show that a part of the property sued for was of the community, and there was a general verdict in favor of the plaintiff. On error it was held that the prayer for relief was inconsistent with the facts stated in the pleadings as the basis of the right of recovery. Milliken v. Smoot, 04 T. 171. On a second appeal it appeared that the property in con- troversy had been purchased with funds belonging to the wife and her children. It was held that the legal title to the property being in the wife and coupled with posses- sion, her husband could maintain an action for its recovery, and a trespasser could not enquire into the equities charge- able upon the property. Milliken v. Smoot, 71 T. 759. An allegation that the defendant "converted" the property sued for to his own use is an allegation of a fact, and it is not necessary to allege the particular act or acts which con- stitute the conversion. Johnson v. Ashland Laniber Co., 45 Wis. 119; Edwards v. Bank, 69 Cal. 136. 162 Ch. 14.] ACTION ON PERSONAL PROPERTY. [§144. An allegation that defendant took and carried away the property, is equivalent to alleging that he converted it to his own use, but an allegation that he unlawfully and fraudently took the property, is not an averment of con- version. Triscony v. Orr, 49 Cal. 612. In an action for the unlawful taking and conversion of personal property claimed by plaintiff, the defendant, by his answer, alleged facts which constituted a purchase by him from the plaintiff of the property claimed. It was held that it constituted a defense of the action. Mynatt v. Hudson, 66 T. 66. § 144. For taking and carrying away personal property from plaintiff, who held as bailee. ^The company, plaintiff, complaining of B., de- fendant, represents that at the date of the transactions hereinafter mentioned plaintiff was and now is a private corporation, duly incorporated and existing under the laws of this state, and has its principal office and place of bus- iness in the city of , in the county of . That is president, is secretary, and is treasurer of said corporation. That' , the defendant, resides in the county of , in said state. ^That at the date of the transactions hereinafter men- tioned plaintiff was and now is a common carrier, owning and operating a line of railroad within this state; that on or about the day of , a. d. 18 — , plaintiff had in its possession, at its depot in , on the line of its railroad, bales of cotton, each and every bale being of the value of dollars, which plaintiff had received for transportation on its railroad to , for reasonable com- pensation therefor to be paid on its delivery. That on the day and year aforesaid defendant wrongfully took and carried away said bales of cotton, to plaint- iff's damage dollars. 163 Cll. 14.] ACTION ON PERSONAL PROrERTY. [§§145, 146. ^Wherefore plaintiff prays that defendant be cited to answer this petition, and for judgment for the possession of said cotton, or for the value of the same as aforesaid, in case a delivery of the same, or any part thereof, cannot be had, together with damages and costs of suit, and for gen- eral and equitable relief. One who has a general or special right to property, with the present right of possession, may bring an action for its recovery against a wrong-doer. Dunn v. Choate, 4 T. 14; Clifton v. Lilley, 12 T. 130; Calvitv. Cloud, 14 T. 53; Andrews v. Beck, 23 T. 455; Grooms v. Rust, 27 T. 231. But a bailee is not in a better situation than his bailor, and if the latter has no title, the real owner is entitled to recover, in whose hands soever it may be. Roberts v. Garboro, 41 T. 449. §145. For converting plaintiff's property, when a de- mand and refusal sliould be alleged. ^That heretofore, to-wit: on, etc., plaintiff possessed and owned a covered carriage of the value of dollars, and a set of harness of the value of dollars, which property, on the day aforesaid, he left in possession of defendant, to be returned to him, said plaintiff, whenever he should de- mand the same. That afterwards, on the day of , a. d. 18 — , plaintiff demanded of defendant a return of said property, which defendant refused, and defendant has converted the same to his own use, to plaintiff's damage dollars. §146. For the recovery of specific personal property by heir, Avith a prayer for a writ of sequestration. ^That plaintiff is the only child and sole heir of one E. B,, late of the county of , who departed this life on, etc., intestate, leaving no widow or child, other than plaint- iff, surviving him; that afterwards, at, etc., letters of ad- ministration on the estate of said E. B. were by the 164 Ch. 14.] ACTION ON PERSONAL PROPERTY. [§146. « court of said county duly grunted to one G. H., which said administration was afterwards, at, etc., regularly closed, and by the judgment of said court the estate of said E. B. was decreed to plaintiff as sole heir; that during said ad- ministration said administrator failed to reduce into posses- sion the property hereinafter named; that the said E. B. in his lifetime, on, etc., was the owner and in possession of a certain stock of brood mares, thirty in number, and branded with the letters E. B. (being the brand of said E. B.), and each and every mare was of the value of dollars ; that on or about the day of , a. d. 18 — , defendant wrongfully, and without the consent of the said E. B., took said stock of mares from his possession: that said stock, while so in possession of defendant, has largely increased, said increase consisting of forty colts, one and two years old, and each and every colt of the value of dollars ; that although requested by plaintiff, defendant re- fuses to deliver said stock of mares and their increase, and still unlawfully holds and detains the same in said county of , to plaintiff's damage dollars. ^Plaintiff further represents that he fears that the defend- ant will remove the above described stock of horses out of the limits of the county of aforesaid during the pendency of this suit. Wherefore he prays for a writ of sequestra- tion directed to the sheriff of said county, in which said stock of horses is now to be found, commanding him to take possession of and keep the same subject to the further order of this court, unless replevied according to law ; that the defendant be cited to answer this petition, and that he have judgment for the possession of said mares and their increase, or for their value, in case they, or any of them, can- not be found, and for his damages and costs of suit. The State of Texas, > County. 5 Before the undersigned, clerk of the District Court in and for said county, personally appeared A. B., plaintiff in the 165 Ch, 14.] ACTION ON PERSONAL PROPERTY. [§146. foregoing petition, who, being duly sworn, says that he is the owner of the property described in the foregoing petition and entitled to the possession thereof, and that he- fears the defendant will remove the same out of the limits of the county of during the pendency of this suit. 'A. B. Sworn to and subscribed before me, this day of , A. D. 18 — . A. C, Clerk D. C. C. In a suit to recover logs wrongfully held by the defend- ant, the identification of the logs by the brand (Civ. Stat. Art. 4783a), was held sufficient. It is said in this case that in an application for a writ of sequestration to seize a stock of cattle bearins^ one brand, it is not necessary that a particular description of each animal should be given in addition to the brand. Boykin v. Rosenfleld, 69 T. 115. 166 Ch. 15. — Actions for Willful and Malicious In- juries. §147. Foi- assault and battery. 148. For false imprisoument. 149. For malicious prosecution. 150. For slander. 151. For slander, charging plaintiff with incontinence. 152. For slander, charging plaintiff with perjurj^ 153. For slander, charging plaintiff with theft. 154. For libel, charging wife with slander, etc. 155. For publishing a libel in a newspaper, charging plaintiff with embezzlement. 156. For a wrongful levy of an attachment on real estate. §147. For assault and battery. ^That on the day of , 18 — , defendant willfully and maliciously assaulted and beat plaintiff, by means whereof plaintiff was hurt, and became and was sick and lame, and so continued for the space of four weeks then next following, during all which time plaintiff suffered great pain and was prevented from transacting his ordinary business, and also paid out large sums of money in endeavoring to be cured of the wounds and sickness aforesaid; that by means of the premises plaintiff has sustained actual damage in the sum of dollars, and by reason of the willful and malicious acts of the defendant as aforesaid, is entitled to recover exemp- lary damages in the sum of dollars. ^Wherefore plaintiff prays that defendant be cited to answer this petition, that he have judgment for actual and exemplary damages as aforesaid, for costs of suit and for general relief. For allegations claiming exemplary damages : See, }?ost, §§157, 102. INIattcrs which are merely in aggravation, or in extenuation, and the effect of which is but to enhance or diminish the 1G7 Ch. 15.] ACTIONS FOR WILLFUL, ETC., INJURIES. [§147 damages, need not be pleaded. They are necessarily inci- dental to, or intimately connected with, and inseparable from the facts which constitute the cause of action or ground of defense, which they merely serve to qualify or illustrate, and in connection with which they are always admissible in evidence as a part of the res gestae, without being specially pleaded. McGehee v. Shafer, 9 T. 20; Shook v. Peters, 59 T. 393. All facts proper to be considered in mitigation of dam- ages are admissible under the general denial. Shook V. Peters, 59 T. 393. No recovery can be had for exemplary damages in the absence of actual damage. Flanagan v. Womack, 54 T. 45. An allegation that the plaintiff has received personal *'injures in his spine, chest, head and limbs," will authorize evidence that heart disease had been a result of the injury inflicted. Railway v. McMannewitz, 70 T. 73. In Ezell V. Dodson, 60 T. 331, it is held that a mere separation of the husband and wife, and his refusal to join in the action, will not authorize the wife to prosecute alone a suit to recover damages for an assault and battery com- mitted upon her during coverture. In Nickerson v. Nickerson, 65 T. 281, it is held that a tort inflicted upon the wife by her husband and another, gave to the wife no right of action against the husband ; and for such an injury, in so far as the husband is concerned, no compensation can be given to the wife through a civil action. The fact that a divorce has subsequently been granted, does not authorize a suit by her against the hus- band. See Cullen v. James, GG T. 494. In Loper v. Telegraph Co., 70 T. 689, the rulings in CO T. 331, and 05 T. 2S1, are adhered to. In a suit for damages brought by husband and wife, it was alleged that plaintiffs were in possession under a lease of a dwelling-house and land belonging to defendants; that 1G8 Ch. 15.] ACTIOXS FOR WILLFUL. ETC, INJURIES. [§148. the wife was well advanced in pregnancy ; that defendant knew the fact, and also knew that any undue excitement to a female in that condition was likely to produce a serious injury to her health ; that defendant within the yard, about the house, and in the immediate presence of the wife, as- saulted a person in a boisterous and violent manner, and with the use of profane language, drawing blood from the person assailed. That defendant's conduct frightened the wife, brought on the pains of labor, and eventually produced a miscarriage, and otherwise seriously impaired her health. It was held that the petition stated a cause of action. Hill V. Kimball, 76 T. 210. As to the question of venue of suit : See Kicker v. Shoemaker, 81 T. 22. §148. For false imprisoument. ^That on the day of , 18 — , in the county of -, defendant assaulted plaintiff, and with force compelled him to go from the dwelling-house of plaintiff, in said county into the public street, and then and there imprisoned plaintiff, and kept and detained him a prisoner without any reasonable or probable cause, or lawful authority, for the space of four hours, contrary to the laws of this state, and against the will of plaintiff, by means whereof plaintiff was prevented from transacting his ordinary business, and otherwise injured, and has sustained damage to the amount of dollars. '^ Wherefore plaintiff prays, etc. For allegations claiming exemplary damages : See, ante, §1-47; post, §§ir)7, 162. False imprisonment is the willful detention of another against his consent, and where it is not expressly authorized by law, effected by violence, threats or other means. Peual Code, Art. 513. In an action against a sheriff, it is no defense that he supposed that he had a cajnas for the arrest of plaintiff, or 1G9 Ch. 15.] ACTIONS FOR WILLFUL, ETC., IXJURIES. [§ 149. that he was drunk. Drunkenness of the officer is an ag- gravation of the offense. Hall V. O'Malley, 49 T. 70. An arrest by an officer under a warrant that charges no offense is actionable. Barnette v. Hicks, 6 T. 354. The bad character of the plaintiff is no defense. Ryburn v. Moore, 72 T. 85. Information given by reputable citizens that plaintiff was suspected and was accused of the crime of theft, and was making his escape when arrested, does not justify an arrest and imprisonment. Newby v. Gunn, 74 T. 455; Sheehan v. Holcomb, 1 App. C. C §§462-464. § 149. For malicious prosecution. ^That the plaintiff is, and always was, a peaceable, quiet, and honest person, free from the crime of secretly, pri- vately and maliciously destroying his neighbor's goods or chattels, or injuring them or others of the good citizens of this state, privately or maliciously, in their persons or es- tate, of all which defendant well knew; but he, maliciously contriving to injure plaintiff, destroy his character and rep- utation, and expose him to trouble, cost and charges, did, on, etc., falsely and maliciously complain to E. F., Esq., a justice of the peace for the county aforesaid, that on, etc., some evil-minded person did willfull}^ and with intent to injure said defendant, shoot and kill a dark grey horse colt of said defendant; and that he, the said plaintiff, and one G. were the persons who committed the act aforesaid, and thereby caused plaintiff to be apprehended and brought before said justice, to answer the charge aforesaid, when and where said defendant appeared and prosecuted the charge aforesaid against plaintiff; notwithstanding which plaintiff was by said justice discharged and dismissed. That defendant continued his malice aforesaid, and did afterwards, on, etc., in the hearing of divers good citizens, 170 Ch. 15.] ACTIONS FOR WILLFUL, ETC., INJURIES. [§ 149. falsely and maliciously publish and declare that plaintiff was a pitiful and malicious person, and that he and said G., being angry with defendant, did willfully and maliciously kill defendant's colt. Now plaintiff denies that he, either alone or with any other person, ever hurt, killed or bruised any horse or colt of defendant's, and that defendant had either lawful or probable cause for making the complaint aforesaid, or charging plaintiff with killing his, the said de- fendant's, colt; and plaintiff now alleges that he has, by means of defendant's making the complaint aforesaid and speaking the words aforesaid, been, by divers of his neighbors and others, suspected of being guilty of the crimes charged on him as aforesaid, and has lost their good will and esteem, and been obliged to expend much time and money in vin- dicating himself against defendant's unjust charge and ma- licious prosecution aforesaid, and has suffered much un- easiness and disquietude, to his damage, etc. As to prayer for actual and exemplary damages : See, ante, §147; post, §§157,162. Suits for malicious prosecution must be commenced in the county where the process of law was unjustly and ma- liciously sued out, and for a proper and legal execution of such process, according to its mandates, the officer of the law to whom it is directed incurs no liability to the injured party. Hubbard v. Lord, 59 T. 384; Hillard & Hillard v. Wilson & Blum, 65 T. 286. One who maliciously and without probable cause puts in operation the machinery of judicial proceedings under which an arrest and trial is had, thereby incurs liability from which, when sued for malicious prosecution, he is not relieved by the fact that the subsequent proceedings in the prosecution so begun and in a court having jurisdiction, were so irregular that, had a conviction resulted, the judg- ment would have been a nullity. Ward V. Sutor, 70 T. 343. 171 Ch. 15.] ACTIONS FOR WILLFUL, ETC., INJURIES. [§ 150. An accusation is actionable whenever it charges an offense which, if proved, would subject the accused person to a punishment, though it may not be such as is known in the books, technically, as an ignominious punishment, provided it be such as to bring disgrace on the person of whom the words are spoken. Zeliff V. Jennings, 61 T. 458. §150. For slander. ^That defendant, on the day of , 18 — , at the city of , in the state of , willfully, wantonly and maliciously spoke of and concerning the plaintiff certain false, defamatory and slanderous words, to-wit: \Jiere in- sert the words spohen, being careful to insert only such words as can be proven'], whereby plaintiff has been greatly in- jured in his good name and fame, to his damage in the sum of dollars. See, ante, §147; i^osi, §§152, 157, 162. As to allegations for exemplary damages of slander, it is not necessary that the language used should charge the commission of a crime with such technical accuracy as would be required in an indictment ; words calculated to in- duce those who heard them to believe that the person of whom they were spoken is guilty of a crime are sufficient to support the action. Zeliff V. Jennings, 61 T. 458. §151. For slander, charging plaintiff with inconti- nence. ^ That plaintiff nowis avirgin and a chaste woman, and from the time of her nativit}^ hath been so, and hath been accounted, esteemed and reputed as such among her neighbors, as well as of good rei)utation and fame by all other good people, and hath all her lifetime continued untouched and unsuspected of the atrocious crimes of adultery or fornication, or any such other enormous crimes; whereby many good people 172 Ch. 15.] ACTIONS FOR WILLFUL, ETC., INJURIES. [§ 151, have, at sundry times, desired to take plaintiff to be their wife, and in particular one C. C, who, at the time of speaking the false and scandalous words hereafter mentioned, was engaged to marry plaintiff; that defendant, well know- ing the premises, but maliciously contriving to injure and defame the plaintiff in her good fame and reputation, and to deprive her of her marriage with said C. C, on, etc., in presence of divers good people of this state, did loudly and publicly speak, utter and repeat the following false, mali- cious and scandalous words of and concerning the plaintiff, to-wit: "that she (meaning the plaintiff) was a whore to a man that courted her" (i. e., the plaintiff) ; that by means of said false, scandalous and malicious words so spoken and published, plaintiff hath fallen into disgrace, contempt and infamy with several persons with whom previously she was in great esteem; and said C. C, to whom she was con- tracted in marriage as aforesaid, has since neglected and utterly refused to marry her, the said plaintiff, and still continues so to do; whereby plaintiff has lost her credit and reputation, has also lost her preferment in marriage, etc. See, ante, §147; post, §§152, 157, 162. The husband is liable in damages equally with the wife for slanderous words spoken by her, and a general judg- ment may be rendered against both, but requiring that her separate estate be first exhausted before sale of the hus- band's to satisfy the judgment. Zeliff V. Jennings, 61 T. 458. Claims for compensatory and actual damages should be separately alleged in the petition and in their submission to the jury. Zeliff V. Jennings, 61 T. 458; see I. & G. X. R. R. Co. v. Gordon, 72 T. 44. Plaintiff charged, in an action for slander, that defend- ant had uttered and published words concerning one of them (the wife of co-plaintiff), inqjuting to her a want of 173 Ch, 15,] ACTIONS FOR WILLFUL, ETC., INJURIES. [§152. chastity, stating the language, b}^ reason whereof she, be^ ing poor, was refused employment and civil treatment; that being a boarding-house keeper, her boarders left her house by reason of the publication of the alleged slander, and that other persons refused to patronize her as a school teacher for the same cause. Held, (1) Words imputing a want of chastity to a female are not actionable per se, but special damage must be alleged as resulting therefrom. Linney v. Maton, 13 T. 449; McQueen v. Fulgham, 27 T. 463. (2) It was not necessary to give in the petition the names of those who refused the plaintiff civil treatment, of the boarders who left her house, or the names of those who refused to patronize her school ; this was matter of evidence, not required to be pleaded. Kossv. Fitch, 58 T. 148. Language which concerns an employe is actionable if it affects him in his employment in a manner that may, as a necessary consequence, or does as a natural or proximate consequence, prevent him deriving therefrom that pecuniary reward which probably he might otherwise have obtained. The circulation of a phamphlet containing the alleged statements, among those entrusted with the duty of em- ploying laborers, would be injurious, and if the matter was false, it would be libelous. Mo. P. Ry. Co. V. Richmond, 73 T. 568. § 152. For slander on* a charge of perjury. ^That plaintiff is a good, true and honest citizen of this state, and from the time of his nativity has hitherto be- haved and governed himself as such, and during all that time has been held, esteemed and reputed of a good name, character and reputation, as well among a great number of his fellow-citizens as among all his neighbors and acquaint- ances, and during all that time has been free from the atrocious crime of false swearing and perjury ; that defendant, in no 174 Ch. 15.] ACTIONS FOR WILLFUL, ETC., INJURIES. [§153. wise ignorant of the premises, but contriving and mali- ciously intending not only to injure the plaintiif and deprive him of his good name, character and reputation, but also to cause plaintiff to be brought under the pains and penal- ties of the law provided against false swearing and perjury, on, etc., speaking to plaintiff in the presence and hearing of many of his fellow-citizens, falsely and maliciously, openly and publicly, and with a loud voice, pronounced and published the following false and scandalous words of and concerning plaintiff, to-wit: "You (meaning the plaintiff) are a foresworn rascal; you (meaning the plaintiff) are a perjured villain; and I (meaning the defendant) can bring a thousand men to swear it, and the whole town (meaning the town of ) have made songs of you (meaning plaintiff) being a perjured villain:" that by means of pub- lishing said false, scandalous and malicious words, plaintiff has been injured and prejudiced in his good name and rep- utation, and has been liable to be prosecuted for perjury; that many of his fellow-citizens have withdrawn themselves from the acquaintance of plaintiff, and by reason of the premises plaintiff has undergone great mental suffering and distress. That by reason of the premises plaintiff has sus- tained actual damaijes in the sum of dollars. And by reason of the willful and malicious acts of the defendant as aforesaid, is entitled to recover exemplary damages in the sum of dollars. See,j90s«, §§157-162. § 153. For slander on a charge of theft. ^That plaintiff is, and from his youth has been, of good fame and reputation among his neighbors for honesty and propriety of conduct, and is and ever has been wholly free from the atrocious crime of stealing, and was never convicted or suspected to be guilty of that crime, but has always maintained himself by honest and industrious attention to his trade and calling; that defendant, not being ignorant of 175 Oh. 15.] ACTIONS FOR WILLFUL, ETC., INJURIES. [§154. the premises, but maliciously contriving to injure, blacken and defame the plaintiff in his good fame and reputation, and to injure him in his trade, and to expose him to the pains and penalties prescribed by law for stealing, did, on, etc., in presence of divers good citizens of this state, and in conversation with the same, with a loud voice, speak, utter and publish the following false, scandalous and malicious words of and concerning plaintiff, to-wit: "Well enough S. (meaning the plaintiff) may buy horses; for it has not cost him (meaning the plaintiff) two dollars to live these two years; for he (meaning the plaintiff ) has plundered from al- most everybody he (meaning the plaintiff) has worked for; he (meaning the plaintiff) has been caught stealing a number of times ;" that by means of said false and scandalous words plaintiff has been much injured in his good name and repu- tation, and is and has been exposed to a prosecution for theft, and has suffered great anxiety of mind ; and one C. D., who would have otherwise employed plaintiff to work for him at his, the plaintiff's, trade, whereby plaintiff would have made a lars-e sum of monev, to-wit: the sum of dollars, now wholly refuses so to do. That by reason of the premises plaintiff has sustained ac- tual damages in the sum of dollars, and by reason of the willful and malicious acts of the defendant as aforesaid, is entitled to recover exemplary damages in the sum of dollars. ^Wherefore plaintiff prays, etc. § 154. For circulating a libel. That the said S. now is, and from the time of her birth hitherto has been, a good, pious, virtuous and honest woman, and has always during all that time aforesaid be- haved and governed herself as such ; and until the time of the writing and publishing of the false, scandalous and ma- licious libel hereinafter mentioned, has always been and was always reputed and esteemed among all her neighbors, and 176 Ch. 15.] ACTIONS FOR WILLFUL, ETC., IXJURIES. [§154. divers other good cand worthy citizens of this state, to be a person of good name, fame, credit and reputation, and she, the said S., has never been guilt}' , nor until the time of the writing and publishing of the said false, scandalous and malicious libel, suspected to have been guilty of slander or lying, or of any other such grossly base and immoral con- duct; and the said W. and said S., his wife, before the time of the writing and publishing of said false, scandalous and malicious libel, were used to live quietly and happily together and to enjoy great happiness in their married state ; that defendant, well knowing the premises, but contriving and maliciously intending to prejudice, degrade and injure the said S. in her aforesaid good name, fame, credit and repu- tation, and to hold up and expose her to public infamy and dis- grace, contempt and hatred, and to disturb and destroy the domestic peace and happiness of the said S. and her family, did, on, etc., falsely, maliciously and scandalously write and publish, and cause and procure to be written and published, a certain false, scandalous and malicious libel of and concerning the said S., containing therein the false, scandalous, defama- tory and opprobrious matter following, of and concerning the said S., to-wit: "To all whom it may concern: A few plain truths and undeniable facts : S. (meaning the above named S., wife of W.) has made and propagated, and still persists in publishing, an absolute falsehood respecting me (meaning himself, the said D.), viz. : that I (meaning him- self, the said D.) punished my servant girl for lying, by ty- ing her tongue to her toe with a thread or cord ; I (meaning himself, the said D.) have been advised by several of my friends to bring this obnoxious woman (meaning the said S. ) to merited and exemplary justice ( meaning thereby that the said S. was liable and ought to be punished for lying and slander); accordingly I (meaning himself, the said D.) have intended and threatened to prosecute her (meaning the saidS.) and still hold myself (meaning himself, the said D.) in readiness to do it (meaning to prosecute the said (12— Plead. Forms.) 177 Ch. 15.] ACTIONS FOR WILLFUL, ETC., INJURIES. [§154. S.), provided my friends (meaning bis, the said D.'s, friends) shall not think the following reasons for declining a prosecution sufficient and satisfactory: 1st. Said S. (meaning the said S.) can be proved a gross and common liar and slanderer in various other instances, in which there appears to have been no reason, provocation or temptation to influence her (meaning the said S.'s) false and scandal- ous tongue (further meaning and insinuating thereby that the said S., before the time of writing and publishing said libel, had been and was frequently and repeatedly guilty of the base and atrocious acts of lying and slander, and that she, the said S., had, before that time, falsely, maliciously and wickedl}^ slandered and defamed the character of him, the said D., and the characters of divers other persons). 2d. Her (meaning the said S.'s) character and conduct, in other respects, are grossly base and immoral (meaning and insinuating therebv that the said S., before the time of writing and publishing said libel, had been guilt}^ of divers gross and base crimes, and vices other than and besides the aforesaid acts of lying and slander, and that, in her conduct and behavior, she was not influenced or governed by any just sentiments or principles of religion, morality or honor). Hence, 3d. I (meaning himself, the said D.) think it dishonorable to appear as a party in a legal process with one (meaning the said S.) whose character is thus infa- mous and contemptible (meaning and insinuating thereby that, by reason of the several crimes, vices, matters and things which he, the said D., had so as aforesaid falsely and maliciously charged and alleged against her, the said S., above in the said libel, the character and reputation of her, the said S., was and had become infamous and con- temptible). That said defendant thereafterwards, to-wit: on the day and year aforesaid, wrongfully and maliciously sent and delivered, and caused to be sent and delivered, the libel aforesaid unto one O., and the said libel was, by means of 178 Ch, 15.] ACTIONS FOR WILLFUL, ETC., INJURIES. [§155. such sending and delivery thereof, received and read by the said O. and by divers other persons, as thereby published by the said defendant to said O. and to the said other per- sons ; that by reason of the writing and publishing of said false, scandalous and malicious libel by the said defendant of and concerning the said S., she, the said S., is greatly prejudiced, degraded and injured in her aforesaid good name, fame, credit and reputation, and is held up, exposed and brought into public infamy, disgrace, contempt and ha- tred; and that, by reason of the premises aforesaid, divers good and worthy citizens of this state, to whom the inno- cence and integrity of the said S. in the premises were un- known, have, on occasion of the writing and publishing of said libel, from thence hitherto refused, and still do daily more and more refuse, to have any acquaintance or dis- course with her as they were before accustomed to do ; that by means of the writing and publishing of the said libel as aforesaid, the domestic peace and happiness of the said S. in her family have been greatly disturbed, and she has suf- fered great anxiety and distress of mind, and been greatly injured and prejudiced in many other respects. For allegation of damages and prayer for judgment. See, ante, §§147, 152; post, §§157, 162. §155. For publishing- a libel in a newspaper charging plaintiff with eiubezzlenieut. ^That at the time of the publication of the false and ma- licious words hereinafter mentioned, plaintiff was a justice of the peace for precinct No. , of the county of , and it became his duty, as such justice of the peace, to report to the commissioner's court of said county, and to account for and pay over to the treasurer of said county all tines imposed and collected by him, and to file with the clerk of the County Court of said county the treasurer's receipt therefor. That the defendant, intending to injure the plaint- iff, and cause it to be believed that the plaintiff had f eloni- 179 Cll. 15.] ACTIONS FOR WILLFUL, ETC., INJURIES. [§ 155. ously appropriated to his own use the fines so by him collected, did, on the day of , a. d. 18 — , publish, and cause to be published, in the city of , in said county, in a certain newspaper called , published in the county of , of which newspaper defendant was at said time the proprietor, the following false and malicious libel of and concerning plaintiff, as such justice of the peace, to-wit: "Another Rogue in Office, — John Doe has for nearly two years been collecting fines in criminal cases, and has not accounted for a large amount of moneys col- lected by him, but has instead pocketed them, and has thereby defrauded the county of several thousand dol- lars," meaning thereby that plaintiff had, as justice of the peace as aforesaid, received and collected fines in criminal cases tried before him, for which, or for a portion of which, he had not accounted, and had not reported to the commissioner's court of said county, and had not paid to the treasurer of said county, thereby charging, and intending to charge, plaintiff with the crime of em- bezzlement in failing to pay over to the officer entitled to receive the same fines collected by said plaintiff in criminal cases, and converting the same to his own use. That said defendant afterwards, to-wit : on the day and year aforesaid, wrongfully and maliciously sent and de- livered, and caused to be sent and delivered, the libel afore- said unto one , and divers other persons whose names are unknown to plaintiff, and the same libel was, by means of such sending and delivery thereof, received and read by the said , and by divers other persons, as thereby pub- lished by the said defendant, to said , and to divers other persons. Tiiat by reason of the writing and pub- lishing of said false, scandalous and malicious libel by the said defendant of and concerning plaintiff, he, the said plaintiff, was greatly prejudiced, degraded and in- jured in his good name, credit and reputation, and is held up, exposed, and brought into public infamy, dis- 180 Oh. 15.] ACTIONS FOR WILLFUL, ETC., INJURIES. [§155. grace, contempt and hatred. That by reason of the premises aforesaid, divers good and worthy citizens of this state, to whom the innocence and integrity of the pUiintiff in the premises were unknown, have, on the occasion of the pubHcation of said libel, from thence hitherto re- fused, and still do daily more and more refuse, to have any acquaintance or discourse with him, as they were before accustomed to do. That by reason of the premises plaintiff has suffered great anxiety and distress of mind, has been injured in his business, and lost the esteem and good will of his neighbors and acquaintances. For allegation of damages and praj^er for judgment : See, ante, §§147, 152; post, §§157, 102; Civ. Stat. Arts. 951-953; Pe- nal Code, Art. 103. For the allegations in a count against the proprietors of a newspaper for libel: See Belo v. Wren, 63 T. 686; Young v. Kuhn, 71 T. 645. As to privileged communications: See Belo v. Wren, 63 T. 686; Eunge v. Franklin, 72 T. 585. As to libelous matters in judicial proceedings : See Railway v. Smith, 81 T. 479. As to answer, alleging the truth of the matter stated: See Kuhn v. Young, 78 T. 344; Patten v. Belo, 79 T. 41. As to matter in mitigation of damasres. Patten V. Belo, 79 T. 41. A cause of action for libel and one for slander may be joined in the same suit. Each count must be complete in itself. Wullis V. Walker, 73 T. 9. In a suit for libel, the manner in which the publication of the alleged libelous matter was made shoukl be averred, and a failure to make such averment would subject the petition to a special demurrer. Sinclair v. Dalien, 73 T. 73. The petition in a suit for libel should put the court in possession of the libelous matter published, the language used, with such innuendoes as are necessary to explain what 181 Ch. 15.] ACTIONS FOR WILLFUL, ETC., INJURIES. [§155. was meant by the language, and to whom it was applied, so as to enable the court to determine whether the words are actionable. Biadstreet v. Gill, 72 T. 115; and see Smith v. State, 32 T. 59-4; Belo V. Wren, 63 T. 686; Behee v. Railway, 71 T. 424; Young v. Kuhn, 71 T. 645; Kunge v. Franklin, 72 T. 585. But it is only necessary to set forth those portions of the publication which are libelous, unless they contain words which indicate that the alleged libelous words, or their ordinary meaning, are qualified by other portions of the publication. Wallis V. Walker, 73 T. 8. Unless the Avhole writins: should be voluminous and ir- relevant to the issues, there can be no objection to setting it out in full ; but it is not necessary to do more than set out such parts as are libelous. Wallis V. Walker, 73 T. 78. A communication made in srood faith, in reference to a matter in which the person conmiunicating has an interest, or in which the public has an interest, is privileged if made to another for the purpose of protecting his interest; and a communication made in discharge of a duty, and looking to the prevention of wrong towards another or the public, is so privileged when made in good faith. In such cases malice will not be inferred from the publication, and its existence must be established by other evidence. M. P. Railway Co. v. Richmond, 73 T. 508. A communication by a commercial agency in good faith and in confidence to a subscriber, who, by his business re- lations with the party to wdiom the communication referred was interested in knowing his financial and business stand- ing, and in answer to requests made in reference thereto, is privileged. But when such information is given to others not so interested, the communication is not privileged. Bradstrcet v. Gill, 72 T. 115. Proceedings in courts of justice, legislative proceedings, and petitions and memorials to a legislature are privileged, 182 Ch. 15.] ACTIONS FOR WILLFUL, ETC., INJURIES. [§ 155. and cannot be made the basis of suit for libel. It is imma- terial whether a charo;e made in the course of leo;al or judicial proceedings be true or false; being thus made, it is absolutely privileged, and the question as to whether it was false or malicious cannot be- made the subject of inquiry in an action for libel. Though a civil court may have no- jurisdiction of the subject matter contained in a plea filed therein in a cause pending, and which is alleged to be libelous, the privilege is absolute, and no action for libel can be maintained. Runge V. Franklin, 72 T. 5S5. In an action for libel, if the charge made the basis of the suit be specific, the answer pleading its truth need only allege that the charge is true. If the charge be but a con- clusion from facts not stated, as that the person referred to is a thief or a murderer, the answer alleging the truth should state the facts which make the party a thief or a murderer, and state that they exist. Kuhn V. Yoiuig, 78 T. 344; Id. 71 T. 645. In an action for libel, if the communication is privileged, a suit cannot be maintained unless it is shown to have been made with express malice, or with such gross disregard of the rights of the person affected thereby, as will be equiva- lent to malice in fact. When the communication is not privileged, malice must also be shown to authorize a recovery, but in such case negative facts may indicate the malice, as that the publi- cation was false and was made without legal excuse. When the publication is privileged, the malice so implied from the false and defamatory publication is deemed to have been met and rebutted, in which case, as before stated, malice in fact must be shown to warrant a recovery, and such malice is defined to be ill will, bad or evil motive, or such gross indifference to the rights of others as will amount to a willful or wanton act. Bradstreet Co. v. Gill, 72 T. 115. 183 Ch. 15.] ACTIONS FOR WILLFUL, ETC., INJURIES. [§156. Elsewhere the rule seems established that in cases of li- bel, where the defendant justifies by alleging the truth of the libelous matter, and facts to prove the allegation, it may be considered a circumstance to show malice ; but un- der our statute the absolute right to plead several matters is unlimited if they are pertinent to the cause filed at the same time and in due order of pleading. Where in a libe suit the defendant fails to sustain his plea of justification, that plea will not be taken as a circumstance tending to es- tablish malice on the ground that the plea was not sustained by the evidence, when probable cause and the non-existence of malice are asserted in the answer. Express Printing Co. v. Copeland, 64 T. 354; Young v. Kuhn, 71 T. 645. §156. For a wrongful levy of an attacliment on real estate. ^That heretofore, to-wit: on the day of , 18 — , defendant instituted a suit against plaintiff in the District Court of county, for the recovery of a debt due and owing from plaintiff to defendant, and prosecuted the same to a final judgment against the plaintiff. That at the com- mencement of said suit the defendant knowingly, malicious- ly, and without probable cause, and with the intent to de- stroy the credit and standing of this plaintiff as a merchant and his reputation as a man, and to oppress and harass him, made an affidavit charging him with having disposed of his property with intent to defraud his creditors and caused a writ of attachment to be issued in said suit, and to be levied on lands the property of this plaintiff. That at the date of the commencement of said suit this plaintiff was a solvent merchant, of good reputation and credit. That plaintiff's reputation and credit was of great pe- cuniary value to him, to-wit: of the value of $5,000, in enabling him to carry on his business as a merchant. 184 Ch. 15.] ACTIONS FOR WILLFUL, ETC., INJURIES. [§ 156. That the filing of said affidavit, and the issuance and levy of said attachment, injured the credit and standing of plaint- iff as a merchant, and destroyed his business as aforesaid, and alarmed his other creditors, who, by reason of said wronirful acts of defendant, instituted suits against this plaintiff, and caused writs of attachment to be issued there- in, and levied on the property of plaintiff. That plaintiff, before the levy of said attachment on said real estate, had contracted to sell the same for its reasonable value, to-wit : the sum of dollars, and by the levy of said writ of attachment was prevented from completing said sale, and said land has greatly depreciated in value, and cannot be sold for a sum exceeding dollars. That by reason of the depreciation in the value of his real estate as aforesaid, plaintiff has been damaged in the sum of dollars, and by reason of the impairment of his credit and his business, and the injury to his feelings, he has been damaged in the sum of dollars. ^Plaintiff prays that defendant be cited to answer this petition, and that he have judgment for his damages as aforesaid, and for the further sum of five thousand dollars exemplary damages on account of the malice of defendant, for costs of suit, and for general and equitable relief. See, post, §§157, 162; Trawick v. Martin-Brown Co., 79 T. 4G0; Hil- liard v. Wilson, 76 T. ISO. As to the venue of the suit : Stevens v. Wolf, 77 T. 215. If the grounds for suinsr out an attachment did not in truth exist, it is wrongful. Christian v. Seeligson. 63 T. 405. But if the plaintiff had probable cause to believe that they did exist, that fact negatives the evil animus and wrongful purposes which might be imputed to the plaintiff, and the defendant can then only recover actual damages. Bear Bros. v. Marx, 63 T. 298; Monroe v. Watson, 17 T. 625; Reed v. Samuels, 22 T. 114; Culbertson v.Cabeen, 29 T. 247; Harris v. Finberg, 46 T. 80; Carothers v. McIlhenny,G3 T. 138; Lewy v. Fischl, 65 T. 311; Blum V. Strong, 71 T. 321 ; Willis v. McNatt, 75 T. 69. 185 Ch. 15 ] ACTIONS FOR WILLFUL, ETC., INJURIES. [§156. An attachment sued out upon a fictitious debt, and caus- ing damage to another creditor, is a cause of action in favor of such injured party. Wartelsky v. Schaf er, 77 T. 501 . When a part of the claim made the basis of attachment proceedings is fraudulent or fictitious, such fact will abate the attachment proceedings as to the entire claim. Goodbar v. Bauks, 78 T. 461. One who paid money to secure the release of property seized under a writ of sequestration or attachment wrong- fully issued, can recover back the money so paid. When property has been seized under a writ wrongfully and ma- liciously sued out, exemplary damages may be recovered. Clark V. Pearce, SO T. 146. If an attachment is wrongfully sued out upon a ground untrue in fact, damages may be recovered though there existed j)robable cause. Carothers v. Mcllhenny, 63 T. 138; Bear Bros. v. Marx, 63 T. 298. The actual damage is determined by the value of the property seized, and is not limited to the price realized at the sale, even where the owner of the goods became the purchaser. Hartv. Blum, 76 T. 113. Such damages may be pleaded in reconvention in the suit in which the attachment issued. Walcott V. Hendricks, 6 T. 406; Cannon v. Hemphill, 7 T. 184; see Duncan v. Magette, 25 T. 245. 186 Ch. 16. — Actions for Personal Injuries Caused by Negligence. §157. For not delivering a telegram. 158. For not delivering a telegram promptly. 159. Against a railroad company, by a surviving widow, for neg- ligently causing the death of plaintiff's husband. 160. For injuries to au employ^ caused by negligence of a rail- road company. 161. For injuries caused by an unsafe crossing of a public road. 162. For actual and exemplary damages for negligence against a railway company. 163. Against a i-ailroad company for damages by fire. 164. Against master for failing to furnish proper tools or machin- ery. 165. When plaintiff continues work under the assurance that ma- chinery is safe. 166. Against a municipality for injuries sustained from falling into a drain. 167. For injuries caused by falling through a hatchway. 167a. Action against a surgeon for malpractice. 168. For injury by a vehicle driven by a servant. 169. For injury by a dog. §157. For not delivering a, telegram. ^That on the day of , 18 — , defendant owned and operated a telegraph line from the city of G. to the city of A., in the State of Texas, and carried on the business of transmitting messages between said places by telegraph for a reasonable compensation for such service. That on said day, in consideration that plaintiff had paid (or would pay) to defendant dollars, the same being a reasonable and proper charge for the service hereinafter mentioned, defendant promised that it would transmit cor- rectly and deliver to plaintiff, then being and residing in the city of W., within a reasonable time, a certain message delivered to it on the day of 18 — , by one S., acting for and in behalf of phiintiff, and in substance as follows : 187 Ch, lU.] ACTIONS FOR PERSONAL INJURIES, ETC. [§157. To B— ., City of A—., Texas. ^•~' '^''"- ^^' ^^^^• Your mother is dead, come on night train. Con- veyance at W. ^^. , ^ (Signed) S. That defendant did not transmit and deliver said tele- gram to plaintiff on said day of , a. d. 18—, or at any other time. That by the use of reasonable and proper dil- igence, defendant could have transmitted and delivered said telegram on said day of , a. d. , to plaintiff, in said city of A., who was then and there ready to receive the same. That by reason of the negligence of the defendant, and its servants and agents, to transmit and deliver said message within a reasonable time as aforesaid, plaintiff was prevented from being present at the funeral services of his mother, and in seeing that her remains were properly cared for, and in consequence thereof plaintiff suffered great mental pain and anguish, to his damage one thousand dollars. When actual and exemplary damages are claimed, they should be claimed by proper allegations, in the nature of distinct counts, on different causes of action. Railway v.Le Gierse, .51 T. 189; Hope v. Alley, 9 T. 304; Irwin v. Cook, 24 T. 244; Moore v. Amlerson, 30 T. 230; Broolie v. Clark, 57 T. 105; Glasscock v. Shell, 57 T. 215; Heiligman v. Rose, 81 T. 222; see So- Relle V. W. U. T. Co., 55 T. 308. The husband is a proper party plaintiff to an action for injuries to the wife, resulting from the negligent failure to deliver a telesfram. Telegraph Co. v. Cooper, 71 T. 507. It has been held that the husband, for injuries to the wife, caused by a collision of railway trains, may sue alone, and ordinarily the wife is neither a proper nor necessary party. Ezell V. Dodson, 60 T. 331; Ry. Co. v. Burnett, (Jl T. 638; Stachely V. Pierco, 28 T. 335. When the direct injury is to the wife, the husband's anx- iety is not a basis for, or an element of, damages, for a second recovery. Telegraph Co. v. Cooper, 71 T. 507; Loper v. Telegraph Co., 70 T, 689; see, post, §158. 188 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§158, §158. For not delivering- a telegram promptly. ^That plaintiff resides in the county of Harrison afore- said. That defendant is a corporation duly incorporated, and at the date of the transactions hereinafter mentioned owned and operated a telegraph line from the city of Mar- shall, in said county, to the city of Waco, in McLennan county, Texas, and for hire transmitted telegrams for the public between said points. That at and before the filing of this suit defendant had, and now has, an agency in said county of Harrison, and I. B. is the agent of defendant, in said county, and now resides therein. ^That heretofore, to-wit: on the day of , 18 — , plaintiff, then residing in the city of Waco aforesaid, was informed that one I. S., who was plaintiff's brother, and re- sided in said city of Marshall, was then sick, and plaintiff thereupon instructed G. S., who was also his brother, and resided in said city, to inform plaintiff by telegraph of the condition of the said I. S. That » afterwards, to-wit: on the day of , 18 — , the said G. S., as plaint- iff's agent, delivered to the agent of the defendant, at its office in the city of Marshall aforesaid, a telegram, in sub- stance as follows : Marshall, Texas, Feb. 3, a. d. 18 — . To C. B. S., AVaco, Texas, Care of S. & H., Atty's. I. S. very low; come on first train. ^ ^^ vjt. o. That the said G. S., at the time of the delivery of said telegram as aforesaid, paid said agent of defendant the sum of fifty cents, the customary and proper charge for trans- mitting the same, and then and there informed said ao-ent of the facts and circumstances requiring the speedy trans- mission and delivery thereof. That plaintiff", being in a state of anxiety, and momentarily expecting a tcleiiram from his agent aforesaid, called at the office of defendant, in Waco, at four o'clock, P. m., on said last named day, and in reply to his inquiry as to the receipt of any message for 189 Ch. IG.] ACTIONS FOR PERSONAL INJURIES, ETC. [§158. him, the said phiintiff was informed by defendant's agent that no message had been received; that afterwards, about nine o'clock, a. m., of the 4th day of February, 18 — , plaintiff again called at defendant's office aforesaid, and in reply to his inquiry was told by the agent of defendant that none had been received; that afterwards, on the morn- ing of February 5th, 18 — , the telegram above mentioned was delivered to plaintiff, and plaintiff immediately on its receipt started for Marshall by the usual and most expe- ditious routes of travel, but his said brother had died and was buried before plaintiff arrived at said city of Marshall. Plaintiff further alleges that the telegram above men- tioned was in fact correctly transmitted and received at de- fendant's office in Waco, by its agent, at three o'clock, p. m., on February 3d, 18 — ; that if said telegram had been de- livered to plaintiff when called for on the 3d of February, as heretofore alleged, he could have reached said city of Marshall in time to have seen his brother alive; and that if he had received said telegram when he called for it on the morning of February 4th, as heretofore alleged, he could have reached said city of Marshall in time to have attended the funeral services of his brother. Plaintiff now alleges that by reason of the premises he has suffered great disappointment, grief and anguish, to his damage in the sum of two thousand five hundred dollars. For allegations for exemplary damages : See, post, §162. It is the duty of a company to receive a telegram in- trusted to its care, and transmit the same with reasonable diligence. It is not liable for delays arising from an un- avoidable interruption in the Avorking of its lines, by which is meant interruptions caused by electrical disturbances or others beyond its control. The fact that the defendant's wire was, on the day the telegram was delivered to it for transmission, in the uninterrupted control and use of the 190 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§158. railway company, does not indicate any unavoidable inter- ruption. Exceptional cases might arise when a railway company might be entitled to the exclusive use of the wires, as to prevent collisions, wrecks, etc. W. U. T. Co. V. Kosentreter, 80 T. 406. As to liability for negligence of connecting lines : See Tel. Co. v. Jones, 81 T. 271. The fact that the office of the company at the point of delivery was closed when a message was received for trans- mission, does not relieve the company from liability for failing to deliver a message paid for and sent by it. W. U. T. Co. V. Broesche, 72 T. G54. Such actual damages as result naturally from the act complained of, may be recovered under a general averment of damages. Subject to this rule will be reckoned the damages caused by mental anguish resulting from the failure to deliver a message announcing the death of his mother to her son, where he was prevented from being present at her burial. So Relle v. W. U. Tel. Co., 55 T. 308; G., C. & S. F. Ey. Co. v. Levy, 59 T. 542. But a plaintiff cannot recover where no casual connection is shown between the negligence and the injury. W. U. T. Co. v. Andrews, 78 T. 305. A dispatch announcing the death and time of burial of a person, is sufficient to put the company upon inquiry as to the relationship of the parties to the message, and the im- portance of its immediate transmission. Telegraph Co. v. Moore, 76 T. 66; Telegraph Co. v. Adams, 75 T. 533; Telegraph Co. v. Feegles, 75 T. 537; W. U. Tel. Co. v. Kosentreter, SOT. 406; Telegraph Co. v. Jones, 81 T. 271. By delay in transmitting a message, "My child is very sick, come at once," addressed to a physician, he came too late, and the child died after much suffering. The testi- mony showed a condition of mental distress from the delay of the physician to visit the child. It was held that plaint- iff could recover damages on account of mental suffering, caused by the failure to deliver the message. Tel. Co. V. Eichardson, 79 T. 649. 191 Ch. IG.] ACTIONS FOR PERSONAL INJURIES, ETC. [§158. The negligence of a parent in obtaining other medical aid for a child will defeat his right of action, but it cannot be Interposed as a defense to bar an action for the benefit of he minor. Telegraph Co. v. Hoffman, SO T. 420; see Telegraph Co. v. Brown, 71 T. 723. A telegram as follows: "C. S. K. — come on first train; bring F. ; his, father is very low," signed I. L., did not apprise the telegraph company that C. S. K. had a wife, or that she was at the place to which the telegram w^as ad- dressed, or that the object of the communication was to afford information upon which she was expected to act. W. U. T. Co. V. Kirkpatrick, 76 T. 217. If the facts stated in a petition show a breach of con- tract, and that breach is of such a character as to authorize a suit as for a tort, all the damacfes recoverable for the thing done or omitted, either in an action ex delicto or ex contractu, may be recovered in the one suit. If an actual injury has been done to the name, person or property, of the complaining party, he may recover, as actual damages, compensation for the proximate results of the wrongful acts. When injury to the feelings is such result, it forms an element of the actual damage. That the mental suffering is caused by and contemplated in the doing of the wrong- ful act, is the principle of the liability, Avhether the mental suffering is an incident of bodily pain or not. Stuart V. W. U. T. Co., 66 T. 582; see 75 T. 26; 79 T. 649, post; W. U. T. Co. V. Morris, 77 T. 173; G., C. & S. F. T. Co. v. Richardson, 79 T. 649; Telegraph Co. v. Cooper, 71 T. .=i07; W, U. T. Co. v. Broesche, 72 T. 654; W. U. T. Co. v. Simpson, 73 T. 422. The mere continued anxiety of one who has been in- formed of the dangerous sickness of a near relative, caused by the failure to deliver a telcirram conveving information of the improved condition of such relative does not of itself furnish ground for recovery against the telegraph company on account of its negligence. Rowell V. Telegraph Co., 75 T. 26; G.,C. & S. F. Tel. Co. v. Richard- son, 79 T. 649. 192 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§lo8. A father sued a telegraph company for negligence in failing to transmit a message sent to him by his son, in- formins: him of the sudden death of the son's wife and child. Damage was claimed on account of mental aniruish caused by his consequent inability to attend the funeral, and minister to his son's comfort and necessities. It was held that the contract between the son and the company could not be made the basis of a recovery by the father, in absence of injury to himself. G., C. & S. r. Ky. Co. V. Levy, 59 T. 563. In reference to this case, it is said in Stuart v. W. U. T. Co., 6Q T. 580, that the telegraph company had no contract with the father, had broken no engagement with him, nor violated any contract it had made with any one else for his benefit. It owed him no duty, and violated no right of his, and though its conduct may have outraged his sensibilities, it had done him no legal wrong. A person for whose benefit a telegram is sent, but with- out his knowledge or authority, cannot maintain an action for negligence against the company transmitting it. Elliott V. W. U. T. Co-.,*75 T. IS. When a message is sent to one in care of another, the company is not required to do more than to deliver the message to the person thus indicated. W. U. T. Co. V. Young, 77 T. 245. The failure of one who pays a telegraph company to transmit a message to have the same repeated, will not exempt the company from damages resulting from its failure throuijh nealio-ence to have the incssa<2:e delivered. And this, though the printed matter on the blank furnished by the company, and on which the message was written, contains a stipulation that the company will only be liable for the amount received for sending the message, if delay should occur in its deliver}^ unless the message be repeated. The rule is otherwise when the action against the company is for error committed in transmitting the message. Eailway v. Wilson, 69 T. 739; W. U. T. Co. v. Broesche, 72 T. 654. (13— Plead. Forms.) 193 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§158. A telegraph company may stipulate for limitation of its liability for damages, caused by error in transmitting an unrepeated message, unless it be shown by direct testimony, or by the facts and circumstances of the case, that the error was caused by the misconduct, fraud, or want of due care on the part of the company, its servants or agents. \V. U. T. Co. V. Hearne, 77 T. 83; W. U. T. Co. v.Neill,57 T. 283. When the charge for repeating a message is paid, it is the duty of the company to inquire if it has been jDroperly received, and if necessary to repeat it. The failure to do so is negligence, which subjects the comjDany to such actual damages as the plaintiff sustained from a failure to deliver the message. W. U. T. Co. V. Brown, 58 T. 170; Id., 62 T. 536. The measure of damages is not limited to the stipulated damages contained in the printed forms for a repeated message, but w^ould include the actual injury sustained by plaintiff through the non-delivery of the message. W. U. T. Co. V. Brown, 58 T. 170. Telegraph companies are not insurers against loss re- sultino; from mistakes in messages transmitted, and have the right, in a proper manner, and with proper limitations, to restrict their liability for damages. Especially is this the case in res-ard to nioi;ht messatres. But this will not extend to injuries caused by the misconduct, fraud, or want of due care on the part of the company, its servants or agents, in promptly or properly delivering a message. W. U. T. Co. V. Neil], 57 T. 2S3; W. U. T. Co. v. Hearne, 77 T. 83; W. U. T. Co. v. Edsall, 63 T. COS. Thus a message: "You had better come and attend to your claim at once," imparted notice of its purpose and the importance of its prompt delivery. Failing to collect the claim by reason of not receiving the dispatch, the measure of damasres Avould be the cost of the messaire, the value of the notes at the time, and legal interest until day of trial. Telegraph Co. v. Sheffield, 71 T. 570. 194 Ch. 16.] ACTIONS FOK PERSONAL INJURIES, ETC, [§159. §159. Against a railroad company, by a surviving ^vidoAA', for negligently causing the death of her hus- band. ^A. B., plaintiff, complaining of , defendant, represents that plaintiff resides in the county of , in said state. That, at the date of the transactions herein- after mentioned, defendant was, and now is, a railroad cor- poration duly incorporated and organized under the laws of this state, and is doing business and has its principal office in the county of . That is the president of said corporation, and is secretary, and is treasurer thereof, and all of said persons reside in the county of . That plaintiff is the surviving wife of C. B., deceased, and and are the children of plaintiff and said C. B., deceased, and that said C. B. left surviv- ing him no other child and no parent; that said is a girl now years of age, and said is a boy now years of age. And plaintiff brings this suit for the use and benefit of herself and the children above mentioned. ^Plaintiff further alleges that, heretofore, to-wit: on or about the day of , 18 — , defendant was engaged in running and propelling cars for the conve3^ance of pas- sengers over a railroad owned by it, and running through the county of aforesaid; that on said day said C. B., deceased, entered defendant's car at its station at for the purpose of being transported as a passenger to , another station on its said road, and for a valuable consideration paid therefor defendant agreed and it became its duty to well and safely carry and transport him over its road as aforesaid; that defendant failed to carry said C. B. well and safely between the stations afore- said ; but by its agents and servants so carelessly and neg- ligently managed and conducted itself in the premises that the car in which the said C. B. was riding was violently 195 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§159.. thrown from Scaid road or track, and said C. B., without fault or negligence on his part, was thereby mangled, bruised and greatly injured, and thereafter, to-wit: on the day of , 18 — , in consequence and by reason of said injuries, died. Plaintiff further says that at the time and place afore- said defendant did not manage and operate its road and its^ said train of cars with reasonable skill, care and diliijence: but, on the contrary, managed and operated the same with gross negligence, in this, that its road-bed and track, at and near the place where said car was thrown from the track, was in an unsafe and dangerous condition ; that one or more of the ties upon which the rails of said track rested were rotten, all of which was well known to defendant, its servants and agents, and by reason thereof said rails, by the passage of said train, which was then and there running at a high rate of speed, were caused to spread, and said car was thereby thrown from said track as aforesaid, and the death of said C. B., as aforesaid, was caused by the gross negligence of the defendant, its servants and agents. Plaintiff further alleges that at the time of his death, as aforesaid, said C. B. was years of age, was in good health, and well qualified for the transaction of business; that prior to and at the time of his said death he was and for a long time had been engaged in business and did thereby earn and receive therefrom the sum of dollars per annum, and could have continued to earn the same during: the term of his natural life; that he had since his mar- riage with plaintiff cared for and supported his family, consisting of this plaintiff and their said children, and had provided them with all the necessaries and conveniences of life and would hereafter have maintained and educated his children above named in a manner suitable to his station in life. Plaintiff further alleges that the said C. B. owned no property at the time of his death, and was dependent upon 195a Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§159. his earnings in his business for the support of himself and of his family; that the plaintiff and the children of the said C. B. own no property, and were, before his death, entirely dependent on him for their maintenance and the education of his said children ; that plaintiff is a weak and delicate woman, unable to work or earn a support for her- self or her children. Plaintiff now alleges that by reason of the premises she and her said children have sustained actual damages in the sum of dollars. And that by reason of, the gross negligence of the defendant, its officers, agents and serv- ants as aforesaid, she ought to recover the further sum of dollars as exemplary damages. *^ Wherefore plaintiff prays that defendant be cited to answer this petition ; that she have judgment for the actual and exemplary damages as aforesaid, and that they be ap- portioned among the parties entitled thereto in such shares as the jury shall find by their verdict; that she have judg- ment for costs of suit, and for such other and further re- lief as shall be meet and proper in the premises. See Ry. v. Spiker, 59 T. 435; Ry. v. Klaus, 64 T. 293; Ry. v. Jarrard, 65 T. 500; Ry. v. Culberson, G8 T. 664; Ry. v. Henry, 75 T. 220; Ry. v. Johnson, 78 T. 536; Nelson v. Ry., 78 T. 621. 1956 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§159.. For allegations claiming exemplary damages : See, ante, §157; post, §162 aud notes. Either the widow or any of the children of one killed by the negligence of another, under such circumstances as will give a right of action under the statute, may maintain a suit for the benefit of all. When such an action was insti- tuted by the widow in her own name, by petition, which disclosed that there was an only child of the deceased, whose name was stated, and the prayer of the petition was that the damages might be apportioned between them, after an averment that both were damaged by the death, it was held that the averments were sufficient on general excep- tion. Railroad Company v. Berry, 67 T. 238; see Avey v. G., H. & S. A. Ry.Co.,81T. 243. A railway company engaged in transporting passengers is held to extraordinary diligence to protect them. When a child of tender years is received as a passenger, the com- pany cannot avoid responsibility by showing contributory negligence on the part of such child, unless it is clearly shown that there was no negligence or misconduct upon the part of its servants and agents. Avey V. G., II. & S. A. By. Co., 81 T. 243; Evansich v. Ry. Co., 57 T. 123; Railway v. Wliite, 57 T. 129; Railway v. Boozer, 70 T. 530. While one who operates dangerous machinery may owe no duty of care to an adult person who voluntarily places himself in contact with it, a different rule prevails as ap- plicable to children. Hence, it is held negligence to per- mit a child to go on a tug-boat without taking adequate pre- cautions to avoid injury to it from all accidents while there. It is otherwise if the child goes on board against the con- sent of the boat's officer, or other employe in charge. Cook V. Houston Direct Navigation Co., 7G T. 353. A common carrier of passengers cannot, by contract, re- lieve itself from responsibility, or even limit its liability, for injuries resulting from the negligence of itself or its em- ployes or agents, in the scope of their employment. Its 196 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§159. liability does not depend on the fact that compensation for the passenger has been paid to it, but the same degree of care is incumbent on the carrier in the case of a passenger travehng on a free pass as in the case of one paying full fare. G., C. & S. F. Ry. Co. v. McGown, 65 T. 641; Railway v. Hampton, 64 T. 427. If a railway company accepted plaintiff's fare, and al- lowed him to ride upon a freight train, he was a passenger within the meaning of the law, and defendant was bound by the same degree of care as though it were a passenger train. I. & G. N. Ry. Co. V. Irvine, 64 T. 529. In a suit for damages against a railway company, on ac- count of the alleged negligence of its agents, it is not neces- sary that the petition should negative, either by facts stated or by direct averment, the existence of contributory neg- ligence on the part of plaintiff. An exception to this rule exists when the petition, from its averments, would estab- lish, if unexplained, a 'prima facie case of negligence of the party injured. As to allegations of negligence, see: T. & P. Ry. Co. V. Murphy, 46 T. 350; H. & T. C. Ry. Co. v. Cowser, 57 T. 293; H. & T. C. Ry. Co. v. Richards, 59 T. 373; Douglass v. T. M. Ry. Co., 63 T. 5G7; Ry. v. Redekcr, 67 T. 181 ; Ry. v. Hewitt, 67 T. 473; Brown v. Sullivan, 71 T. 475; see St. L. & S. F. Ry. Co. v. McClain, 80 T. 85. Negligence is a quality dependent on and arising out of the duties and rehitions of the parties concerned. T. & P. Ry. Co. V. Best, G6 T. 116. And is as much a fact to be found by the jury as the al- leged acts to which it attaches by virtue of such duties and relations. T. & P. Ry. Co. V. Murphy, 46 T. 356; G.,H. & S. A. R. Co. v. Dela- hunty, 53 T. 212; Fames v. T. & N. O. Ry. Co., 63 T. 665; I. & G. X. Ry. Co. V. Ormond, 64 T. 485; Rowland v. Murphy, 66 T. 536; H. & G. N. Ry. Co. V. Randall, 50 T. 260; H. & G. N. Ry. Co. v. Parker, 50 T. 345; Railway v. Greenlee, 70 T. 550; Dillingham v. Parker, 80 T. 574. When by statute a specific duty is imposed on a railway company in regard to the running and management of its train, a breach of such duty, by which one receives a por- 197 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§159. sonal injury, may be declared in a charge of the court as matter of hiw to be wrongful or negligent. T. & P. Ky. Co. V. Murphy, 46 T. 356; G., H. & S. A. Ry. Co. v. Smith, 59 T. 40S; D. & W. Ry. Co. v. Spicker, CI T. 427; Chatham v. Jones, G9 T. 744; Brown v. Sullivan, 71 T. 470. In an action for injuries, caused by an alleged failure of duty on the part of the defendant, when the failure of duty and the injuries are shown by the plaintiff, and there is nothing that implies that he brought the injury on himself by his own negligence, then the burden of proof is on the defendant to prove that the plaintiff was guilty of such negligence. On the other hand, when the plaintiff's own case exposes him to suspicion of negligence, then he must clear oif such suspicion. D. & W. Ry. Co. V. Spicker, 61 T. 427; Brown v. Sullivan, 71 T. 470. The care which a railway company must exercise in re- gard to the safety of those who travel on their trains, is not limited to such action as would not inflict injury b}^ their negligence on persons of robust health and ordinary physical ability; persons in feeble health, old and decrepit, are en- titled to travel on their trains, and they must exercise care accordingly. Railway v. Rushing, 69 T. 306. In an action to recover damages for injuries resulting from the wrongful or negligent acts of the defendant, it is always incumbent on the plaintiff to show how and un- der what circumstances the accident occurred, how he was employed at that time, what the facts were constituting the neo-liofcnce of the defendant, and if his own conduct was connected with the negligence of the defendant, so as to bring about the injury to show that connection, and in so doing to acquit himself of carelessness or establish the fact that he was exercising due care, for if, in the necessary state- ment of his own case, and his connection with it, it appear that he was negligent, or failed to exercise proper caution, he could not recover. He could not recover, unless it is shown koto the injuries were received. The plaintiff is not 198 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§159 required to do more than develop his own case, and in so doing show negligence of defendant causing the injury, and at the same time, while showing his own relations to the oc- currence, relieve himself of responsibilitj^ for it. Negligence might exist on his part outside of his own necessary proof. After proof of his case, establishing the negligence of the de- fendant, arid his own acts connected therewith as free from fault, there may yet be such negligence on his part, inde- pendent of his prima facie case, as will discharge the de- fendant of liability, and which, to become available as a defense, must be shown by the defendant. Such defense must be alleged and proved by the defendant. Railroad v. Spicker, 61 T. 427. In the case of The Railroad v. Murphy, 4(3 T. 363, Chief Justice Roberts explains the doctrine as follows: "It is often stated that the plaintiff must show that the injury was caused by the negligence of the defendant, without any fault or negligence on his part. It would be more correct to say that the plaintiff must show that the injury of which he complains w^as produced by the negligent acts of the defendant, under such circumstances as did not develop any negligence on his part contributing to his injury." The principle decided in the case of The Railroad v. Murphy, supra, was reaffirmed in the case of The Railroad V. Cowser, 57 T. 302: "That in a suit for damasjes against a railway company, on account of alleged negligence of its agents, it is not necessary that the petition should neg- ative, either by facts stated or by direct averment, the ex- istence of contributory negligence on the part of plaintiff. An exception to this rule exists when the petition from its averments would establish, if unexplained, a prima facie case of negligence of the party injured." The doctrine in all our cases is clear, that if the plaint- iff develops his own want of care, defendant can take ad- vantage of it. If defendant relies upon contributory ueg- 199 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§159. ligence not developed by the plaintiff's case, he must allege it. It is a defense in the nature of an avoidance. Rule 7 for District Court; Mutual Ins. Co. v. Davidge, 51 T. 244; R. R. Co. V. Parker, 50 T. 346; Beach on Cou. Neg., 157; but see, contra, 1 W. & W. Ct. App. C. C, §382; 2 Id., §482; 2 Thompson on Neg., 1179; Murray v. G., C. & S. F. Ry. Co., 73 T. 2. In an action for damages for personal injury suffered by plaintiff, alleged to have been received upon the railroad track of the defendant, an averment that the track was necessarily used by the public in passing along the street, was, on general exception, sufficient to admit proof that plaintiff was not guilty of contributory negligence, it beino- alleged in the petition that he was "without fault or negli- gence." If special exceptions had been interposed to the petition, on account of the generality of the averment as to the necessity of the use of the track by passengers alono- the street, and as to the absence of negligence on part of the plaintiff, they should have been sustained, and he should have been required to show by his petition the circumstances which rendered such use necessary, and also the acts of dil- igence used by him to avoid the injury. Lewis V. G., H. & S. A. Ry. Co., 73 T. 504. The fact that the wife had separated from her husband does not preclude her from recovering damages for his death, caused by the negligence of a railway company. D. & W. Ry. Co. V. Spicker, Gl T. 427; In a suit by a parent for injuries resulting from the death of a minor child, in so far as the claim may be based on the services of the child before majority, it is said that the will of the child to render its services to the parent, or to per- init the parent to have the proceeds of its labor, would be an unimportant inquiry, for the law gives the parent the right to both. The same rule would not apply Avhere no legal right to benefit existed, as in case of a suit by a par- ent for an injury to a child after majority, which resulted in death. In such a case, it would be proper to show the rea- sonable expectation of benefit which the parent would have 200 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§160. received had the child not been killed ; and in the absence of legal right to benefit prior to the death of the child, that would depend on the will and ability of the child to confer benefit on the parent. In such a case, evidence throwing light on these matters would be proper and should be con- sidered by a jury under a proper instruction. D. & W. Ey. Co. V. Spicker, 61 T. 427. The petition in a suit against a railroad company, brought by the mother, as sole surviving parent, for actual and ex- emplary damages resulting to her from the death of her son, over twenty-one years of age, caused by the negligence of the defendant, alleged that by the death so occasioned she, *'as his sole surviving parent, had been damaged $10,000 actual damages." On special exception, it was held that the petition did not show a cause of action. In the absence of an averment that he supported or contributed to her support, or that there was some expectation of benefit of a pecuniary character to be derived by the plaintiff from the services of her son, there is no presumption of law arising, from the mere fact stated, that she had been damaged by the death of her adult son. Wiimt V. I. & G. N. E. E. Co., 74 T. 32. If the employment was for a service in its character dan- gerous, and the minor was employed without the father's consent, his minority being known to the employer, and in- jury results to the minor in the course of his employment, the father may recover as damages the value of the son's services to him, which were lost by reason of the injury. Railway v. Eedeker, 67 T. 190. § 160. For injuries to an employee, caused by neg- ligence of a railroad company. ^That heretofore, to-wit: on the day of , 18 — , plaintiff was in the employ of defendant, having charge of a construction or ditching train, engaged in repairing de- 201 Cb. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§100. feiidant's railroad, within the limits of Sour Lake and Beaumont stations, on the line of said road. That on said day defendant, by a special order, directed plaintiff to go with his said train to a point west of said Sour Lake station, and outside of the limits above men- tioned, for the purpose of receiving and hauling a load of wood over said road. That in obedience to said order plaintiff proceeded with his train to the place above mentioned, received thereon a load of wood, and returned towards said Sour Lake station ; ythat while so returning, at a point west of said station and of the limits first above mentioned, a cow suddenly jumped upon tbe track in front of said train from behind a clump of bushes, which was growing on the right-of-way of said road and near the track, and, being caught by said train was run over, causing the two foremost cars to be derailed. That the jar caused by the derailment of said train threw plaintiff, Avho was then and there upon said train, to the ground, whereby a number of bones in one of plaintiff's ankles were broken, and he was otherwise greatly hurt and injured. That at said place where said train was thrown from the track of said road, cattle and all kinds of domestic animals were in the habit of roaming across and in the vicinity of the defendant's track, which defendant well knew; that the defendant negligently permitted bushes to grow to such an extent as to afford a cover to said animals, so that they might suddenly get upon said track, and so endanger the safety of passing trains; that it was impossible for said de- fendant's servants and employes, by the use of care and skill, to prevent a collision with such cattle, and safely to operate along that part of the road. That by reason of the failure of the defendant in failing to cut down said bushes, and to preserve the view of its right-of-way unobstructed, it was guilty of gross negligence. 202 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§101. That by reason of the injuries aforesaid, plaintiff became sick and lame, and so remained for a long time. That dur- ing the space of days plaintiff was prevented from at- tending to his business as aforesaid, and was compelled to expend, and did expend, a large sum of money, to-wit: the sum of dollars, in endeavoring to be healed of his said injuries. That during said time plaintiif suffered, and still suffers, great pain and anguish of body, and by said injuries is permanently disabled for life from pursuing his occupa- tion as aforesaid. That by reason of the premises, he has been damaged in the sum of dollars. Eames v. Ry. Co., 63 T. 660; Railway v. Lee, 70 T. 406. § 161. For injuries caused by an unsafe crossing" of a public road. •^That defendant, at the times herein mentioned, had maintained and operated a line of railroad across a certain public highway, in the county of , known as the road, and that it was its duty to so lay its tracks, and so keep and maintain the same, across said highway, that the crossing thereof should be at all times safe and convenient for the traveling public. That defendant, wholly unmind- ful of its duty aforesaid, failed and neglected to construct and maintain a good and sufficient crossing at the point aforesaid; that on the day of , 18 — , plaintiff, while crossing defendant's tracks at said point, and by reason of the unsafe and insufficient crossing then and there made and maintained, received injuries by reason of, etc. \_state the ciixumstances of the accident, and the in- juries caused t]ierehy~\. The mental ano-uish of the wife, resultinc: from friijht, is an element of damage in an action brought by the husband. Railway v. Box, 81 T. 670. For allegations claiming exemplary damages : See, ante, §157; post, §162. 203 • Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§162. The elements of damages for personal injuries are loss of time since the injury up to the time of the filing of the suit, physical and mental suffering endured in consequence and as a result of the injuries received, and permanent diminution of capacity to Avork and earn money. When the law implies such damages as necessarily result from a wrongful act complained of, proof is required to show the extent and amount of damages. I. & G. N. Ry. Co. V. Simcock, 81 T. 503; Railway v. Curry, 64 T. 85; Moehring v. Hall, 66 T. 241. Damages which, though the natural, are not the necessary consequence of the wrongful act of another, must be specially alleged. Comraenge v. Stevenson, 76 T. 642. When exemplary damages are sought, they should be claimed by proper allegations, in the nature of two distinct counts, on different causes of action, with averments re- spectively appropriate to each remedy. Railroad v. Le Gieise, 51 T. 189; Moore v. Anderson, 30 T. 230; Hope v. Alley, 9 T. 394; Irwiu v. Cook, 24 T. 244. § 162. For actual and exemplary damage, for neg- ligeiice, agaiust a railway company. ^That defendant, at the times hereinafter mentioned, was in possession of and operating a line of railway from , in the said state of , to , in the state of . That the tracks of defendant's railway are laid across a certain public road in said county, leading from to , the tracks of defendant at said crossing being on the same grade as said public road ; that on the day of , 18 — , while plaintiff was lawfully and with due care driving in a carriage along and upon said public road, at the point of crossing of defendant's track as^ aforesaid, (a) the agents and servants of defendant managing its said railroad, and in charge of its trains thereon, so carelessly, negligently and unskillfully conducted themselves, that a certain locomotive and train of cars, then and there in 204 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§162. charge of the agents and servants of defendant, were (with- out any fault, or want of care or diligence on the part of plaintiff), and by reason of the negligence, unskillfulness and want of care of the agents and servants of defendant, with great force and violence driven and run upon and against the said carriage of plaintiff, and the same was overturned, broken and crushed, and plaintiff was Avith great force and violence thrown from and out of said car- riage to and upon the ground, and was greatly bruised, wounded and mangled Ithe breaking of bones, or any other specific injury loJiich resulted, sJiould be stated'\. Plaintiff says that by reason of said injuries he suffered great pain, both of mind and bodj^; that he was for a long time hin- dered and prevented from attending to his affairs and bus- iness ; that he was compelled to, and did necessarily lay out and expend large sums of money in and about the cure of his said wounds and hurts, and that he has received per- manent injuries; and, furthermore, the said carriage, which was, at the time aforesaid, of the value of dol- lars, was rendered entirely worthless. Plaintiff says that, by reason of the premises, he has been damaged in the sum of dollars, for which he prays judgment. [If it is charged that defendant failed to ring the bell or sound the whistle, then after (a) proceed as follows;] a certain locomotive and train of cars were driven alongr and upon said railroad of defendant, up to, upon and across said public road, at the said crossing thereof, and the agents and servants of defendant, in charge of said locomotive and train, wholly failed to ring the bell thereon at a distance of eighty rods from said crossing, and to keep the same ring- ing until said locomotive had crossed said public road, and also wholly failed to sound a steam whistle at the distance of eighty rods from said crossing, and to sound said whistle at intervals until said locomotive had crossed said road; by means and in consequence of which default and neglect of defendant's said servants and ai^cnts, said locomotive ran 205 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§162. and struck with great force and violence upon and against the said carriage of phiintiff, etc. [as in preceding form]. Phiiutiff further alleges that the defendant, by its agents and servants, managed and conducted its said train, as afore- said, with gross negligence, in this: that said train, while approaching said crossing, was driven at a high rate of speed, to-wit, at the rate of forty miles an hour, and said train, while so approaching said crossing, was concealed from the view of persons approaching the same by build- ings and other obstructions, and persons approaching said crossing, and especially this plaintiff, was by reason thereof prevented from discovering the approach of said train. That by reason of the premises, and of the failure to ring the bell or sound the whistle as aforesaid, plaintiff is en- titled to punitory damages in the sum of dollars. <5 Wherefore, plaintiff prays that he have judgment for his actual and punitory damages as aforesaid, for costs of suit, and for general relief. When a train is standing upon a crossing, the statute (Civ. Stat. Art. 4232) does not require the whistle to be blown ou starting. Riiihvay v. York, 74 T. 370; H. & T. C. Ry. v. Bren, 77 T. 174. Persons approaching railroad crossings should exercise due care to ascertain whether there are trains approaching. The measure of such care is that which would be exercised by a reasonably cautious and prudent person under like cir- cumstances. H. & T. C. R. R. Co. V. Wilson, 60 T. 142; Railway v. Box, 81 T. 670; see Railway v. Lee, 70 T. 496. If the injured party had notice of the approach of a train from which injury resulted, the failure to ring the bell would be immaterial. H. & T. C. R. R. Co. V. Nixou, 52 T. 19; T. & P. R. R. Co. v. Wright, 62 T. 51.0. If an engineer, in giving the usual signal by blowing the whistle on approaching a public crossing, continued such 206 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§162. whistling after he became apprised of the fright of a team near by, endangering life, such act would be negligence. Railway v. Box, 81 T. 670. Verdicts for damages for personal injuries have been sus- tained in the following cases: For a broken arm and other injuries, $10,000. Brown v. Sullivan, 71 T. 471. Loss of one arm, $6,000. Howard Oil Co. v. Davis, 76 T. 631. Loss of one hand, $6,000. Railway v. Jones, 75 T. 151. Broken ribs, $3,700. Railway v. Aiken, 71 T. 374. Broken ribs, injured spine and impaired health, $6,933. Railway v. Lee, 69 T. 556. Incised scalp wound, contusion of chest, with resulting decreased ability to labor, $5,000. Railway v. Boehm, 57 T. 152. Crushed foot, producing permanent lameness, $2,07'0 Railway v. Crenshaw, 71 T. 340. Broken leg, and other serious injuries, $10,000. Railway v. Johnson, 72 T. 96. Permanent injuries to a child resulting from non-repair of a street, $10,000. City of Galveston v. Posnainsky, 62 T. 118. Caused by a street car company, $7,000. Railway v. Witten, 74 T. 202. At suit of parent against a railway company for death of her son, $2,000. Railway v. Hook, 60 T. 403. For death of a child, caused by want of proper care of a turn-table, $3,500. Railway v. Simpson, 60 T. 103. At suit of mother for death of son, who contributed to her support, $4,200. Railway v. Lester, 75 T. 56. At suit of widow and child for death of her husband, $12,000. Railway v. Ormond, 64 T. 4S5. 207 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§ 163. § 163. Against railroad company for damage by fire. ^That plaintiff is and was at the times hereinafter men- tioned the owner of certain premises in the county of , described as follows [gi'^e a sufficient description to iden- tify the premises; it is sufficient to state simply : being the premises on which plaintiff then and now resides; or, be- ing the farm of plaintiff, on such and such a road~\ ; that the railroad of defendant runs along on the side of [o?', runs through] the said farm [o?% premises] of plaint- i:ff ; that on the day of , 18 — , a certain locomo- tive was in use on said railroad, and was then and there attached to and drawing a train of cars at the point where said road runs by \_or, through] the premises of plaintiff; that said locomotive was so defectively and improperly built and constructed, and was so carelessly, negligently and unskillfully managed by the agents, servants and em- ployes of defendant in charge thereof, that sparks of fire escaped from said locomotive, and set fire to the fences [or whatever else was burned'] of plaintiff, and totally consumed the same, to his damage in the sum of dollars, for which, etc. § 16,4. Against master for failing to furnish proper tools or macliinery. ^That on the day of , 18 — , plaintiff was em- ployed by defendant as , and that as such it wa's part of his duty to \_set out the duties of plaintiff as such em- piloye], and it was the duty of defendant to furnish him with good and reasonably safe and sufficient tools or ma- chinery for that purpose [or, to see that the machinery at or near which plaintiff was set to work was in a reasonably safe condition]. That defendant, wholly neglecting and disregarding liis' duty in that behalf, did furnish him \set out the tools furnisJied or the machinery used, and the de- fects therein, or the facts luhich rendered it unsafe"], which said defects were known to defendant, or might, by the ex- 208 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§165. ercise of ordinary care ou his part, have been known to him, but which could not be discovered with due caution and care by phiintiff ; (a) and while plaintiff was using the said defective tools so negligently furnished him by defend- ant lo7\ w^hile working at or near said defective and unsafe machinery], and w^hile acting under the orders of defend- ant, and in the scope of plaintiff's employment [state the manner of the injury, its result, the amount of damages, etc.']. In an action by an employe against a railway company, for injuries caused by its failure to provide proper ma- chinery for his use, the defendant is held to the use of or- dinary care to avoid defects which may expose employes to danger while using it with ordinary care. G., C. & S. F. Ry. Co. v. Wallis, 81 T. 685. §165. Wliere plaintiff continues work under tlie as- surance that machinery Is safe. [^6* in jjreceding fortn to {a), then insert:'] And plaintiff further says that, suspecting said machinery was unsafe, and that he could not work at [or, near] the same without risk of personal injury, he declined to con- tinue at said work [or, in the service of defendant; or, he expressed to defendant's agent and superintendent in charge of said work, and by whom this plaintiff was employed, his apprehension that it was unsafe to w^ork at [or, near] said machiner}^], whereupon the said superintendent assured plaintiff that said machinery was entirely safe and adapted to the use of plaintiff, and that plaintiff could Avork at [or, near] the same with safety and without risk of personal in- jury or harm, and ordered him to continue his said work. And thereupon plaintiff, relying upon the assurances of de- fendant's said agent, and upon his superior knowledge of and familiarity with said machinery, continued to work at [or, near] said machinery. And plaintiff says that while using the said defective machinery, etc. [conclude as in preceding foy^m] . (14— Plead. Forms.) 209 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§166. § 166. Against a municipality, for injiu'ies sustained from falling- into a drain. ^That at the times hereinafter mentioned defendant was and now is a municipal corporation, organized and existing under a special law of the legislature of this state, entitled: "An act to incorporate the city of , and to prescribe its duties and liabilities," approved day of , 18 — . That by said act said defendant had exclusive control and power over the streets, alleys, and public grounds and high- ways, of said city, and to abate and remove encroachments or obstructions thereon, to open, alter, widen, extend, es- tablish, regulate, grade, clean, or otherwise improve the same; to put drains and sewers therein, and to prevent the incumbering thereof in any manner. To establish, erect, construct, regulate, and keep in repair bridges, culverts, drains and sewers, and to regulate the construction and use of the same, and to abate and punish any obstructions thereon. 1 That prior to the day of , 18 — , defendant had caused an excavation to be made at and across the sidewalk or pavement in front of Lot No. — , abutting on street in city of , said excavation being made for the purpose of a drain or sewer to carry off the surplus water falling on said lot and an adjoining alley. That it was the duty of the defendant to carefully guard and cover said drain or sewer, so that said street and side- walk should be reasonably safe for the public, and for per- sons passing along the same. That defendant so carelessly and negligently conducted itself in reference to said drain or sewer, that the same was left unguarded and without sufficient cov^ering to prevent persons passing along said street and sidewalk from falling into the same. That plaintiff, on or about the day of , a. d. 18 — , while lawfully and properly passing along said street and sidewalk, fell and was precipitated into said excavation, 210 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§167. and was thereby wounded, bruised and maimed,^ to his damage in the sum of dollars. iSee Civ. Stat. Art. 1191. 2 Circumstances of aggravation, if they existed, should be alleged. Ante, Art. 161, note. § 167. For Injuries caused by falling througli hatch- way. ^That at the time hereinafter mentioned defendant was the owner \_or, occupant] of a certain building and prem- ises, with the appurtenances thereto belonging \^describe the huilding'], which building was, at the time hereinafter mentioned, occupied by defendant as a \_state the use to which the building was put, if such use has any relevancy to the cause of action. '\ That in said building there was, on the day of , 18 — , an opening or hatchway through the floor opening from the first story thereof into the cellar, which hatchway was not at said mentioned time protected or guarded in any manner; that defendant, well knowing the premises, negligently and wrongfully left said hatchway uncovered and unprotected, by means whereof plaintiff, who was then lawfully in said building and in the pursuit of his business, did on said day of , 18 — , slip and fall into and through said hatchway to the floor of the cellar below, whereby he was greatly hurt and injured, and became sick and lame, and so remained for a long time, and was during the space of prevented from attending to his business as , and was compelled to expend, and did expend, the sum of dollars in endeavoring to be healed of his said injuries, and did suffer great pain and anguish of mind and body, and also \_state any other facts bearing upon the measure of damages'] . That by reason of the injuries aforesaid, he has been damaged in the sum of dollars, for which, etc. 211 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§ 16705. § 167a. Action against a snrgeon for malpractice. That at the times hereinafter mentioned defendant was a physician and surgeon, engaged in the practice of his pro- fession in the city of ; that on the day of , 18 — , phiintiff employed defendant, for a reasonable com- pensation to be paid therefor by plaintiff to defendant, to set and heal the leg of plaintiff, which had before that time been broken ; that defendant so negligently and unskill- fuUy conducted himself in and about the setting of said leg and attempting to heal the injuries of plaintiff, that through his negligence and unskillfulness inflammation ensued \_or state any other results of the negligence^, by reason whereof it became necessary to have plaintiff's leg amputated [or whereby the said leg became one inch shorter than the other; or state such other unfavorable result as the case \oar- rants^^. That by reason of the said negligence and unskillfulness of defendant as aforesaid, plaintiff was made sick, and was for months kept from attending to his proper business and affairs; that he was put to great pain, trouble and anxiety, and was compelled to and did necessarily lay out and expend large sums of money for nursing and care ; and that he has been and still is disabled from attending to his business as , and that he is permanently injured, lamed and disfigured. Plaintiff says that by reason of the prem- ises he has been damaged in the sum of dollars. For necessary allegations, where exemplary damages are claimed : See, ante, §162 and notes. Physicians and surgeons are on the same footing as attorneys and other persons undertaking to perform serv- ices, which require skill for reward. A medical practitioner does not insure the result, but simply engages that he pos- sesses a reasonable degree of skill, to be exercised with reasonable care and diligence, but he is not responsible for a mistake of judgment. Graham v. Gautier, 21 T. Ill; Mays v. Hogan, 4 T. 26; Payne v. Francis, 37 T. 76; Brooke v. Clark, 57 T. 105. 212 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§ 168. § 168. For injury Tby vehicle driven by servant. ^That on the clay of , 18 — , plaintiff, being then and there the owner of a horse and buggy, was driving said horse, attached to said buggy, along a street in the city of , being then and there a public highway of said city, said horse being then and there of the value of dol- lars, and said buggy of the value of dollars; that de- fendant was on said date the owner of a certain hackney carriage and two horses, which were at the time aforesaid passing over said street, in the possession of a servant and -employe of defendant, who was then and there driving the same; that said servant of defendant so carelessly drove and managed said carriage and horses, that by reason of his neo;lio;ence one of the wheels of said carriasre struck the side of plaintiff's buggy, overthrew and broke the same, and threw plaintiff's horse upon the ground, breaking his leg, and otherwise bruising and injuring him, and also threw plaint- iff out of his carriage and on the ground [state any other facts connected with the accidenf], whereby plaintiff was bruised and wounded, and was for several days prevented from attending to his business as , and was put to great expense in repairing his said buggy, and in endeavoring to be healed of his own wounds, and to heal those of the said horse. And plaintiff further says that he was compelled to, and did, kill said horse, in consequence of the injuries b}^ him received. Wherefore plaintiff says that he has been dam- aged in the sum of dollars, etc. §169. For injury by a dog. ^That at the time hereinafter mentioned defendant wrongf- fully kept a certain dog, well knowing him to be of a fero- cious and mischievous disposition and accustomed to attack and bite mankind ; that defendant, Avhile he kept said dog as aforesaid, wrongfully and negligently suffered him to go 213 Ch. 16.] ACTIONS FOR PERSONAL INJURIES, ETC. [§169. at large without being properly guarded or confined ; that on the day of , 18 — , said dog attacked and bit plaintiff, and wounded him in the leg, whereby plaintiff be- came sore and lamed, and so remained for Istate tlie length of time'] ^ and was thereby occasioned great pain, and pre- vented from going on with his business as merchant, and was compelled to expend, and did expend, the sum of dollars in endeavoring to heal himself of said wound to plaintiff's damage in the sum of dollars, for which, etc. For necessary allegations where exemplary damages are claimed : See, ante, §162 and notes. 214 Ch. 17. — Actions for Divorce. §170. To dissolve a marriage because of non-age. 171. For divorce, with prayer for injunction, etc. 172. By wife for divorce because of adultery of husband. §170. To dissolve a marriage because of non-age. *A. B., an infant female under twentj-one years of a^e, who sues by her next friend, CD., now here admitted by the court to prosecute this suit, complaining of E. B., rep- resents that both parties reside in the county of ; tnat plaintiff is now an actual bona fide inhabitant of this state, and has for six months next preceding the filing of this suit resided in said county of . ^That on or about the day of , plaintiff married with defendant in the county of , in this state ; that at the time of said marriage plaintiff was an infant under the age of legal consent, to-wit : of the age of about thirteen years. That for a short time after said marriage plaintiff cohab- ited with her said husband, but phiintiff and defendant have not cohabited as husband and wife for any time or in any manner since the plaintiff attained the age of fourteen, to- wit : the day of , 18 — . That plaintiff is desirous of having said marriage between herself and defendant dissolved and declared null and void by a decree of this court, ^Wherefore, plaintiff prays that defendant be cited to answer this petition, and that said marriage between plaint- iff and defendant be dissolved and declared null and void, that plaintiff have judgment for costs of suit, and for such other and further relief as in the premises may be just and equitable. 215 Ch. 17.] ACTIONS FOR DIVORCE. [§171. A marriage i^rocured by fraud or force is null and void, and a suit may be brought for the purpose of having it ad- judged to be void. Robertson v. Cole, 12 T. 356. A marriage consummated while the man is under arrest for seducing the woman, and on the advice of the officers of the law and bystanders, is valid. Johns V. Johns, 44 T. 40. By statute the marriage of or offer to marry a female who has been seduced relieves the seducer, who at the time of committing the offense was not married, from a prosecu- tion for the offense of seduction. Penal Code, Arts. 814-817. § 171. For divorce, witli a prayer for an iiijvinetion, etc. ^That on or about the day of , plaintiff was legally married to defendant in , and continued to live with him as his wife until about the day of . That at the time of said marriage plaintiff and defendant were inhabitants of said state of , and afterwards, on or about the day of , removed to this state, and have remained here ever since. That plaintiff, during the time she lived and cohabited with defendant as aforesaid, had two children by him, to- wit: (insert names and ages); that during all that time she conducted herself with propriety, managed the house- hold affairs of her said husband with prudence and econ- omy, and at all times treated her said husband with kind- ness and forbearance. But that defendant, disregarding the solemnity of his marriage vow, and his obligation to treat plaintiff with kindness and attention, within about a year after their said marriage, commenced a course of un- kind, harsh and tyrannical conduct towards her, which con- tinued, with very slight intermission, until she finally sep- arated from him on or about the day of , 18 — . 216 Ch. 17.] ACTIONS FOR DIVORCE. [§171. That on divers occasions, while plaintiff lived with de- fendant as aforesaid, he was gniltj^ of excesses, cruel treat- ment and outrages toward her, of such a nature as to ren- der their living together insupportable; that on or about the day of , as plaintiff was sitting by the fire, defendant came home and pulled her chair from under her, threw her violently upon the hearth and dragged her across the floor, under circumstances which showed an utter dis- regard of plaintiff's health, if not of her life. That on an- other occasion (specifying the several acts of cruelty and inhuman treatment). That defendant is a man of violent* passions and of ungovernable temper, and that on many oc- casions, during the time plaintiff lived with him, defendant addressed to her the most opprobrious epithets and threats of personal violence, and repeatedly threatened to take her life ; that in consequence of the cruel and inhuman treat- ment above mentioned, together with the threats aforesaid, and such brutal and outrao-eous conduct towards her as ren- dered it unsafe for her to live with him or to remain within the reach of his violence, she was, on or about the day of , obliged to leave, and did leave, the house of defendant and go to her friends, since which time she has not dared to return to his said house, or to live with him. That since she has so left the house of defendant he has refused to provide for her support and maintenance ; that she has no separate property or income adequate to her maintenance, and is now very destitute and in great w\int; that defendant is in possession of real and personal estate, the community property of plaintiff and defendant, amount- ing to dollars, and his annual income is about dollars. ^Wherefore, she prays that defendant be cited to answer this petition ; that he be required to return into court an in- ventory and appraisement under oath of all the property belonging to the community estate of plaintiff and defend- ant, and that a writ of injunction issue, restraining him 217 Ch. 17.] ACTIONS FOR DIVORCE. [§ l''!- from disposing of any part of the same, or contracting any debts on account thereof, until the further order of this court; that during the pendency of this suit the defendant be required to pay into court quarterly the sum of dol- lars, for the support and maintenance of plaintiff and her children; that said children, during the pendency of this suit, be placed in the custody of plaintiff, and that defend- ant, by a writ of injunction, be restrained from interfering with them in any manner; that on final hearing she have judgment, dissolving the marriage between plaintiff and de- fendant, and for partition of the community property; that plaintiff have the care, custody and education of the said children of said marriage, and that a proper and suit- able provision be made for their support and maintenance, and she now here alleges that the sum of dollars, pay- able monthly, is a proper and suitable provision therefor; and for such other and further relief as the court shall think proper to grant, with costs of suit. In order to obtain the writ of injunction prayed for by interlocutory order, the petition must be verified by af- fidavit. Civ. Stat. Arts. 2860-2871, 2876. In an action for divorce, it is necessary to allege that the parties were married, or were husband and wife at the time the defendant committed the acts which are complained of as grounds of divorce. An averment that they had con- tinuously lived together as husband and wife is not equiv- alent to an allegation of marriao-e. Andrews v. Andrews, 75 T. 609. Studied vexations, deliberate insults and provocations, with or without apprehensions of bodily hurt or personal violence, arc grounds for divorce at the suit of the wife. Sheffield V. Sheffield, 3 T. 70; Taylor v. Taylor, 18 T. 574; Shreck V. Shreck, 32 T. 578; Huilker v. lluilker, 64 T. 1; Sapp v. Sapp, 71 T. 348. Public aspersions imputing unchastity to the wife are grounds for a divorce in her behalf. 218 Ch. 17.] ACTIONS FOR DIVORCE. [§171. Jones V. Jones, 60 T. 451; Bahn v. Bahn, 62 T. 518; Pinkard v. Pinkard, 14 T. 356; Williams v. Williams, 67 T. 198. In no other case have mere words spoken by either party been held sufficient to authorize a divorce. Scott V. Scott, 61 T. 119. The mere charge of adultery on the part of the husband made by the wife, though the charge be repeatedly made and be false, is no sufficient ground for divorce in favor of the husband. McAllister v. McAllister, 71 T. 695. But a single deliberate act of the husband falsely and publicly charging his wife with unchastity, may be cause for granting a divorce. Jones V. Jones, 60 T. 4.52; Bahn v. Bahn, 62 T. 518. In absence of physical violence by the husband, in order to entitle the wife to a divorce, she must show such cruel treatment as will produce a degree of mental distress which threatens at least to impair her health. Eastman v. Eastman, 75 T. 473; see Adams v. Adams, 78 T. 191. The facts constituting excesses, cruel treatment and outrages, must be stated. Wright V. Wright, 3 T. 168; Nogees v. Nogees, 7 T. 538; Hare v. Hare, 10 T. 355; Beck v. Beck, 63 T. 34. Desertion for three years with intention of abandonment is a ground for divorce. Civ. Stat. Art. 2861; Hare v. Hare, 10 T. 355. But the refusal of the wife to live with her husband, desertion not having continued for the statutory period, is not ground for a divorce. Sapp V. Sapp, 71 T. 348; see Taylor v. Taylor, 18 T. 574. Imprisonment in the state prison is a ground for divorce. Civ. Stat. Art. 2861-2864; see Wright v. Wright, 6 T. 3. The cause is removed by a pardon. Civ. Stat. Arts. 2861-2864. A commutation of the punishment is not equivalent to a pardon. Young V. Young, 61 T. 191. Reconciliation is a bar to a divorce for precedent acts of cruelty only when there is no further ill-treatment. If 219 Ch. 17.] ACTIONS FOR DIVORCE. [§172. there be fresh cruelty or outrage, the former acts will be revived, and the impediment raised by the reconciliation removed. Wright V. Wright, G T. 3; Nogees v. ISTogees, 7 T. 538. It is otherwise under the statute, in case of condonation of an act of adultery. Civ. Stat. Art. 2865; Nogees v. Nogees, 7 T. 538. But a divorce will be refused where it is shown that both parties have been guilty of adultery. Haines v. Haines, 62 T. 216. Recrimination on the part of the offended spouse is a bar to a divorce. If, however, such recrimination is in- significant, compared with the great provocation on the part of the other, a divorce raa}'^ be granted. Becic v. Beck, 63 T. 34; Hale v. Hale, 47 T. 336; Jones v. Jones, 60 T. 451. §172. For divorce because of adultery by husband. ^That on or about the day of plaintiff was duly married to defendant in the state of , and continued to live with defendant as his wife until about the day of ; that a few months after said marriage they moved to the State of Texas, and for the last ten years have been, and at the time of the commission of the acts of adultery hereinafter set forth, were and now are inhabitants of this state. That on or about the day of defendant abandoned plaintiff, and since then hitherto has been living in adultery with one G. H. in the county of . That plaintiff and defendant are seized and possessed of a large amount of real and personal property, acquired by them since their marriage and during their residence in this state, a schedule of which, with its value, is hereto attached, marked Exhibit A, and made a part of this petition. ^Wherefore, plaintiff prays that defendant be cited to an- swer this petition, and that she have judgment that the marriage between her and defendant be dissolved, and that a division and partition of their estate be made as to the court shall seem just and right, and for such other and fur- ther relief as she may be entitled to, with costs of suit. 220 Ch. 18. — Actions on Contracts Relating to Land. §173. On a lease for a breach iu not keeping premises in repair. 174. Against assignee of a term, by assignor, for not repairing. 175. For hindering tenant from taking possession under parol lease. 176. On a bargain respecting a sale of land. 177. Against vendor for breach of contract to convey land. 178. To recover deposit on contract of sale unfulfilled. 179. Against vendee for refusing to accept a deed and pay for land he contracted to purchase. ISO. For breach of warranty in sale of land. 181. For breach of warranty, by a subsequent vendee. § 173. On a lease for a breach in not keeping- prem- ises in repair. ^That heretofore, to-wit: on, etc., by a certain written lease of that date, plaintiff did demise and lease unto the defendant a certain dwelling-house, situate, etc., for the term of years then next ensuing; and defendant did by said lease covenant and agree with plaintiff to keep said dwelling-house in good and tenantal)le repair and con- dition, and to leave the same in such good repair and con- dition at the end of said term, and to peaceably and quietly yield up the same to plaintiff, on, etc., without do- ing any waste to the same, or any part thereof ; that de- fendant did not during the continuance of said lease, and while he was so possessed of said premises, keep said dwelling-house in good and tenantable repair and condition, nor leave the same in such good repair and condition at the end of said term, but, on the contrary, whilst he was so possessed of said premises, suffered and permitted said dwelling-house to be and continue, and the same was dur- ing all that time ruinous and in great decay for want of necessary repairing; and at the determination of said term left said premises in such condition as last aforesaid, to plaintiff's damage dollars. 221 Cll. 18.] ACTIONS ON CONTKACTS RFLATING TO LAND. [ § 174. When a lessee was entitled to the use of the premises for a term of years, in consideration of such improvements as he might make upon them, and was ejected therefrom by the lessor, his right of action for a breach of the con- tract was not affected by proof that their use for the time occupied by him was worth as much as the improvements. Madox V. Humphries, 24 T, 195. The landlord is not bound to keep premises in repair, in the absence of an express agreement to do so. Nor is there an implied warranty that the premises are fit for the pur- pose for which they are leased. Lynch v. Ortlieb, 70 T. 727; Marshall v. Heard, 59 T. 2G6; Wein- steine v. Harrison, 66 T. 546. The landlord is liable for injuries caused by defective structures upon leased premises, at suit of his tenant or an employe of his tenant, when he has contracted or is under obligations to keep the tenement repaired, or has been guilty of fraud or deceit which would release the tenant from his implied obligation to repair. Perez v. Kaband, 76 T. 191. § 174. Against assignee of a term, by assignor, for not repairing-. ^That heretofore, to-wit: on, etc., plaintiff being pos- sessed of a certain tract of land, situate, etc., for the then residue of a certain term of six years, commencing from, etc., by virtue of a certain lease thereof made from one B. to plaintiff and his assignees, by a written lease bearing date on, etc., under divers covenants and agreements con- tained in said lease on the part of plaintiff as such lessee thereof, and his assignees, to be kept and performed, of which defendant then and there had notice, did sell and as- sign over the same to defendant for the then residuum of said'term, subject to the covenants and agreements on the lessee's part and behalf in said lease contained, and the de- fendant then and there faithfully promised plaintiff that he would perform and keep all such covenants and agreements 222 Ch. I.S.] ACTIONS ON CONTRACTS RELATING TO LAND. [§175. from, etc, ; that by virtue of said sale and assignment de- fendant then and there entered upon said premises and be- came possessed thereof for the residuum of said term ; that amongr other thino^s contained in said lease there was an agreement that plaintiff, as lessee of said premises, should well and sufficiently repair the same during said term, and should leave them so well and sufficiently repaired at the ex- piration thereof ; that defendant, though often requested, did not perform or keep said agreement before mentioned, but wholly failed so to do, but, on the contrary, suffered the same to be greatly ruinous and decayed for want of necessary repairs, and at the expiration of said term so left the same out of repair; that plaintiff afterwards, on, etc., was compelled and did pay to said B. the sum of dol- lars, in satisfaction for the breach of the agreement afore- said, and by reason of the premises plaintiff has been dam- aged in the sum of dollars. §175. For liinderiug tenant from taking possession under parol lease. ^That heretofore, to-wit: on, etc., the defendant had rented and leased to plaintiff, a certain house, messuage and garden, with the appurtenances, situated, etc., for one whole year then next ensuing, and in consideration that plaintiff had then and there paid him the sum of dol- lars, then and there faithfully promised plaintiff to permit him to enter in and upon said house, etc., and thence for one whole year to have the use and occupation thereof, ac- cording to the tenor of said demise; that plaintiff has per- formed all the articles in the several agreements aforesaid on his part to be performed ; yet the defendant has not suf- fered plaintiff to use, occupy or have possession of said house, etc., or to enter into or have possession of the same, but has wholly refused so to do, and has kept possession of them, from, etc., to, etc., to plaintiff's damage dollars. A contract of lease for a longer term than one year must be in writing. Civ. Stat, Art. 24G4. 223 Ch. 18.] ACTIONS ON CONNRACTS RELATING TO LAND. [§ 176, §176. On a bargain respecting' the sale of land. ^Tliat on, etc., the defendant, being seized in fee of a certain tract of land, situate, etc., agreed to convey the same by a legal deed to plaintiff, to hold to him and his heirs, he securing payment to defendant at the rate of dollars per acre; and the defendant then and there atfirmed to plaintiff that said tract of land contained acres, and thereby induced plaintiff to accept of such a deed therefor from him, and to secure to him the payment of dol- lars therefor, at the rate aforesaid ; that defendant, in con- sideration of the premises, then and there promised the plaintiff that if said tract of land, upon due measure thereof afterwards to be made by a surveyor, should be found wanting of acres, that then defendant would pay plaintiff at the rate aforesaid for any quantity so found wanting; that afterwards, on, etc., defendant had due no- tice to be present, and said tract of land was measured by a surveyor, and thereupon acres were found wanting of the said acres, whereof defendant had notice on, etc., and was requested by plaintiff to pay him at the rate afore- said for said acres, amounting to dollars, but he has not paid said sum, etc. As to the rights of parties, where there is an excess or de- ficiency in the quantity of land conveyed as mentioned in the deed : See O'Connell v. Duke, 29 T. 299; Farenholt v. Perry, 23 T. 316; Daughtrey v. KnoUe, 44 T. 450; Rich v. Fergusou, 45 T. 396; Garrison V. Crowell, 67 T. 626; Wtieeler v. Boyd, 69 T. 293; Bellamy v. McCar- thy, 75 T. 293. §177. Against vendor for breach of contract to con- vey land. ^That on the day of , 18 — , plaintiff and de- fendant entered into an agreement in writing, by them sub- scribed, marked Exhibit A., and herewith filed as a part of this petition, whereby defendant agreed to sell plaintiff, at the price and sum of dollars per acre, the following- 224 Ch. 18.] ACTIONS ON CONTRACTS RELATING TO LAND. [§177. described j^ropert}', situated in snid county of , being as follows \Jiere describe the 2'>roperty'\ ; and that he would, on the day of , then next ensuing, at , on receiving from plaintiff said sum of dollars per acre, at his own expense, execute a good and proper warranty deed, conveying said premises to plaintiff free of all incum- brances ; and plaintiff on his part agreed that he would, at the time and place above mentioned, on the execution of said conveyance, pay to defendant said sum of dollars per acre, as aforesaid, in manner and form as hereinafter stated. And plaintiff further alleges that, at the time of making said agreement, he paid to defendant one hundred dollars in part payment of said premises, which said payment was acknowledged in said agreement; and defendant further agreed, as part payment of the purchase money of said property, to receive from plaintiff his promissory note for dollars, payable two years after date, and four inter- est notes each for dollars, payable respectively in six, twelve, eighteen and twenty-four months after date ; said notes to be secured by a mortgage or deed of trust upon the said property agreed to be conveyed. And it was fur- ther agreed that either party failing to perform said agree- ment should pay to the other five hundred dollars as liqui- dated damages, (a) Plaintiff further alleges that on the \_day agreed on'], at [place agreed on'], plaintiff was ready and willing to fulfill the agreement on his part in all respects, and then and there offered to defendant to accept a conveyance of the premises, and tendered to the defendant the residue of that part of the purchase money which he was to pay in cash, and a deed of trust and notes to secure the balance, as re- cited above. But defendant refused to convey said prem- ises, and has never conveyed the same to plaintiff, whereby defendant became indebted to plaintiff in the said sum of five hundred dollars, and also to repay to plaintiff the said (15— Plead. Forms.) 225 Ch. 18.] ACTIONS ON CONTRACTS RELATING TO LAND. [§177. sum of one hundred dollars paid to defendant as aforesaid, with interest thereon from the date of said payment. (a) If defendant was unable to make a deed on account of a defect in the title, say : But defendant could not at said time, and cannot now, convey a good title to the said premises, but, on the con- trary, the same was, and still is, subject to various defects and incumbrances, to-wit: \^here state the defects and in- cumbrances, and conclude as above'] . The statute requires that a contract for the sale of real estate, or some memorandum thereof, shall be in writing, and signed by the party to be charged, or by some one by him thereunto lawfully authorized. Civ. Stat. Art. 2464. Where written instruments form part of a more compre- hensive transaction, the terms of which are not attempted to be expressed in writing, parol testimony as to such parts as are not in writing is admissible. Thomas v. Hammond, 47 T. 42. But such evidence must be limited to matters which, under other rules of evidence, ma}'^ be established by parol. Thus, an agreement to purchase land, of which there was no memorandum in writing, signed by the party to be charged therewith, cannot be admitted in evidence to show an entire contract, part only of which was written. Westmoreland v. Carson, 76 T. 619. It need not be alleged in the pleading that the agreement was in writing, such being matter of evidence only. Gonzales v. Chartier, 63 T. 36; Doggett v. Patterson, IS T. 158; Cross V. Everts, 28 T. 523; Fisher v. Bowser, 41 T. 222; Lessing v. Cun- ningham, 55 T. 233; Sprague v. Haines, 68 T. 215, overruling Anderson V. Powers, 59 T. 213; Mastersoil v. Little, 75 T. 682. The defense that a contract is not in writing is personal, and cannot be set up by a stranger to it. G., C. & S. F. Ry. Co. v. «ettegast, 79 T. 256; League v. Davis, 53 T. 14; Lee v. Wilmerding, 57 T. 444. 226 Ch. 18.] ACTIONS ON CONTRACTS RELATING TO LAND. [§178. "Wlieu one refuses to complete an agreement which is void by the statute of frauds, after receiving a benefit from part performance, he must pay for what he has received. Ray V. Young, 13 T. 550; Thouvenin v. Lea, 26 T. 612; Brewer v. Wall, 23 T. 585; Allison v. Shelling, 27 T. 450; Wright v. Hays, 34 T. 253; Bell v. Schwarz, 37 T. 572. The husband who alone executed a bond to convey property occupied as a homestead at the time of its execu- tion, and afterwards removed with his family to a new home, which he was providing for his family at the time, and abandoned the former home, may be compelled, in a suit for specific performance, to convey the title. The in- hibition in article 16, section 50, of the constitution, against liens, mortgages and defeasible deeds does not apply to a contract to convey at a future time, when the property shall have lost its homestead character. If facts exist which would prevent the enforcement of a specific perform- ance of the contract, an action for damages will lie for its breach against the husband when damage has been sus- tained. Goff V. Jones, 70 T. 572. On a breach of a bond executed by the husband alone to convey the homestead, he is liable to the purchaser for the value of improvements made by him in good faith under the contract of sale. Eberling v. Deutscher Verein, 72 T. 339. § 178. To recover deposit on contract of sale unful- filled. ^That heretofore, to-wit: on the day of , 18 — , plaintiff and defendant entered into a contract in writing, which was signed by the defendant, whereby defendant agreed to sell to plaintiff certain premises in said contract described for the sum of dollars, to be paid therefor by plaintiff to the defendant. And it was further agreed that defendant should, on or before the day of , 18 — , execute and deliver to plaintiff a warranty deed in 227 Ch. 18.] ACTIONS ON CONTRACTS RELATING TO LAND. [§178. good and proper form, conveying a good and indefeasible title to said premises to the plaintiff, and that upon the de- livery of such deed plaintiff should pay to defendant the sum above mentioned. That, as a guaranty and security as well for the perform- ance of the said agreement on his own part as to secure a performance thereof on the part of the defendant, plaintiff on said first-mentioned date deposited in the hands of de- fendant the sum of dollars as a part of the said pur- chase money, to be retained by defendant if plaintiff should fail to perform the agreement on his part; and in case plaintiff should complete his purchase, then said dol- lars were to be applied on the purchase money ; but in case defendant should fail to carry out and perform the agree- ment on his part, then said sum was to be returned to plaintiff. That he has ever been ready and willing to do and per- form everything required of him by said agreement, and was on the said day of , 18 — , ready and willing to receive said deed from defendant, and to pay to defend- ant the balance of the purchase money, and duly offered to defendant so to do, and tendered to defendant the balance of said purchase money, to-wit : dollars ; j^et defendant did not on said day of , 18 — , execute, nor has he at any time executed, to plaintiff a deed as aforesaid, but, on the contrary, has whollj^ failed and refused to do so. That on the day of , 18 — , he demanded of de- fendant a return of the dollars, so as aforesaid de- posited by plaintiff Avith defendant, but defendant has ever neglected and refused, and still neglects and refuses, to pay to him said sum. And plaintiff further alleges that by reason of said agree- ment, and in reliance upon defendant's promise to make to him a deed as aforesaid of said premises, he caused the title thereto to be examined, and paid out and expended for such examination the sum of dollars; the rep ay- 228 Cb. 18.] ACTIONS ox CONTRACTS RELATING TO LAND. [§179. ment of which sum phiintiff demanded of defendant on the said day of , 18 — \_same date as the other de- mand^ ; but defendant has ever neglected and refused, and still neglects and refuses, to repay to plaintiff said sum so exj)ended by him. § 179. Against purchaser, for refusing- to accept deed, and pay for laud lie contracted to purchase. ^Tliat heretofore, to-wit : on the day of , 18 — , plaintiff and defendant entered into an agreement in writ- ing, subscribed and executed by them, in substance as fol- lows: (Here state the substance of the agreement.) A copy of which, marked Exhibit A, is hereto attached and made a part of this petition. That afterwards, on the day of , 18 — , plaintiff made, signed and acknowl- edged his deed in writing, conveying to defendant the said tract of land mentioned in said agreement, and tendered the same to defendant, and was then ready and willing to deliver to defendant said deed, and the possession of said tract of land above mentioned, but defendant then and there refused to accept said deed of convej^ance, and to comply with the terms of said agreement, upon his part to be done and performed. That afterwards, within a reasonable time, to-wit: on the day of , 18 — , plaintiff offered for sale, at public auction, at , in said city of , at the court- house door of said county, said tract of land above men- tioned, after advertising said sale by posting notices of said sale at three public places in said city, one of which was the door of the court-house of said county, and also by causing a notice of said sale to be published in a newspaper published in said city, to-wit: for three successive weeks next preceding the time of said sale, of all which de- fendant had notice. That at said sale said tract of land was offered at public auction to the highest and best bid- der, and was then and there sold and struck off to one 229 Ch. 18.] ACTIONS ON CONTRACTS RELATING TO LAND. [§180. , for the sum of dollars, that being the highest and best bid therefor; and afterwards plaintiff, by his deed in writing, duly executed and delivered, conveyed the same to said , and phiintiff now alleges that said sale was fairly made, after due notice, and that the price at which said land was sold w^as the reasonable value of the same at the time of said sale. That the reasonable expenses of making said sale amount to the sum of dollars. That by reason of the premises, defendant is justly in- debted to plaintiff in the sum of dollars;* but to pay the same, or any part thereof, though often requested, de- fendant has refused, and still refuses, to plaintiff's damage dollars. (*) Difference between the contract price and the amount realized at the sale, after deducting expenses. When the damages are not stipulated, the measure of damages for breach of contract by the purchaser, who re- fuses to accept a conveyance, and pay the price agreed on, is the difference between the contract price and the salable value of the land ; and this value may be fixed by a fair re- sale, within a reasonable time, and after notice to the party, to be bound by the price as the value. What is a reason- able time is a question of fact, varied by the circumstances of each case. The lapse of such period as would give room for fluctuations in the market, in the usual order of things, or of such period as would authorize the inference that the vendee had elected not to adopt this means of fixing the measure of liability, would be unreasonable. Kempner v. Ileidenheimer, G5 T. 587; Goff v. Jones, 70 T. 572. § 180. For In'eacli of warrantj^ in sale of land. ^That on the day of , 18 — , defendant, by his deed duly executed and delivered, in consideration of the sum of dollars therein mentioned, granted, bargained and sold, and conveyed to plaintiff in fee-simple [or other- 230 Ch. 18.] ACTIONS ON CONTRACTS RELATING TO LAND. [§180. wise, as (he case may he'], a certain tract of land \^here briefly describe same]. \_lf there was any special covenant, state] : That said deed contained a covenant on the part of defendant, in sub- stance as follows, to-wit : [^here copy same'] ; that plaiutiif afterwards entered upon the premises, in said deed de- scribed, and became seized thereof accordingly \if plaint- iff is kept out of p)ossession by paramount title, this clause should be omitted] . Plaintiff further allecjes that defendant has not war- ranted and defended the premises to plaintiff, but, on the contrary, on the day of , 18 — , one L. M., who, at the time of making said deed had, and ever since until the last mentioned day continued to have, lawful right to the premises by an elder and better title, did lawfully enter the premises, and ousted the plaintiff thereof [_or, lawfully claiming the said premises by an elder and better title; afterwards, in an action brought by him in the District Court of county, in which said L. M. was plaintiff, and this plaintiff was defendant, did, on the day of , 18 — , recover judgment against this plaintiff for the seizin and possession of said premises, of which said action defendant, on the day of , a. d. 18 — , had due notice, and was then and there required by plaintiff to de- fend the same; that afterwards, and on the day of , 18 — , by virtue of a Avrit of possession, duly issued on said judgment, said L. M. did lawfully enter the prem- ises, and ousted the plaintiff thereof], and still lawfully holds him out of the same, to plaintiff's damage in the sum of dollars. A warrantor may be made a dafendant in trespass to try title. Civ. Stat. Art. 47S8. But should be brought in, so as not to unreasonably delay the trial. Kirby v. Estill, 75 T. 484; Johns v. Hardin, 81 T. 37. 231 Ch. 18.] ACTIONS ON CONTRACTS RELATING TO LAND, [§ 180. A warrantor, who has been properly notified to appear and defend a pending suit for land conveyed by him, is con- cluded by the judgment as to title. Buchanan v. Kauffman, 65 T. 235; Clark v. Muraford, 62 T. 531; Grain v. Wright, 60 T. 515; Brown v. Hearon, 66 T. 63. An actual eviction, by process of law, in favor of the par- amount title, is not necessary to the right to sue on a cov- enant of title. The vendee may surrender the possession to the owner of the paramount title, or he may buy it in, but in such case, to recover, he is bound to show that he yielded to the paramount title. Peck V. Hensley, 20 T. 673; Clark v. Muraford, 62 T. 531 ; Johns v. Hardin, 81 T. 37. If the title to land set apart to one tenant in common, in a suit between such tenant and others for partition, fails by reason of facts existing at the time partition was made, such tenant will, upon proper averment, be entitled to the same relief against those w^ho received shares in the partition suit as though each of them had conveyed to him by deed, with general warranty of title, the land therein apportioned to him. He will also be entitled to recover from them any sum of money he may have necessarily expended in remov- ing from the land, set apart to him, incumbrances that ex- isted at the time partition was made. Harn v. Phelps, 65 T. 592. A warranty does not protect a vendee against his own laches. Harn v. Smith, 79 T. 310. In an action for breach of warranty, the measure of dam- ages, where the premises are occupied, and no mesne profits are demanded or recoverable by the owner, is the amount paid for the land. Interest is allowed where mesne profits are or may be recovered. When the land has not been in the possession of the vendee, the principal paid for the land, and legal interest from the tiine of payment to the time of judgment on the warranty, is the measure of damage. Johns V. Hardin, 81 T. 37. 232 Ch. 18.] ACTIONS ON CONTRACTS RELATING TO LAND. [§181. § 181 . For breach of warranty, by a subsequent vendee. ^That defendant, by his deed dated the day of , 18 — , duly executed and dehvered to one R. S., and which is herewith filed, marked Exhibit A., did, in consideration of dollars to him paid, grant, bargain, sell and convey to said E. S. the following described lands and tenements, to-Avit: \_desci'ibe the lands^ ; and by the said deed said de- fendant did covenant with the said E. S., his heirs and as- signs, that he was seized of an indefeasible estate in fee simple in the premises by said deed convej-ed, and to war- rant and defend the title and possession thereof. That afterwards the saidR. S., by his deed dated , 18 — , did grant, bargain and sell and convey the above de- scribed premises to the plaintiff, by which the plaintiff be- came assignee of and entitled to the benefit of the coven- ants in the deed of the defendant to the said R. S. contained. And plaintiff further alleges that the said defendant his covenants and agreements in his said deed contained did not keep, and that said defendant, at the date of execution and delivery of his said deed to the said R. S., was not seized of an indefeasible estate in fee simple in said prem- ises in said deed described ; but that, on the contrary there- of, at the date last aforesaid one P. J. was seized in fee of said premises. And the said P. J. did, on the day of , 18 — , commence a suit for the recovery of said land against this plaintiff, in the District Court of county, and thereupon this plaintiff duly notified the defendant of the commencement of said suit, and required him to appear and defend the title by him conveyed ; but said defendant failed and neglected to defend said suit, and this plaintiff, who was defendant therein, did make defense to said suit; that it appeared upon the trial thereof that the said de- fendant, at the date of his deed to the said R. S., had no title to said land, and that the said P. J. had title in fee simple thereto, and in said suit judgment was rendered against this plaintiff, under which judgment and the writ of 233 Cll. 18.] ACTIONS OX CONTRACTS RELATING TO LAND. [§181. possession issued thereupon, this plaintiff was ejected from said premises, and the possession thereof was delivered to the said P. J., and so the said premises, and the possession thereof, were wholly lost to the plaintiff. And plaintiff further alleges that the consideration paid by the said K. S. to the defendant was the sum of dol- lars ; that this plaintiff was compelled to expend, and did ex- pend, in defense of his said title, after notice to said defend- ant of the pendency of said suit, the sum of dollars, and that he has sustained damages in the sum of dol- lars by reason of the defendant's breach of the covenants in his said deed contained. A warranty runs with the land, and passes to subsequent purchasers claiming through a sheriff's deed or quit-claim deed. Flaniken V. Neal, 67 T. 629; Saunders v. Flaniken, 77 T. 662. 23^ Ch. 19. — Actions to Set Aside Conveyances of Real Estate. §182. By heirs of deceased grantor, of weak understanding, to va- cate a deed of real estate obtained by undue influence, etc. 183. To cancel a quit-claim deed, the agreement under which it was made not having been carried out. 184. To set aside conveyance fraudulent as to creditors. 185. To annul a fraudulent contract. 186. To set aside a deed obtained by fraud. §182. By heirs of a deceased grantor, of weak under- ' standing, to vacate a deed of real estate obtained l>y un- due influence, etc. ^That the plaintiffs are children, and constitute all the heirs at law of A. B., late of, etc., deceased, and by descent are entitled to all the estate of which he was seized at the time of his death. That said A. B. died on or about the day of , intestate. That on or about the day of , the said A. B. was seized and possessed of*the following described lands and tenements, situate, etc. : (describing them.) That being so seized and possessed, the said A. B., on or about the day last mentioned, was induced and persuaded, as hereinafter set forth, to execute, acknowledge and de- liver to the defendant a deed conveying to him a portion of said premises, to-wit: a house and lot, situate, etc. : (de- scribing the premises.) That said premises so conveyed are worth the sum of dollars. That the consideration mentioned in said deed is the sum of dollars ; that, as plaintiffs are informed and beheve, and so charge the fact to be, that a very inconsiderable part of such consideration was actually 235 Cll. 19.] ACTIONS TO SET ASIDE CONVEYANCES, ETC. [§ 182. paid or rendered said A. B. ; that is to say, not more than doUars in money, in small sums, from time to time, as his necessities might require, and the value of not exceeding dollars more in boarding the said A. B. for a j)eriod of about six mouths immediately preceding his death. That said A. B., at the time of the execution of said con- veyance, was about seventy-eight j^ears of age. That his mental faculties had become greatly impaired by reason of sickness and old age, and had been so for sev- eral years prior to his death, and to such a degree as to render him incapable of guarding himself from imposition, or of the prudent and proper management of his affairs. That for more than ten 3^ears prior to the month of last the said A. B. resided in said house, so conveyed, with said A. D. B., his son, and one of the plaintiffs in this action, where he was suitably provided with everything necessary for his comfortable maintenance, and where he was treated with the utmost kindness by said A. D. B. and members of his family. That, in said month of last, he left the house of said A. D. B., without assigning any cause therefor, and in op- position to the remonstrances and persuasions of said A. D. B., and went to reside with the defendant, at his dwel- ling, about a mile distant from the residence of said A. D. B. That, as plaintiffs are informed and believe, he was in- duced to do so by the persuasions of the said defendant, made with the intention and design, as plaintiffs believe, of improperly obtaining from said A. B. a portion of his property. That, at the times herein mentioned, the said defendant was not related to said A. B. by blood or by marriage, but during all said time had great personal influence and con- trol over him, the said A. B., to an extent that prevented the exercise of his discretion, and destroyed his free will. 236 Ch. 19. J ACTIONS TO SET ASIDE CONVEYANCES, ETC. [§ 182, That said A, B. continued to reside with said defendant from the time he left the residence of said A. D. B. up to the time of his death, and during that period never visited the said A. D. B. or any other member of the family, although he was frequently and kindly requested so to do, but seemed, on every occasion when spoken to by them, to desire to shun all intercourse and conversation with any member of his family, and very rarely left the premises of the defendant. And the plaintiffs allege, upon their information and be- lief, that said defendant, contriving and intending to de- fraud said A. B. of his property, or a portion thereof, attempted to and did, without cause, prejudice the mind of said A. B. against the members of his own family, and by means of false representations, and improper and undue in- fluence, aided by the weakness of understanding of said A. B., did prevail upon him to execute, acknowledge and de- liver the above mentioned conveyance of said premises, and for no other consideration whatever than as herein- before mentioned. That said deed was duly recorded in the office of the county clerk of county, on the, etc., and is a cloud upon the title of plaintiffs to said premises. ^Wherefore the plaintiffs pray that defendant be cited to answer this petition, and that they have judgment, that the said deed be declared null and void, and be canceled and discharged of record, and that the title of the plaintiffs in and to said premises, and every part thereof, may be con- firmed and established as ao:ainst said defendant and all persons claiming through or under him, or for such other and further relief as they may be entitled to and for costs of suit. To avoid a deed for undue influence, it must be shown that the influence existed, and that it was exercised for an undue purpose. The former may be inferred from the relation of the parties; the latter must be dtjterinined from 237 Ch. 19.] ACTIONS TO SET ASIDE CONVEYANCES, ETC. [§ 183 the nature of the transaction. The influence which a duti- ful child may exert over a parent, by acts of filial duty and obedience, or that which flows from mutual confidence and affection, is not undue influence, which will avoid a deed. But it is that influence which is acquired by one person over another of sanity, for general purposes, and of suffi- cient discretion to regulate his affairs in general, which prevents the exercise of his discretion, and destroys his free will. Millican v. Millican, 24 T. 426; Sanfley v. Jackson, 16 T. 579. For evidence of undue influence sufficient to set aside a will: See Brown v. Pridgen, 56 T. 129; Veal v. Fortson, 57 T. 482. For evidence insufficient for that purpose : See Millican v. Millican, 24 T. 426; Lacy v. Rollins, 74 T. 566. § 183. To cancel a quit-claim deed, the agreeinent under whicli it was made not having heen caiTied out. ^E. I. C, C. C. and M. W., who is joined by her hus- band, I. W., plaintiffs, complaining of "VV. G., defendant, represent that plaintiffs reside in the county of , and the defendant in the county of . ^That plaintiffs (except the said I. W.) are the only children and sole heirs at law of I. B. C, deceased, late of the county of , who died intestate on or about the day of , 18 — , leaving no widow surviving him ; that at the term, a. d. 18 — , of the County Court of county, letters of administration on the estate of the said I. B. C. were duly granted to the said E. I. C, and that said administration is still open and pending; that at the time of his death said I. B. C, was indebted to I. I. D., guardian of the minor heirs of one T. S., in about the sum of dollars, and one I. P. C. was jointly bound with him as security for its payment; that afterwards, on the day of , a. d. 18 — , at the term, a. d. 18 — , of the District Court, in and for said county of , said I. I. D., guardian as aforesaid, recovered a judgment against 238 Ch. 19.] ACTIONS TO SET ASIDE CONVEYANCES, ETC. [§ 184. the said I. P. C. and the said E. I. C, administrator as aforesaid, for the sum of doHars, and costs of suit, which amount to the sum of dollars ; that afterwards the said I. P. C. departed this life, and administration upon his estate was duly opened in the County Court of said county of . Your petitioner further represents that at the time of his death the said I. B. C. was seized and possessed of a cer- tain tract of land granted by the government to one I. C, as assignee of one L. F., Ij^ing on the east bank of the river, in county, about six miles below , and containing one-half of a league; that to provide for the payment of the debt aforesaid, and to save the estate of the said I. P. C. harmless, your petitioners, on or about the day of , A. d. 18 — , by their certain. deed in writing, quit-claimed and released to defendant the said land, in consideration that he would pay off and discharge said debt, which defendant then and there promised to do ; that defendant has wholly neglected and refused to pay off and discharge said debt, or any part thereof ; that the said I. I. D. has recovered said judgment, and is now seeking to enforce the payment of the same against the administrator of the said I. B. C. ^Wherefore, your petitioners pray that said defendant be cited to answer this petition, and that they have judgment, that their said deed be canceled and annulled, and that said land is an asset in the hands of the admisistrator of I. B. C. aforesaid, subject to the payment of debts against said estate, and for such other and further relief as they may be entitled to, and costs of suit. See Williams v. Warnell, 28 T. 610. § 184. To set aside conveyance fraudulent as to creditors. ^That on the day of , 18 — , he recovered judg- ment, in the District Court of county, against the de- 239 Ch. 19.] ACTIONS TO SET ASIDE CONVEYANCES, ETC. [§ 184. fendant CD., for dollars, as appears by the certified transcript of the proceedings in said cause herewith filed, and marked "Exhibit A." That on the day of , 18 — , an abstract of said judgment, made and authenticated in the manner prescribed by law, was filed and recorded in the judgment record of county, and entered upon the index to said record, and the day and hour of such record being duly noted therein by the clerk of said court. That execution issued thereon against the property of said CD., directed to the sheriff of said county of , which said execution has been returned by the said sheriff wholly un- satisfied ; and said judgment is wdiolly unpaid and unsatis- fied, and the whole thereof, wnth interest, is still due plaintiff from the said C D. \if the judgment was satisfied in 2Ja7't 07i execution, so state, and set out the balance still due^. Plaintiff further says that said defendant C D., with a view and with the intent to hinder, delay and defraud his creditors, and among others this plaintiff did, on the day of , 18 — , execute a certain deed of conveyance of that date, whereby he conveyed to defendants E. F. and G. H. a certain tract of land, to-wit : \_here describe the land'] ; that the pretended consideration for said conveyance, and the amount stated in said conveyance as the consideration therefor, is dollars; that said defendants, E. F. and G. II., immediately upon the execution and delivery of said deed, caused the same to be recorded, and took possession of said land, and have ever since remained and are now in possession thereof. Plaintiff alleges that in truth no consideration passed from the said E. F. and G. li. to said C D., but that said conveyance was a voluntary one and without consideration, and made, as above stated, for the purpose of hindering, delaying and defrauding the creditors of said C D., and especially this plaintiff, of which purpose said defendants 240 Ch. 19.] ACTIONS TO SET ASIDE CONVEYANCES, ETC. [§ 184. E. F. and G. H. were fully coixnizant at the time such con- vevance was made. That said defendant CD. has no other property out of which the judgment and execution aforesaid can be satisfied in whole or in part, and that, unless the property so fraud- ulently assigned to defendants E. F. and G. H. can be reached and applied to the payment of- the said judgment, the same must remain wholly unpaid. ^Wherefore, plaintiff prays that defendant be cited to answer this petition, that the said conveyance be adjudged fraudulent and void as against plaintiff, that the same be set aside and for naught held, that the property therein mentioned be ordered to be sold for the satisfaction of the said judgment of plaintiff, that plaintiff have judgment for costs of suit, and for such other and further relief as to the court shall seem meet and just. An insolvent debtor may, in good faith, sell the whole or any part. of his property to a creditor for the purpose of paying his debt, and thus preferring him to other creditors, although the effect of the sale may be to hinder and delay other creditors, or may defeat them in the collection of their debts. If, on the contrary, an insolvent debtor makes a sale of his property, or any part of the same, to one or more of his creditors, for the known purpose of hindering, delaying or defrauding other creditors in the collection of their debts, such a sale is void as to the defrauded creditors. Wallis V. Schneider, 79 T. 479; Scott v. Alford, 53 T. 82. A judgment creditor without a lien may maintain a suit to subject to his judgment land bought by the judgment debtor, the deed therefor having been fallen to another in fraud of creditors. But such creditor, unless he has ac- quired a lien on the property by the record of his judgment, or a levy of his execution, is not entitled to preference over other creditors, or over a purchaser who buys at execution sale before a pending suit. Arbuckle Bros. Coffee Co. v. Werner, 77 T. 43; Gaines v. Nat. Ex- change Bank, G4 T. IS ; Cassaday v. Anderson, 63 T. 527. (16— Plead. Forms.) 241 Ch. 19.] ACTIONS TO SET ASIDE CONVEYANCES, ETC. [§ 185. § 185. To annvil a fraudulent contract. ^Tluit heretofore, and until the day of , 18 — , plaintiff was the owner in fee of a certain tract of land, sit- uated in the county of , in said state, of the value of not less than dollars, and bounded and described as follows : [Here set out description] ; and that defendant, desirous of obtaining possession of said land, fraudulently and wickedly devised a scheme by which he might ob- tain possession thereof, and acquire the title thereto, with- out pa^dng to plaintiff the value thereof. Plaintiff further alleges that he is, and was at the date aforesaid, old, infirm and partially blind, and by reason thereof incapacitated from properly attending to business ; that defendant, fraudulently taking advantage of his said infirmity and incapacity, did induce plaintiff, for the pre- tended consideration of dollars, to siijn a contract, agreeing to convey said property to said defendant, and, upon demand therefor, to make a good and sufiic[ent war- ranty deed therefor ; that defendant fraudulently procured plaintiff to sign and execute said contract, by falsely rep- resenting to plaintiff that [^set out the fraudulent repre- sentations'], whereby plaintiff was induced, without any consideration whatever, and in entire ignorance of the na- ture of the instrument which he was executing, to sign and deliver said instrument to defendant, and defendant now holds the same. Plaintiff alleges that since the signing of said instrument he has learned the true contents thereof, and has demanded of defendant to return the said instrument to him to be can- celed; that in truth and fact no consideration passed from defendant to plaintiff, and the said contract is wholly with- out consideration and void; but defendant intends and threatens to enforce said contract, and to use the same for his own benefit and to the prejudice of plaintiff. ^"Wherefore, plaintiff prays that defendant be cited to answer this petition, that said contract be adjudged to be 242 Cb. 19.] ACTIONS TO SET ASIDE CONVEYANCES, ETC. [§ 186. void and of no effect, that the same be ordered to be de- livered up to him to be canceled, for costs of suit, and for such other and further relief as to the court shall seem meet and just. § 186. To set aside a deed obtained by fraud. ^That at the date of the transactions hereinafter men- tioned plaintiff was, and now is, an unmarried woman, and resided, and now resides, in the county of , Texas. That on the day of , 18 — , by the death of one B. S., she inherited an undivided one-half interest of cer- tain land situated in the said county of , in said state ; that defendant was, at said date, the owner of an undivided one-half of said land; that said land is described as fol- lows, to-wit: [/ Countv. S This day before me, clerk of the District Court in and for said county, personally appeared W H , plaintiff, who, being by me duly sworn, says that he is the owner of the property described in the foregoing petition and en- titled to the possession thereof, and that he fears that the de- fendant will make use of such possession to injure said prop- erty W II . Sworn to and subscribed before me this dav of , a. d. 18—. A C , Clerk D. C. W. C. ^{Indorsement on Petition.) This action is brought as well to try title as for damages. B — 1- & T . Attorneys for Plaintiff. Where tested by the ordinary rules of pleading the peti- tion contains the necessary allegations, the defendant can- not be misled by the failure to make the above endorsement on the petition. On exception on that ground the court should require the endorsement to be made. Bradley v. Deroche, 70 T. 465. § 195. Question as to disputed boundary line may be settled in this action. Facts, which under the settled rules governing courts of equity in England and America would authorize a proceed- 203 Ch. 21.] ACTION OF TRESPASS TO TRY TITLE. [§195. ing in equity to settle ;i disputed boundary, will authorize the statutory action of trespass to try title, in which the question of true boundary may be as definitely settled as in any other form of procedure. In George v. Thomas, 16 T. 74, suit was brought to es- tablish a boundary line between persons owning respect- ively the upper and the lower half of a league, between wdiich no division line had ever been established, and no points designated in the deeds from and to which the divi- sion line should be run. The action was maintained on the ground that the conveyances under which the parties claimed, not designating the points from which the division line was to be run, were executory conveyances, and the court had authority to quiet the title by establishing such line. The proceedmg Avas, therefore, an equitable action, although in the form of an action of trespass to try title. In Spence V. McGowan, 53 T. 30; San Patricio Co. v. Mathis, 58 T. 242; Barbee v. Stinnett, 60 T. 167, and Jones V. Andrews, 72 T. 5, suits brought when the stat- ute was in force authorizing a second action of trespass to try title, it was held that w^hile the location of a disputed line between adjacent surveys may be determined in the ac- tion of trespass to try title ; yet wdien the sole object of the suit was to determine the location of the line, and there was no question as to the title to either survey, the parties would be entitled to but one adjudication on the question. In Coleman v. Smith, 55 T. 254, for the purpose of de- termining the boundary line between adjoining tracts, the plaintiff properly brought an action of trespass to try title to recover the land between the lino of the survey admitted by the defendant, and the line in dispute. The prayer was for general relief, and that the lines and corners be plainly marked and established. In Carlc}'^ v. Parton, 75 T. 98, suit was brought to es- tablish a division line between the parties, claiming re- spectively the north and south halves of a named survey. 264 Ch. 21.] ACTION OF TRESPASS TO TRY TITLE. [§195. It was alleged that a division line had been established hy the owners, and that the defendant was asserting title to the north half, which had been allotted to plaintiff. It was held that the suit was in form an action of trespass to try title, and that the establishment of the boundary line was necessary to determine the question of title. An action of trespass to try title, in the ordinary form, alleging adverse possession, was brought by N. for 1107 acres of land, part of a league of land granted to Duke, the remainder of the league having been previously sold to others. The controversy in the case was as to the locality of the true southern boundary line of the tract sold before the conveyance to N., and this question was submitted to the jury for its determination. The judgment then rendered was reversed on appeal, the case was remanded, and the pleadings were amended by omitting the allegations as to an adverse claim or possession of the land in controversy. It was also alleged by the amendment that defendant did not have possession of, or assert a claim to, the land claimed by plaintiff, but that there was a controversy as to the locality of the boundary line between them, and the prayer was that the boundary line be established, and that plaintiff be quieted in his title to the land claimed by him. On these jDleadings, it was held that the action could not be maintained. While a dis- pute as to boundaries may be determined in this action, it is only where facts are alleged sufficient to support the action, as fraud, confusion of occupancy, negligence, etc. Nye V. Hawkins, 65 T. GOO. In Horn v. Smith, 79 T. 310, and Bruce v. Washington, 80 T. 368, the question was as to the locality of a division line agreed upon by the joint owners of a lot of land, but the verdicts and judgments in favor of the defendants were sustained on appeal, on the ground that they had shown title by ten years' adverse possession of the land in con- troversy. 265 Ch. 21.] ACTION OF TRESPASS TO TRY TITLE. [§196. § 196. Tenants in common must join in action, when. As a general rule, tenants in common should join as plaintiffs, but one tenant in common may recover the entire land belonijinof to himself and his co-tenants from a mere trespasser. Hutchins v. Bacon, 46 T. 414; Kead v. Allen, 56 T. 176; Sowers v. Peterson, 59 T. 216; Pilcher v. Kirk, 60 T. 162; Hancock v. Tram Lumber Co., 65 T. 225; Ney v. Mumme, 66 T. 26S; Telfener v. Dillard, 70 T. 139; Johnson v. Schumacher, 72 T. 334; Wright v. Dunn, 73 T. 293; Carley v. Parton, 75 T. 98; Van Sickle v. Catlett, 75 T. 404; Allen V. Peters, 77 T. 59; Kussell v. Oliver, 78 T. 11; Louder v. Schluter, 78 T. 103; Mitchell v. Mitchell, 80 T. 101; Leland v. Eckert, 81 T. 226. Where the defendant is not a naked trespasser, he may, by asking proper instructions, protect himself upon the trial, and have the damages apportioned, limiting the re- covery to the proportional interest held by the plaintiff. Lee V. Turner, 71 T. 264. While one tenant in common can recover the entire tract of land against a mere trespasser, if the defendant estab- lish title to an undivided interest in the land, the plaint- iff cannot recover for the other tenants in common not parties to the suit. Boone v. Knox, 80 T. 642. The plaintiff must show that he has a possessory title to the land sued for at the time of the demise laid in the petition. If the plaintiff shows title to the land sued for, but incumbered with a life estate in another to a part inter- est therein, he cannot recover for the part covered by such life interest. Cook V. Caswell, 81 T. 678. When limitation or other defense is established against one or more tenants in common, the plaintiff, against whom such defense is not established, can recover only to the ex- tent of his interest. Johnson v. Schumacher, 72 T. 334. § 197. One tenant in common may maintain an action ag^ainst his co-tenant, ^vhen. One tenant in common may maintain an action of tres- pass to try title against his co-tenant, when the latter has 266 Cll. 21,] ACTION OF TRESPASS TO TRY TITLE. [§198. ousted him of possession of the property owned in com- mon. While an ouster is necessary to maintain such an ac- tion, the circumstances of the case, or the condition of the pleadings, may be such as to concede the fact of ouster, and thus dispense with proof of its existence. If the de- fendant, by his answer, claims the whole premises in his own right as owner thereof in severalty, the plaintiff is re- lieved from the necessity of proving an ouster at the trial. Under the statute, a plea of not guilty, or other answer to the merits, is an admission by the defendant, for the pur- poses of the action, that he was in possession of the prem- ises sued for, or that he claimed title thereto at the time of commencing the action, unless he states distinctly in his answer the extent of his possession or claim, in which case it is admission to such extent only. Civ. Stat. Art. 4794, When the defendant, by his answer, shows that he does not recognize the right of common ownership, the co- tenant, who is plaintiff, is entitled to a judgment, admit- ting him into possession of the property with the defendant, but he is not entitled to a partition, unless the facts en- titling him thereto are pleaded, and affirmative relief is prayed for. Such relief will not be granted to the defend- ant under the plea of not guilty. If he desire it, he must plead the facts, and ask judgment accordingly. St, L,, A, & T. Ry. Co. v, Prather, 75 T, 53, § 198. Parties to action by or against an adminis- trator or executor. An administrator, executor or guardian, appointed in this state, may bring this action without joining the heir, who, in absence of fraud or collusion, is concluded by the judg- ment. In a suit against the estate of a decedent, involving the title to real estate, the executor or administrator, if any, and the heirs must be made defendants. An heir, if 267 Ch. 21.] ACTION OF TRESPASS TO TRY TITLE. [§199. not joined in the suit, is not concluded by a judgment rendered therein. Civ. Stat. Arts. 1201, 1202; Russell v. Ry. Co., 68 T. 646; see Howard V. Johnson, G9 T. 655. When land is devised by will, the executor and devisee must be made defendants. The heir is not a necessary party . Lufkin V. City of Galveston, 73 T. 340. § 199. Premises must be described with certainty. The premises for which suit is brought must be described by metes and bounds, or with sufficient certainty to identify the same, and the county in which they are situated must also be stated. Civ. Stat. Art. 4786; Devine v. Keller, 73 T. 364. Land sued for was described in the petition as being in the City of Austin, County of Travis, and State of Texas, and as being "all of lot number five, in division E., in the, government tract adjoining the City of Austin, and patented to H. A., assignee of L. G. S., July 7th, 1851, patent number 193, Vol. 2, as will more fully appear by reference to the plan of said tract on file in the general land office of Texas." It not appearing from the pleadings that the land could not be identified from the description given, an exception to the petition for the want of certainty in the description was overruled. On a general verdict in favor of the plaintiff, a judgment was rendered describing Lot 5 by metes and bounds. It was held that the judgment must follow the verdict, which in this case would have left the parties as they were before suit. It is said by the court that in boundary line cases the petition should set out the land in dispute by metes and bounds. Edwards v. Smith, 71 T. 156. And the description should be such as to show how the tract is in fact situated on the ground, so as to be a guide to the sheriff in executing a writ of possession. Jones V. Andrews, 72 T. 5; Roche v. Lovell, 74 T. 191; Stephens v Motl, 81 T. 115; Converse v. Langshaw, 81 T. 275. 26S Ch. 21.] ACTIOX OF TRESPASS TO TRY TITLE. §J99. In a petition, the land sued for was described by metes and bounds, and was alleged to be a part of the "Mitchell survey." It was afterwards alleged that the controversy was, whether the parcel of land thus described was in the Gregg survey or in the Mitchell survey. On exception, it was held that this allegation could be disregarded as sur- plusage. Boydston v. Sumpter, 78 T. 402. The petition described the land in controversy as eighty- five acres, more or less, out of a certain survey, situated at a certain distance from the town of C, and being a farm belonging to C. up to the time of her death, and known as the C. place. Held: ( 1 ) The description of the land could not be attacked on exception, unless it was manifest that the terms of the petition did not distinguish the land from all other tracts. (2) If a well-defined tract of land was known as the C. place, and no difiiculty was encountered on the trial in de- termining the precise limits of the land in controversy, the description on the face of the petition was not insuflicient. Ci-abtree v. Whiteselle, G5 T. 111. In an action of trespass to try title, the land was imper- fectly described in the petition. 'Under an order of survey, a report was made giving a definite description of the land, and the defendant thereupon disclaimed. Judgment was rendered for the plaintiff for the land as described in the report, and it not affirmatively appearing that the land de- scribed in the judgment was not the land described in the petition, it was affirmed on appeal. Etter V. Dignowitty, 77 T. 212. In the petition, the land for which suit was brought was described as "that certain tract of land containing three thousand, two hundred and fifty-six and one-eighth acres, part of a certain other tract of land, known as the Icjigue granted to David Brown, colonist, situated in Jefferson county, Texas, on the west bank of the Neches river, and 269 Ch. 21.] ACTION OF TRESPASS TO TRY TITLE. [§199. more particularly described as follows: * * * *." The petition then set forth the field-notes of the entire league granted to David Brown, and averred that the plaint- iff was the legal and equitable owner thereof, except about five hundred acres, conveyed November 4th, 1839, by David Brown to J. Hutchinson and wife; ten acres, conveyed November 29th, 1836, by Brown to E. McFaddin; three hundred and twenty acres, conveyed July 30th, 1840, by Brown to G. W. Tevis ; fifty acres, conveyed March 2d, 1847, by the sheriff of Jefferson county to F. W. Ogden;. two hundred acres, conveyed December 27th, 1856, twenty- three and a half acres, conveyed May 12th, 1857, and twenty acres, conveyed October 4th, 1859, by M. Cartwright to J. J. Herring ; and six lots in the town of Santa Anna, con- veyed May 24th, 1837, by David Brown to W. C. Mc- Daniel. The deeds conveying these several tracts, excepted as above, were alleged to contain a description of the tracts, respectively, by metes and bounds, and to have been duly recorded in Jefferson county. Certified copies of these deeds were appended to the petition as exhibits, and it was prayed that they might be taken as part thereof. Held, that the petition, in connection with the papers therein referred to and made part of it, gave a sufiicient description of the land sued for, and the court did not err in overruling exceptions raising that question. Craig V. Cartwright, 65 T. 413. When there is a misdescription of the land in the title papers, through which a party deraigns his title, the mis- take should be alleged and corrected in his pleadings. Huff V. Webb, 64 T. 284; Irvin v. Bevil, SO T. 332. When this has not been done, and the other calls in the deed correct the mistake with reasonable certainty, the ob- jection, unless made by special exception, at the proper time, will not be heard for the purpose of excluding ev- idence. Huff V. Webb, 64 T. 284. 270 Ch. 21.] ACTIOX OF TRESPASS TO TRY TITLE. [§200. In a controversy as to a boundary, an additional and accurate description of the premises, in connection with the description in the title papers, should be given in the plead- ings. Stephens v. Motl, 81 T. 115; Edwards v. Smith, 71 T. 156. A plaintiff, who has sued for an entire tract, may recover a part only, or an undivided interest in the whole. Roosevelt v. Davis, 49 T. 463; Williams v. Davis, 56 T. 250; Wood v. Welder, 42 T. 396; Murrell v. Wright, 78 T. 519. When the controversy grows out of the same transac- tion, and depends upon the same evidence, several distinct tracts of land may be included in the same suit. Murrell v. Wright, 78 T. 738. § 200. Allegations of adverse entry and ouster, liow made. In a petition, filed in February, 1873, it was alleged that the plaintiff was the legal and equitable owner of a tract of land, claiming under deeds executed in 1840, which were lost or destroyed. That on the day of , 1868, defendants entered upon the land and committed divers trespasses, and that "the claim made by. defendants con- stitutes a cloud upon his title," The prayer was that plaintiff be quieted in his title to said land, that a writ of possession issue for the same, and that he have judgment, removing clouds, etc. There was no indorsement on the petition that the action was brought as well to try title as to recover damages. On exception, it was held that the ac- tion was substantially an action of trespass to try title. Shepard v. Cummings, 44 T. 502. In a case determined in 1890, the issuable averments in the petition were that the estate of plaintiff's testator was the owner in fee of the land sued for, and that the defend- ant, for the purpose of injuring the estate, and to prevent a sale of the land, was setting up a pretended claim thereto, and that such chiim was a cloud upon the title. The prayer was that the cloud be removed, and that the plaint- 271 Ch. 21.] ACTION OF TRESPASS TO TRY TITLE. [§201. iff may have general relief, etc. A general exception to the petition was overruled, and, on appeal, the judgment was affirmed. It is said by the court, that as the action could be brought against the person in possession of the premises if occupied, or some person claiming title thereto if they are unoccupied, the allegation that defendant is claiming the premises, when such is the fact, is as effectual to maintain the action as the fiction that the defendant has taken possession, and withholds the same from the plaint- iff. This question was not, however, definitely determined. Kains v. Wheeler, 76 T. 390, An allegation of former possession of the premises sued for, and an illegal ouster, and withholding of possession by defendant, is required by the statute, but is merely formal ; and as proof of these facts is not required, an omission to allege them does not subject the petition to exception, un- less some relief, based on the former possession of the de- fendant, is claimed. A petition alleging ownership of the land by plaintiff, and an adverse claim by defendant, is suf- ficient, without an allegation of possession, or right of pos- session, in plaintiff. Tevis V. Arrastroug, 71 T. 59; and see Neye v. Hawkins, 65 T. 600; Day Co. v. The State, 68 T. 526. § 201. Possessory title must be s1io\\ti. The plaintiff in this action must show that he has a pos- sessory title in the land sued for at the commencement of the suit. One having title to land, incumbered Avith the life estate of another, cannot maintain an action of trespass to try title for its recovery. Cook V. Caswell, 81 T. 678. In a suit by the state, if the petition alleges facts which entitle the state to possession, if the grants through which the defendant claims are invalid, the absence of a distinct averment that the state is entitled to possession is imma- terial. Day Company v. The State, 68 T. 526. 272 Ch. 22. — Proceeding by Quo Warranto. §202. Information in the nature of a quo warranto. 203. Writ of quo warranto defined. 204. Information filed in name of the state. 205. Leave to file information shown, how. 206. Information should be verified by affidavit. 207. Office may be recovered by suit in ordinary form. 208. Legality of a municipal corporation may be brought in ques- tion by a quo icarranto. 209. Officers de facto of a municipal corporation, proper parties. § 202. Information in the nature of a quo warranto. iThe State of Texas, 1 On the relation of John Doe, f ^In the District Court, vs. [ County. Richard Roe. J ^To the Honorable District Court, in and for said county. *The State of Texas, by the district attorney of the judicial district, on the relation of John Doe, complaining of Richard Roe, defendant, represents that said relator and the defendant reside in the county of , aforesaid. ^That at a general election, duly and legally held on the day of , 18 — , in the county of , pursuant to the statute in such case made and provided, for the election among other officers of a sheriff of said county, to dis- charge the duties of that office from the day of , 18 — , for the term of two years, the said John Doe was duly and lawfully elected to the office of sheriff of said county, and by reason of said election he was authorized and entitled to hold and enjoy said office for the term of two years as aforesaid, and to receive the emoluments of said office for said term. That the emoluments of said office would reasonably amount to the sum of dollars during said term, and said office is of the reasonable value of dollars. (IS— Plead. Forms.) 273 Ch. 22.] PROCEEDING BY QUO WARRANTO. [§202. That on the day of , 18 — , the said Eichard Roe, illegally and wrongfully claiming said office, usurped and intruded into said office, and excluded the relator there- from, and has ever since unlawfully and wrongfully held said office, and still unlawfully holds the same, and exer- cises the powers and performs the duties of said office, and receives all the profits and emoluments, and enjoys all the rights and privileges of the same. Plaintiff further represents that the defendant claims to hold said office under and by virtue of a certificate of elec- tion delivered to him by the county judge of said county, certifying that he had received votes polled for him for said office, and that the same was the greatest number of votes polled at said election for any one person for said office of sheriff. And plaintiff now saj^s that said certificate is not true, and said defendant did not receive the greatest number of votes for the office of sheriff at said election, and, on the contrary, that votes for said relator were actually and legally polled at said election, and votes were polled for the defendant, and no votes were polled for any other person for said office of sheriff, and by reason thereof, said relator was duly elected to said office of sheriff. That, at the election precinct No. — , in said county, votes were cast for the relator, and votes were cast for said Richard Roe; that said votes so cast were not properly counted and returned by the officers of election at said precinct, but were falsely and fraudulently counted, so as to show that the relator received votes and no more, and that the defendant received votes, and that by reason of such false and fraudulent count the returns of said election made it to appear, in estimating the result of said election, that the defendant had received a majority of the votes cast at said election precinct, when in truth and in fact this relator received a majority of said votes, as herein- before stated. 274 Ch. 22.] PROCEEDING BY QUO AVARRANTO. [§202. Plaintiff further says, that in the election precinct No. — , in said county, votes appeared to have been cast for the relator, and votes appeared to have been cast for the defendant, as shown by the returns of said election ; but plaintiff alleges that said returns do not, in fact, show the actual number of votes cast, in this, that the managers of said election, while engaged in the performance of their duties as such, were grossly intoxicated, and permitted persons to open the ballot box in which the votes were deposited, and to examine and destroy a large number of ballots deposited therein before said ballots were counted, and the returns of said election were certified and signed by the managers of said election. That, by reason of the gross negligence and misconduct of the managers of said election, at said precinct No, — , the returns of said election do not, in fact, show the ac- tual number of votes cast in said election, or the number of votes cast for the relator and for the defendant, and ought not to be considered in estimating the votes cast in said election. Plaintiff further says that, if the returns at said election precinct had been legally and properly made as aforesaid, they would have shown that the relator received votes and the defendant received votes. Plaintiff further says, that by reason of the premises relator was entitled to receive a certificate from the proper officer, showing his election to said office, and has at all times been ready and willing to qualify, by executing a bond, and taking the oath of office required by law; but, on the contrary, a certificate of election was delivered to the defendant, who thereafter, to-wit: on the day of , 18 — , executed bond and took the office, and entered upon the discharge of his duties as sheriff of said count3^ ^Wherefore, plaintiff prays that defendant be cited to answer this petition; that plaintiff have judgment that the defendant is not entitled to the office herein mentioned; 275 Ch. 22.] PROCEEDING BY QUO WARRANTO. [§203. that the relator be adjudged entitled to the office of sheriff of said county, audits franchises and privileges; that the relator be permitted to qualify for said office within twenty days after final judgment herein, and thereupon to enter upon the duties of his office ; that the defendant be com- manded to surrender said office to the relator, upon his qualification as aforesaid, and that he have judgment for general relief and costs of suit. (Add verification.) See Fowler v. The State, 68 T. 30. The time prescribed within which a person elected to an office shall qualify is directory. When a case arises in which a person could not, for some reason beyond his con- trol, qualify within the prescribed time, in order that the right of the person to qualify may not be destroyed upon his part, and that the wish of the people may not lightly be defeated, he may qualify within a reasonable time after such obstruction is removed. Flatan v. The State, 56 T. 93; see The State v. Cocke, 54 T. 482. § 203. Writ of quo warranto defined. The writ of quo warranto is in form analogous to a criminal prosecution, but is substantially a civil remedy applied to the mere purpose of trying a civil right, seizing a franchise, or ousting the wrongful possessor or claimant. state V. De Gress, 53 T. 387. The statute authorizes the writ for the purpose of trying the right of an individual to an office or franchise, the right of an association of persons to act as a corporation without being incorporated, the right of a corporation to continue the exercise of its franchise and privileges, and also to restrain the abuse of its powers. Civ. Stat. Art. 4098i; see State v. Owens, 63 T. 261; The People V. Ryder, 12 N. Y. 433. It is also used for the purpose of reclaiming a privilege granted by the state, and forfeited by non-compliance with 276 Cll. 22.] PROCEEDING BY QUO WARRANTO. [§§ 204-206. the grant, but it cannot be used for the purpose of enforc- ing the performance of a condition or stipulation in a grant. Morris v. Leona, 67 T. 303. The right of an existing de facto municipal corporation cannot be brought in question in a collateral proceeding, and only in a direct proceeding instituted by the state. Brennau v. Bradsbaw, 53 T. 330. § 204. Information filed in the name of the state. The information may be filed, in the name of the state, by the attornej'-general, or the district or county attorney. Civ. Stat. Art. 409Si. Or by a district attorney pro tem.^ appointed during a term of the court by the district judge, on account of the non-attendance of the district attorney. Fowler v. The State, 68 T. 30. § 205. Leave to file information shown, how. Though the statute seems to contemplate that in quo warranto proceedings the information and petition should be filed as separate papers, and that leave to file the infor- mation should rest in the sound discretion of the district judge, yet the object of the statute is accomplished by the filing of one paper containing a statement of the facts in the name of the state, setting forth the grounds for the relief, verified by affidavit, and closing with a prayer for process and relief; such a petition, when ordered to be filed by the district judge, is sufficient. City of East Dallas v. The State, 73 T. 270. § 206. Information shonld be verified by aflidavit. Relations or informations made the basis of proceedings in quo warranto should be sworn to. It seems that when consent is given by the district judge to file the information, that no further inquiry can be nuide as to the source of his information upon which the consent Avas given. Huunicutl V. The State, 75 T. 233. 277 Cb. 22.] PROCEEDING BY QUO WARRANTO. [§§207-209. §207. All office may be recovered by suit in the or- dinary form. An office is property, and he who is legally its incumbent is entitled to its emoluments during the time for which he is elected or appointed. Bastrop County v. Hearn, 70 T. 563. The District and County Courts have jurisdiction of a suit in the ordinary form for the recovery of an office when its value is within the jurisdiction of the court. Williamson v. Laue, 52 T. 335; Mllliken v. City Council, 54 T. 3S8; State V. Owens, 63 T. 261; McAllen v. Rhodes, 65 T. 348; Juneman V. Franklin, 67 T. 411; Williams v. The State, 69 T. 3GS; State v. De Gress, 72 T. 242; City of East Dallas v. The State, 73 T. 370. The claimant is not entitled to an injunction pending the suit to restrain the usurper from discharging the duties of the office or enjoying its emoluments. It is to the interest of the public that the office should be filled, but it would be rendered vacant if, by means of an injunction, the officer de facto was absolutely prohibited from discharging its duties, or was denied every inducement to do so, by having all compensation for his services withdrawn from him. McAUen v. Rhodes, 65 T. 348. §208. Legality of a mnnicipal corporation may be brought in qnestion by a quo warranto. An inquiry may be made, by quo warranto, into the le- gality of a corporation, when the right of a person claim- ing to be an officer under the terms of its charter, to exer- cise such powers as the charter proposes to give, is called in question. The State v. Goowin, 69 T. 55; The State v. Edson, 76 T. 302; The State v. Dunson, 71 T. 65; Buford v. The State, 72 T. 182. § 209 . Officers de facto of a municipal corporation proper parties. The individuals composing the governing body of a mu- nicipal corporation are proper parties defendant in a pro- ceeding, by quo ivarranto, to determine the legality of its 273 Ch. 22.] PROCEEDINGS BY QUO WARRANTO. [§ 209. incorporation. In such a case, the theory on which the action is based is that no corporation has, in fact, been lawfully created, and the pretended corporation cannot be made a party to the suit. ' Ewing V. The State, 81 T. 172; see Farmer v. The State, 69 T. 561. 279 Ch. 23. — Actions for a Certiorari. §210. For a certiorari to a justice of the peace. 211. Object of the writ. 212. Remedy by certiorari cumulative. 213. Requisites of the petition. 214. For a certiorari to a justice of the peace, on the ground that tlie judgment is not supported by the evidence. 215. For a certiorari to a justice of the peace, and to reinstate a judgment wrongfully set aside. 216. For a certiorari to the County Court in a matter of probate. §210. Certiorari to a justice of tlie peace. ^That on the day of last, being the Mon- day of said month, before one A. H. B., an acting justice of the said county, for precinct No. , defendant, in a certain suit wherein said defendant was plaintiff and these plaintiffs were defendants, recovered a judgment against plaintiffs for the sum of dollars and costs of suit, which amount to the sum of dollars ; that afterwards the said A. H. B. vacated his said office, and the books and papers appertaining thereto were delivered to one B. S., who was duly elected to fill said vacancy ; that, on the of last, the said B. S. issued against your petitioners an execution upon said judgment, which is now in the hands of one I. F. L., sheriff of said county, who is threatening to lev}'^ the same upon the property of plaintiif s. Plaintiffs further represent that said judgment is null and void in this : that no writ or citation in the suit in which said judg- ment was rendered was ever served upon plaintiffs, or upon either of them, and plaintiffs had no notice of the pendency of said suit until after the rendition of said judgment; that they have a just and legal defense to said suit, which by the illegal action of said justice they have been precluded from setting up in this : 280 Ch. 23.] ACTIONS FOR A CERTIORARI. [§211. That said suit was brought against these defendants upon a certain promissory note, bearing date on the day of , 18 — , executed by these plaintiffs to this defendant, for the sum of dolhirs, payable on the day of , 18 — . That at the maturity of said note the amount due thereon was paid to this defendant, who then and there, in consideration thereof, promised plaintiffs to cancel and destroy said note, but defendant, in violation of his said promise, did not cancel or destroy said note, and took judg- ment on the same as aforesaid. Plaintiffs now say, that by reason of the premises said note upon which said suit is based had been full}' paid off and discharged, and this defendant had and has no cause of action against these plaintiffs. ^"Wherefore, plaintiff prays for a writ of certiorari, com- manding the said B. S., Esq., to transmit to the County Court of said county, at the next term thereof, a certified copy of the entries upon his docket, together with the orig- inal papers of said cause, and that all further proceedings under said judgment and execution be superseded and stayed until the further order of this court; that defendant be cited to answer this petition ; that said judgment be set aside,, and a new trial be granted in this court ; and for such other and further relief as he may be entitled to, and costs of suit. . ^I do solemnly swear that the matters set forth in the foregoing petition are true. . Sworn to and subscribed before me this day of , A. D. 18 — , by the said . A. C. Clerk C. C. C. Civ. Stat. Arts. 299-318. §211. Object of the writ. The object of the writ is to bring up the original case for a trial de novo, and to have the very right and justice of the case determined, without regard to the erroneous rulings of 2S1 Ch. 23.] ACTIONS FOR A CERTIORARI. [§212, the justice, and it is not proper to connect another cause of action with it. Sheldon v. San Antonio. 25 T. Sup. 177; Hill v. Faison, 27 T. 428; Civ. Stat. Arts. 299-393, 1642, 1644. A justice of the peace having refused to send up to the County Court the papers in a case in which an appeal had been perfected, on a petition to the county judge setting out the facts, and praying for a writ of certiorari with a mandate to the justice, to send up the record as under ap- peal, a writ was issued according to the prayer. It was held that, while the relief desired was more in the nature of a majidamus than a certiorari^ the case should have been tried de novo as on appeal. Ey. Co. V. Dyer, 2 App. C. C. §312. And in like manner a writ of certiorari was issued from the County Court to bring up and perfect the record from the justice's court. Brown v. Grennan, 2 App. C. §-113. § 212. Remedy by certiorari cumulative. The remedy by certiorari is independent of the one by appeal, and additional thereto. It is, therefore, not neces- sary for the plaintiff to show cause why he did not make a motion for a new trial or appeal. Ward V. McRimmoud, 12 T. 314; Hail v. Magale, 1 App. C. C. §852; Quinn v. Elain, 1 App. C. C. §1108. A certiorari may be granted pending an appeal, but the plaintiff may be compelled to elect which remedy he will rely on, and the remedy abandoned will be dismissed at his costs. Lindheim v. Davis, 2 App. C. C. §108. The dismissal of an appeal, for the want of a sufficient bond, will not defeat the right to a certiorari. Quinn v. Eiam, 1 App. C. C. §1108. When it appears by the allegations of the petition that the petitioner has merits, and there is reason to apprehend that injustice has been done him without any fault of his own, he is entitled to the remedy. Hail V. Magale, 1 App. C. C. §853, citing Ahrens v. Giesecke, 9 T. 432; Hooks v. Lewis, 16 T. 551. 282 Ch. 23.] ACTIONS FOB A CERTIORARI. [§213. §213. Requisites of the petition. In Bodman v. Harris, 20 T. 31, it is held that a petition for certiorari partakes of the qualities of a bill of review, or an application for a new trial. It must not be based on mere irregularities alone, but it must set out facts which show that the party used diligence to pursue his remedy, or a good, equitable excuse for want of such diligence ; and which also show what the merits of his cause are, and what are his means of hereafter establishing them by proof, by which the determination that has been made against him will, upon another trial, be probably changed. To the same effect are T. & St. L. Ry. Co. v. Ballouf , 1 App. 0. C. §551 ; Hail V Magale, 1 App. C. C. §853, citing Ford v. Williams, 6 T. 311 ; O'Brien V. Dunn, 5 T. 570; Clay v. Clay, 7 T. 250; Perdew v. Steadhani, 8 T. 277; Ptarl v. Puckett, 8 T. 303; Hope v. Alley, 11 T. 2G0; Inge v. Ben- son, J5T. 316; Haley v. Villeneuve, 11 T. 617; Peabody v. Buentillo, IS T. 313; Clark v. Button, 28 T. 123; Ry. Co. v. Jackson, 2 App. C. C. §174; Stuart v. Man, 2 App. C. C. §784; Wilson v. Griffin, 1 App. C. C. §1313. The petition must state the facts in evidence, and show that the court had no jurisdiction of the case, or that in- justice had been done the plaintiff by the final determin- ation of the suit or proceeding, and that such injustice was not caused by his own neglect. Civ. Stat. Art. 302 ; T. & St. L. Ry. Co. v. Ballouf, 1 App. C. C. §551 ; H. & T. C. Ry. Co. V. Simon, 2 App. C. C. §99; Ry. Co. v. Jackson. 2 App. C. C. §174 ; Stuart v. Man, 2 App. C. C. §§784-786 ; Tillman v. Hood, 3 App. C. C.'§191; .Johnson v. Lane, 12 T. 179; Phillips v. Parr, 19 T. 91; Mc- Kensie v. Pitner, 19 T. 135; Giveus v. Blocker, 23 T. 033. When the ground of the application is that a motion for continuance was overruled, the grounds upon which the motion was based must be stated. Riley v. Runkle, 29 T. 92. The following facts have been held to authorize a cer- tiorari : That the judgment was rendered by a justice of the peace at a time when he was not authorized to hold a term of his court. Braidfoot v. Taylor, 1 App. C. C. §174. 283 Ch. 23.] ACTIONS FOR A CERTIORARI. [§214. That the defendant was not legally cited. Perry v. Rohde, 20 T. 729; T. & St. L. Ry. Co. v. Ballouf, 1 App. C. C. §552. That the judgment was obtained by "sharp practice." 8inith V. Thomas, 1 App. §077. Want of jurisdiction of the subject matter of the suit. Harris v. Hood, 1 App. §573. That the plaintiff did not establish his cause of action. Liudheim v. Davis, 2 App. 0. C. §108. That the plaintiff in the writ had a good defense, which was not made by reason of the negligence of his attorney. Hail V. Magale, 1 App. C. C. §S53 ; Ahrens v. Giesecke, 9 T. 432 ; Hooks V. Lewis, 16 T. 551. But his own negligence would not have been a ground of relief. Ford V. Williams, 6 T. 311; O'Brien v. Dunn, 5 T. 570; Clay v. Clay, 7 T. 250; Ferdew v. Steadbam, 8 T. 277; Pearl v. Puckett, ST. 303; Hope V. Alley, 11 T. 260; Haley v. Villeneuve, 11 T. 617; Inge v. Beu- fion, 15 T. 316; Peabody v. Buentillo, 18 T. 313. § 214. For certiorari to a justice of the peace, on the ground that the judgment is not supported by the ev- idence. ^ That heretofore, to-wit: on, etc., plaintiff instituted a suit against the defendant upon a certain promissory note executed by defendant to plaintiff, for the sum of dol- lars, dated on, etc., and due and payable on, etc., with legal interest from date, before one C, a justice of the peace for precinct No. , in and for said county of ; that afterwards, on, etc., being a regular term of said court, a trial was had in said cause ; that defendant on said trial, in defense of said cause of action, pleaded a fail- ure of consideration in this, that said note was executed by said defendant, in consideration of a certain mule sold by plaintiff to defendant, and at the time of said sale war- ranted b}'^ plaintiif to be sound, and W'as in fact unsound, and no other defense was pleaded or relied on ; that on the trial of said cause a witness testified that said note was ex 284 Ch. 23.] ACTIONS FOR A CERTIORARI. [§ 215» ecuted in consideration of the stile of a mule as above stated, and that said mule shortly after said sale sickened and died, and no other evidence whatever was offered or heard upon said trial ; that upon the trial aforesaid and upon the above recited evidence, said justice rendered a judgment in favor of the defendant, and for costs of suit. ^"Wherefore, he prays, etc. (as in preceding form). (Verify by affidavit as in preceding form.) The substance of the evidence must be stated ; it is not sufficient to allege that a fact was satisfactorily proved. Perry v. Lovett. 24. T. 359; Oldham v. Sparks, 28. T. 425. For petitions held sufficient : See Stuart v. Man, 2 App. C. C. §784; Beauchamp v. Schiff, 3 App. C. C. §170; Tillman v. Hood, 3 App. C.C. §191. Several suits cannot be joined in the same proceeding by certiorari. R. R. Co. V. Ware, 2 App. C. C. §357. § 215. For a certiorari to the justice of the peace, and to reinstate a jndgnient wrongfvilly set aside. ^ That the defendant E. F. is, and was on the dav of , A. D. 18 — , a justice of the peace in precinct No. , within and for said count3^ That on the day of , a. d. 18 — , in a certain suit then pending before said justice, for the recovery of dollars, due on an open account, wherein petitioner was plaintiff, and the said defendant C. D. was defendant, which suit said justice had jurisdiction to try, judgment was rendered by said justice in favor of your petitioner against the said C. D. for the sum of dollars and costs of suit; that the defendant E. F. refuses to issue execution thereon, pretending that the same has been set aside and a new trial granted, and judgment rendered therein against plaintiff for costs of suit, on the dixy of , a. d. 18 — , on which last pretended judgment said E. F. now threatens to issue execution against plaintiff for said costs 285 Ch. 23.] ACTIONS FOR A CERTIORARI. [§216. of suit, amounting to dollars. Plaintiff avers that the first recited judgment ought to be and is in full force, and that all of the proceedings had in said cause after the rendition of said judgment are void; that no application for a new trial in said suit was made within ten days after the rendition of said judgment, nor was any notice of the ap- plication of the granting thereof given to plaintiff, nor did plaintiff in fact know that such new trial was granted, nor was he present thereat. ^Wherefore, he prays that defendants be cited to answer this petition, and that he have judgment restraining the de- fendant E. F. from issuing execution against him upon the said second pretended judgment; that said judgment be vacated and annulled, and that he have judgment re- instating the judgment first above recited and awarding execution thereon, and for such general and equitable re- lief as he may be entitled to, and for costs of suit. ^I, A. B., do solemnly swear that the matters set forth in the foregoing petition are true. . Sworn to and subscribed before me, this day of , A. D. 18 — . , by the said . . It has been held, that after the expiration of ten days from the date of the judgment, no further action can be had in this case, and any order made therein after that date is a nullity. Beach v. Ginocchio, 1 App. C. C. §1310 Grant v. Fowzes Bros., 3 App. C. C. 105. § 216. For a certiorari to tlie County Court in a matter of probate. ^That heretofore, to-wit: on the day of , 18 — , plaintiff was duly appointed by the County Court of county administrator of the estate of S. J., deceased, and on the same day duly qualified and received letters of ad- ministration. 286 Ch. 23,] ACTIONS FOR A CERTIORARI. [§216. That administration on said estate is now open and pend- ing in said court. That heretofore, to-wit : on the day of , the defendant N., representing himself to be the guardian of B. and C, the only children and heirs at law of said S. J., deceased, filed in said court his complaint against this l^laintiff for neglecting to present his final account, and to cause this defendant to be cited to present such account on or before the day of , 18 — . That, in obedience to said citation, defendant did make out his account for final settlement, and verify the same by his affidavit, and did, on or about the day of , file said account and vouchers in said court. That , an attorney of said court, was then re- tained by plaintiff to appear in said court and represent him on the hearing of said complaint, and to represent this plaintiff in all matters pertaining to the administration of said estate and pending in said court. That plaintiff, rehnng upon his said attorney to appear for and represent him, left his home to attend to important business matters in the county of , and was necessarily absent from said court during the entire term, commencing on the day of , 18 — . That said , his attorney as aforesaid, was nec- essarily absent from said court on account of severe sick- ness in his family, and that defendant was not represented in said court on the hearing of said cause. That at said term of the court, to-wit : on the day of , 18 — , said complaint came on to be heard, and said court proceeded to restate said account, and rejected the following items of credit therein stated, to-wit: (The issues are confined to the grounds of error here specified.) And thereupon entered judgment, requiring this plaintiff to pay over to the defendant guardian as aforesaid the sum of dollars. 287 Ch. 23.] ACTIONS FOR A CERTIORARI. [§216. Plaintiff now says that each and all of the items above stated were and are just and legal charges against the es- tate of said minors, and ought to have been allowed on said settlement, and the judgment rendered as aforesaid is er- roneous and unjust. ^Wherefore, plaintiff prays for a writ of certiorari, com- manding the proper officer of county to cite the clerk of the County Court of said county to make out a certified transcript of the proceedings had in the estate of , deceased, in the matter of the final settlement of the ac- count of plaintiff, administrator as aforesaid, and transmit the same to this court, on or before the return day of the next term thereof ; that the defendant be cited to answer this petition ; that said cause be tried de novo, and that plaintiff have judgment re-establishing said several items of credit, and just and legal credits on said account, and for general and equitable relief, and for costs of suit. Nevvsoa v. Chrisman, 9 T. 113. The proceedings of the County Court in matters of ad- ministration and guardianship may be revised and corrected by certiorari. Civ. Stat. Art. 290; TSTewson v. Chrisman, 9 T. 113. It is not necessary to show cause for failing to appear to entitle a party to the writ, when the error is apparent of record. Ray V. Parsons, 14 T. 370; Poag v. Rowe, IG T. 590; Lott v. Bal- land, 21 T. 1«7; Harrison v. Oberthier, 40 T. 385. As the District Court has no original jurisdiction to re- vise and correct the proceedings, orders and decrees of a County Court sitting in matter of probate, its appellate jurisdiction by certiorari must be exercised in strict con- formity with the statute, Mdiich requires a petition distinctly stating the error in the proceeding sought to be revised, and a bond conditioned for the performance of the judg- ment of the District Court. Civ. Stat. Arts. 290, 291, 292; Franks v. Chapnaan, 60 T. 46; Buchanan v. Bilger, 64 T. 589. 288 Ch. 24. — Actions for Equitable Relief. §217. For review of a judgment. 218. By an administrator to set aside a judgment wlien a party died before verdict. 219. For an injunction to restrain the enforcement of a judgment. 220. By a landlord against a lessee for years to restrain waste. 221. For an injunction to restrain defendant from diverting a water-course. 222. For the execution of a trust, when-the trustee is dead, or has abandoned the trust. 223. By a creditor to have an instrument declared to be a general assignment for the benefit of creditors. , 224. By creditor of an estate to set aside an allowance and ap- proval of claims against said estate, etc. 225. For foreclosure of mortgage by assignee of mortgagee, against mortgagor and subsequent incumbrancers. 226. For foreclosure of lien on land secured by deed of trust against administratrix and heirs. 227. To recover a debt and foreclose a mortgage given to secure its payment. 228. To foreclose a deed of trust, the trustee having died. 229. To redeem by grantee of equity of redemption. 230. By mortgagor to redeem, where mortgagee refuses to accept payment of debt. 231. To wind up a partnership. 232. To wind up a partnership by administratrix of a deceased partner. 233. For an account of partnership dealings after a dissolution, etc. 234. Petition in intervention. § 217. For review of a judginent. ^That on or about the day of , a. d. 18 — , de- fendant filed, in the District Court of said county of his petition against phiintiff, upon plaintiff's promissory note for the sum of dollars, payable to defendant, dated on the day of , a. d. 18 — , and due five months after date, which note, as alleged in said petition, was secured by a mortgage of even date therewith, executed by this plaintiif in favor of said defendant, upon acres of (19— Plead. Forms.) 289 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§217. land, situated and described as follows, viz: (here insert description of land) ; that defendant filed with his petition an affidavit in writing that plaintiff was not a resident of the State of Texas, and thereupon obtained service of process in said suit by publication in a newspaper ; that at the term, a. d. 18 — , of said court, judgment was rendered in said cause in favor of defendant, against this plaintiff, for the sum of dollars and costs of suit, and for the foreclosure of said mortgage and sale of the prem- ises therein described, as under execution. Now plaintiff shows that long before and at the time of filing said petition, and for a long time thereafter, he was^ a resident of the county of , in said state, which was well known to defendant, or misjht have been ascertained by the use of proper diligence ; that he was never served with process in said suit, and had no notice of the pend- ency of the same until long after the rendition of the judg- ment above mentioned; that no statement of the facts proven upon the trial, and upon which said judgment was founded, was made out and incorporated with the records of said cause, as required by law ; and that he has a good defense to said action in this : that said claim, at the time of the commencement of said suit, was barred by the stat- ute of limitations. And plaintiff further alleges that long before the com- mencement of said suit, to-wit : on the day of ^ , 18 — , this plaintiff paid to defendant the sum of dol- lars, in discharge of his indebtedness upon said note, and defendant then and there agreed to cancel and destroy the same. Plaintiff now says that defendant, regardless of his said obligation, did not cancel and destroy said note; but, on the contrary, instituted suit against this plaintiff as aforesaid, and took a judgment therein against plaintiff for the whole amount of principal and interest, payable ac- cording to the tenor and effect of said note. 290 Ch. 24,] ACTIONS FOR EQUITABLE RELIEF. [§217. ^AVherefore, plaintiff prays that defendant be cited to answer this petition, that the judgment heretofore rendered in said suit be set aside, and that a new trial be granted thereon, and for general and equitable relief and costs of suit. The remedy by a bill of review for error of law apparent on the face of the decree is not recognized by our courts. The bill of review is available only where the defendant has not been afforded an opportunity of making his defense. Seguin v. Maverick, 24 T. 526; Lewis v. Sau Antonio, 2(3 T. 316. For errors apparent on the face of the record, the rem- edy is by appeal or error. YtuiTi V. McLeod, 26 T. 84; Schleuning v. Duffy, 37 T. 527; Groes- beck V. Campbell, 38 T. 36. To entitle one to a decree in a separate proceeding brought to set aside a judgment in a suit in which he was a, party, rendered by a court having jurisdiction of the sub- ject matter and the parties, he must show that he was pre- vented from urging against the judgment of which he com- plains objections which would or ought to have prevented its rendition ; and that such prevention resulted from fraud, accident, or the acts of the adverse party, without any fault or negligence on his part. He must be able to im- peach the justice and equity of the verdict of which he complains, and to show also that there is good ground to suppose that a different result would be attainedby a newtrial. The fact that a party is poor is no reason wdiy he should not be held to the same rule of diligence in the prosecution of suits instituted by himself that is prescribed for other persons. Harn v. Phelps, 65 T. 592; Goss v. McClaren, 17 T. 107; Plura- merv. Power, 20 T. 7; Vardeinan v. Edwards, 21 T. 737; Overton v. Blum, 50 T. 417; Merrill v. Roberts; 78 T. 28. A plaintiff who seeks to set aside a former judgment, based on an alleged unauthorized agreement of counsel, must set forth specifically the nature of the agreement, that the court may determine whether the plaintif£ has re- ceived injury requiring relief. A substantial injury must be shown; for though the attorney, as such, may not have 291 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§217. been authorized to make the agreement, a court will not disturb the judgment, unless the agreement was so unrea- sonable in itself as to be manifestly unjust, and to create theimpression thatthe attorney's judgment had been imposed on, or not fairly exercised, and the party seekingto berelieved against the compromise must show that he was blameless. A court of equity will only set aside a judgment rendered upon an unauthorized agreement of counsel, when injury has resulted therefrom to the party complaining. Williams v. Nolan, 58 T. 708. When a judgment has been obtained by fraud, accident or mistake, and without any want of diligence on the part of the party against whom it was rendered, the District Court, in the exercise of its equity powers, may re-examine the case on its merits, and grant such relief as equity may demand. Overton v. Blum, 50 T, 417. The arrest and detention of a party to a suit during trial, by which he was deprived of the benefit of his own testi- mony, would authorize the grant of a rehearing. But his failure to move for a new trial is not excused by the re- fusal of his counsel to file the proper motion, and that he could not procure another attorney, as the court on appli- cation would have assigned counsel. McGloin V. McGloin, 70 T. 634. When a party was prevented, by accident or mistake, from making up a statement of facts in a case which had been tried, a rehearing will not be granted, unless it is shown that the judgment would probably have been re- versed on appeal. Ratto V. Levy, 63 T. 278; see Mussina v. Moore, 13 T. 7; Kitchen V. Crawford, 13 T. 516; Snow v. Hawpe, 22 T. 168; Seguin v. Maverick, 24 T. 52G; Schleicher v. Mark ward, 61 T. 99; Morris v. Edwards, 62 T. 205; Brown v. Brown, 01 T. 45; McMurray v. McMurray, 67 T. 665. A Probate Court ma}'^, on a proper application of a party in interest, correct by bill of review their own judgments when procured by fraud. Fortson v. Alford, 62 T. 576; Edwards v. Ualbert, 64 T. 667; see Alford V. Halbert, 74 T. 346. 292 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§218. §218. By an aclmiiiistrator to set aside a judgment, when a party thereto died hefore verdict. *A , phiintiff, complaining of B , defendant, rep- resents that plaintiff is the administrator of the estate of T , late of the county of , deceased, duly appointed bytheCount}^ Court of said county, in which said admin-^ istration is still open and pending, and that plaintiff and defendant reside in said county of . ^That at the term, a. d. 18 — , 'of the court in and for said county of , to-wit : on the day of , A. D. 18 — , in a certain suit thereon pending for the recovery of a debt due upon an open account, wherein said T (plaintiff's intestate) was plaintiff and said B* was de- fendant, and numbered on the docket of said court, judgment was rendered in favor of said T against said B , upon the verdict of a jury duly impaneled in said cause, and returned into said court on the day aforesaid, for the sum of dollars and costs of suit, as appears of record in said court, which said judgment has never been reversed, set aside or annulled, but remains in full force and effect. That said judgment is null and void, for that heretofore and before the return of said verdict into court and the ren- dition of judgment thereon, to-wit : on the day of aforesaid, the said T had departed this life; that the death of said T , plaintiff as aforesaid, was not suggested on the record, and his heirs or legal representatives Avere not made parties to said suit. ^Wherefore, phiintiff prays that said defendant be cited to answer this petition, and that he have judgment, annul- ling and setting aside said judgment, and reinstating said cause upon the docket, and for such other and further re- lief as he may be entitled to, and costs of suit. A suit upon a contract does not necessarily abate by the death of a party thereto before verdict, and on suggestion of such death the proper party may be made. When a. 293 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§219. part}^ dies after verdict, the judgment may be entered as if both parties were living. Civ. Stat. 1246-1254. An action for tort, unconnected with contract, except in suits for injuries resulting in death, brought under Title 53 of the Revised Statutes, does not survive. Watson V. Loop, 12 T. 11; Taney v. Edwards, 27 T. 224; Cherry V. Speight, 28 T. 503; Gibbs v. Belcher, 30 T. 79. The cause of action arising from a tort resulting in death is merged in the judgment, which on appeal is not vacated by the suggestion of the death of a party thereto. Ry. Co. V. Nolan, 53 T. 139; Brooke v. Clarke, 57 T. 105. §219. For an injunction to restrain tlie enforcement of a judgment. ^That heretofore, to-wit: on or about the day of , 18 — , the defendant R. recovered a judgment in the District Court of county against plaintiff, for the sum of dollars and costs of suit, and afterwards, to-wit ; on the day of , 18 — , caused an execution to be is- sued thereon, directed to the sheriff or any constable of county. That afterwards, to-wit: on the day of 18 — , the sheriff of said county levied said execution upon a cer- tain tract of land, the property of plaintiff, and was about to advertise and sell said land under said writ. That afterwards, to-wit: on the same day, the defendant L., at the special instance and request of plaintiff and in consideration of the agreement hereinafter mentioned, paid off and satisfied said judgment, and thereupon said sheriff,, by direction of the plaintiff in said suit, returned said ex- ecution without endorsing thereon the satisfaction of said judgment as aforesaid. That by the terms of the agreement above mentioned it was stipulated by the plaintiff and defendant, L., that he, the said L., should pay off and satisfy said judgment in full^ and should accept in satisfaction of the payment so made 294 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§219. a certain tract of land situated in said county, and known and described as follows, to-wit: . And plaintiff then and there sold said land to said defendant for the consider- ation above stated, and agreed to convey the same to said defendant by a good and sufficient deed of conveyance when thereunto afterwards requested. That in pursuance of said agreement said defendant en- tered into possession of said premises, made improvements thereon, and received the rents and profits of the same to his own use. That afterwards, to-wit : on the day of , 18 — , the defendant L., claiming to be the owner of said judg- ment, caused an execution to be issued thereon and placed in the hands of said G., sheriff as aforesaid, who is about to levy the same upon the property of this plaintiff. Plaintiff further alleijes that she is now willing to execute q, conveyance to said defendant L. for the premises above mentioned, and now brings into court her deed therefor to be delivered to him. ^Wherefore plaintiff prays for a writ of injunction re- straining further proceedings under said judgment and execution, that said execution be returned to this court, and that on final hearing said injunction be made perpetual, and for general relief and costs of suit. When a preliminary injunction is asked for, the peti- tion must be verified by affidavit of the truth of the mat- ters stated as the ground for issuing the writ. The effect of a sworn denial in the answer of the allegations in the pe- tition is merely to counterbalance the oath of the plaintiff, and to deprive him of the provisional remedy he has thereby obtained. When the preliminary writ is not asked for, and the in- junction is asked for as a part of the final judgment, the verification of the petition is not necessary. Lnvev. Powell. 67 T. ]5;Ecclrsv. Daniel, 10 T. 130; Edrinijton v. Allsbrooks, 21 T. ISO; ruUcn v. Baker, 41 T. 'll!); Hainbliii v. Knight, 60 T. 36. 295 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§219. The Constitution of 1876, Art. 5, Sec. 8, conferred upon the District Courts and the judges thereof power to issue writs of mandainus, injunction, certiorari, and all writs necessary to enforce their jurisdiction. This provision is not changed by the constitutional amendment of September 21st, 1891. The Constitution of 1876, Art. 5, Sec. 16, conferred upon the County Courts and judges thereof power to issue writs of mandamus, injunction, and all other writs neces- sary^ to the enforcement of the jurisdiction of said courts. The amendment of September 21st, 1891, does not change this. Construing these clauses of the Constitution of 1876, it has been held that the District Court had power to issue writs of injunction in cases in which a court of chancery, under the settled rules of equity, would have power to issue them, and this without reference to the amount in controversy. County of Anderson v. Kennedy, 58 T. 616; Alexander v. Holt, 59 T. 205; Hale v. McComas, 59 T. 484. In Carlisle v. Coffee, 59 T. 391, it is held that under the Constitution of 1876 the county judge was not authorized to issue an injunction to restrain and enjoin the judgment of a justice of the peace for a sum less than twenty dollars. The appellate jurisdiction of the County Court to supervise or control a justice's court is by the Constitution limited to an appeal and certiorari. Until the court had acquired juisdiction in one of these modes, it had no authority to is- sue a writ of injunction to restrain or control its action. Hale V. McComas, 59 T. 484. The District Court cannot interfere by injunction to cor- rect errors of an inferior court in cases in which an appeal is not allowed. G.; H. & S. A. Ry. v. Dowe, 70 T. 1. 296 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§219. In a case arising prior to the constitutional amendment of 1891, it was held that the District Court could enjoin the collection of a void judgment of a justice's court for 'less than $20. Ey. Co. V. Kawlins, 80 T. 579. An injunction may be granted to restrain the sale of real estate levied on to satisfy a tax illegally assessed. George v. Dean, 47 T. 84. The petition, therefore, must allege that the tax-roll with the particular assessment has been approved or has come to the hand of the collector, or other facts showino- the threatened injury. Land and Cattle Co. v. Board, SO T. 489; see Xat. Bank v. Rogers, 51 T. 606; Red v. Johnson, 53 T. 2S4. In Hardesty v. Fleming, 57 T. 395, it is held that when taxes are paid under protest they may be recovered back in a suit promptly brought against the officer, before he is required to pay it over. In Land and Cattle Co. v. Board, 80 T. 489, the decision above cited is held to be obiter, and that the better rule is that in all cases, in which the process under which a collection of a tax is made is in the form prescribed by law and issued by proper authority, the col- lecting officer is exempt from liability to the tax payer, who should seek relief from the state, county or municipality on whose account the tax was collected. The statute requires an application for an injunction to stay an execution upon a valid and subsisting judgment to be made within one year after its rendition, unless delayed by the fraud or false promises of the plaint- iff in the judgment, or unless for some equitable mat- ter arising after the judgment. If the applicant was ab- sent from the state wdien the judgment was rendered, and was unable to apply within the year, the injunction niay be granted at any time within two years from the date of the judgment. Civ. Stat. Art. 2S75. In this case, the writ is returnable to and tried in the county where the suit is pending or judgment was rendered. Cir. Stat. Art. 2SS0; Hendrick v. Cannon, 2 T. 259; Winnie v. Gray- son 3 T. 429; Cook v. Baldridge, 39 T. 250. 297 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§219. This provision applies to an order of sale. Seeligsou v. Collins, 64 T. 314. When the execution of an order of sale is restrained by a temporary injunction, it is a contempt of court to issue an execution on the judgment, and a sale under it passes no title. Ward V. Billups, 76 T. 466. A party may be restrained by injunction from harassing another by successive suits for the same cause of action. Cannon v. Hendrick, 5 T. 339. A party against whom a void judgment has been ren- dered may restrain its execution by injunction Chambers v. Hodges, 23 T. 110; Cook v. Buruham, 32 T. 129; Smith V. Deweese, 41 T. 595; Glass v. Smith, 66 T. 548. The judgment of a court of competent jurisdiction cannot be impeached in a collateral proceeding, unless the record shows affirmatively the want of jurisdiction. Evidence of fraud aliunde the record cannot be heard to dispute the judgment, even when the fraud consisted in obtaining ju- risdiction. Williams v. Haynes, 77 T. 283; see Murchison v. White, 54 T. 7S; Fleming v. Seeligson, 57 T. 524; Treadway v. Eastburn, 57 T.209; Long, V. Brenneman, 59 T. 210; Odie v. Frost, 59 T. 681; Watkins v. Davis, 61 T. 414; Mikeska v. Blum, G3 T. 44; Davis v. Robinson, 70 T. 394. An injunction has been refused in the following cases : To restrain the sale of land, the separate property of the wife held under a recorded deed showing her rioht, and not used as a homestead, under a judgment and execution against the husband. In this case there is an adequate remedy at law. Spencer v. Rosenthall; 58 T. 4; Purinton v. Davis, 66 T. 455. To restrain the sale of land, part of the rural homestead of the defendant in execution, and by him conveyed to the plaintiff, no prior lien being alleged. As the plaintiff in case of the sale of the land under the execution had a clear and adequate remedy, the injunction was refused. Mann v. Wallis, 75 T. 611 ; see Henderson v. Morrill, 12 T. 1; Carlin V. Hiidsou, 12 T. 202; Whitman v. Willis, 51 T. 421 ; Kennard v. Mabry, 78 T. 151. 298 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§220. While a judgment rendered in a justice's court cannot be revised in the District Court, it seems, under the decisions of the Supreme Court, that in a suit brought in the District Court by the former defendant in a justice's court to prevent, by injunction, the collection of the judgment there rendered against him, on the ground of fraud, and because the judg- ment was dormant, the District Court has power to inquire whether the sum for which the judgment was rendered was still due, and, if so, to render a judgment against the plaint- iff in the injunction suit for the amount. North V. Swing, 24 T. 194; Willis v. Gordon, 22 T. 241; "Witt v. Kauf- man, 25 T. Sup. 384; Hale v. McComas, 59 T. 486; Stein v. Prieberg, 64 T. 273. In Seymour v. Hill, 67 T. 385, it is held that in such a proceeding, where it is shown that the judgment has not been paid, the injunction should be dissolved. The only ground for not issuing execution on a dormant judgment being the legal presumption of its payment, when this presumption ceases, to perpetuate the injunction would be in effect to violate a rule which denies the writ, unless ir- rej)arable injury would result from its being refused. A petition for injunction may be amended as in other ca^es. When an exception to a petition is sustained on the ground that the averments are not sufficient to author- ize the issuance of the writ, on application therefor leave to amend should be granted, and the cause retained, to give the plaintiff an opportunity to amend. And so, where a dissolution of the injunction is asked, on the ground that the material allegations of the petition are denied, the injunction should not be dissolved by interlocutory order when the plaintiff demands a hearing on the merits. Washington County v. Sehulz, 63 T. 32; Kelley v. Whitniore, 41 T. 647; Fulghani v. Chevallier, 10 T. 518. § 220. By a landlord against a lessee for years, to re- strain Avaste. ^That before and at the time of makino- the lease herein- after mentioned, the plaintiff was seized in fee simple, in 299 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§220. his own right, of the following lands and tenements: (de- scribing them). That being so seized by a certain lease bearing date the, etc., and made between the plaintiff of the one part and said defendant of the other part, he, the said plaintiff, did demise and lease unto the said defendant, his executors, administrators and assigns, the above described premises, to hold the same, with the appurtenances, unto the said defendant, his executors, administrators and assigns, from the day of , for the term of years, at the yearly rent of dollars. ' That said defendant did, in and by said lease, for him- self, his heirs, executors, administrators and assigns, cov- enant, promise and agree with the plaintiff, his heirs, exec- utors, administrators and assigns, that he would during the said term keep the said premises in good repair, and man- age and cultivate the said farm and lands in a proper and husbandlike manner, according to the custom of the coun- try, as by said lease, reference being thereunto had, will more full}'^ appear. That said defendant, under and by virtue of said lease, entered upon said demised premises, with the appurte- nances, and became and was possessed thereof for the said term, so to him granted by plaintiff, as aforesaid. That a portion of said premises, containing about acres, consists of standing timber of great value, to-wit: of the value of dollars; that defendant has commenced cutting down portions thereof, to plaintiff's damage dollars, and threatens to continue cutting the same. ^Wherefore, plaintiff prays for a writ of injunction re- straining the defendant from cutting the remainder of the timber upon said premises, and from selling, drawing away or interfering with such timber as has already been cut and still rcnuiins upon said premises, and from committing or permitting any further waste or spoil in, on or to said de- mised premises, or any part thereof; that said defendant 300 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF, [§221, be cited to answer this petition, that plaintiff have judgment that said injunction be made perpetual, and for his damage aforesaid and costs of suit, and for such further relief, etc. The State of Texas, > County. 5 I solemnly swear that I am the plaintiff in the above cause, and that the matters stated in the foregoing peti- tion are true. A. B. A public road cannot be laid out and established through a farm, and the improvements thereon, without the require- ments of the law relating thereto have first been complied with, and an injunction will be granted to restrain the road overseer from opening or working such a road. Floyd V. Turner, 23 T. 292. A change of a road from the third class to the second class, without complying with the law as to compensation, will be enjoined. Bounds V. Kirven, 63 T. 159; Mclntire v. Lucker, 77 T. 259. But the writ will not be granted simply on the ground that no damages, or inadequate damages, had been allowed by the commissioner's court. Bourgeois v. Mills, 60 T. 76; Duer v. Police Court, 34 T. 283. No action will lie to restrain an interference with a mere public right at the suit of one who has not suffered, or who is threatened with some damage peculiar to himself. When the injury inflicted or threatened is of a character which affects the public generally, and inflicts no special wrong on the individual, he cannot maintain an action. San Antonio v. Strumberg, 70 T. 366. §221. For an injunction to restrain defendant from diverting a water-course. ^That plaintiff is seized in fee and possessed of a certain parcel of land, with the appurtenances thereunto belong- ing, situated in the county of , which is bounded as follows, to-wit: (describing the premises). 301 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§221. That along and across his above bounded and described piece of land, and adjoining the south side of the same, runs a valuable stream of water, having sufficient power to drive and carry extensive machiner}^, and affording valuable water power and mill privileges along the whole distance; which said stream of water, with the power and privileges aforesaid, belong to and are the property of plaintiff, and that the said stream of water now runs and flows in its natu- ral bed or channel, and where the same has run and flowed time out of mind. That plaintiff has recently erected, at great expense, to- wit: about dollars, on his said tract of land, a valuable building, for the purpose of carrying on the business of sawing lumber and manufacturing meal and flour therein, in which extensive machinery is used, and power to drive or carry said machinery is absolutely necessary ; that said building is erected over and upon said stream of water, and upon its natural bed or channel, and at a place where all the power necessary to drive or carry said machinery could be obtained from said stream of water, and that said build- ing is nearly completed and fit for use. That the defendant threatens to and is about to divert said stream of water from its said natural bed or channel at a point about one hundred and seventy-five feet easterly from plaintiff's said buildings, and to carry or convey the said stream of water from thence through troughs, canals or otherwise, in such a manner as to conduct or carry the whole of said stream of water away from the plaintiff's said building; that the defendant, on the day of , a. D. 18 — , commenced digging a canal or Avater-course at the point last aforesaid, for the purpose of laying down logs and trunks, through which to divert, carry and conduct the said stream of water from its natural channel as aforesaid; and although then and there requested and directed by the plaintiff to desist from the same, the defendant, without 302 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§221. right, and contrary to law, still continues to prosecute the same. And the plaintiff further avers that he has no means by which he can obtain power to drive or propel the said ma- chinery in his said mill, except that derived from the said stream of water as it now flows in its natural channel, and has so flowed from time immemorial ; and that if defendant succeeds in diverting the said stream of water from its nat- ural bed or channel, as he is about to do, as above stated, he, the said plaintiff, will be entirely deprived thereby of power to drive or carry the said machinery in his said mill, and plaintiff's said building will thereby be rendered and become valueless to the plaintiff, and plaintiff will otherwise sustain great damage by having his said business, together with the profits arising from the same, impeded and de- stroyed; that the defendant is not now, and would not be, in the opinion of said plaintiff, at the termination of this suit, the owner of property, real or personal, sufficient to satisfy the plaintiff for the damage he would ultimately sustain from the diversion of the said stream of water from its natural channel as aforesaid, as the said defendant is now doing and about to do. ^Wherefore, the plaintiff prays for a writ of injunction against the defendant; that he, the defendant, may be en- joined and restrained from diverting the said stream of water from its present bed or channel, in such a manner as to carry the said stream of water, or any part thereof, away from the said plaintiff's building, so erected as aforesaid, and from doing any act tending to divert the same, or in any manner interfering W'ith, damaging or injuring the said plaintiff's water-power, privileges, lands and tenements, so owned, occupied and possessed by him as aforesaid ; that defendant be cited to answer this petition, and that on the final hearing said injunction be made perpetual, and that he have judgment for general relief and for costs of suit. 303 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§---• Add an affidavit verifying the truth of the matters stated in the petition. Clerk Court, County. See Rhodes v. Whitehead, 27 T. 304; Tolle v. Correth, 31 T, 3U2; Fleming v. Davis, 37 T. 173; Baker v. Brown, 55 T. 377; Armendaiz v. Stillman, 67 T. 458; Risien v. Brown, 73 T. 135; Irrigation Co. v. Vivian, 74 T. 170. § 222. Foi* the execution of a trust when the trustee is dead or has abandoned the trust. ^That plaintiff is a white citizen, of the city of , in said count}'^, and brings this suit for himself, and the other white citizens of county. That heretofore, to-wit: on the day of , 18 — , O. D., then a resident of said cit}^ by his deed of that- date duly executed by him, conveyed to A. B., C. D., and E. F., then residents of said city, a certain tract of land, containing four acres, situated Avithin the corporate limits of said city, and bounded and descri})ed as follows: That said conveyance was made for the purpose of estab- lishing and maintaining a permanent, first-class school, for the education of the white youths of the city and county aforesaid, for all future time, and securing to them an eligible site upon which to build a suitable school building, to be used only for school purposes as aforesaid. That said A. B. and C. D. are dead, and the said E. F. has removed from the county of , and has failed and neglected to discharge said trust, and has abandoned the same. That said deed of conveyance contains no provision for the appointment of trustees, and for the carrying out the purposes of said trust. Plaintiff further represents that the defendants, on or about the day of , 18 — , with force and arms, and setting up some pretended and exclusive claim thereto, entered upon said premises under some pretended claim of 304 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§222. right, and ejected plaintiff and other white citizens of said county therefrom. That said defendants have converted said premises to the jse and benefit of the Conference of the Methodist Episcopal Church South, using the same as a sectarian and denominational school and boarding-house, and thereby di- v^erting the same from the use and purpose of the original trust. ^Wherefore, plaintiff prays that defendants be cited to answer this petition, and that he have judgment canceling and annulling any pretended claim or title of the defend- ants in and to said property ; that trustees be appointed to administer said trust for the use and purposes mentioned in said deed, and for general and equitable relief, and costs of suit. Where a grantor conveys land in trust, without reserving or conferring the power to create new trustees, such trustees can only be appointed by a court. But a court will appoint trustees to administer trusts of this character Only when a power to create them in some other way has not been provided, unless under facts exceptional in their character. Pierce v. Weaver, 65 T. 44. Where an agent for the collection of a debt, due to his principal, receives without authority a conveyance of land to himself in payment of the debt, the title thereto does not vest in the principal until he accepts. While the gen- eral rule is, that the ratification of the act of the agent relates back to the time of the act, it will not defeat the intervening rights of other persons. Kempner v. Rosenthal, 81 T. 12. The resulting trust in land purchased with the wife's money, and deed taken in her name, is not subject to attachment against the husband, or by any proceeding, except a sale by the husband to an innocent purchaser. Evans v. Welborn, 74 T. 5:^0; Stoker v. Bailey, G2 T. 299 ; and see Parker v. Coop, GO T. 114; MoKaniey v. Tiiorp, 61 T. 649; Eastham T. Roundtree, 56 T. 110; Blum v. Roirers, 71 T. 668. (20— Plead. Forms.) 305 Ch. 24.] iVCTIONS FOK EQUITABLE RELIEF. [§223. A purchaser of land, who received a deed which recited that the consideration was evidenced by an unpaid note, appropriated trust funds in his hands belonging to his children to its payment on its maturity. The purchaser, up to his death, declared that the land belonged to his children. It was held that the children were subrogated to the lien rights of the vendor, that no homestead rights existed in his wife as against the rights of the children, and he could convey the land to the children in satisfaction of the lien. Oiuy v. Saunders, 77 T. 27S. A resulting trust cannot spring from an act contrary to public policy or statute. Thus, wdien the father convej^ed land to a third party for the purpose of defrauding his creditors, and with the parol trust that he would hold one- half of it for his son, the latter could not enforce the trust against such vendee. But if the father, being indebted to the child, purchases land, taking the title in the name of a third person, with his knowledge and consent, to enable him to hold the land for the benefit of the child, the latter may recover the property, although the father, at the date of the purchase, was in failing circumstances, and intended by the purchase to prefer the child to other creditors. Eastham v. Roiindtree, 56 T. ]10; Woodson v. Collins, 5G T. 16S. §223. By a creditor, to have an iiistriiineiit declared to 1)C a general assignment for the henelit of creditors. ^That heretofore, to-wit: on the day of , 18 — , defendants and were merchants and partners, do- ing business under the firm name of A. & B. in said county. That at said date said defendants, partners as aforesaid, owned and had in their possession goods, wares and mer- chandise of the estimated value of thirteen thousand dol- lars, and sundry notes and accounts due and payable to them, amounting to a large sum, to-wit: $7,000 or $8,000. That said defendants, partners as aforesaid, were at said date and now are indebted to a large number of persons, 306 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§223. said indebtedness amounting in the aggregate to about the sum of $15,000, and were and now are indebted to plaintiff in the sum of $2,733.24. Phiintiff further alleges, that at the date first above men- tioned said and , partners as aforesaid, were in- solvent, and assigned and conveyed all of their property subject to execution to the defendant C, with full power to sell the same, and to pay certain debts enumerated therein in full, to- wit: debts due to D., E. and F., amounting in the aggregate to the sum of $6,000, and to prorate the re- mainder of the proceeds of the sale of said property and collection of said indebtedness among the other and un- pref erred creditors of said A. & B. A copy of said con- veyance, marked Exhibit A, and hereto attached, is made a part of this petition. That the defendant C. has taken possession of the goods, wares and merchandise, and the notes and accounts above mentioned, and is proceeding to sell said property and col- lect said debts, and apply the proceeds thereof to the pay- ment of said indebtedness, in accordance with the directions of said instrument of conveyance. Plaintiffs further allege, that if the proceeds of said sales and collections are applied as directed in said instrument, the entire amount will be exhausted in the payment of said preferred claims, and no part of the same will be applied to the indebtedness due to these plaintiffs. Plaintiffs further allege that said instrument in writing, executed by said A. & B., as heretofore mentioned, is in fact and in law a general assignment for the benefit of all of the creditors of the said A. & B., including the plaintiffs herein, that said estate should be administered, and the proceeds of said sale and collections should be distributed amono; the creditors of said A. &B., in accordance with the provisions of the statute relating to assignments for the benefit of creditors. 307 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§224. ^Wherefore, plaintiff prays that an injunction be granted, restraining the defendant C. from paying out any money under said conveyanee, and specially from paying any of the preferred debts mentioned in said conveyance, until the further order of this court; that the defendants be cited to answer this petition, and on final hearing said instrument be adjudged to be a general assignment for the benefit of creditors, under the statute relating thereto, and an assignee thereof be appointed, and for general and equitable relief, and for costs of suit. (Add verification.) For allegations in the petition : See Preston v. Carter Bros., SO T. 388. As to the distinction between an assignment under the statute, and a deed of trust or mortgage for the benefit of a preferred creditor : See La Belle Wagon Works v. Tidball et al., 59 T. 292; Stiles v. Hill, 62 T. 429; Nat. Bank of Texas v. Lovenberg, 63 T. 506; Jacksou v. Harby, 65 T. 710; Watterman v. Silberberg, 67 T. 100; Scott v. Mc- Daniel, 67 T. 315; Johnson v. Kobinson, 68 T. 399; Baylor County v. Craig, 69 T. 330; Hart v. Blum, 76 T. 113; Hudson v. Mill & Elevator Co., 79 T. 401 ; Preston v. Carter, SO T. 3SS. See Hiulson v. Mill & El- evator Co., 79 T. 401, for a writing held to be a mortgage, and not an as- signment under the statute. As to assignment of partnership effects : See Donoho v. Fish Bros. & Co., 58 T. 164; Still v. Focke, 66 T. 715; Cleveland v. Battle, 6S T. Ill; Shoe Company v. Ferrill,68T. 638; Kittrell v. Blum, 77 T. 336; Turner v. Douglass, 77 T. 619. As to the necessary parties to the suit : See Preston v. Carter, SO T. 388; Ebell v. Bursinger, 70 T. 120. § 224. By creditor of an estate to set aside an allow- ance and approval of a claim against said estate, etc., etc. ^H , plaintiff, complaining of A and S , defendants, represents that plaintiff resides in the county of , and the defendants in the county of ; that the defendant A is the administrator of the estate of E , late of the county of , deceased, duly ap- 308 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§224. pointed by the County Court of county, at the term, a. d. 18 — , of said court, and that said administration is^ still open and pending in said court. ^That heretofore, to-wit: at the term, 18 — , of the District Court of county, plaintiff recovered against the defendant A , administrator as aforesaid, a judg- ment for the sum of dollars and costs of suit, which said judgment, at "the term, 18 — , of our Supreme Court, at , was in all things affirmed ; that said judgment remains in full force and effect, and has been in no way sat- isfied or discharged ; and that said defendant A neg- lects and refuses to pay the same, though often requested, alleging that he has fully administered, all and singular, the goods and chattels of the said E , which have ever come to the hands of him, the said A , administrator as afore- said, and that, after paying such claims against said estate as have been allowed or established within twelve months after the grant of said letters of administration, he has no funds of said estate in his hands. Plaintiff avers that said A , combining and confeder- ating with his co-defendant, for the purpose of cheating and defrauding the creditors of said estate, who had valid and subsisting claims against the same, and more particularly for the purpose of cheating and defrauding plaintiff, has al- lowed, in favor of his said co-defendant, a certain pretended claim against said estate, when in truth and in fact said de- fendants well knew that the same were not valid and sub- sisting claims against said estate ; that heretofore, to-wit: on the day of , 18 — , said A , administrator as aforesaid, allowed in favor of said defendant S , a pretended claim against said estate, amounting on the of , 18 — , to the sum of dollars, which said claim was approved by the county judge on the day of , 18 — ; that on the same day said A , administrator as aforesaid, allowed in favor of said defendants another pretended claim against said estate, amounting to the sum 309 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§224. of dollars, which said claim was approved by the county judge on the day of , aforesaid. A copy of said claims, with the endorsements thereon, are hereto attached, marked Exhibit A, and made a part of this petition. Now plaintiff avers that said claims, or either of them, were not at the date of said allowance and approval valid and subsisting claims against said estate; that the claim of said defendant S , first above mentioned, accrued and was due and payable on the day of , 18 — ; that the said E departed this life on the day of , 18 — , having resided within the State of Texas more than four years after said claim became due and payable, and without having at any time acknowledged the justice of said claim in writing; by reason whereof said claim, at the date of its allowance and approval aforesaid, was barred by the statute of limitations, and was not a valid and subsist- ing claim against said estate. That the second claim above named was, during the life- time of him, the said E , now deceased, fully paid off and discharged at its maturity; said payment having been made to the defendant S , and the same was not at the date of said allowance and approval a valid and subsisting claim against said estate. Plaintiff further says that the defendant A acted as the agent and attorney in fact of his co-defendant in the collection of said claims, and that by an agreement with them he was to have a contingent interest in said claims, if they should be collected; that said claims were allowed by him as administrator as aforesaid, while actins; as the ajrent ' CO of his co-defendant as aforesaid, and while having an inter- est in said claims; by reason whereof said allowance and approval of said claims was fraudulent, null and void. ^Wherefore, he prays that defendants be cited to answer this petition ; that he have judgment setting aside and an- nulling the allowance and approval of said claims of the de- 310 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§225. fendant S , and that he be ordered to pay the claim of this plaintiff in due course of administration, and for costs of suit, and for such other and further relief as he may be entitled to. See Henderson v. Ayres, 23 T. 96. §225. For foreclosure of mortgage by assignee of mortgagee against mortgagor ancT subsequent incum- brancers. ^That the defendant, C. D., for the purpose of securing the payment to one A. B. of the sum of dollars, with interest thereon, on or about the, etc., executed and deliv- ered to the said A. B. a bond bearing date on ifchat day, in the penalty of dollars, upon condition that the same should be void if the said defendant should pay to the said A. B. the said sum of money first above mentipned, which said bond and condition are in substance as follows, viz: (setting forth the bond and condition according to its legal effect). That, as collateral security for the payment of said in- debtedness, the said defendant on the same day executed, duly acknowledged and delivered to the said A. B. a mort- gage, whereby he granted, bargained and sold to the said A. B. the following described premises, with the appur- tenances thereto, that is to say (describing the premises), Avith the same condition as in the said bond ; and in case of default in the payment of said sum of money, or any part thereof, the said A. B. was empowered to sell the said mortgaged premises in due form of law, and out of the money arising from the sale to pay the said sum of money and interest, with the costs and expenses of the proceed- ings thereupon, the surplus to be returned to the mort- gagor. That the said mortgage was duly recorded in the office of the clerk of count}'', on the day of . That the said A. B., on or about the day of , by an instrument under his hand, for a valuable consider- 311 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§225. ation therein expressed, did duly assign, transfer and set over to the plaintiff the said bond and mortgage, and the moneys due thereon and secured thereby, and delivered said bond and mortgage to said plaintiff, which assign- ment was duly recorded in the office of the clerk of county, on the day of , in book, etc. And the said plaintiff further shows that the said de- fendant has failed to comply with the condition of the said bond and mortgage, by omitting to pay the sura of dollars, which became due on the da}^ of , and there is now justly due the plaintiff upon the said bond and mortgage, the sum of dollars, with interest from the day of . And the plaintiff further shows that he is informed and believes that the defendants, E. F. and G. H., have, or claim to have, some interest in or lien upon the said mort- gaged premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of said morto^ao;e. ^The plaintiff, therefore, prays that the defendants be cited to answer this petition, and that he have judgment for his debt, interest and costs of suit, and that defend- ants, and all persons claiming under them, be barred and foreclosed of all right, claim, lien and title in the said mortgaged premises ; that the said premises be decreed to be sold according to law; that the moneys arising from the sale be brought into court ; that the j)laintiff be paid the amount due on the said bond and mortgage, with interest to the time of such payment, and the costs and ex- penses of this suit, so far as the amount of such moneys properly applicable thereto will pay the same ; and that the defendant, C. D., be adjudged to pay any deficiency which may remain after applying all of said moneys so applicable thereto ; and that plaintiff have his execution therefor, and plaintiff prays for such other or further relief in the prem- ises as he may be entitled to. 312 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§225. To constitute a mortgauc, there must be a debt to be secured, and, while there ma}^ not be an express promise to pay, it must exist, and the vendee must have a right to recover the same. The relation of debtor and creditor must continue to exist after the execution of the instrument, or there is no mortgage. Alston V. Cundiff, 52 T. 453; Ruffier v. Womack, 30 T. 340; Hudson V. Wilkinson, 45 T. 444; Calhoun v. Lumpkin, 60 T. 1S5; Lessing t- Grimland, 74 T. 239; Scarbrough v. Alcorn, 74 T. 358; McCamant v. Eoberts, 80 T. 316. Property may be conveyed by deed, which will be con- strued as evidencing a conditional sale, and not a mortgage, though the consideration is the payment of a debt due from the vendor, with a condition for repurchase by paying the amount of the oriijinal debt and interest within a desijynated time. This occurs when it is intended and stipulated that the debt is paid by the conveyance. If the deed was in- tended merely as a security for the debt, it will be regarded as evidencing a morts^aije. If the deed recites in terms that the sale is conditional, the burden of proof is upon one who seeks to have it construed as a mortgage, and, to re- cover, he must so establish it with clearness and certainty. Miller v. Ytnria, 69 T. 549. A reservation of a power to sell in a mortgage is a cumu- lative remedy, for the benefit of the mortgagee, and the mortgagor cannot, on that ground, except to an action brouo-ht to foreclose. The reservation of a riirht to sell does not affect the character of the instrument. Morrison V. Bean, 15 T. 267; Harris v. Finberg, 46 T. 79; Blackwell V. Barnett, 52 T. 326; Goldfrank v. Young, 64 T. 432; Fievel v. Zuber, 67 T. 275. After the debt is barred, the remedy cannot be enforced by suit. But the mortgagor, in an instrument with power of sale, cannot restrain the execution of the power of sale on the ground that the remedy by suit is barred by limita- tion, on the well-recognized principle that he who seeks equity must do equity. Goldfrank v. Young, 64 T. 432; Fievel v. Zuber, 67 T. 275. 313 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§226. One who advances mone}' to pa}"- on a mortgage, under an agreement with the owner of the equity of redemption that it should be assigned to him as security for the money advanced, and takes a discharge of the mortgage, he is still entitled to be subrogated to the rights of the mort- gagee, and can have the discharge vacated. Fears v. Albea, 69 T. 437. When the mortgagee, by the terms of the instrument, is placed in possession of the land so mortgaged, the mort- gagor cannot recover possession after condition broken without payment of the debt secured thereby. In this case the mortgage was executed September 30th, 1833, and the heirs of the mortgagor brought an action of trespass to try title March 23d, 1887. Rodriguez v. Hnynes, 76 T. 225; and seeHaunay v. Thompson, 14 T. 144; Morrow V. Morgan, 48 T. 304; Calhoun v. Lumpkin, 60 T. 185; Brooks V. Young, 60 T. 82; Duke v. Reed, 64 T. 705. If the mortffao-ee hold under an absolute deed, but is not in possession, his remedy is not by an action of trespass to try title, but by an action to foreclose the mortgage. Edrington v. Newland. .o7 T. 627; Loving v. Milliken, 59 T. 423; Pratt V. Godwin, 61 T. 331; Ilirt v. Eppstein, 71 T. 752. § 226. For foreclosure of lien on land secured by deed of trust, against administrator and heirs. ^W. McW., a resident of the county of , in the state of , and I. N. M., a resident of the county of , in the state of , plaintiffs, complaining of E. M. C, M. C. and I. R. I., who reside in the county of aforesaid, and I. C, who resides in the county of , in said State of Texas, defendants, represent: ^That defendant, E. M. C, is the administratrix of the estate of I. I. C, deceased, late of the county of , duly appointed by the County Court of said county, and that administration on said estate is still open and pending in said court; that said defendant is also the widow of said I. I. C, deceased; that the said I. C. and M. C, who is 314 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§226. an infant of tender age and without any legally appointed guardian, are the children and sole heirs of the said I. I. C, deceased. That on or about the day of , a. D. 18 — , the said I. I. C. was indebted to the plaintiff, W. McW., in the sum of dollars, and to plaintiff, I. N. M., in the sum of dollars, both of which amounts were sev- erally due and payable on the day of , a. d. 18 — ; that on the day and year first aforesaid, the said I. I. C. executed and delivered to the defendant, I. R. I., his certain deed, commonly called a deed of trust, wherein he, the said I. I. C, after reciting his indebtedness to plaintiffs as above stated, and also reciting that said indebtedness was evidenced by the I. I. C.'s notes, of even date therewith, for the amounts respectively due plaintiffs, conveyed to the said I. R. I. a certain tract of land situated and bounded as follows: (here insert description), upon the followilig trusts, to-wit: the said I. R. I. was to permit the said I. I. C. to possess and enjoy the use and benefit of said land un- til default should be made by said I. I. C. in the payment of said two sums of money, or either of them, or any part thereof; and upon such default being made, the said I. R. I., as soon thereafter as he should think proper, or upon the request of plaintiffs, or either of them, should sell the said land to the highest bidder for cash, at public auction, after advertising the time and place of said sale as required by law ; and out of the moneys arising from said sale, after paying all necessary expenses, to pay plaintiffs the sums due them respectively, with interest thereon after the same became due, and to pay the balance, if any remained, to the said I. I. C. ; that by some neglect or inadvertance no note or notes were executed for the sums respectively due plaint- iffs by said I. I. C, as contemplated by the parties and re- cited in said deed of trust, and the recital therein is the only written acknowledgment and evidence of said indebted- ness; that afterwards, on or about the day of , A. D. 18 — , the said I. I. C. departed this life, without hav- 315 Cll. 24.] ACTIONS FOR EQUITABLE RELIEF. [§227. ing paid the sums respectively due plaintiffs, or any part thereof, and the same now remain due and unpaid ; and the said deed of trust now remains in full force and effect ; that afterwards, on or about the day of , a. d. 18 — , the claims of plaintiffs, duly authenticated, were presented to the defendant, E. M. C, administratrix as aforesaid, for acceptance and allowance, and the said defendant then and there refused to make in writing either an acceptance or a rejection of the same. ^Wherefore, your petitioners pray that defendants be cited to answer this petition ; that they have judgments for the amounts respectively due them and for costs of suit, and that their lien on said land be foreclosed, and that said judgment be certified to the County Court of county, sitting in matters of probate, to be there enforced accord- ing to law; and for such other and further relief as they may be entitled to. §227. To recover a debt and foreclose a mortgage given to secure its payment. ^That heretofore, to-wit: on the day of a. d, 18 — , the defendant, CD., executed and delivered to plaint- iff his promissory note in writing, bearing date on the day and year aforesaid, and thereby promised plaintiff to pay to him or his order, on or before the day of ;-, 18 — , the sum of , with legal interest thereon from the date of said note. That on the day and year first aforesaid said defendant, for the purpose of securing the payment of said note, ac- cording to its tenor and effect, executed and delivered to plaintiff a mortgage deed, a copy of which, marked Exhibit A, is herewith filed as a part of this petition, by which he conveyed to plaintiff a certain tract of land situated in the county of , bounded and described as follows: (Here insert a description of the land.) 316 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§228. That said morto:a2;e deed was, on the day of its execution as aforesaid, duly recorded in the records of deeds and mort- gages in said county of . That defendant has failed to perform the covenants on his part to be performed, and although often requested, has not paid said sum of money mentioned in said note, or any part thereof, and the sum of dollars, and all inter- est thereon, remains due and unpaid. That the defendants, E. F. and G. H., are now in posses- sion of said land, claiming title thereto by a deed of convey- ance from and under the defendant, C. D., executed and delivered to them after the execution and registration of said mortgage deed to plaintiff as aforesaid, to-wit : on or about the day of , 18 — , of which said defend- ants then had notice. ^Wherefore, plaintiff prays that said defendants be cited to answer this petition, that plaintiff have judgment for his debt, interest and costs of suit, and for the foreclosure of his lien, and that said land, or so much thereof as may neces- sary, be sold to pay off and discharge the judgment herein rendered against the said C. D., and that the sheriff, or other officer executing said execution and order of sale, be directed to place the purchaser of the land so sold under said judgment in possession thereof within thirty days after said day of sale, and in case the proceeds of said sale shall be insufficient to satisfy said judgment, to make the money, or any balance thereof remaining unpaid, out of any othei property of defendants, as in case of ordinary execution. And plaintiff further prays for general and equitable relief. § 228. To foreclose a deed of trust, the trustee having died. ^That heretofore, to-wit: on or alwut the day of , 18 — , the defendant, A. B., being justly indebted to plaintiff, executed and delivered to him his certain promis- sory note for the sum of dollars, payable two years 317 Cb. 24.] ACTIONS FOR EQUITABLE RELIEF. [§228. after the date thereof. That defendant further agreed to pay plaintiff interest on said principal sum at the rate of per cent, per annum, and then and there executed and de- livered to plaintiff his four other promissory notes, bearing the same date as the note first above mentioned, and being each for the sum of dollars, payable respectively at six, twelve, eighteen and twenty-four mouths thereafter. That by reason of the premises the defendant, A. B., be- came liable, and promised to pay plaintiff's said several notes above mentioned, according to their tenor and eifect. That to secure the payment of said notes the defendant, on the same day, executed to one C. D. a certain instrument in writing, commonly called a deed of trust, a copy of which is hereto attached, marked Exhibit A, and made a part of this petition, whereby he conveyed to said C. D. the fol- lowing described premises, to-wit: (describe premises). That said instrument among other things contained the following covenants, to-wit: (Here insert the covenants as to the whole sum becoming due in case of failure to pay any interest note). Plaintiff further alleges that the first interest note was paid at maturity, and the same was canceled and surren- dered to the defendant; that the second interest note had long since become due and is still unpaid, and that upon the default in said payments plaintiff elected to deem the whole principal to become immediately due and payable, of which defendant had notice. That the defendant, G. H., has or claims some interest or lien upon the premises above mentioned, but what his in- terest is, and what is the character of his lien, plaintiff has no knowledge or information. That the said C. D., named as trustee in said deed of trust, is dead. Plaintiff now alleges that said first mentioned note and interest thereon from the day of , 18 — , is now due and unpaid, and that the defendant, A. B,, is justly indebted 318 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§229. to bim in said sum of dollars, with interest thereon from the day of , 18 — , at the rate of 7- per cent, per annum, and plaintiff now brings into court said several notes for interest as above alleged, and surrenders the same. §229. To redeem, by grantee of the equity of redemp- tion. ^That on the day of , 18 — , plaintiff purchased from defendant, C. D., the following described tract or parcel of land, situated in said county, to-wit: [Jiere de- scribe property^ ', that on said date said defendant, C. D., was the owner of the equity of redemption in said land, having before said date, to-wit : on the day of , 18 — , by his deed of trust of that date, duly executed and delivered, conveyed said premises to defendant, G. H., in trust to secure to defendant, O. P., a certain promissory note for dollars, in said deed of trust described; that said deed of trust contained the following provisions ant", covenants, to-wit: \Jiere insert any of the provisions of the deed of trust necessary to enable the court to determine lohat plaintiff must do to redeem. ~\ Plaintiff further alleges that he is informed and verily be- lieves that said note so as aforesaid secured by the deed of trust from defendant, C. D., to defendant O. P.'s trustee, was, by said O. P., assigned to defendant, R. S., and that said R, S. claims now to be the legal owner and holder thereof, and further claims that said note has not been paid according to its tenor and effect, and that the same consti- tutes a lien upon the premises above mentioned : but plaint- iff says that he does not know whether or not such is the fact, nor what amount, if any, is justly due upon said note, whether as principal or interest, or both. Plaintiff further alleges that said defendant, R. S., claims that he was compelled to pay, and did pa}'^, certain sums of money to remove and take up certain liens and incum- brances upon said premises which existed and were prior liens 319 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§229. to the deed of trust hereinbefore mentioned, and that under the terms of said deed of trust he is entitled to repayment of said sum so expended by him, together with interest thereon at the rate of per centum per annum from the respective dates when such payments were made; but phiintiff states that he has no knowledge nor any informa- tion sufficient to enable him to form a belief whether any such liens or incumbrances have in fact been removed or taken up by said R. S., nor what amounts, if any, he has paid for such purpose, nor the dates on which such pay- ments, if any, were made. Plaintiff alleges that he is desirous of removing the said incumbrance and freeing the property above described from the lien thereof, and is ready and willing, and here offers, to pay whatever sum is due under and by virtue of said note and deed of trust, if anything there be so due, and to pay the same to whomsoever is entitled thereto ; and he is further ready and willing, and here offers to repay and reimburse said defendant, R. S., or any of the parties defendant, any sums of money legally and properly ex- pended by them, or any of them, under and in accordance with the provisions of said deed of trust, with interest thereon, from the respective dates when such payments, if any, were made; and plaintiff stands ready to comply with all of the terms, conditions, provisions and covenants in said deed of trust contained, and wliich were to be per- formed upon the part of said defendant, C. D., his grantor. Plaintiff further says that said defendant, R. S., has taken possession of said premises, and claims to hold the same as mortgagee in possession after default. But plaint- iff states that no sale has ever been made under and in pur- suance of said deed of trust, and that the title to the same is good and valid in plaintiff, subject to any incumbrance mentioned in or growing out of said deed of trust. Plaintiff further says that since said defendant, R. S., has been in possession of said premises, he has committed 320 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§229. and suffered waste therein and thereon, in the manner fol- lowing, to-wit : l_here state the loaste committed. ~\ Plaintiff states that he is unable to state the amount of damages caused by said waste, but from the best information he can obtain he verily believes that such damage exceeds in amount the sum or sums due to said R. S. under the provi- sions of said deed of trust. And plaintiff further says that said R,. S., during the time that he has had possession of said premises aforesaid, has received rents and profits there- from, but to what amount plaintiff is unable to state. ^Wherefore, plaintiff prays that the defendant be cited to answer this petition, and that an accounting be had to ascertain : First. Whether anything, and, if so, how much, re- mains to be paid in satisfaction of said deed of trust and the indebtedness secured thereby, and for the removal of the lien and incumbrance thereof from the property therein described and conveyed; and whether any, and, if so, what sums have been legally and properly laid out and expended by defendant, R. S., or any of the defendants, to remove prior liens and incumbrances from said property, or for any other purpose coming within the provisions of said deed of trust. Second. What is the reasonable rental value of the premises above described, and what rents and profits have been received from the same since they have been in the possession of said defendant, R. S. Third. What waste has been committed or suffered by said defendant, R. S., or any one claiming under him, and what is the value of \any property removed from the prem- ises^, and what damages have been suffered by plaintiff in consequence of the waste so as aforesaid committed by said defendant. Fourth. That if it be found that the aggregate sum nee- essary to satisfy said deed of trust, and to remove the in- cumbrance thereof, and to repay all sums expended as (21— Plead. Forms.) 321 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§229. aforesaid, is greater than the aggregate amount of the rents and profits of said premises during the time the hit- ter have been in possession of said defendant, R. S., and of the damages suffered or committed by said R. S., during his occupancy thereof, and that there is a bahuice due said R. S., then that it be ordered and decreed that upon pay- ment by phiintiff, or any one for him, of such balance re- maining due under said deed of trust, the said deed of trust shall be satisfied, and plaintiff shall hold said land free from the lien and incumbrance thereof; and plaintiff here offers to pay the balance which shall be so found to be due, if any. Fifth. If it be found that the rents and profits of the said premises during the time they have been in possession of said defendant, R. S., together with the damages result- ing from the waste committed or suffered by said defend- ant, amount to a sum greater than the aggregate amount due under said deed of trust, and the sums laid out and ex- pended as aforesaid by said defendants, or either of them, then that judgment be rendered against the said R. S. for such excess. Sixth. That upon payment by plaintiff to the holder of said note of the balance, if any, which shall be adjudged to be due and payable under thb terms of said note and deed of trust, or in case it shall be found that nothing re- mains to be paid thereon, but that the aggregate of the rents and profits and damages for waste is equal to or greater than the aggregate amounts due under said note and deed of trust, then, and in either such case, the defend- ant, R. S., be ordered and decreed to deliver up to plaintiff the possession of said premises, free and clear of claim on the same, and of all lien and incumbrance thereon. Seventh. That defendants, G. H. and R. S., or any one holding or claiming to own said note, be enjoined and re- strained from selling said property, or any part thereof, under said deed of trust, and that the costs of this proceed- 322 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF.. [§230. ing be adjusted as in equity and good conscience shall be just to all parties concerned. And plaintiff prays for such other and further relief as to the court shall seem meet and just in the premises, and for general relief and costs of suit. § 230. By mortgagor to redeem, ^vhere mortgagee refuses to accept payment of debt. ^Plaintiff states, that on the day of , 18 — , he executed his certain deed of trust, recorded in the office of the county clerk of county, in book , page , of the, etc., of mortgages and other liens, whereb}^ he con- veyed to one R. S. the following described premises, to-wit: \here describe the mortgaged premises'] ; that said convey- ance was in trust to secure the payment to defendant of certain promissory notes in said deed of trust described, and \_state any other provisions and conditions contained in the deed of trust to he performed by the mortgagor] . Plaintiff states, that he has performed all the conditions in said deed of trust contained, and by him to be performed ; that he has paid all the interest on the notes secured by said deed of trust, and when the principal note became due, to-wit: on the day of , 18 — , he tendered to de- fendant the said sum of dollars [o?*, if tender was made after maturity, say: that on the day of , 18 — , said principal note having before that time matured, plaintiff tendered to defendant the sum of dollars, being the principal of said note, together with all interest and costs due up to the day when such tender was made] ; but defendant refused to receive the same, or to deliver up said deed of trust, or to enter satisfaction or execute a re- lease thereof, though duly requested thereto by this plaintiff. ^Wherefore, plaintiff prays that defendant be cited to answer this petition, that an accounting be taken of the amount due defendant on said promissory note for priu- 323 Ch. 24.] ACTIONS FOR EQUITAULE RELIEF. [§231. cipal, interest and costs, and that plaintiff be permitted to redeem said premises from the lien and incumbrance of said deed of trust upon payment of whatever sum may be found justly payable to defendant, which amount plaintiff is here ready and willing, and offers to pay ; and further, that defendant, upon payment thereof, be ordered to acknowledo:e satisfaction of said mortcrase on the maro-in of the record thereof, or execute to plaintiff a good and suffi- cient deed of release thereof, and for such other and further relief as the court shall deem meet and just in the premises. §231. To wind up a partnership. ^That on the day of , 18 — , by articles of part- nership of that date, plaintiff and defendants formed a partnership for the purpose of \^set out the business^ , to continue for years from said date. Said articles of partnership are herewith filed, marked Exhibit A., and made a part of this petition. That plaintiff and the defendants entered into the bus- iness contemplated in said articles, and have from said date to the present carried on the same ; that they now own the lease of the premises in which said business was carried on, to-wit: No. , street, in the city of , and a large and valuable stock of goods therein ; that there is- also due to said partnership a large amount of indebtedness both on notes and open accounts, and said partnership also possesses a valuable good-will, all of which are of far greater value when taken together than if separated. And plaintiff states that no division of the assets and good-Avil) of said partnership can.be made without great loss and detriment to all the partners, and that the only equitable manner of making a division of the partnership assets is by a sale of the whole together, and of a division of the pro- ceeds between the plaintiff and defendant.?^ according ta their respective interests. 324 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§232. That on the day of , 18 — , defendant, C. D., without the knowledge or consent of pLiintiff, and, as plaintiff is informed and believes, without the knowledge and consent of his co-defendant, E. F., did, by an instru- ment in writing, assign and transfer to the defendant, R. S., all his, the said C. D.'s, interest in said partnership, and all his right and title to any and all property belonging to said firm, which said assignment and transfer operated to dissolve said partnership. ^Plaintiff, therefore, praj^s that defendants be cited to answer this petition, that said partnership be adjudged dis- solved, that a receiver be appointed of the property, rights and good-will of said partnership, with power to collect and dispose of the same for the benefit of all the parties in interest, and that after the payment of all the just debts of the partnership, and of the costs and expenses of this action, and of the said receivership, the proceeds be divided between the parties hereto, according to their respective rights, and for such other and further relief as to the court shall seem meet and just. §232. To wind up a partnership by administratrix of deceased partner. ^That said H. T., and the defendant, G. L. E., entered into an agreement to form a partnership as traders and merchants in the city of , under the firm name of IL T. & Co., which agreement was reduced to writing and signed by said partners, and is in substance as follows, to-wit: (set forth the agreement according to its legal effect. ) That the said co-partnership business was entered upon pursuant to said agreement, and was carried on under and pursuant to the same, up to the time of the death of said H. T., which occurred on, etc. That said H. T., in his lifetime, and during the contin- uance of said co-partnership, advanced large sums of money 325 Cll. 24.] ACTIONS FOK EQUITABLE RELIEF. [§232. towards the capital stock of said partnership, and that said firm, during all the time of the continuance of said partner- ship, carried on an extensive and lucrative business in the buying and selling of iron, and articles manufactured of iron, and realized large profits therefrom, the amount of which the said plaintiff has not been able accurately to ascertain, and cannot with certainty state. That at the time of the death of said H. T. there was on hand a large amount of personal property, consisting of stock on hand of the estimated value, at cost prices, as per inventory of the same, taken on the day of , 18 — , of about dollars; stock, furniture and fixtures of store, of the estimated value of dollars ; real estate situated in the counties of and , of the estimated value of about dollars; bills receivable and ledger balances, and accounts of the aggregate amount of about dollars, making the whole amount of the real and per- sonal property, and nominal assets of said co-partnershij^, at the time of the death of said H. T., about dollars, and that the debts and liabilities of said concern amounted to about the sum of dollars, and that the balance, deducting therefrom the bad and allowing for the doubtful debts, and also depreciation of property, etc., represented the then present worth and value of said concern, amount- ing, to the best of the knowledge, information and belief of said plaintiff, to not less than the sum of dollars. That, as plaintiff is informed and believes, at the time of the death of said H. T. he was in advance of his co-partner in drawing out of said concern about the sum of dol- lars, and that after allowing said defendant to equalize his individual account in that amount, the said defendant and said H. T., under their said partnership agreement, were each entitled to share one-half in the capital stock, profits and then present value of said concern, after the payment and discharge of its debts and liabilities, as aforesaid. 326 Ch. 24.] . ACTIONS FOR EQUITABLE RELIEF. [§232. That after the death of said H. T, the said defendant continued, individually, and still continues, in the posses- sion of said store, stock, personal property and choses in action, except as hereinafter stated, and to manage and carry on said business, and has so continued down to the present time, and continued to sell and dispose of said stock, and collect said debts and choses in action, and to pay the debts and liabilities of said concern, as they became due, out of the avails of said concern. That an inventory was taken of said stock, under the di- rection of said defendant, as of the day of, etc., which amounted in the aggregate, estimating the value of the ar- ticles at prime cost, to the sum of dollars, and that de- ductincr therefrom merchandise sold while taking:; said in- ventory, and between said day of, etc., and the day when said inventory was completed, and certain unimport- ant errors in price, said inventory amounted to the sum of dollars ; and the said defendant took said goods and merchandise so remaining on hand, to-wit: on, etc., pur- suant to the terms of said agreement, and charging him- self with the amount thereof (after making such deduc- tions) at the said sum of dollars. That said stock thereupon became, and was and is, the property of said defendant, under and pursuant to the terms of said co-partnership agreement, and that in his ac- counts with said firm said defendant is justly chargeable with said sum of dollars, or such additional sum as will equal the whole prime cost of said stock at the time of the death of said H. T. That said defendant, since the death of said H. T., has collected large sums of money out of the assets and choses in action of said concern, the amount of which the plaintiff is not able to state and does not know, which amounts are justly chargeable against said defendant in his accounts with said concern ; and that the aggregate amount so col- '' COO lected by the defendant, and amount of stock on hand so 327 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§232. received and taken by him, nearly or quite equals, and, as the plaintiff believes, exceeds the amount of the debts and liabilities of said co-partnership as aforesaid. That said defendant represents that said debts and liabil- ities have been mostly paid and discharged by him, for which amount so actually paid and discharged by him he is entitled to be credited in his accounting with said concern. But plaintiff alleges that she has no knowledge or infor- mation sufficient to form a belief (except from said repre- sentations of said defendant), whether or not said debts and liabilities have been mostly so paid and discharged, nor what portion nor what amount of the same have been so paid and discharged. That said defendant has not paid over to said plaintiff, as administratrix, etc., any moneys or other proceeds of said co-partnership since the death of said H. T., except the sum of dollars in the aggregate ; nor, in addition there- to, has he assigned, transferred or delivered over to her any of the assets, securities or other property of said co- partnership. That all of the property, bills, notes, book accounts, and other assets of said co-partnership, are in the possession of and under the sole control and management of said defend- ant, and that he has been and still continues collecting the said notes and accounts, and reducing said property to money as fast as the same can conveniently be done, at his own discretion, and without accounting to the plaintiff there- for. That recently, and within a few weeks last past, the said defendant has become embarassed in business, and, as plamtiff is informed and believes, is insolvent, and has refused payment of all his business paper and obligations now falling due, and that a large amount thereof is now due and unpaid. That on account of the embarassment and insolvency of said defendant, he is not in a condition to give any security for the payment to said plaintiff, as the representative of 328 Cb. 24.] ACTIONS FOR EQUITABLE RELIEF. [§ 232. said H. T., deceased, of the value of the interest of said H. T. in said co-partnership. That phiintiff has requested of said defendant a state- ment and account of said co-partnership transactions, which he, the defendant, refused to give, and has requested him to settle and wind up the affairs of said co-partnership in the manner specified in said contract, which he has neg- lected to do, though a reasonable time has long since elapsed. ^Wherefore, the plaintiff prays that defendant be cited to answer this petition, and that an account be taken of all and singular the said co-partnership dealings and transac- tions from the time of the commencement thereof to its dissolution by the death of said H. T., and an account of the moneys received and paid by the said partners re- spectively in regard thereto; and also that the said de- fendant account with the plaintiff for all and singular his dealings with and transactions in regard to the property, assets and effects of said firm since its dissolution, and the property sold or disposed of by him, either as surviving partner or otherwise, and of the moneys collected and re- ceived and paid out by him on account thereof; and that the defendant be adjudged to pay the plaintiff, administra- trix, what, if anything, shall upon the taking of the said accounts appear to be due her as administratrix, etc., of said deceased partner; the said plaintiff, as administratrix, etc., being ready and willing and hereby offering to pay the defendant what, if anytliing, shall appear to be due him on such accounting ; and that some proper person be appointed receiver, with the usual powers to take into his possession and receive the property and effects of said late co-partner- ship, and to collect and receive all moneys which may be coming to the credit of said late co-partnership; and that in the meantime the said defendant be restrained, by order of this court, from disposing of or in any manner interfering with the property and effects of said concern, or from col- lecting or receiving the co-partnership debts or other 329 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§ 233. moneys coming to said concern, or for such other and further relief as the court shall deem just and proper, with costs of suit. When a temporary injunction has been dissolved by an interlocutory order on an answer denying the equities of the petition, the plaintiff is entitled to a trial upon the merits, unless the right is expressly waived, and it is error to dis- miss, though the plaintiff make no request for a trial on the merits. Love V. Powell, 67 T. 15, citing Fulgham v. Chevallier, 10 T. 518; Burnley v. Cook, 13 T. 586; Dearborn v. Phillips, 21 T. 449; Pullen v- Baker, 41 T. 419; Texas Land Co. v. Turinan, 53 T. 623. The following cases are overruled : Lively v. Bristow, 12 T. 60; Sims v. Redding, 20 T. 386; Baldridge v. Cook, 27 T. 565; Gaskins v. Peebles, 44 T. 390; Clcgg v. Darragh, 63 T. 357, and see Hale v. McComas, 59 T. 484. The qualification of the rule as stated in Texas Land Co. V. Turman, 53 T. 623, is not recognized. And so, when a petition contains sufficient allegations to entitle the plaintiff relief, but is not properly verified, it will be held for hearing on the merits. Gaskins v. Peebles, 44 T. 390; Eccles v. Daniels, 16 T. 136; Edring- ton V. Allsbrooks, 21 T. 188; Pullen v. Baker, 41 T. 419; Washington County V. Schultz, 63 T. 32. § 233. For an accovint of partnership dealings after dissolution, etc. ''That on or about, etc., the plaintiff and defendant en- tered into co-partnership together as (stating generally the business), the plaintiff engaging to bring into the business the sum of dollars, and being entitled to receive one- third part or share of the profits, and the defendant engag- ing to bring into the business the sum of dollars, and being entitled to receive two-third parts or shares of the profits. That the plaintiff accordingly brought into the business the said sum of dollars, and the defendant brought into the business the said sum of dollars. 330 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§233. That said co-partnership was carried on and continued until the day of , Avhen the same was dissolved by mutual consent. That the said co-partnership business was carried on in a building in , which at the time of the dissolution of said co-partnership was held by said partners under an agreement for a lease for years from , and it was verbally agreed between said partners that the defendant should take to himself the benefit of said agreement, accounting to the plaintiff for his proportion of the value thereof; and in pursuance of such agreement the defendant has ever since continued and now is in possession of said building. That no settlement of the co-partnership accounts has ever been made between the plaintiff and defendant, though the plaintiff, since the dissolution, has repeatedly applied to the defendant to come to a final settlement with respect thereto, which the defendant refuses to do. That the defendant has possessed himself of the partner- ship books, and has refused, and still refuses, to permit the plaintiff to inspect the same, and has also refused to render the plaintiff any account of the co-partnership moneys re- ceived by him. That the plaintiff since dissolution has paid the sum of dollars on account of the partnership debts. And the plaintiff alleges, on information and belief, that, upon a true and just settlement of said accounts, a consid- erable balance, viz. : the sum of dollars, is due from the defendant to the plaintiff in respect of their said co- partnership dealings ; but that, nevertheless, the said defend- ant is proceeding to collect the said co-partnership debts, and to apply the same to his own use, which he is enabled to dx) by means of his possession of the books of account as aforesaid. ^Wherefore, the plaintiff prays that defendant be cited to answer this petition, and that an account be taken of all and every the late co-partnership dealings and transactions; 331 Cll. 24.] ACTIONS FOR EQUITABLE RELIEF, [§234. and that the said defendant be adjudged to pay to the phiint- iff what, if anything, shall appear upon such accounting to , be due from him, the plaintiff being ready and willing, and hereby offering, to pay to the defendant what, if anj-thing, shall appear to be due to him from the said joint concern ; that some proper person be appointed to receive and collect all moneys that may be coming to the credit of said late co- partnership, and that the defendant in the meantime be re- strained, by order of the court, from collecting or receiving any of the debts due and owing thereto ; and plaintiff prays for costs of suit, and for such other and further relief as he may be entitled. (Add verification.) § 234. Petition in intervention. XT N ' / Suit pending in the ^^' w ^' S ^^®^^'^^* Court, county. ^ And now comes E. F., and says that he has an interest in the matter in controversy in the above entitled suit, and has a cause of action against the parties thereto, in this, that heretofore, to-wit : on or about the day of , 18 — , the plaintiff, H , instituted this suit against the defend- ant, W , for the recovery of the sum of dollars, alleged therein to be due and owing to the said H . That on the same day, upon the application of the plaint- iff in said suit, a writ of attachment was issued therein, and was afterwards, to-wit: on the day of , 18 — , levied on a stock of goods, wares and merchandise, the prop- erty of the defendant, W . That afterwards, by virtue of an order of the judge of this court, made in chambers, the goods, wares and merchandise seized under said writ of attachment were sold by the officer to whom said writ was directed, and the net proceeds thereof, to-wit: the sum of dollars, were paid into the registry of this court. That at and before the commencement of said suit, to-wit: on the day of , 18 — , the defendant, W , was 332 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§234. and now is justly indebted to this intervener in the sum of dolhirs. (Here set out the indebtedness, as in an action thereon.) That on said day this intervener instituted his suit in this court against said W for the recovery of said indebt- edness, and sued out a writ of attachment thereon, which was afterwards, to-wit: on the day of , 18 — , levied on the stock of goods, wares and merchandise, the property of the defendant, W , being the same goods, wares and merchandise upon which the writ of attachment first heretofore mentioned was levied. . That by reason of said levy, this intervener has acquired a lien upon said goods, wares and merchandise, and upon the proceeds of said sale heretofore mentioned and now re- maining in the registry of this court. And this intervener now alleges that the suit of H against W , hereinbefore mentioned, was and is collu- sively instituted and prosecuted by said H at the special instance and request of the defendant, W , with intent to hinder and defraud the creditors of the said W , and especially this intervener, of his lawful demands, all which was known to said H . That the claim mentioned in said suit and upon which said action is based, was not at the time of the institution of said suit, and is not now, a just, valid, or legal claim againstthe said W , but then was and now is wholly, or in a large part, fictitious, pretended and colorable only, and was and is not based upon any valid or legal consideration. And plaintiff says that the claim of said H was con- trived and sued upon with the intent and purpose, on the part of the plaintiff, and by collusion with the defendant, to protect said defendant from his debts, and thereby hin- der, delay and defraud this intervener of his just debt, due and owing to him by said W . ^Wherefore, plaintiff prays that he be allowed to inter- vene in said suit, that the suit now pending in this court, eu- 333 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§234. titled on the docket No. , J v. TY , be consol- idated with said suit'; that lie have judgment against W for his debt and the foreclosure of his attachment lien ; that said judgment have priority of payment over any judgment rendered in said suit in favor of said H , out of the money aforesaid now in the registry of this court, and out of any property or effects of the said W . And the intervener further prays for costs of suit, and for general and equitable relief. It is a general rule that a person having an interest in the subject matter in litigation may intervene, in a pending iuit between third parties, to protect that interest. Graves v. Hall, 27 T. 148; Mussina v. Goldthwaite, 34 T. 125; Nix V. Dukes, 58 T. 96; Cook v. Pollard, TOT. 723. In ordinary attachment suits, third persons claiming an interest in the property attached and not in the subject matter of the suit, cannot intervene in the main action for the purpose of asserting their right to the attached prop- erty. Carter v. Carter, 36 T. 693; Rodrigues v. Trevino, 54 T. 19S; Ryan V. Goldfrank, 58 T. 356. To entitle a party to intervene, his interest, legal or equi- table, must be such that, had the original action never been commenced, and the intervener had brought the suit la his own name as sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought, or, had the action been brought as^ainst him as a defendant, he would have been able to defeat the recovery, in part at least. Pool V. Sanford, 52 T. 621 ; Smalley v. Taylor, 33 T. 668; E^cles v. Hill, 13 T. 65. One who, pending a suit involving property, purchases at a trust sale the interest of one of the parties in that prop- erty may intervene in the suit. Fleming v. Seeligson, 57 T. 524. While one acquiring an interest in property pending liti- gation in regard to it is bound by its result, the ruk has no 334 Cll. 24.] ACTIONS FOR EQUITABLE RELIEF. [§234. application iii a case in which the judgment is rendered through collusion between the parties in a cause of action having in part or in entirety no real existence. Kippetoe v. Dwyer, Go T. 707; Wolf v. Butler, 81 T. 86. And SO, when facts existed authorizing an intervention in a pending suit, the failure to intervene will not conclude the rights of a lis pendens purchaser, when he did not know the necessity for such intervention, and the facts were with- held by the parties alleged to have collusively agreed upon a judgment not authorized by the facts. Wolf V. Butler, 81 T. 86. An attaching creditor may intervene in a suit where a prior attachment has been levied in the interest of another, for the purpose of protecting his interest in the property seized under both attachments, provided that he can show that the older attachment is based on a fraudulent demand, or one having no existence. But he cannot thus intervene for the purpose of defeating the prior attachment on the ground of mere irregularities in the proceedings. Xenney v. Schluter, 62 T. 327; Johnson v. Heidenheimer, 66 T. 263; Cook V. Pollard, 70 T. 723; Goodbar v. National Bank, 78 T. 461. It has been held that a fraudulent diversion of a debtor's property may be as effectively accomplished by a collusive suit as by a direct transfer. To prevent the illegal results of such suits, a subsequent attaching creditor is permitted to intervene in the case and protect his interest in the attached property by showing that the plaintiff's demand is fictitious. If he has no interest in the particular property, he has no right to interfere with his debtor's disposition of it, unless he shows that he has no other means of satisfying his demand, and this is generally shown by an exhaustion of his legal remedies. But if he has a lien upon the p-ar- ticular property, as by subsequent attachment, a right to intervene is given by his lien. In the former case he must allege the insolvency of his debtor. When his right is secured by a lien, he is not re- 335 Ch. 24.] ACTIONS FOR EQUITABLE RELIEF. [§234. quired to allege the insolvency of the debtor. The subject of the lien is his primary source of satisfaction, and he is not required to show that no other source exists. Johnson v. Heidenheimer, 65 T. 263; Wolf v. Butler, 81 T. 86; Nenney V. Schluter, 62 T. 327; Nix v. Dukes, 58 T. 96. Partners by consent dissolved, P. taking the stock and assuming the firm debts. He made a note to S., the out- going partner, for the balance of the purchase money due. The sale was public, and the change of the firm was made known to its creditors. The outgoing partner, on maturity of his note, brought suit against P., and attached property. F., a firm creditor, intervened and obtained judgment against both parties, and decree for sale of the attached property. It was held, that partners may by agreement convert partnership assets into the separate property of one partner, and, when this is done, the right of the retiring partner to have the jDroperty subjected to the payment of firm debts as it before existed ceases, and with the cessation of his right goes every right in the nature of a lien held by a former creditor through him. It was accordingly held that a creditor of the firm could not intervene in a suit brought by S. against P. on the note above mentioned, in which an attachment had been issued and levied upon the partnership stock in the possession of P., the creditors having no liens thereon. Stansell v. Fleming, 81 T. 294. 336 Ch. 25. — Answers, Including Exceptions ash Pleas. §234. Exception to the jurisdictioa of the court. 235. Exception to the capacity of plaintiff to sue alone. 236. Exception for non-joinder of parties plaintiff. 237. Exception for misjoinder of defendants. 238. Exception for non-joinder of a party as defendant. 239. Exception for want of certainty in tlie petition. 240. A general exception. 241. Plea to the jurisdiction. 242. Plea of privilege to be sued in a particular county. 243. Plea of plaintiff's coverture. 244. Plea of defendant's coverture. 245. Plea of non-joinder of a party defendant. 246. Plea of pendency of another suit. 247. Plea of general denial. 248. Plea of infancy of defendant, who is still a minor. 249. Plea of coverture of defendant. 250. Plea of former judgment. 251. Plea of account stated and execution of defendant's promis- sory note. 252. Plea of release. 253. Plea of release by composition deed. 254. Plea of counter-claim. 255. Plea of counter-claim in a suit by an administrator. 256. Plea of tender. 257. Plea of accord and satisfaction after suit brought. 258. Plea of accord and satisfaction by delivery of i)roperty. 259. Plea of accord and satisfaction by payment of money. 260. Plea of non est factum. 261. Plea of failure of consideration. 262. Plea affirming the truth of the matter charged to be libelous. 263. A general and special exception, and pleas of general denial, payment, limitation of three months, and plene administravit. 263a. Exception and plea of limitation. § 234. To the jurisdiction of the court. A. B. No. — . V. C. D. And now comes the defendant and excepts to plaintiff's petition, and says that the same is insufficient in law, be- (22— Plead. Forms.) 337 Ch. 25.] ANSWERS. [§§235,236. cause it appears therefrom that the matter in controversy, exchisive of interest, amomits in vahie to less than dollars, and that this court has no jurisdiction of the sub- ject matter of this suit. Wherefore, he prays judgment of the insufficiency of said petition, and that he be dismissed with his costs, etc. Constitution, Art. 5, Sees. 8, 16. §235. To the capacity of plaintiff to sue alone. A. B. No. — . V. ■ C. D. And now conies the defendant and excepts to plaintiif's petition, and says that the same is insufficient in law, be- cause it appears therefrom that plaintiff is a married woman, having a husband living. Wherefore, etc. Civ. Stat. Ai-t. 1204; see post, § . § 236. For non-j cinder of parties plaintiff. A. B. V. C. D. The defendant excepts to plaintiff's petition, and says that the same is not sufficient in law, because it appears that one E. F. is jointly interested with the plaintiff in the subject matter of this suit, and is a necessary party thereto. Where- fore, defendant prays judgment that suit be dismissed for want of parties and for costs of suit. See Denison v. League, 16 T. 390, 408,409; Speak v. Prewitt, 6T.252; Stacbely v. Peirce, 28 T. 328. The improper joinder of persons as plaintiffs is ground for a plea in abatement, and if apparent from the allega- tions, the petition is subject to an exception on that ground. T. C. Ry. Co. V. Burnett, 61 T. 638; Telegraph Co. v. Cooper, 71 T. 507. 338 Ch. 25.] ANSWERS. [§§237-240. §237. For misjoinder of defendants* A. B. V. C.D.etaL The defendant C. D. excepts to plaintiff's petition, and says that the same is insufficient in law, because it appears therefrom that he is improperly joined as defendant with the defendant E. F. Wherefore, etc. § 238. For non-joinder of a party as defendant. A. B. C. D. The defendant excepts to plaintiff's petition, and says that the same is insufficient in law, because it appears therefrom that another person, to-wit: , who resides in the county of — , Texas, should be joined as defendant. Wherefore, etc. § 239. For want of certainty in petition. A. B. V. C. D. The defendant excepts to plaintiff's petition, and says that the same is insufficient in law, because, 1st, it does not set out the facts constituting the cause of action with sufficient certainty. 2d. It does not allege when the plaintiff's cause of action accrued. Wherefore, etc. When an exception to a pleading is sustained on the ground that certain allegations are irrelevant, and proper allegations are intermingled with irrelevant allegations, the pleader, if he desires to retain them, must restore them by a trial amendment. Simmons Hardware Co. v. Kaufman, 77 T. 131. § 240. A general exception. And now comes the defendant, and excepts to plaintiff's petition that the same shows no cause, and of this he prays the judgment of the court, etc. 339 Ch. 25.] ANSWERS. [§241. When ca petition is defective in matter of substance and on the facts alleged, the plaintiff is not entitled to judg- ment. On a proper motion therefor, the judgment will be arrested and the case will occupy the position it held before the trial commenced. The sufficiency of the petition on this motion is tested by the substantial merits of the cause of action, and not bv the manner in which they are stated in the petition. The ver- dict or judgment cures defects, imperfections or omissions in the petition, whether of substance or of form, if the issue joined be such as requires proof of the facts imperfectly stated or omitted, but it will not aid a statement of a de- fective title or cause of action. Denison v. League, 16 T. 399; Machon v. Randle, 66 T. 282; Perez v. Everett, 73 T. 431; Smith v. Sherwood, 2 T. 460; DeWitt v. Miller, 9 T. 239; Williams v. Warnell, 28 T. 610. § 241. Plea to the jurisclictioii. And now comes the defendant, by attorney, and says that the matter in controversy, as alleged in the plaintiff's peti- tion, amounts in value, exclusive of interest, to less than the sum of dollars, to- wit: the sum of dollars, and that the same is exclusively cognizable before a justice of the peace ; and that plaintiff has falsely and fraudulently alleged the matter in controversy to amount to the sum of dollars, as mentioned in his said petition, for the pur- pose of giving this court jurisdiction ; and this he is ready to verify. Wherefore, he prays judgment whether this court can or will take further cognizance of this suit. , Defendant's Attorney. See Dwyer V. Bassett, 63 T. 274; Ratigan v. Holloway, 69 T. 468; Farrar v. Beeman, 63 T. 175. It is a general rule that the judgment of a court rendered in a case in which it did not have jurisdiction of the subject matter of the suit, or of the parties thereto, which fact ap- pears of record, is a nullity. When a court is of special and limited jurisdiction, the jurisdiction in the particular 340 Ch. 25.] ANSWERS. [§242. case must be shown by the record. The jurisdiction of courts of general jurisdiction in a particular case is pre- sumed, unless the want of jurisdiction appears affirmatively from the record. Horan v. Wahrenberger, 9 T. 313. § 242. Plea of privilege to be sued in a particular county. And now comes the defendant, by attorney, and says that before and at the time of the commencement of this suit, and of the service of process herein, he, the said defendant, resided in the county of , and had his domicile therein, and not in the county of , as alleged in the plaintiff's petition ; that he now resides and has his domicile in said county of , and not in the county of , as alleged in plaintiff's petition. And that plaintiff's cause of action did not accrue in the county of last named, and this he is ready to verify. Wherefore, he prays judgment whether this court will take further cognizance of this suit. , Attorney for the Defendant . I solemnly swear that the foregoing plea is true. The affidavit must be to the truth of the plea, not to the best of the knowledge and belief of the affiant, but to his actual knowledge of the facts. Wilson V. Adams, 15 T. 323; Davis v. Campbell, 35 T. 779; Graham V. McCarty, 69 T. 323; Taylor v. Hall, 20 T. 211. The plea must be certain to a certain intent, and its omis- sion cannot be aided by other pleas. Breen v. Ry. Co., 44 T. 302. When the suit may be brought in any county other than the county of the defendant's residence, as in cases of crime, offense, or trespass, the plea must negative the ex- ception which authorizes jurisdiction where suit is brought. Brown v. Boulden, IS T. 431; Stark v. Whitman, 58 T. 375; Raleigh V. Cook, 60 T. 438; Breen v. Ry. Co., 44 T. 302; Ry. Co. v. Graves, 50 T. 200; Carothers V. McIlhenny,C3 T. 138; Crawford v. Carothers, 66 T. 199; Ry. Co. v. Cockrill, 72 T. 613; Perry v. Stephens, 77 T. 246; Boothe V. Fiest, 80 T. 141. 341 Ch. 25.] ANSWERS. [§242. When such a plea of privilege is interposed by one of several who are joined as defendants in a suit to recover damages for a tort, brought in a county where he does not reside, and there is evidence tending to establish the fact that the defendant who resides at the venue of the cause is not liable, it is error not to present in a charge to the jury the issue thus arising on the plea to the jurisdiction. Ry. Co. V. Mangum, 68 T. 342. A petition contained allegations which, taken together, amounted to a charge that the defendant combined falsely to accuse him of the offense of swindlinor Heidenheimer Bros., and in pursuance of such combination did through one of their number, J. W. Raleigh, make such accusation by affidavit before a magistrate of Wood county, and that this was done for the purpose of extorting money and the payment of a debt pretended to be due defendants. Held: (1) That while the averments were not so specific and certain as would be required in an indictment, they were sufficiently certain for the purposes of civil pleading. (2) The acts so charged constituted an offense against the laws of the state. (3) The offense charged was in the nature of a con- spiracy, and will be deemed to have been committed where an act in pursuance of the common design was performed by any one of the conspirators, or by any other person at their instigation. The conspiracy is renewed with every act done in pursuance of the unlawful design. (4) An affidavit having been made against the plaintiff to secure his arrest, in pursuance of the common design, in Wood county, that county is taken to be the county in which the offense was committed, and a suit for damages for the wrong done was properly brought in that county. Raleigh & Heidenheimer Bros. v. Cook, GO T. 438. A defendant was sued in a county other than that of his residence to rescind a parol contract alleged to have been induced by defendant's fraudulent representations made in 342 Ch. 25.] ANSWERS. [§242. the county in AV^hich the suit was brought. The petition set forth properly the county of defendant's residence. The defendant pleaded to the jurisdiction under oath, on the ground only that he was sued out of the county of his res- idence. No action was taken on the plea to the jurisdic- tion, but, after trial on the merits, the court dismissed the case for the want of jurisdiction. Held: ( 1 ) The right of the defendant to plead to the jurisdic- tion of the court when sued out of the county of his res- idence is a personal privilege, but if not exercised at the proper time and in the proper manner, it does not take away the authority of the court to hear and determine the case made against him. (2) Though a petition as to jurisdictional allegations may be good upon its face, yet, if the evidence shows on the trial that the court has no power to determine the real case developed, and that the jurisdictional allegations were fraudulently inserted, the court will dismiss of its own mo- tion. (3) If the evidence merely shows that the court has no jurisdiction over the person of the defendant, the rule is different. In such a case, where the petition contains fraud- ulent allegations of fact which, if true, would bring the case under one of the exceptions of the statute Avhich author- izes a defendant to be sued out of the county of his res- idence, then the defendant must plead in limine to the juris- diction, setting forth the true facts of the case, and al- leging the fraudulent purpose of the petition. (4) The pica of defendant setting forth his true place of residence was unnecessary. It had alread}'^ been stated by the plaintiff, and it amounted to no plea. (5) When the defendant went to trial without asking action on his plea, he thereby waived it. It was error to dismiss the cause upon the hearing of the evidence on the merits. Watson V. Baker, G7 T. 48. 343 Ch. 25.] ANSWERS. [§242. To entitle a plaintiff to sue in a county other than the residence of the defendant, he must bring his case clearly within the statute. A contract for the building of a house, and a bond con- ditioned that the contractor build the house as he contracts to do, are two separate contracts. The latter, unless other- wise on its face, can be sued on only in the residence of one or more of the makers of the bond. Lindheim & Bro. v. Muschamp, 72 T. 33. The petition in a suit upon a written contract alleged the defendant to be a resident of the county wherein it was filed. His plea of personal privilege contained no denial of that allegation, but alleged that defendant resided in another county. Held: The plea was bad. Defendant could have been a resident of both counties. Brown v. Bouldon, 18 T. 481 ; Crawford v. Carothers, 66 T. 199. A plea of personal privilege, in answer to a suit upon a written contract, containing no allegation that the defend- ant's obligation was not to be performed in the county wherein the suit was brought, is fatally defective. Crawford v. Carothers, 66 T. 199. The venue of suits in trespass for taking and the con- version of personal property lies in the county where com- mitted. A sheriff, at instance of plaintiff, in an execution upon a judgment which had been satisfied, seized and sold a stock of goods in possession of a third party. Suit was brought, in the county where the goods were seized, against the sheriff and the plaintiff in the execution, the latter residing in another county. The defendant pleaded to the merits, and the plaintiff dismissed as to the sheriff, on exceptions by the remaining defendants that the suit should abate by reason of their right to be sued only in the county of their residence. Held, that in such suit the venue as to all the defendants was in the county of the seizure and conversion. Willis & Bro. v. Hudson, 72 T. 598. 344 Ch. 25.] ANSWERS. [§248. Where, however, the officer to whom a writ of attach- ment is directed, overstepping the bounds of discretion allowed him by the writ, makes use of it to wrongfully and unnecessarily oppress and injure defendant, he commits a trespass, for which a civil action will lie against him; and if the plaintiff in attachment instigates or countenances such wrong and oppression, he becomes a participant in the trespass, and is liable to a suit, either in the county of his residence, or in that in which the attachment proceedings were commenced, or in the county in which the trespass by the officer was committed. Any expression found in Calm V. Bonnet, 62 T. 674, or in any other cases in Texas Re- ports, inconsistent with the foregoing rule, will not here- after be regarded as authoritative. Hilliard & Hilliard v. Wilson & Blum, 65 T. 2S6. Construing the fourth subdivision of article 1198, Re- vised Statutes, which authorizes suit to be brought in the county of the residence of either one of several who are defendants, held, that the defendant who resides in the county where the suit is brought must be either a necessary or proper party defendant; if he is neither a necessary nor proper party, a plea to the jurisdiction filed by non-residents of the county joined with him in the action should be sus- tained. When such a plea is interposed by one of several who are joined as defendants in a suit to recover damages for a tort, brought in a county where he does not reside, and there is evidence tending: to establish the fact that the defendant who resides at the venue of the cause is not liable, it is error not to present in a charge to the jury the issue thus arising on the plea to the jurisdiction. Railway Company v. Mangum, 68 T. 342. §243. Plea of plaintiff's coverture. A. B. V. D. nd now comes the defendant, by attorney, and says the plaintiff, before and at the time of the commencement of 345 Ch. 25.] ANSWERS. [§§244,245. this suit, was and still is married to one E. F., then and vet her husband, who is now living in the county of , and this he, the said defendant, is ready to verify ; where- fore, because the said E, F. is not named in plaintiff's petition, he prays judgment of the same, and that he be dismissed with his costs, etc. '' , Attorney for Defendant. (Add verification.) § 244. Plea of defendant's coverture. And now comes the defendant, by attorney, and says that at the time of the commencement of this suit she was and still is married to one E. F., who is still living in the county of ; and this she is ready to verify. Where- fore, because the said E. F. is not named in plaintiff's peti- tion, she prays judgment of the same, and that she be dismissed with her costs, etc. ' , Attorney for Defendant. (Add verification.) §245. Plea of non-joinder of a party defendant. The defendant, in answer to the plaintiff's petition, says that the contract mentioned and set forth in said petition, if any such was ever made, Avas made by defendant jointly with one E. F., who is now living in the county of , and not by this defendant alone ; and this he is ready to verify. Wherefore, etc. ( Add verification . ) A plea in abatement, predicated on the non-joinder of proper parties defendant, should definitely set forth the nature and extent of the interest of each person who is claimed to be a necessary party. The State v. Goodnight, 70 T. 682. In a suit to recover an undivided half interest in personal property situated on the ground of another, the name of the owner of the other interest was not set forth in the 34G Ch. 25.] ANSWERS. [§§246,247. petition. His non-joinder as a party to the suit could not be considered on general demurrer, but if urged in proper time and manner by plea in abatement, the plea should have been sustained. Such a question cannot be con- sidered for the first time in the Supreme Court on appeal. Hill V. Newman, 67 T. 265. When a cause of action exists against two railroad com- panies for an act or omission for which they are severally liable, and suit is brought against both, the plaintiff at his option may dismiss as to either, and prosecute his suit against one of them alone. Railway v. Morris & Crawford, 68 T. 49. § 246. Plea of pendency of another suit. And now comes the defendant, by attorney, and says that before the commencement of this suit the said plaint- iff, on the day of , filed his petition in the Dis- trict Court of county, against this defendant, for the same identical cause of action in the petition in this pres- ent suit mentioned, as by the record and proceedings thereof remaining in the said District Court of county more fully appears. And the said defendant further saith that the parties in this and the said former suit are the same, and not other or different persons, and that the sup- posed cause of action in this and the said former suit are the same, and not other or different causes of action, and the said former suit so brought and prosecuted against the said defendant by the said plaintiff as aforesaid is still pending in the court aforesaid ; and this he is ready to verify. Wherefore, he prays judgment, etc. (Add verification.) §247. Plea of general denial. And now comes the defendant, by attorney, and denies all and singular the allegations in plaintiff's petition; and of this he puts himself upon the country. Wherefore, he prays judgment, etc. 347 Ch. 25.] ANSWERS. [§§248-250. § 248. Plea of infancy of defendant, who is still a minor. And now comes the said defendant, by G. H., appointed by the court as guardian of the said defendant, to defend for the said defendant, who is an infant under the age of twenty-one years, and says that the said defendant, at the time of making of the said several supposed promises and undertakings in said petition mentioned, was an infant within the age of twenty-one years, to-wit: of the age of years ; and this he is ready to verify. Wherefore, he prays judgment, etc. See Ortiz v. De Benavides, 61 T. 60. § 249 . Plea of coverture of defendant. And now comes the said defendant, by attorney, and says that she, the said defendant, before and at the time of making of the said several supposed promises and under- takings in said petition mentioned, was and still is the wife of one C, who now resides in the county of ; and this she is ready to verify, etc. A plea setting up matter in reply to the assertion of cov- erture which has been pleaded to avoid limitation, need not be verified. Taylor v. Bland, 60 T. 29. § 250. Plea of former judg^ment. And now comes the defendant, by attorney, and says that heretofore, to-wit: at the term, a. d. 18 — , of the District Court in and for the county of — , in a certain suit therein pending, wherein the said A. was plaintiff and the said B. was defendant, and for the same cause of action in said petition mentioned, the said plaintiff recovered judgment against said defendant for the sum of dol- lars and costs of suit, as by the record and proceedings thereof more fully appears; which said judgment still remains in full force and effect, in no wise reversed, satisfied or made void ; and this the said defendant is ready to verify by the said record. Wherefore, he prays judgment, etc. 348 Ch. 25.] ANSWERS. [§§251,252, §251. Plea of account stated, and execution of de- fendant's promissory note. And now comes the defendant, by attorney, and says that after the accrual of the cause of action in plaintiff's Ijetition mentioned, and before the commencement of this suit, to-wit: on, etc., an account was had and stated by and between the said plaintiff and defendant, of and con- cerning the said several sums of money in the said petition mentioned, a copy of which account is herewith filed, marked Exhibit A., and made a part of this petition, and upon that occasion he, the said defendant, was then found in arrear and indebted to plaintiff in the sum of dol-, lars, for which sum defendant then made and delivered to plaintiff his certain promissory note in writing, bearing date on a certain day and year therein mentioned, to-wit: the day and year last aforesaid, whereby he, the said de- fendant, promised to pay to the plaintiff, or his order, months after the date thereof, the sum of dollars aforesaid, and the said plaintiff then and there accepted and received the said promissory note in satisfaction of the said sum of dollars due as aforesaid ; and by reason thereof he, the said defendant, then and there became and still is liable to pay the said sum of dollars in said promissory note mentioned, according to the tenor and effect thereof ; and this he is ready to verify. Wherefore, etc. Bradshaw v. Davis, 12 T. 346; Abies v. Austin, 10 T. 218; Neyland V. Neyland, 19 T. 423; Overton v. Conner, 50 T. 113; Merriwether v. Hardeman, 51 T. 436; Hill v. Newlee, 3 App. C. C. §219. § 252. Plea of release. And now comes the defendant, by attorney, and says that after the accrual of the cause of action in said petition mentioned, and before the commencement of this suit, to-wit: on, etc., the said plaintiff, for a valuable consid- eration, by his certain writing of release, dated on the day 349 Ch. 25.] ANSWERS. [§253. and year aforesaid, did release and forever quit-claim unto this defendant all causes of action, claims and demands which he, the said plaintiff, then had against the said de- fendant, for any matter, cause or thing whatsoever, and in particular did then and there release to the said defendant the cause of action set out in his petition ; and this he is ready to verify. Wherefore, etc. § 253. Plea of release by composition deed. And now comes the defendant, by attorney, and says that heretofore, to-wit: on, etc., an account was had and stated by and between the said plaintiff and defendant, of and concerning the said several sums of money in said petition mentioned, and upon that accounting said defendant was found to be in arrear to said plaintiff in the sum of dollars; and afterwards, to-wit: on the day and year afore- said, the said plaintiff, by his certain deed in writing of that date, did covenant, promise and agree to and with the said defendant, that he, the said plaintiff, would and he thereby did accept the sum of cents on the dollar, then and there paid by the said defendant to said plaintiff, in full satisfaction and discharge of the said sum of dollars, and that he, the said plaintiff, would not sue or trouble the said defendant for or on account of the said sum of dollars, or any part thereof. And the defend- ant further saith that divers other creditors of the said defendant did then and there also by said deed agree to accept, and did then and there accept, the sum of cents on the dollar, currently with the said phiintiff, for and in satisfaction of the several debts to such creditors respectively due and owing from the said defendant; and did also in and by said deed covenant with the said defend- ant not to sue the said defendant for such respective debts; and this he is ready to verify, etc. See Lane v. Squyres, 45 T. 382. 350 Ch. 25.] ANSWERS. [§§254,255. § 254. Plea of counter-claim. And now comes the defendant, by attorney, and says that the said plaintiff, before and at the time of the commence- ment of this suit, to-wit: on, etc., was and still is indebted to this defendant in the sum of dollars, for divers goods, wares and merchandise, specified in the account annexed, herewith filed, marked Exhibit A., sold and de- livered by this defendant to said plaintiff, and at his request (or state the subject matter of the counter-claim according to the fact, the liability of the plaintiff and the promise to pay, as in a suit on the same), which said sura of money so due and owinsj to this defendant as aforesaid exceeds the damages sustained by the said plaintiff by reason of the matters alleged in his petition, and out of which said sum the said defendant is ready and willing and hereby offers to offset and allow to the said plaintiff the full amount of his said damages ; and this he is ready to verify ; and for the sum of dollars, due and owing this defendant as aforesaid, after allowing and offsetting the damages afore- said of said plaintiff, this defendant prays judgment and for costs of suit. See Collins v. Barbee, 3 App. C. C. §126; Railway v. Tacquard, 3 App. C. C. §250. §255. Plea of counter-claini to a suit by an aclniin- istrator. And for further answer defendant says that plnintiff's intestate, before and at the time of his death, was indebted to this defendant in the sum of dollars, for divers goods and chattels sold and delivered by this defendant to plaintiff's said intestate at his special instance and request, and for divers sums of money by said defendant paid out and expended to and for the use of plaintiff's said intestate, at his like special instance and request, all of which will more fully appear by reference to the bill of particulars, marked Exhibit A., herewith filed and made a part of this 351 Ch. 25.] ANSWERS. [§256. plea; and that said sum of money, before and at the time of the commencement of this suit, was and still is due and owing to said defendant; wherefore, he prays that said sum be set off and allowed against the demand of the plaintiff. And for further answer defendant says that plaintiff's intestate, before and at the time of his death, was indebted to said defendant in the further sum of dollars, for that heretofore, to-wit; on the day of , a. d. 18 — , said T. R. (plaintiff's intestate), by his promissory note of that date, by him subscribed by the name of T. R., and delivered to D. F., for value received, promised to pay said F. or bearer, one day thereafter, the sum of dol- lars, with lawful interest thereon until paid ; and the said D. F. afterwards, on the same day, transferred and delivered the said note, then and still unpaid, to this defendant, who thereby became the lawful bearer thereof, by reason whereof the said R. became liable, and promised defendant to pay him said sum. Wherefore, he prays that said sum be set off and allowed against the demand of the plaintiff. Under the averments of this plea, the defendant is not entitled to a judgment against the plaintiff for the excess of his demand over that of the plaintiff. To entitle him to this, there must be an averment that the demands had been properly presented to the administrator and rejected. Mitchell V. Rucker, 22 T. 66; Traders' Nat. Bank v. Cresson, 75 T. 298. § 256. Plea of tender. And now comes the defendant, by attorney, and denies all and singular the allegations in plaintiff's petition, ex- cept as to the sum of dollars (the sum tendered), and of this he puts himself upon the country, etc. ; and as to the said sum of dollars, part of the sum of monev in said petition mentioned, defendant says that when the same became due and payable, he, the said defendant, was and 352 Ch. 25.] ANSWERS. [§257. from thence hitherto hath been and still is ready and will- ino- to pay the same; and that heretofore, before the com- mencement of this suit, to-wit: on, etc., he tendered and offered to pay to the said plaintiff the said sum of dol- lars, to receive which of the said defendant the said plaint- iff then and there wholly refused; and the said defendant now brines the said sum of dollars so tendered into court here, ready to be paid to the said plaintiff, if he will accept the same ; and this he is ready to verify. Wherefore, he prays judgment, etc. Odum V. Carter, 36 T. 282; Brock v. Jones, 16 T. 467; Dewees v. Lockhart, 1 T. 535; Ins. Co. v. Busby, 3 App. C. C. §103. §257. Plea of accord and satisfaction after sviit brought. And for further plea in this behalf, the said defendant B., by leave of the court, files his supplemental answer, and says that the said supposed trespasses in the petition alleged were commited by him, the said B. (if at all com- mitted by him), jointly with the said defendant C. ; and that after the committing of the said supposed trespasses in the petition mentioned, and after the commencement of this suit, to-wit: on, etc., it was agreed between the said plaintiff and the said defendant C, that the said C. should pay to the said plaintiff, and the said plaintiff should re- ceive a certain sum, to-wit: the sum of dollars, in sat- isfaction and discharge of the said supposed trespasses, and of all damages by the said plaintitf sustained by reason of the committing thereof, and of all costs by the said plaintiff sustained and incurred in prosecuting the said ac- tion against the said defendant; and the said B. further saith that, in pursuance of such agreement, the said C. then and there paid to the said plaintiff the sum of dollars, and the said plaintiff then there accepted the same in full satisfaction and discharge of the said supposed tres- passes, and of all such damages and costs as aforesaid ; and this he is ready to verify, etc. Bradshaw v. Davis, 12 T. 345; McGehee v. Shafer, 15 T. 203. (23— Plead. Forms.) 353 Ch. 25.] ANSWERS. [§§258-260. §258. Plea of accord and satisfaction by delivery of property. And now comes the defendant, by attorney, and says* that after the accruing of the cause of action in the peti- tion mentioned, and before the commencement of this suit, to-wit: on, etc., he, the said defendant, delivered to the said phiintiff a certain bay horse, of the value of dol- lars, in full satisfaction and discharge of the cause of ac- tion in the petition mentioned ; and which said bay horse he, the said plaintiff, then and there accepted and received from the defendant in full satisfaction and discharge of the cause of action in said petition mentioned ; and this he is ready to verify. Wherefore, he prays judgment, etc. Autrey v. Cannon, 11 T. 110. §259. Plea of accord and satisfaction by payment of money. *That before the commencement of this suit, to-wit : on, etc., he, the said defendant, paid to the said plaintiff the sum of dollars, in full satisfaction and discharge of the cause of action in said petition mentioned, and of all damages by the said plaintiff sustained by reason thereof, which said sum of dollars the said plaintiff then and there accepted and received of and from the said defendant, in full satisfaction and discharge of his said cause of action, and of the damages by the said plaintiff sustained; and this he is ready, etc. § 260. Plea of non est factum. The defendant, in answer to plaintiff's petition, says that the writing obligatory mentioned in said petition was liot executed by him, nor by any person authorized by him to execute it for him; wherefore, he says that said writing obligatory is not his act and deed, and of this he puts him- self upon the country. (Add verification.) Civ. Stat. Art. 1205. 354 Ch. 25.] ANSWERS. [§261. In a' suit on a lost instrument, its execution is put in issue by a general denial, and the burden of proof is on the party claiming under it. Erskine v. Wilson, 20 T. 77; Robinson v. Brenson, 20 T. 438; see Collins V. Barber, 3 App. C C, §127. The object of the statutory provision. Civ. Stat. Art. 2257, authorizing the admission in evidence of legally re- corded instruments, without proof of their execution, re- lieves parties from the burden of proving their execution of such deeds as at common law, but does not estop or pre- clude the opposing party from disproving the execution of the deed, or from showing that it was a forgery. Jordan v. Robson 27 T. 612; Cox v. Cock, 59 T. 521; Hampshire v. Floyd, 39 T. 103. § 261. Plea of failure of consideration. The defendant, in answer to plaintiff's petition, says that heretofore, to-wit: on, etc., plaintiff sold to defendant a certain grist mill for the sum of dollars, for which de- fendant executed and delivered to plaintiff the promissory note in said petition mentioned ; that at the time of said sale and the execution of said note, and in consideration thereof, plaintiff warranted said mill to perform well; that afterwards, on or about, etc., said mill was fairly tried and used, but did not perform well, and was and is utterly worthless and of no value to defendant, of all which plaintiff then and there had notice. That afterwards, to-wit: on the day of , 18 — , defendant offered to return said grist mill to the plaintiff, who then and there refused to receive the same. Wherefore, defendant says that the consideration for which said note was given has wholly failed ; and this he is ready to verify. Wherefore, etc. (Add verification of truth of plea.) Civ. Stat. Art. 272. See Claiborne v. Yoeman, 15 T. 44; Fortson v. Caldwell, 17 T. 627; Cooper V. Singleton, 19 T. 2G0; Tarlton v. Daily, 55 T. 92; Wright v. Heffner, 57 T. 518; Holloway v. Blum, GO T. 625; Diamond v. Harris, 33 T. 634; Steagall v. Levy, 3 App. C. C. §§468, 469. 355 Ch. 25.] ANSWERS. [§§262,263. The want of verification of the plea cannot be reached by a general exception, but must be made the ground of a special exception. William V. Bailis, 9 T. 61; Drew v. Harrison, 12 T. 279; Gaines v. Salmon, 16 T. 311; Powers v. Caldwell, 25 T. 352; Steagall v. Levy, 3 App. C. C. §469. §262. Plea afflrming tlie truth of matter cliargred to be libelous. And now comes the defendant, by attorney, and says that each and every charge made by hira against the plaint- iff in the alleged libelous article complained of by him is true, and was written and published by this defendant with- out malice, and for the sole purpose of informing the public of the true facts as they existed, and said facts were of public interest. And this he is ready to verify. Kuhn V. Young, 78 T. 344; see, ante, §§154, 155. § 263. A general and special exception; and pleas of general denial, payment, limitation of three months, and plene administravit. McW. & M. V. E. M. C, Adm'x,e Suit pending in District Court, CD. } county. And now comes the defendant, by his attorney, and sug- gests to the court that he, and those under whom he claims, have had adverse possession, in good faith, of the premises mentioned and described in plaintiff's petition, for more than one year before the commencement of this suit. And de- fendant says that on or about the day of , 18 — , one was in possession of said premises claiming under a regular chain of title from one to whom said land was granted by the State of Texas by patent, and said premises were sold under an execution issued out of the District Court of county, under a judgment ren- dered in said court on or about the day of , 18 — , in a suit therein pending, wherein was plaintiff and said was defendant, and became the purchaser thereof at said sale, and received a deed therefor, duly exe- cuted by the officer making said sale ; that afterwards said , by his deed duly executed, conveyed the said premises to this defendant, for a valuable consideration jDaid to him by this defendant, and this defendant believed, and had good reason to believe, that he thereby acquired a good and valid title thereto. And defendant further says, that he has made permanent and valuable improvements on saidlandand premises during the term he has had such possession, viz: (stating the improvements and their value specifically.) And defendant prays, that he may have judgment for the value of said improvements aforesaid, should judgment be herein rendered for plaintiff for said premises, or any part of the same, on which said improvements are situated. § 277. Facts showing good faith must be alleged. A party claiming the value of improvements on land for which suit is brought, must allege the facts upon which his 3G7 Ch. 26.] ANSWERS IN TRESPASS. [§278. claim for their value is based. An informal suggestion to the court that he has made permanent and valuable improve- ments, and was a possessor in good faith, which was suffi- cient under a former statute, is not a compliance with the law. Thompson v. Comstock, 59 T. 318. § 278. Good faith defined. By the civil law good faith is held to consist in the pos- sessor's believing that the person from whom he received the thing had a right to alienate or transfer it. By the Civil Code of Louisiana, a hona fide possessor is described to be one who possesses as owner by virtue of an act sufficient in terms to transfer property, the defects of which he was ig- norant of ; he ceases to be a hona fide possessor from the moment these defects are made known to him, or are de- clared to him by a suit for the recovery of the same by the owner. A learned writer defines a hona fide possessor to be one who not only supposes himself to be the true owner of the land, but who is ignorant that his title is contested by any person claiming a better right to it. Sartain V. Hamilton, 12 T. 219; Saunders v. Wilson, 19 T. 194; 7d. 19 T. 201 ; Hill v. Spear, 48 T. 583. This rule is recognized in Dorn v. Dunham, 24 T. 366; Elam V. Parkhill, 60 T. 581; and in House v. Stone, 64 T. 677; Parrish v. Jackson, 69 T. 714, with the qualilica- tion that there may be cases where, though aware of an ad- verse claim, the possessor may have reasonable and strong grounds to believe such claim to be destitute of any just or legal foundation, and so be a possessor in good faith. In Hutchins v. Bacon, 46 T. 408, it is held that the fact that a purchaser who has paid for land did so with know- ledge of an adverse claim, which was in fact the better title, was not conclusive of the fact that such purchaser had not acted in good faith. Gaither v. Hamick, 69 T. 92. 368 Ch, 26.] ANSWERS IN TRESPASS. [§278. In Berry v. Donley, 26 T. 737, and Hill v. Spear, 48 T. 583, it was held that a purchaser of land from a married woman, whose deed was not properly acknowledged, was not precluded from claiming the value of his improvements. See Cole v. Bammel, 62 T. 108; Johnson v. Bryan, 62 T. 623; Lang- ton V. Marshall, 59 T. 296. A mistake as to boundaries, where nothing has been done for their ascertainment, will not support a claim in good faith. Sartain v. Hamilton, 12 T. 219. The rule would be otherwise, if the owner knowingly per- mits an ignorant possessor to make valuable improvements, without giving notice of his claim. Sartain v. Hamilton, 12 T. 219; Houston v. Sneed, 15 T. 307. A purchaser at a sale made under a decree of court which had no jurisdiction, may, under some circumstances, be a purchaser in good faith, and as such entitled to compensa- tion for improvements. When the purchase money has been applied to the discharge of a valid judgment which consti- tuted a lien on the land, the purchaser is subrogated to the right of the judgment debtor, and is entitled to be reim- bursed the amount paid before eviction. If the demand for which the property was sold was established, in the first instance, by the judgment of a court which did not have jurisdiction, the alleged debtor, whose property was sold, would not be required to refund the purchase money. French v. Grenet, 57 T. 273, citing Stegall v. Huff, 54 T. 193. One who had settled upon land as a pre-emptor, believing that it was vacant, and without the means, by the use of or- dinary diligence of ascertaining that it was not in fact public domain, was held to be a possessor in good faith. Powell V. Davis, 19 T. 380; Sellraan v. Lee, 55 T. 319; Miller v. Moss, 65 T. 179; Gaither v. Hanrick, 69 T. 92. The fact that the settler was informed by the surveyor of the county in which the land was situated that it was vacant, is not sufficient to support his claim of good faith. Thompson v. Comstock, 59 T. 318. (24— Plead. Forms.) 369 Ch. 26.] ANSWERS IN TRESPASS. [§278. A void tax sale involves no equity that would subrogate the purchaser to the rights of the state for taxes paid, and entitle him to reimbursement from the true owner when sued by him to recover the land. The same rule obtains as to taxes paid to the state by such purchaser to redeem land which had been sold for non-payment of former taxes. McConnick v. Edwards, 69 T. IOC. In Stewart v. Kemp, 54 T. 251, a tax deed based on an order of the County Court at a special term and not author- ized by law, was held insufficient to support a claim of good faith, wanting in any valid source from which the title could emanate, the claimant was held conclusively to know that he acquired no title to the»laud. Plaintiff in trespass to try title relied upon a tax deed, and sought to prove that the jurisdictional prerequisites had been complied with in the sale by producing the tax roll. The land in controversy was the Jos. Shelton survey, and it was admitted that the roll had been changed since the in- stitution of the suit from Joshua to James Shelton. Held: (1.) That the survey listed was not that conveyed to plaintiff, and the roll and deed were properly excluded. (2.) Independent of constitutional and statutory law, a tax deed does not affect title, unless the authority of the maker of the deed is shown by proof of the performance of all precedent requisites. Burroughs on Taxation, 332; Cooley on Taxation, 353, etc. (3. ) The deed alone did not make a prima facie case for plaintiff. Meredith v. Coker, G5 T. 29. One claiming under an invalid tax title, not voi:land. A civil action consists in various formal proceedings pro- vided by law for the enforcement of a private right, or the 376 Cb. 27.] SYSTEM OF PLEADING IX TEXAS. [§281. redress of a private wrong. Of these actions there are various kinds, which are distinguished according to their nature, by the terms real^ personal and mixed. Real actions are such as are brought for the recovery of real property only. Of these actions, there were formerly nearly sixty, but now only two remain, viz: those of doiver and quare impedit. The former is brought by a widow to compel the due assignment of her dower, and the latter, by a person complaining that he has been improperly deprived of ecclesiastical patronage. In our system of practice we have nothing analogous to either of these actions. Personal actions are such as are brought for the recovery of goods and chattels, or for some pecuniary satisfaction or other redress for an injury done to a party. Personal actions are classified into those which are founded upon contract {ex contractu^ and those which are founded upon tort {ex deliclu). Actions ex contractu are divided into debt, detinue, covenant and assumpsit; actions ex delictu are divided into trespass, case, trover and replevin. These actions differ in form, and are adapted to different grievances. The bound- aries between them are rigidly defined, the remedy given to a party must be pursued in the form prescribed, and a mis- take in this is fatal to the right to recover. The action of debt lies for the recovery of money due in respect to any contract, Avhether it be a simple contract, a specialty, or a contract of record. Detinue lies to recover goods, or the value of them, de- tained contrary to a contract, express or implied. The object of this remedy is to compel the return of personal chattels in specie, and the judgment authorizes the sheriff to seize the specific property ; and in order to compel the defendant to return it, its value may be assessed beyond the actual value proven. Covenant lies for the recovery of damages resulting from the violation of a covenant, express or implied. 377 Ch. 27.] SYSTEM OF PLEADING IN TEXAS. [§282. Assumpsit is an action for the recovery of damages for the breach of any contract, express or imphed, not under seal. Trespass lies for injuries accompanied with immediate violence to the person, or to personal or real property. Case is an action analogous to that of trespass, and lies generally to recover damages for .torts not committed with force, actual or implied; or having been occasioned by force, when the matter affected was not tangible or the in- jury was not immediate, but consequential ; or where the interest in the property was only in reversion ; or, in other words, case lies for the recovery of damages for any cause of complaint to which covenant or trespass will not apply. Trover is brought to recover danuiges for the wrongful conversion of goods and chattels, and by means of it is tried a disputed question of iiroperty in such goods and chattels. Replevin is a summary remedy given for the recovery of goods, or for the recovery of damages for the wrongful conversion of such goods. Mixed actions are such as partake of the nature of real and personal actions. The only one remaining in England is that of ejectment, Avhich has for its object the recovery of lands, tenements or hereditaments, and also for a pecu- niary compensation, in the nature of damages, for the in- jury sustained, by being withheld from them. These several /orms of action were originally defined by the writs with which they were commenced ; and now, where the action is commenced by summons, its form is specified and must be strictly pursued ; in other words, where the defendant is sunmioned to answer any particular action, the plaintiff cannot recover, unless the facts in manner and/orw; as stated entitle him to a judgment in that particular form of action. § 282. Personal actions commenced by writ. A personal action is commenced by summons^ which is a judicial writ issuing out of one of the courts in Westmin- 37S Ch. 27.] SYSTEM OF PLEADING IN TEXAS. [§283. ster, commanding the defendant within eight days after service of writ to cause an appearance to be entered for him, in the court from which the writ issued, in an action (which must be named in the writ), at the suit of the plaintiff. The name of the attorney of the plaintiff by whom the writ is issued, with his place of residence, must be endorsed on the writ. The character and amount of the plaintiff's demand must also be endorsed. The summons is issued by the plaintiif's attorney, who draws it up and takes it to the proper officers, by whom it is signed and sealed, as a matter of course, upon payment of the fees. The writ is served by delivering a copy to the defendant, who, within a designated time after the service, must enter an appearance. An appearance is entered by leaving with the proper officer a memorandum, stating the name of the defendant's attorney, of which an entry is made in a book kept for that purpose. §283. Pleading's in a suit at law. At this stage of the proceedings, both parties being now in court, the pleadings commence with the plaintiff's decla- ration. A declaration is a formal written statement of the cause of complaint, and consists of the following parts : 1st. The title of the court in Avhich the action is brought. 2d. The date, being the day on which the declaration is delivered to the opposite party. 3d. The venue, being the county in which the action is to be tried. 4th. The count, which is the allegation of the facts con- stituting a distinct ground of comphiint. A declaration may contain one or more counts, that is, there may be united in it several grounds of complaint, severally stated in distinct counts. The plaintiff must deliver to the defendant his declara- tion, with a notice to plead, and make a demand of a plea. 379 Ch. 27.] SYSTEM OF PLEADING IN TEXAS. [§283. He must also enter with the proper officer of the court a rule to plead. The defendant has a definite time within which to answer, but, if necessary, he can obtain an exten- sion of the time upon application to the judge for that purpose. Instead of answering to the declaration by matter of fact he may demur, i. e., he may object to proceeding farther, because no sufficient statement of a cause of action has been made. If the defendant does not demur, he may answer the declaration by some matters of fact, which is termed a plea, and in so doing he is said to plead. Pleas are dilator]/, or in delay of the action ; and peremp- tory, or in bar of the action. Subordinate to this is another division : 1st. To the jurisdiction of the court. 2d. To the disability of the person of the plaintiff or de- fendant. 3d. To the count or declaration. 4th. To the writ. 5th. To the action itself in bar thereof. Of these the 5th class, or pleas in bar of the action, are the most important, and they are divided into pleas by way of traverse and pleas by way of confession and avoidance. The former denies all, or some essential part of the aver- ment of fact in the declaration — the latter admits them to be true, but alleges new facts which obviate or repel their legal effect. In the first case a question of fact is at once raised be- tween the parties, and consequently the plea tenders an issue by offering to refer the question to the proper mode of trial. The usual formula, when the trial should be by jury, is — *' and of this he puts himself upon the country." If the plaintiff accepts the tender of the issue, he does it by deliv- ering to the opposite party a replication, called a similiter, or joinder in issue, or by adding the similiter in an abbre- viated form to the defendant's plea. Instead of accepting 380 Ch. 27.] SYSTEM OF PLEADING IN TEXAS. [§§284,285. issue, the j^laintiff may demur to the plea. If the defend- ant pleads in confession and avoidance, an issue is not ten- dered, but the defendant offers to verify his plea, and the plaintiff may plead to it, by way of traverse, or by way of confession and avoidance, and this is termed the replication. If the replication is by way of traverse, an issue is tendered, but if it is by way of confession and avoidance, the defend- ant may either traverse, or confess andavo/cZ its allegations, and this is termed a rejoinder, and so the pleadings may be conducted to a sur-rejoinder, rebutter and sur-rebutter, until an issue is raised between the parties. An issue of law, in- stead of an issue of fact, may also be raised by demurrer^ which may be interposed at each stage of the pleadings. § 284. Mode of trial on an issue of law. When the jjarties are at issue, either upon a question of law or of fact, the case is ready for trial upon such issue. When the parties are at issue ujDon a question of law, the plaintiff's attorney must make a transcript, upon paper, of the whole pleadings that have been delivered between the parties. This transcript is called the dejnurrer book, and is delivered to the defendant's attorney, who, if it varies from the pleadings that were delivered, is entitled to make appli- cation to the court to have it corrected. When the demur- rer booh is made up, the cause is set down for argument in court, on some day appointed for that purpose. If the de- murrer is to a plea in abatement, and it is sustained, the judgment is that the defendant shall answer further respon- deat ouster — in all other cases the judgment is final. § 285. Mode of trial on an issue of fact. If the parties are at issue upon a question of fact, which is to be tried by a jury, the plaintiff must make up and de- liver to the defendant the issue, which is a transcrii^t of all of the pleadings, with the addition of the similiter and the award of the venire. The awarcZ of the venire is the con- 381 Ch. 27.] SYSTEM OF TLEADIXG IN TEXAS. [§285. eluding words of the transcript, immediately following the joinder in issue, and is in substance a mandate addressed to the sheriff of the county where the venire is laid, command- ing him to summon a jury to try the point in dispute. It is entered, as a matter of course, by the party who makes up the issue. Upon this transcript or issue, the plaintiff endorses a notice of trial, which informs the defendant when and where the trial is to take place. The next step is to sue out the jury process, which con- sists of a venire yacias and a distringas, or, in the Court of Common Pleas, a habeas corpora, juratorum. The venire facias requires the sheriff to summon the ju- rors to appear at Westminster; this writ is not in fact served, but it is supposed to have been served, and that the jurors summoned have made default, whereupon the distringas is issued, requiring the sheriff to have the bodies of the jurors before the court at Westminster, or before one of the judges of the court, if he shall first come, on day of (it being the day of trial), at (the place where the trial is to be had). The time named for having the jurors at Westminster is subsequent to the time fixed for the trial in the proper county, and as the judge appointed to hold the sittings in that county is sure to come in the terms of the writ, the sheriff is not required to send the jurors to Westminster. From the words nisi prius, unless before, used in the jury process, jury trials are termed trials at nisi prius. Upon this process the sheriff summons jurors, and the same jurors are summoned for the trial of all the causes at the same session. The jurors are summoned from per- sons possessing certain qualifications as to property, etc., a list of whom for each county is prepared by the proper offi- cers. A jury may be either common or special — the latter consisting of persons of the degree of squire or upwards, or the quality of banker or merchant, who are summoned for the trial of causes of great consequence. The names of the jurors summoned are entered upon a strip of paper called 382 Ch- 27.] SYSTEM OF PLEADING IX TEXAS. [§285. the panel, attached to the jury process. If the case is to be tried by a common jury, the names of the persons sum- moned are written on a card and put in a box, and when each cause is called, twelve of these persons, whose names are first drawn out of the box, unless absent, challenged or excused, are sworn upon the jury. If it is a special jury case, the parties on a previous day attend before the proper ofiicer of the court, and from the names drawn from the special jurors list, the parties alternately strike a certain number, and the jury is then drawn by lot from those re- maining on the list. But to return to the regular course of proceeding. When the venire and distringas have been sued out, it is the duty of the plaintiff to enter the proceedings on the record, which is done by transcribing upon parchment the pleadings in their consecutive order, the similiter, the venire, and the distringas. This record, which is termed the nisi prius record, is delivered to the judges by whom the cause is tried, and serves for their guidance as to the nature of the issue to be submitted to the jury. The trial by jury takes place under the superintendence of the presiding judges, who decide all points as to the admissibility of evidence, and instruct the jury as to its legal effect. The verdict of the jury, when rendered, is drawn up in legal form, and endorsed upon the back of the record. From the word with which it commenced when the proceedings were in Latin, it is termed the postea. At the succeeding term of the court in banc at Westminster, judgment is entered in accordance with the verdict. Within a prescribed time before judgment is entered up, the unsuc- cessful party may take certain steps, in the court in banc, to avoid the effect of the verdict. 1st. He may move for a new trial, either because the judge, who tried the cause, misdirected the jury, or ad- mitted or refused evidence contrary to law, or because the verdict is contrary to the evidence, or on evidence insuffi- 383 Ch. 27.] SYSTEM OF PLEADING IN TEXAS. [§285. cient in law, or because the damages are excessive, or be- cause the jury misconducted themselves, or because a new and material fact has been discovered since the trial. No statement of the facts proven on the trial is made out, but, when necessary, reference is made to the notes of the presiding judge. 2d. An unsuccessful defendant may move in arrest of judgment, on the ground that there is some error appearing on the face of the record which vitiates the proceedings. 3d. When the defendant has plead by way of confession and avoidance, the unsuccessful plaintiff may move for judo-ment nan obstante veredicto, on the ground that the plea is bad in substance, and presents no defense to the action . 4th. A motion for a repleader may be made, on the ground that the issue joined was immaterial and not proper to decide the action. The effect of this motion is to re- quire the parties to plead de novo, for the purpose of ob- taining a better issue. 5th. A motion for a venire facias de novo (which is in substance the same as a motion for a new trial), may be made when there has been some irregularity or error in the practical course of proceedings, which vitiates the verdict or renders it void. If the unsuccessful party, instead of relying upon a motion for a new trial, desires to obtain the revision of some question of law arising upon the trial, by a court of appellate jurisdiction, he must put the question upon record by a bill of exceptions, which is a statement in writing, signed and sealed by the judge, of the objection made by the party to his decision. This bill of exceptions is not noticed by the court in banc, but judgment is rendered upon the verdict, as in the common course. In order to suspend the execution of the judgment, the unsuccessful party must bring a lorit of error, which is a writ issuing out of chancery, directed to the judges of the 384 Ch. 27.] SYSTEM OF PLEADING IN TEXAS. [§286. court in which judgment was rendered, and commanding them, in some cases, themselves to examine the record, and, in other cases, to send it to another court of appellate jurisdiction to be examined, in order that some alleged error in the proceedings may be corrected. The first is called a writ of error, coram nobis or vobis, and is granted for some error of fact not apparent upon the record, which affects the validity and regidarity of the legal proceedings, as, for instance, that the defendant, being under age, appeared in the suit by attorney and not by guardian. It will be remembered, as before stated, that the verdict of the jury can be revised only on a motion for a new trial, and that it cannot be assigned for error. The second is called, generally, writ of error, and is granted for some error of law apparent upon the record. §286. Comparison of the Texas and English pro- cednre. From this cursory view of the course of proceeding in an action at law, the points of difference between the English practice and our own can be seen at a glance. 1st. All of the record proceedings, i. e., the writ or sum- mons, the pleadings, etc., to the execution, are had in the court in banc at Westminster before all- of the judges, and the trial of questions of fact is had before one of the judges of the court in the county where the venue is laid. Here, the summons is issued, and all of the record proceedings are had in the court of the county where the trial takes place. 2d. In England, all of the papers in the case, from the summons to the execution, are prepared by the attorney who conducts the suit, he obtaining the signature of the proper officers when necessary. Here, all of the papers pur- porting to emanate from the court, arc actually drawn up, tested, signed and issued by the clerk, and executed by the proper legal officer. (25— Plead. Forms.) 385 Ch. 27.] SYSTEM OF PLEADING IN TEXAS. [§286. 3d. In England, the action is commenced by the issuance of the summons; here, by the filing of the petition. 4th. In Enghmd, the pleadings are not filed with any officer, but are mutually served by the party upon his ad- versary, and no record of them is made, until a demurrer book is prepared for the argument of a question of law, or the nisi prius record is made up for the trial of the issue of fact. Here the pleadings are "filed" with the clerk of the court, and remain of record in his office. With the excep- tion of the jDctition and certain amendments, they are not required to be served or delivered to the other party, but he must take notice of them at his peril. 5th. In England, the pleadings are so managed as to present but a single issue of law or of fact. Here, as many issues, both of law and fact, may be presented, as the par- ties think necessary for the decision of their case. There, the pleadings must be adapted to the form of the action; here, we have no forms of actions, and the form of the pleadings is the same in all cases. 6th. In England, the evidence adduced upon the trial cannot be embodied in the record. The verdict of the jury can only be revised upon a motion for a new trial, made in the court of which one of the judges presided at the trial. Here, by a statement of facts, or an agreed case upon which a cause may be submitted, the evidence forms a part of the record, and the verdict of the jury can be as- signed for error, as well as be made a ground for a motion for a new trial before the judge by whom the cause was tried. 7th. In England, the functions of an attorney and coun- selor are kept distinct. The latter, who are termed bar- risters and sergeants, can alone sign the pleadings (some of the ordinary and simple kind, and declarations ex- cepted), and argue questions of law to the court, or of fact 386 Ch. 27.] SYSTEM OF PLEADING IN TEXAS. [§287. to the jury. Here, the same person can act as attorney and counselor, performing the duties of both. While the practice in the English system is widely vari- ant from our own, it will be found that the rules of plead- ing applied to the count of the declaration apply to the count of the petition, and that such rules of pleading as do not owe their origin to their peculiar practice, but are the rules of sound logic and conduce to a clear, succinct and methodical statement of the cause of action and grounds of defense, will apply to every system of pleading; while the modes of administering the law differ in different countries and under different systems, the principles of law, forming the basis of adjudication, are the same everywhere, and consequently the facts to be stated to entitle a party to a specific relief, must everywhere be the same. §287. Mode of proceediug in courts of equity. — In England, and in many of the states, jurisdiction of suits, based upon equitable rights, is vested in a court of chancery, in which all questions of fact are determined without the intervention of a jury, and in accordance with the rules of equity. A suit in equity is commenced by bill, which is a petition setting forth the subject of complaint, with such allegations as tend to corroborate the statement, or to anticipate and controvert the claims of the adverse party, closing with a prayer for the appropriate relief, and for process against the defendant to compel him to appear and answer. Of bills there are three kinds, viz: an original bill, by means of which a suit is commenced; a supplemental bill, by which the plaintiff sets forth some new matter that may have arisen since the filing of the original bill, and the de- f endanf's reply thereto ; and a bill of revivor, the purpose of which is to revive or set the proceedings in motion, when the suit has abated or stopped from some cause or other, as by death of any of the parties. 387 Ch. 27.] SYSTEM OF PLEADING IN TEXAS. [§287. A bill consists of nine parts, as follows : 1st. The address to the chancellor. 2d. The names and description of the plaintiff. 3d. The stating part, which consists of a statement of the facts upon which the plaintiff rests his title to relief. 4th. Confederating part, consisting in general charges of confederacy against the defendant. 5th. Charging part, consisting in allegations of the de- fendant's pretenses, and charges in corroboration of theml 6th. Jurisdiction clause, consisting in an allegation that the acts of the defendant complained of are contrary to equity, and that his only complete remedy is through the mediation of a court of equity. 7th. Interrogating part, consisting of interrogatories and and a prayer that the defendant may answer the matters alleojed ao^ainst him. 8th. The prayer for relief. 9th. The prayer for process, that is, that a writ of sub- poena may issue against the defendant, to compel him to answer upon oath to all the matters charged against him in the bill. The bill having been signed by counsel, is sworn to and filed in the proper otfice, and a writ of summons, called a subpoena, is then issued out of and under the seal of the court, requiring the defendant, within a specified time, to cause an appearance to be entered for him, and to answer concerning the matters alleged in the bill, under the pain of attachment and other process for contempt. An appearance is entered by his solicitor filing with the proper officer a memorandum to that effect. He must then procure an office copy of the bill, and prepare his defense accordingly. The defense may be either by a demurrer, plea, dis- claimer, or ansioer. A demurrer is a defense arising out of the bill itself, and objects to it as being insufficient to compel an answer, on 3S8 Ch. 27.] SYSTEM OF PLEADING IX TEXAS. [§287. the grouncl of some defect on its face, or in the matter con- tained in it ; as that the bill is not framed correctly ; or that the facts therein stated are insufiicient to found a de- cree upon ; or that the plaintiff, on his own showing, has no right; or that the bill seeks the discovery of a thing which would occasion a forfeiture to the defendant, or con- vict him of criminal misbehavior, etc. A ijlea is a defense arising out of some new matter stated by the defendant as a reason why the suit should be dis- missed, delayed or barred; as that the court had no juris- diction ; or that the plaintiff is under some disability ; or that, in consequence of some matter shown in bar of the suit, the plaintiff can demand no relief. A disclaimer is resorted to when the defendant has no interest or concern in the subjectmatter of thesuit, andcZ^s- claims all right or title thereto. By the answer the defendant either controverts the case stated by the plaintiff, or denies some parts of it, or admits the case as stated by the plaintiff, and submits to the judg- ment of the court upon it, or relies upon new matter stated in the answer. The defendant is not confined to any one of these forms of defense, but he may put in either one, two or more of them to different portions of the same bill. If the defense is by answer, it must be sworn to. If the answer admits the allegations made by the plaintiff in the bill, the cause is set down to be heard on bill and answer. But if, instead of admitting the truth of the allegations of the bill, the answer traverses or denies them, the plaintiff replies to the answer by a replication, which is a general denial of the truth of the defendant's plea or answer, and of the sufficiency of the matter alleged in it, and an asser- tion of the truth and sufficiency of the bill. By the replication the pleadings are brought to a termi- nation, and an issue joined upon the matters in dispute be- tween the parties. 389 Ch. 27.] SYSTEM OF PLEADING IN TEXAS. [§288. Formerly the plefidings proceeded to a rejoinder, sur- rejoinder and re-buttor, as new facts Avere introduced requir- ing an answer, but now new matter must be introduced by- way of amendment, and the replication is a mere formal joinder of issue, like the similiter in the pleadings at law. When the parties are at issue upon some question or ques- tions of fact, the depositions of witnesses are taken in an- swer to written interrogatories. The examination of the witness is made by an officer of the court, and the answers are not made public until the time oi publication, when they are open to the inspection of the parties. After publication has passed, either party may set the cause down for hearing and sue out asuhjjoena to hear judg- ment, to be served upon the opposite party. Upon the day appointed for the hearing, the evidence is heard by the chancellor, and without the intervention of a juiy, and the decree pronounced determining the rights of the parties. § 288. Comparison between the practice in courts of equity and tlie courts of Texas. There are many points of resemblance between the prac- tice in a court of equity and in the County and District Courts. 1st. In both courts the suit is commenced by the petition. 2d. The frame of a bill and a petition are similar, so far as substance is concerned, the fonnal parts of the bill hav- ing nothing analogous in the petition. The address, the description of the parties, the stating part, and the prayer for relief, are necessary in both systems of pleading. In our system, the petition does not contain the confederating part, the charging part, the jurisdiction clause, or the in- terrogating part. 3d. In both systems there may be several issues of law or of fact, with this difference, however, that in the equity sys- tem there can be but one issue, either of law or fact, aris- ing upon any particular part of the pleading ; while in our 390 Ch. 27.] SYSTEM OF TLEADIXG IX TEXAS. [§§289,290. system, an issue of law and fact, upon the same pleadings, can both be presented at the same time. 4th. I«i both systems the pleadings terminate with the replication, and new matter, when necessaiy, must be in- troduced by amendment. § 289. Spanish civil law formerly in force in Texas. Prior to the revolution, which severed this country from the Republic of Mexico, of which, in connection with the province of Coahuila, it formed a state, the Spanish civil law, modified to some extent by local statutes, was in force here. While the common law was introduced at an early pe- riod in our independent existence, that system has left behind it distinct traces, and some of its features are apparent in our existing law. In the change, however, that took place sub- sequent to the revolution, in repealing the body of the civil law, and in adopting the common law in its application to juries and evidence, and as a rule of decision when not in- consistent with the Constitution and laws, the system of pleading heretofore in use in the courts of Texas was care- fully preserved, and, though having but little resemblance to the Spanish system, alone remains in the midst of the wreck of the former laws. §290. Mode of procedure under the civil law. Under the civil law, in force in Texas prior to the revolu- tion, actions were classed as real and personal. A real ac- tion was brouo;ht for the enforcement of a risrht in or to the possession of property. It was brought against him who possessed, or fraudulently attempted to possess, the property of another. By this action the plaintiff sought to obtain possession of property so wrongfully held by the defend- ant. A personal action was brought to enforce an obliga- tion bv which another had contracted to give or to do some- thing. 391 Ch. 27.] SYSTEM OF PLEADING IN TEXAS. [§290. The proceedings in an action were the demand, the cita- tion, the contestation, the proof, and judgment. The de- mand was the petition to the judge that he command the defendant to give, to pay, or to do something. It was oral or in writing, according to the vahie of the thing demanded. The demand conformed to the action in wliich it was made, and contained, 1st, the name of the judge to whom it was made; 2d, the names of the plaintiff and defendant; 3d, a statement of the cause of action, and the judgment asked for. The elements of a good petition were said to be compre- hended in this distich: Qicis, quid, coram quo, quo jurepetatur, et a quo, Ordine confectus qui.sque libellus liabet. It was necessary, as a general rule, to describe with cer- tainty the thing of which possession was demanded. In some cases the demand may be general, as of an inher- itance and the like, where the plaintiff has no means of as- certaining the quantity, value, etc. Reference could be made to accompanying exhibits for the purpose of making the statement of the demand suiEciently full and specific. Different things, not contrary to each other, could be in- cluded in the same demand. The demand concluded with the words, juro, etc., el oficio v implora, etc. The word juro indicated that the plaintiff had sworn to prosecute the suit in good faith. The other words constituted a prayer for judginent, but their omission did not defeat the right of the plaintiff to proper relief. The contestation or answer of the defendant confessed or denied the cause or foundation of the action. The defend- ant coukl also set up in his answer in reconvention any mat- ter which related to, or would offset or defeat, the plaintiff's demand. As to the plea in reconvention, the defendant be- came the_ actor, and the plaintiff could make his answer thereto by a repI\cation. The pleadings were originally 392 Ch. 27.] SYSTE3I OF PLEADING IN TEXAS. [§291. closed by a reply, termed a duplication, contesting the mat- ters alleged in the last preceding pleading. Additional matters could be pleaded b}^ either party on an affidavit that they had been discovered since the last pleading. Manual del Ahogado. By a decree of Coahuila and Texas, of April 17th, 1834 (Early Laws, Art. 75), establishing courts, it was provided that in actions where the amount in controversy exceeded ten dollars, the pleadings shall be in writing, and shall con- sist of a petition, answer, replica and duplica. §291. Mode of pleading imder the Act of 1836. The Act of December 22d, 1836 (Early Laws, Art. 275), defined the jurisdiction and powers of the District Court. In taking out a writ or process, the plaintiff was required to file his petition, with a full and clear statement of the names of the parties, whether plaintiff or defendant, with the cause of action, and the nature of the relief required. In other respects, the rules of pleading under the civil law continued in force, except as they have been changed by statute. The common law of England was adopted by the act which took effect March 16th, 1840 (Early Laws, Art. 707), but the act regulating proceedings in civil suits, which took effect on the same day, provided that the adoption of the common law should not be construed to adopt the common law system of pleading, but the proceedings in all civil suits shall, as heretofore, be conducted by petition and answer. Earljr Laws, Art. 730. The Act of February 5th, 1840 (Early Laws, Art. 739), abolished the fictitious proceedings in the action of eject- ment as known to the common law, and established a special system of pleading and practice in suits for the recovery of land. 393 Cb. 27.] SYSTEM OF PLEADING IN TEXAS. [§292. §292. Mode of pleading under the Act of 1846. The acts above stated contain tbe only statutory provi- sions relating to pleadings in courts of record, in force un- til the passage of tbe Act of May 13tb, 1846, regulating proceedings in tbe District Court. Early Laws, Art. 1755. Tbis act required civil suits in tbe District Court to be commenced by a petition, wbicb sball state tbe names of tbe parties, and tbeir residence, if known, witb a full and clear statement of tbe cause of action, and sucb otber alle- gations pertinent to tbe case as may be necessary to sus- tain tbe suit, and a full statement of tbe nature of tbe re- lief desired. Tbe defendant was autborized in bis answer to state as many several matters, wbetber of law or fact, as may be pertinent to tbe cause and necessary to bis defense. Tbe answer was made by pleas in abatement, or otber dilatory pleas or demurrers, and by pleas in bar, all of wbicb could be filed at tbe same time and in due order of pleading. Tbese provisions are substantially incorporated in tbe Re- vised Statutes. Tbe statute also prescribes tbe mode of pleading certain matters relating to tbe jurisdiction of tbe court of tbe subject matter of tbe suit, or of tbe parties thereto, and otber formal matters. 394 Ch. 28, — Parties to Suits. §293. Parties must be named in the pleadings. 294. A municipal corporation may sue or be sued. 295. A private corporation may sue or be sued. 296. Partners must join in a suit. 297. Parties to action for trespass on real estate. 298. The husband may sue for the wife's property. 299. Survivor of the marital community may sue alone. 300. A beneficiary may sue on an obligation for his benefit, 301. Parties having a several interest in the same question may join as plaintiffs. 302. Parties having an adverse interest in the subject matter of the suit must be joined as defendants, 303. Parties to different causes of action cannot be joined as de- fendants. 304. One against whom no judgment is asked not a proper party, 305. One who has parted with his interest in land is not a proper party to an action for its recovery. 306. All joint owners of land necessary parties to a suit for its partition, 307. Parties to an indemnity bond may be made parties to suits against sheriffs and constables, 308. Parties to a fraudulent transaction may be joined. 809, Parties to a suit to foreclose a mortgage, 310. Parties to a suit to enforce a vendor's lien. 311. Parties to a suit to enforce a mechanic's lien by a sub- contractor. 312. Parties to a creditor's bill. 313. Parties to a proceeding by mandamus. 314. A party may intervene in a collusive suit to protect his in- terest. §293. Parties must be named in the pleadings. It is an elementary and fundamental rule of procedure, as well as of right, that a party cannot be bound by a judg- ment without being allowed a day in court. He must be named as a party, and must be cited, or have himself made a party, to authorize a personal judgment against him.^ A petition contained the following allegations: John C. Gibbons and D. C. Scott, executors and trustees under the 395 Ch. 28.] PARTIES TO SUITS. [§293. last will and testament of E. Gibbons, deceased, plaintiffs, complaining of , etc., * * * represent that on the 1st day of January, 1882, phiintiffs were lawfully seized and pos- sessed of the tract of land hereinafter described * * * holding the same in fee simple. (Describing it.) That afterwards * * * defendants entered upon said premises, etc. It was held that it appeared from these allegations that the plaintiffs were suing in their own right, and not as executors or trustees. ^ A suit was filed in the name of "F. A. Rabb, a minor, by his guardian, G. A. Rabb." An amendment, in the name of "G. A. Rabb, guardian of Frank Rabb," suing for the benefit of his ward, did not make a new party plaintiff.^ Upon the marriage of 2k feme sole, plaintiff, pending suit, the fact should be presented to the court by motion or sug- gestion before the trial, and the husband should be made a party.* Pending an administration, heirs cannot sue save where it is shown to be necessary for their protection.^ When a defendant in a proceeding to revive a money judgment dies, his legal representative is a necessary party. The heirs are proper parties when it is shown that there is no administration, and no need of one.^ If the petition shows the existence of parties in interest who have not been joined, the suit will be dismissed on an exception for want of parties. If their existence is not dis- closed by the pleadings, but is disclosed on the hearing by the evidence, the case should be suspended until those parties are cited.'' To this general rule, there is an exception in cases where a judgment is authorized against the sureties on statutory bonds, 8 The want of necessary parties to an action may be urged after judgment by default has been entered against those who have been made parties.^ 39G Ch. 28.] PARTIES TO SUITS. [§294. Objections for want of proper parties come too late when made for the first time in tlie appellate court. ^^ A party is concluded by a judgment in the right only in which he sues or is sued. A decree of the District Court against children, *'as the heirs of their deceased father," does not affect their interest in the subject matter of the suit as heirs of their mother. ^^ 1 Janes v. Reynolds, 2 T. 250; Thomas v. Chapman, 62 T. 193; Dun- lap v. Southerlin, 63 T. 38; Freeman v. Hawkins, 77 T. 498; Williams V. Warren, 82 T. 319; Williams v. Barnwell, 78 T. 326. 2 Roiindtree v. Stone, 81 T. 299. 3 Rabb V. Rogers, 67 T. 335. As to proper parties to suits, see Civ. Stat. Arts. 1200-1212, and notes. As to suits by heirs and administra- tors, see, post, §403; Earle v. Marx, 80 T. 39. 4 Railway v. Carloutte, 79 T. 341. 5 Lee V. Turner, 71 T. 264. 6 Schmidtke v. Miller, 71 T. 103. 7 Ship Channel Co. v. Bruly, 45 T. 6; De La Vega v. League, 64 T. 208; see Anderson v. Chandler, 18 T. 436; Davis v. Willis, 47 T. 154. 8 Civ. Stat. Arts. 181, 3117, 4506, 4513, 4843. 9 Anderson v. Chandler, IS T. 436; Ebell v. Bursinger, 70 T. 120. 10 Shelby v. Bartes, 18 T. 644; Hughes v. Roper, 42 T. 116; Caruth v. Grigsby, 57 T. 259. " Thompson v. Cragg, 24 T. 582; Veramendi v. Hutchins, 48 T. 531; Caruth v. Grigsby, 57 T. 259; Pressley's Heirs v. Robinson, 57 T. 453; Rudd Af. Johnson, 60 T. 91; Grigsby v. Peak, 68 T. 235; Stone v. Ellis, 69 T. 325. §294. A municipal corporation may sue or be sued. A suit by or against a county or city must be brought in its name. The state may sue, but cannot be sued except by express authority.^ When suit is in name of a person for the use of the county, the county is the real plaintiff, and the name of such other should be struck out as surplusage. If this be not done, no issue as to the authority of a third party to sue for the use of the county can be made, except by a plea in abatement.^ 1 Civ. Stat. Arts. 342, 676; Looscan v. Harris County, 58 T. 511; The State V. Delesdenier, 7 T. 76; The State v. Snyder, 66 T. 687. 2 Smith V. Mosely, 74 T. 631. 397 Ch. 28.] PARTIES TO SUITS. [§§295-297. §295. A private coi'poration luaj^ sue or be sued. A private corporation may maintain and defend judicial proceedings.^ A foreign corporation cannot maintain any suit or action, either legal or equitable, in any of the courts of this state, upon any demand, whether arising out of contract or tort, unless, at the time such contract was made or tort com- mitted, the corporation had filed its articles of incorporation in the office of the secretary of state for the purpose of procuring its permit. Railway corporations and corpor- ations required to procure permits to do business from the commissioner of agriculture, etc., are not within the provi- sions of this act.^ 1 Civ. Stat. Art. 575, 2. 2 Act July 6, 1SS9; 21 Leg., p. 97. §296. Partners must join in a suit. It is a general rule that partners must join in suits affect- ing the business of the firm ; but a dormant partner, who is not privy to the contract, need not be joined.^ In attachment proceedings against a defendant, goods were seized belonging to defendant and a partner. It was held that the defendant, by a plea in reconvention, could not recover damages which accrued to his partner from the seizure. Nor could he recover damages for breach of a contract between the plaintiff and the firm.^ 1 Speak V. Prewitt, 6 T. 252; Jackson v. Alexander, 8 T. 109; Garrett V. Muller, 37 T. 589; Tyuburg v. Cohen, G7 T. 222; see, post, Arts. 439-441,453. 2 Kirby v. Provine, 78 T. 353. §297. Parties to action for trespass on real estate. In an action for damages to real estate, as a general rule tenants in common should join. Such action may be brought by one tenant in common, and in such a suit the defendant may, by proper instructions to the jury, protect himself, and have the damages apportioned and the verdict limited to the proportional interest held b the plaintiff. 398 Ch. 28.] PARTIES TO SUITS. [§§298, 299. Where the father joins as next friend of one of the heirs, he is estopped from thereafter asserting claim for damages for the same act to his hfe estate in one-third of the land, the property of his deceased wife. 1 Lee V. Turner, 71 T. 264. As to proper parties to the action of tres- §298. The husband may sue for the wife's property. A husband may sue alone for the recovery of the wife's separate property, and recover damages occasioned by in- jury thereto.^ The wife is not a necessary party to a suit for damages to her separate property, but the joinder of the husband and wife, as plaintiffs is not reversible error.^ A wife, who was a trustee for her children, invested their funds in personal property. Her husband, in her right, sued a trespasser for taking the property. It was held that her children were not necessary or proper parties.^ The husband is the proper party plaintiff in an action for personal injury to the wife.* 1 Ry. Co. V. Medaris, 64 T. 92. 2 Lee V. Turner, 71 T. 264. 3 Milliken v. Sraoot, 71 T. 759. * Tel. Co. V. Cooper, 71 T. 507; Ry. Co. v. Helm, 64 T. 147. §299. Survivor of the marital community may sue alone. When the husband or wife dies intestate, leaving no child or separate property, the common property passes to the survivor, charged with the debts of the communit3\ No administration on the estate is required, and suit may be brought by or against the survivor. ^ Where suit is so brought, the facts authorizing it must be alleged. It is not sufficient to allege that the defendant had taken possession of the community property, and Mas controlling and managing it. One who has taken charge of the property of a decedent cannot be sued as an exec- utor de son tort. ^ 399 Ch. 28.] PARTIES TO SUITS. [§§300, 301. The assignee of a debtor, under the statute, holds a per- sonal trust, which expires at his death. The surviving wife cannot in any case be made a party to a suit brought by him as such assio-nee.-^ 1 Civ. Stat. Art. 2165. 2Vela V. Guerra, 75 T. 595. 3Woessner v. Crauk, 67 T. 389. § 300. A beneficiary may sue on an obligation for his benefit. The county judge is not a necessary party to an action by the ward, after attaining his majority, on the bond of his guardian. And when the bond was executed by him as the guardian of two minors, and he was discharged from the guardianship of one of them, the other minor could main- tain an action on the bond alone. Roberson v. Tonn, 76 T. 535. As to who are proper parties in an action in behalf of a city and its citizens against a railway company, on a contract by which the latter obtained a donation of money and prop- erty for a certain designated consideration, see Ry. Co. v. Harris, 73 T. 375. §301. Parties having a several Interest in the same question may join as plaintiffs. H. and divers other persons obtained an injunction to restrain the collector of taxes from collcctinof from them taxes amounting in the aggregate to a sum within the juris- diction of the court. The individual taxes of neither of the plaintiffs equaled the amount necessary to confer jurisdic- tion on the court. It was held that the action was properly brought. ^ The defendants, in several separate actions brought against them by one and the same plaintiff, may unite in a proceeding to enjoin all of the judgments, the question upon which the injunction is sought, to restrain the judgments being common to all of the cases. ^ 400 Ch. 28.] PARTIES TO SUITS. [§302. Several creditors may unite in a proceeding against a common debtor, and have his property placed in the hands of a receiver, to be converted into money and distributed among the creditors.^ The owner of the fee in land, and the tenant for life in one third of the land, may join in an action for damages for injury to the estate. And so, either may maintain a separate action, but the recovery will be limited to the in- terest of the party bringing the suit.* 1 Labadie v. Dean, 47 T. 90; Girardin v. Dean, 49 T. 243; Hamilton V. Wilkerson, 1 App. C C. §556. 2 Wells Point Bank v. Bates, 76 T. 329; see Blum v. Goldman, 66 T. 621 ; Le Gierse v. Kellum, 66 T. 242. SFagan v. Boyle Ice Mach. Co., 65 T. 324. *Ry. Co. V. Pearce, 75 T. 281. §302. Persons having an adverse interest in the sub- ject matter of the suit must be joined as defendants. All beneficiaries adversely interested to the plaintiffs are necessary parties defendant in a suit by a part of the ben- eficiaries to set aside a trust deed giving preference to cred- itors in the order named in it. Those having priority over the plaintiffs are adversely interested, and cannot be repre- sented by them in such suit.^ As a general rule, the cestui que trust is a necessary party in all suits by or against the trustees to recover the trust property. The exceptions to this general rule apply chiefly to cases where there are a great number of beneficiaries in the trust, and where the intention existed in creating the trust to 'nvest the trustee with power to prosecute and de- fend suits in his own name. The fact that the trustee is authorized, by the instrument evidencing the trust, to re- ceive rents for the use of the cestui que trust, and in his dis- cretion to sell the property and apply the proceeds to the benefit of the cestui que trust, will not authorize the trustee to defend alone a suit brought to cancel the instrument cre- ating the trust. The beneficiary is a necessary party. ^ (26— Plead. Forms.) 401 Ch. 28.] PARTIES TO SUITS. [§303. Under some circumstances a trustee may represent his oeneficiaries in all things relating to their common interests in the trust propert3^ His powers and obligations may be such that those for whom he holds will be bound by what is done for as well as against him. The difficulty, it seems, is not so much in ascertaining what is the effect in this re- spect of the trust position he occupies, but whether he oc- cupies it. The rule is, that if he is constituted such repre- sentative or trustee, his beneficiaries are not necessary parties to such suit. He is in court for all the beneficiaries, and they are bound by the judgment, unless it is impeached for fraud or collusion between him and the other party. An exception to the rule is found in the case of an assignee in a deed of assignment made by an insolvent debtor for the benefit of his creditors.^ A fund of $5,000, upon the death of a named legatee, was to go to the children of M. She had four children, two of them minors. One of the adult children assigned to plaint- iff, and the other guaranteed the payment. The adult leg- atees and trustees were made parties defendant to a suit by plaintiff for one-half of the fund. On exception, for want of parties, it was held that the minor legatees could not be affected by the judgment, no question being made as to the amount on hand, and were not necessary parties to the suit.* 1 Hudson V. Milling and Elevator Co., 79 T. 401. 2 Ebell V. Bursinger, 70 T. 120. s Preston v. Carter, 80 T. 388. ^ McNeill V. Masterson, 79 T. 670. §303. Parties to rtiffereiit causes of action cannot be joined a.s defendants. It is a general rule, that a cause of action ex delicto and a cause of action ex contractu cannot be joined in the same suit. When, under the liberal course of procedure adopted 402 Ch. 28.] PARTIES TO SUITS. [§304. in this state, such causes of action may be joined, they must be such as the pUiintiff in the suit can enforce against all of the defendants. An action on a contract, made by three persons with the plaintiff, cannot be joined with one for a tort alleged to have been committed on him by the parties to the contract and another. When jurisdiction is conferred by the joinder of the latter party, such misjoinder may be pleaded by the parties prejudiced thereby. ^ 1 Stewart v. Gordon, 65 T. 344. §304. One against whom no jiidgment is asked not a proper party. In a proceeding to set aside an execution sale on account of the fraud of the purchaser, in which there were no equi- ties to adjust between the judgment creditor and the pur- chaser, no complaint being made as to the validity of the judgment and execution, the creditor is not a necessary party. When the relief is sought against the original pur- chaser, through whose fraud the sale was consummated, the proceeding is not collateral in its character.^ An action was brought asfainst the husband and wife on a note executed for the purchase money due for land, but there were no allegations in the petition showing her liabil- ity. On appeal, the judgment was reversed on the ground that. it did not appear that a citation had been served upon her. It was held that while she was neither a necessary or proper party, the judgment must be reversed for want of service of process.^ In a suit for debt against the husband and wife, there be- ing no prayer to subject the separate property of the wife to the judgment, she is not a necessary or proper party. ^ In a suit on a note secured by a vendor's lien, the de- fendant may defeat a recovery by showing an outstanding title superior to that of his vendor, but the owner of the outstanding title is not a necessary party, and should not 403 Ch. 28.] PARTIES TO SUITS. [§§305, 306. be compelled to litigate his title in a suit involving issues which cannot affect him.* J Stone V. Day, 69 T. 13. 2 Shelby v. Perrin, 18 T. 515. 3 Walling V. Hannig, 73 T. 5S0. 4 Fisher v. Abuey, 69 T. 416; Whitman v. Willis, 51 T. 424. § 305. One who lias parted with his interest in land is not a proper party to an action for its recovery. A mortgagor of real estate may convey the same to a third party, subject to the mortgage. A purchaser of the mortgaged property, at a sale by the mortgagee, made by virtue of a power of sale contained in the mortgage, may bring suit to recover the possession and remove the cloud upon his title. The conveyance of the land by the mort- g'agor in fee, transfers the equity of redemption of the mortgaged premises ; and he having parted with his interest, is not a proper party to a suit for the recovery of the land ; but his vendee is a necessary party to a suit for the recoveiy of the land. ^ 1 Buchaunan v. Monroe, 22 T. 537. § 306. All joint owners of land necessary parties to a suit for partition. In a suit for partition, all persons interested in the title by which the land is held are necessary parties.^ But if the pleadings fail to show that there are persons interested in the title who, are not parties to the suit, the proceedings may, nevertheless, be prosecuted to a final de- cree. Persons claiming under an adverse title, or not under the title of which partition is sought, are not necessary parties. The plaintiffs, if they see proper, may make all claimants parties to the proceeding, and have the adverse claim or title litigated.'^ 1 Parker v. Chancellor, 73 T. 475. 2 Noble V. Meyers, 76 T. 280. 404 Ch. 28.] PARTIES TO SUITS. [§§307, 308. § 307. Parties to an ideninitj^ bond may be made par- ties to snits against sheriffs or constables. In a suit against a sheriff, constable, or deputy of either, for damages for an official act, such officer may make all the principals and sureties in such bond parties defendant.^ iCiv. Stat. Art. 4525a; Stiles v. Hill, 62 T. 429; Kellogg v. Miiller, 68 T. 182; Rains v. Herring, 68 T. 469; Schniick v. Xoel, 72 T. 3; Stevens v. Wolf, 77 T. 215; Cabell v. Hamilton-Brown Shoe Co., 81 T. 104. §308. Parties to a fraiuUilent transaction may be joined. In a suit by creditors to set aside and annul fraudulent conveyances, the grantor in the conveyances may be joined as defendant with the grantee. ^ In an action brought to set aside a sheriff's sale on the ground of fraud, all parties who are chargeable with a joint participancy in the fraud, and jointly implicated in effect- ing the alleged fraudulent sale, are properly joined.^ Where certain judgment creditors of the grantor in deeds of conveyance brought their action against the grantor and grantee in the same, to have the same declared fraudulent and void as to them, and the property therein conveyed subjected to execution on their judgment, and the grantor disclaimed and thereafter died, and his administrator was made a party, and the court held that the deeds of convey- ance W'Cre fraudulent and void, a judgment was properly rendered, directing the sale of the property as under exe- cution to satisfy the judgments of the plaintiffs.^ In a suit for a wager on a horse race, the adverse better and the stakeholders may be joined as defendants; and it seems that several persons with whom plaintiff had inde- pendent wagers in the hands of the same stakeholders, could be joined as defendants. But no party can be joined against whom the demand is less than the amount necessary to confer jurisdiction upon the court.* iBirdwell v. Butler, 13 T. .338, 2 Teas V. McDonald, 13 T. 3-19. 3 Bird well v. Butler, 13 T. 338. ■•Galbreath v. Atkinson, 15 T; 21. 405 Ch. 28.] PARTIES TO SUITS. [§§309, 310. § 309. Parties to a suit to foreclose a mortgage. A mortgagor of real estate may convey the same to an- other, subject to the mortgage, which is but a security for the debt, and only a chattel interest. Until a decree of foreclosure, the mortgagor continues the real owner of the fee. A conveyance of the property by the mortgagor passes the entire estate and interest in the property, subject to the lien of the mortgage, and in a suit to foreclose the mortgage, subsequent purchasers are necessary parties in order to bar their equity of redemption.^ When the mortgage has been foreclosed under a power of sale contained in the mortijage, the mortgaofor who had conveyed his interest in the land to another before such sale, is not a necessary party to a suit by the purchaaer for the possession of the land. Subsequent purchasers in posses- sion of the land being entitled to the equity of redemp- tion, are necessary parties to a suit brought after such possession commenced to foreclose the lien.^ When a mortgage is executed to secure several notes due at different times, in a suit by the holder of the note last falling due, to enforce the mortgage, the holders of the others remaining unpaid are necessary parties. '^ 1 Buchanan v. Monroe, 22 T. 537; Railway Co. v. Whitaker, 68 T. 630; Webb v. Maxan, 11 T. 67S; Preston v. Breedlove, 45 T. 47; Byler V. Johnson, 45 T. 509; Morrow v. Morgan, 48 T. 304; Silliman v. Gam- mage, 55 T. 365; Robertson v. Coates, 65 T. 37. 2 Buchanan v. Monroe, 22 T. 537; McLane v. Paschal, 47 T. 365. "Delespine v. Campbell, 45 T. 628; Id. 52 T. 4. § 310. Parties to a suit to enforce the vendor's lien, — The vendee, and any subsequent purchaser from him w^ho is in possession, or of whose claim there is notice by a re- corded conveyance, are necessary parties to a suit by the first vendor to enforce his lien for the unpaid purchase money. ^ A judgment against a vendee foreclosing a vendor's lien to satisfy purchase money notes, cannot affect the rights 406 Cll. 28.] PARTIES TO SUITS. [§310. of the holder of other notes for a portion of the purchase money, and who is not made a party to the suit in which the lien is foreclosed.^ A defendant in a suit to enforce the vendor's lien who has conveyed the land, has no right to have his vendee joined as a defendant.^ In a suit by the vendor against the vendee and a subse- quent purchaser, for the purchase monej'' and the enforce- ment of the vendor's lien, the defendants cannot object that subsequent incumbrancers of the land are not made parties. They may make themselves parties, but are not necessary parties, and if not made parties, are not affected by the judgment.* In such an action the vendee cannot bring in his own vendee as a party defendant, if resistance be made by the plaintiff." Where several notes are secured by a lien on land, all are equally entitled to payment. When one of several notes has been assigned by the payee, it does not have priority of lien over the notes not assiijned.^ A creditor alleged in her petition that her debtor had fraudulently conveyed a tract of land to K., that K. sold to H., retaining a vendor's lien, and prayed that the vendor's lien retained by K. be foreclosed for her benefit. Before this remedy was sought, H. conveyed to W. Neither party having the legal title, the purchaser from the vendee was a necessary party to a suit to foreclose the lien for the purchase money, and not being made a party to the suit, was not affected by the judgment foreclosing the lien." In Ufford v. Wells, 52 T. 612, it is held that a subse- quent purchaser is a proper party in all suits to enforce a prior lien, but he may not be a necessary party, except to bar his equity of redemption. If the superior title remains in the plaintiff in a suit to foreclose, and the title of the subsequent purchaser is subordinate thereto, the mere fact that he was not made a party to the enforcement of the lien for the purchase money against the original vendee, 407 Cll. 28.] PARTIES TO SUITS. [§310. will not prejudice the superior title of the plaintiff, although it might operate to prevent any prejudice to the vendee's right to the equity of redemption. The cases in which a subsequent purchaser or incum- brancer, if known, has been held to be a necessary party to a suit to foreclose a prior lien in order to affect his title, are those in which he held under the superior legal title, subject only to a claim for a lien to be enforced, as in cases of strictly vendor's liens arising by implication upon an absolute deed for land, or mortgages given to secure a debt other than for the purchase money. When a mortgage is given simultaneously with the deed to secure the purchase money for land, or a lien to secure the purchase money is expressly reserved in the deed itself, the superior title remains with the vendor. A subsequent purchaser, being charged with notice of whatever is appar- ent upon the face of his chain of title, takes subject to the superior title. To protect himself, he must do equity, and redeem by payment of the purchase money. If in such a case the original vendor brings suit, in the nature of a bill to foreclose and bar the equity of redemp- tion, the subsequent purchaser, if made a party, will be bound thereby. If, however, he should not be made a party, although his equity of redemption might not thereby be barred, yet in a contest for title between him and the orig- inal vendor, the superior title of the latter must prevail, unless in a proper case, under appropriate allegations and proofs, the equities of the former can still be enforced. If the lien to secure the deferred payments is not ex- pressly reserved in the deed or notes, and the deed is on its face a deed of warranty, the contract is executed, the absolute title passes, and only an implied lien exists.^ In Robinson v. Black, 56 T. 215, it is held that a plaint- iff who sues as assignee of a note secured by a vendor's lien, but has no interest in the land, must make the tenant, in possession under a deed from the vendor, a party to the 408 Ch. 28.] PARTIES TO SUITS. [§310. suit, in order to enforce the lien. But if neither the party in possession nor his vendor had more than a mere equity, and the party in possession was charged with notice by the recitals of the deed under which he claims that the pur- chase money notes had not been paid, such part}'^ in posses- sion is not a necessary party to proceedings to foreclose. One holding a purchase money note, to secure which an express lien was reserved in the deed to the land for which it was given, brought suit against the maker alone, and ob- tained judgment foreclosing the lien. Under that judg- ment the land was sold, and the purchaser at the execution sale instituted suit against one in possession of the land under deed from the first vendee when the suit to foreclose was brought, but was not made a party to the foreclosure suit. It was held, that when land is sold and the purchase money is to be paid, either wholly or in part, on a partic- ular day, and a lien is expressly reserved to secure its pay- ment, the sale is executory, and title does not pass to the vendee until the purchase money is paid, but remains in the vendor. In an executed sale the vendee takes title, which he can convey to a third party, subject, however, to the vendor's lien as against such subsequent purchaser with notice. But to foreclose the implied vendor's lien in an executed sale, so as to affect the title of a subsequent vendee, he must be made a party. A subsequent vendee in possession is not a necessary party to a suit to foreclose an express lien reserved in a deed to his vendor, and the purchaser at sheriff's sale under the judgment of foreclosure, though a third party, may maintain trespass to try title against such subsequent vendee in possession, who was not a party to the suit to foreclose.^ iWebb V. Maxan, 11 T. 678; Mills v. Traylor, 30 T. 7; Floyd v. Bor- land, 33 T. 77; Lockhart v. Ward, 45 T. 227; Preston v. Breedlove, 45 T. 47; Byler v. Johnson, 45 T. 509; Sample v. Irwin, 45 T. 5G7; Carter V. Attovvay, 46 T. 108; Cannon v. McDaniel, 46 T. 303; Morrow v. Morgan, 48 T. 304; Pitman v. Henry, 60 T. 357; Peticolas v. Carpenter, 409 Cll. 28.] PARTIES TO SUITS. [§311. 53 T. 27; Silliman v. Gammage, 55 T. 365; Hillibraud v. McMahan, 59 T. 450; Davis v. Rankin, 50 T. 179; Burson v. Blackley, 67 T. 11 ; Bal- lard V. Carter, 71 T. 101; Templenian v. Gresbam,61 T. 50; Robertson V. Coates, 65 T. 37; Ry. Co. v. Whitaker, 68 T. 630; Cook v. Pollard, 70 T. 723; Andrews v. Key, 77 T. 35; King v. Brown, 80 T. 276. 2 Glaze V. Watson, 55 T. 5G3. 3 Wood V. Lougbmiller, 48 T. 203; Silberberg v. Pearson, 75 T. 287. * Cbapraan v. Lacour, 25 T. 94; James v. Jacqnes, 26 T. 320; Silber- berg V. Pearson, 75 T. 287. 5 Wood V. Lougbmiller, 48 T. 203. 6 Glaze V. Watson, 55 T. 563; Wooteu v. Hollingswortb, 58 T. 371; McMicbael v. Jarvis, 78 T. 671. 7 Wortban v. Boyd, 66 T. 401. 8 Webster v. Mann, 52 T. 416; Hale v. Baker, 60 T. 217; Ransom v. Brown, 63 T. 188. 9 Foster v. Powers, 64 T. 247. §311. Parties to a suit to enforce a meclianic's lien by a sub-contractor. The mechanic's lien law authorizes a sub-contractor, or emplo3'e of the contractor, to secure a lien upon the house or lot of land upon which improvements are made.^ Under a similar provision, under the Act of 187 1,^ it was held that such sub-contractor or employe was not entitled to a general judgment in personam against the owner for the debt claimed, to be collected out of his property gener- ally, as other judgments rendered against him for his own debts. It would seem to be the proper practice for the sub- contractor, in bringing suit against the owner, to make his employer a party, so as to have adjudicated the amount of his debt at the same time, unless it had been previously ad- judicated, and also to make other lien holders parties, to settle their validity and adjust their priority.^ 1 Act April 5lb, 1889; 21 Leg. 110. 2 Early Laws, Art. 3658. 3 Waldroff v. Scott, 46 T. 1 ; see Shields v. Morrow, 51 T. 393; Iloran V. Frank, 51 T. 401; Loonie v. Frank, 51 T. 406; Pool v. Sanford, 52 T. 621; Sens v. Trentune, 54 T. 218; Harris County v. Campbell, 68 T. 28. 410 Ch. 28.] PARTIES TO SUITS. [§§312, 313. §312. Parties to a creditor's bill. One creditor can maintain a suit to set aside a fraudulent conveyance, and subject the property so conveyed to the payment of himself and other creditors.^ If he dies, the suit may be revived by his personal repre- sentative. If the latter does not choose to revive it, then any other creditor may, by a supplemental petition, con- tinue the suit, and proceed therein for the benefit of all creditors.^ In a proceeding by attachment, an intervenor attacked the claim of the original plaintiff for fraud, and prayed that the proceeds of the attached property be applied to the sat- isfaction of his own claim, and to that of subsequent attach- ing creditors, according to the priority of their liens. On the trial the claim of the plaintiff was adjudged fraudulent. It was held error to decree payment to the plaintiff of such funds as remained after discharging the debt due the in- tervenor, in disregard of other attaching creditors, and this, thouffh such other attaching creditors have not been made parties. In such a case, before entering the final decree, all the attaching creditors should be made parties. When the determination of priority of liens is involved, all who claim liens, and are interested in the distribution of the fund, are necessary parties.^ 1 Arbuckle Bros. Coffee Co. v. Werner, 77 T. 43. 2 Nix V. Dukes, 5S T. 96. 3 Cook V. Pollard, 70 T. 723. §313. Parties to a proceeding by mandanms. When the performance of a duty is sought to be com- pelled by the writ of mandamus^ all persons charged with the performance of that duty must be made parties. Thus, the county judge and the county commissioners are necessary parties to a suit for a mandanms, to compel them to recog- nize the plaintiff as a county commissioner.^ 1 Gaal V. Townsend, 77 T. 464. 411 Ch. 28.] PARTIES TO SUITS. [§314. §314. A party may interveue in a collusive suit to pro- tect his interests. A fraudulent diversion of a debtor's i^roperty may be as effectively accomplished by a collusive suit as by a direct transfer, and to prevent the illegal result of such a suit be- tween an attaching creditor and the debtor, a junior attach- ing creditor may intervene in the case, and protect his in- terest in the attached property, by showing that the plaint- iff's demand is fictitious. ^ When a judgment rendered in a suit cannot prejudice the rights of a person not a party to the suit, he has no right to intervene.^ An intervener must set out facts entitling him to a judgment against the original parties to the suit. ^ If it be necessary for the pro- tection of the rights of the defendant that other persons who have a joint interest with the plaintiff should be brought in, this may be done by a proceeding in the na- ture of a cross-action against the plaintiif and such third party.'' A mercantile firm in Galveston oblisfated itself to a mem- ber of a mercantile firm in Fayette county to release the said member of all claims against his firm, and to guarantee him immunity against all creditors of his firm if he would release and convey his interest in the firm to his co-partners, which he did. Afterwards, in a suit brought by a third party in Fayette county, for a firm debt, against all the members of the Fayette county firm, the retiring member asked that the Galveston firm be made parties to the suit, and that he have judgment over against the firm for any sum adjudged against him in the suit. The members of the Galveston firm appeared and pleaded to the jurisdiction of the court over them, and interposed a general exception. It was held: 1. The Galveston firm sustained no such leijal or equitable relation to the plaintiffs as would have authorized a suit against them, even in Galveston county, where the members of the firm resided. 2. The Galveston firm was neither a necessary nor proper party to the action. 3. 412 Ch. 28.] PARTIES TO SUITS. [§314. There was no stipuKation that the contract of the Galveston firm was to be performed in Fayette county. 4. The plea of the members of the Galveston firm of the privilege of being sued in the county of their residence, was properly sustained.^ 1 Xeuney v. Schluter, 62 T. 328 ; Johnson v. Heidenheimer, 65 T. 263 ; Mussina v. Goldthwaite, 34 T. 131; Fleming v. Seeligson, 57 T. 524; Grabenheimer v. Rindskoff, 64 T. 49; Cook v. Pollard, 70 T. 725; Wolf V. Butler, 81 T. 87; Stansel v. Fleming, 81 T. 294. 2Legg V. McNeill, 2 T. 428; Garrett v. Gaines, 6 T. 446; Cooper v. Singleton, 19 T. 267; Whitman v. Willis, 51 T. 421; Meyberg v. Steagall, 51 T. 351; Pool v. Sauford, 52 T. 621; Spencer v. Rosenthall, 58 T. 4; Ryan V. Goldfrank, 58 T. 350; Nenney v. Schluter, 62 T. 327; Faubion V. Rogers, 66 T. 472; Building Assu. v. King, 71 T. 729; Noyesv. Brown, 75 T. 458; Hinzie v. Kempner, 82 T. 617. 3 Building Assn. v. King, 71 T. 729. 4 Baily v. Trammell, 27 T. 317. s Holloway v. Blum, 60 T. 625. 413 Ch. 29. — Venue of Suits. §315. Venue of suits defined. 316. General rule us to venue of suits. 317. Effect of change of residence. 318. Venue of suit in particular cases. a. Against a married woman. b. Against transient person. c. Against non-resident. d. Against residents of different counties. e. Against obligor in a contract. /. Against executor, administrator or guardian. g. In all cases of fraud, and in cases of defalcation of public officers. h. To prove the execution of a written instrument for record. i. To establish a lost record or decree. §315. Venue of suits defined. In our practice the venue of a suit is the county in which the suit is to be commenced. In each organized county courts are held having jurisdiction of all civil suits, the venue of which is determined either by the residence of the parties thereto, or by the subject matter of the suit. The residents of a new county, taken from the territory of an organized county, remain within the jurisdiction of the county from which it was taken until it is organized. ^ Disorganized counties are, for judicial purposes, attached to the organized county, the county seat of which is nearest to the county seat of such disorganized county.^ Territory exterior to the counties existing on the 18th of April, 1876, may be divided into counties in advance of population, and attached for judicial and land surveying purposes to the most convenient organized counties.^ 1 Civ. Stat. Art. 670; O'.Shea v. Twohig, 9 T. 336; Clark v. Goag, 12 T. 395; Wilson v. Catchiugs, 41 T. 587. a Civ. Stat. Art. 671. 3 Civ. Stat. Art. 653. 414 Ch. 29.] VENUE OF SUITS. [§31(j, 317. §316. General rule as to venue of suits. An inhabitant of this state, unless otherwise specially pro- vided by statute, must be sued in the county in which he has his domicile. When the defendant is a married woman, she must be sued in the county in which her husband has his domicile. When there are two or more defendants, resid- ing in different counties, suit may be brought in any county where one of the defendants resides.^ A surety on an official bond, which has been paid by him, on an allegation of the death and insolvency of the principal, may maintain an action against his co-sureties in any county in which either of them resides. In this case suit was brought in K. county against two sureties residing in that county, and another residing in W. county. The last named defendant excepted on the ground that the action was several and not joint, and that, as against him, it should have been brought in the county of his residence. As to the joinder of the parties in this suit, it is said that the rule against multiplicity of suits has j^eculiar force in our system of procedure. Within reasonable limits it is the cardinal principle as to joinder of parties and causes of action. Even jurisdictions, which are distinct and separate in other states, are blended in our system, and legal and equitable causes of action and grounds of defense may be adjusted in a single controversy. As a basis for contribution, the plaintiff relies upon the administrator's bond, which, in thetermsof the law, is a joint obligation, and, as the liability of the co- sureties for contribution depends upon the terms and effect of the original undertaking, so it seems that original under- taking should be considered in determining the question of joinder of parties which fixed the venue of the suit.^ 1 Civil Statutes, Art. 1198. 2Kush V. Bishop, 00 T. 177. § 317. Effect of change of residence. The fact that a defendant transacts business in a different county from that of his residence, does not divest his priv- 415 Ch. 29.] VENUE OF SUITS. [§318. ilege of being sued in the latter county, if it be his domicile. The word domicile^ used in the statute, has a well defined meaning. 1 There may be a difference between a man's residence and his domicile. He may have his domicile in one place, and still may have a residence or transact his business in an- other place; for although a man, for most purposes, can be said to have but one domicile, he may have several res- idences. A residence is generally transient in its nature; it becomes a domicile when it is taken up animo vianendi. In order to enable a defendant to claim the right of being sued in the county of his residence, the fact of residence must be reasonably certain, so that it can be ascertained upon inquiry. Where a defendant has had his residence in one county for a considerable time before the commencement of a suit, it ought to be held, for the purposes of that suit, to be the place of residence, until he has effected an actual and complete change of residence from that to another county, not only by going to prepare a home for his family in the latter county, but by actually removing his family and principal effects from his former to his new home.^ 1 Ex parte Blunier, 27 T. 734; Giddings v. Steele, 28 T. 751. 2Bro\vu V. Boulden, 18 T. 431; iBlucher v. Milsted, 31 T. 621; Wil- son V. Bridgeman, 24 T. 615; Tucker v. Anderson, 27 T. 276. §318. Venue of suit in particular cases. (a.) A married woman may be sued in the county in which her husband has his domicile.^ (6.) A transient person may be sued in any county in which he may be found. It is sufficient to allege in the petition that defendant is a transient person, having no fixed place of residence. It is not necessary to allege in what county he may be found. ^ (c.) Jf a non-resident oi this state is found temporarily sojourning here, he may be sued in the county of the plaint- iff's residence as a transient person.^ 416 Ch. 29.] VENUE OF SUITS. [§318. When a defendant resides out of this state, or his res- idence is unknown, suit may be brought in the county in which plaintiff residess.^ (cZ.) Residents of clifferent coitnties r\\?i\ ho, sued in any county where one of the defendants reside.^ This provision applies only to those who are a necessary or a proper party to the suit.^ If the defendant, who resides in the county where the suit is brought, is not a necessary or proper party, a plea to the jurisdiction filed by the non-residents of the county joined wath him in the action, should be sustained.' (e.) Obligor in a contract maybe sued in the county where by its terms it was to be performed, or in the county of his domicile.^ A bond given by an administrator does not require the surety to answer for the defalcation of his principal in any particular county, and he must, therefore, be sued in the county of his residence, when the administration is pending in a different county, and he alone is sued.^ A contract for the building of a house, and a bond con- ditioned that the contractor build the house as he contracts to do, are separate and distinct contracts. The latter, un- less it is otherwise expressly provided, must be sued on in the county in which one or more of the makers of the bond reside. ^"^ (y.) An executor, administrator or guardian may be sued on a money demand against the estate represented by him, only in the county where the estate is administered.^^ ((/.) In all cases of fraud, and in cases of defalcation of public officers, suit may be instituted in the county in wdiich the fraud was committed, or where the defalcation occurred, or where the defendant had his domicile. ^^ (A.) A suit to prove the execution of a written in- strument for record governed by the general rule. Suit was brought in Harrison county by a non-resident plaint- iff ajrainst a non-resident defendant, both of whom had been partners, to prove up for record, under Art. 4354, (27— Plead. Forms.) 417 Ch. 29.] VENUE OF SUITS. [§318. Civ. Stat., an instrument in writing, which on face certified that the defendant had given up to plaintiff all claims which once belonged to both. The firm did own lands in this state, but not situate in the county where the suit was brought. On a plea to the jurisdiction, in the na- ture of a plea in abatement, calling in question the power of the District Court to adjudicate upon the subject matter, it was held that the statute did not fix the venue in such a case, and the parties being non-resident, having no domicile in Texas, the venue must be determined by general rules applicable to the matter, independent of statute. The cause of action was not local, but transitory, though the result of the action might, on some future contingency, indirectly affect the title to land. It was one regarding which jurisdiction could be exercised in the District Court of any county in which service could be obtained on the de- fendant, or wdiere he might appear, and by making defense waive service. ^^ (^.) A. suit to establish a lost record or decree may be instituted in the county where such loss took place. ^* The remedy given by this statute is cumulative, and suit for the same purpose may be brought in the county of the de- fendant's residence. ^^ 1 Civ. Stat. Art. 1198, §1. 2 Baker v. Wofford, 4 T. 122; Civ. Stat. Art. 1108, §2. 3 McMullen v. Guest, 6 T. 275; Mickee v. McGeliee, 27 T. 134. 4 Civ. Stat. Art. 1108, §3. 8 Civ. Stat. Art. llOS, §4; Rush v. Bishop, 60 T. 177. 6 Holloway v. Bluin, GO T. G25. 7 Ry. Co. V. Manguin, 68 T. 342. 8 Civ. Stat. Art. IIOS, §5; Durst v. Swift, 11 T. 273; Phillio v. BIythe, 14 T. 34.5; Wilson v. Adams, 15 T. 323; Wright v. Reed, 37 T. 265; Big- ham V. Talbot, 51 T. 450. 9 Cohen v. Munson, 50 T. 236. 10 Lindhcira v. Muschamp, 72 T. 33. "Civ. Stat. Art. 1198, §6 ; Neill v. Owen, 3 T. 145 ; Richardson v. Wells, 3 T. 223; Bondies v. Buford, 58 T. 266. 12 Civ. Stat. Art. 1108, §7; Finch v, Edmondson, 9 T. 504; Evans v. Mills, 16 T. 196; Freeman v. Kuechler, 45 T. 592. 13 Pegrara v. Owens, 64 T. 475. " Civ. Stat. Arts. 4286-4293. i« Johnson v. Skipworth, 59 T. 473; White v. Jones, 67 T. 638. 418 Ch. 30. — General Rules of Pleading. §319. Pleading defined. 320. Rules of pleading in common law courts. 321. Rules of pleading in courts of equity. 322. Rules of pleading the same in cases of law and equity. 323. Pleading in the courts of Texas. 324. Common law rules of pleading, how far applicable. 325. Rules of pleading prescribed by the Supreme Court. Rule 1. Pleadings by petition and answer. 2. Requisites of pleading. 3. Pleadings of plaintiff. 4. Requisites of original petition. 5. Requisites of supplemental petition. 6. Pleadings of defendant. 7. Requisites of original answer. 8. Requisites of supplemental answer. 9. Each pleading shall be in one instrument. 10. Requisites of supplemental pleadings. 11. Supplemental pleadings filed, bow. 12. Amendment of pleadings. 13. Requisites of amended pleadings. 14. Amended pleading superseded. 15. Additional facts pleaded by a substituted amend- ment. 16. Amendment of pleadings ground for a contin- uance, when. 17. Requisites of exceptions to pleadings. 18. Requisites of a special exception to pleadings. 19. Exhibits in pleading. 20. Office of a general denial. 21. Exceptions to the pleadings determined on reg- ular call of docket. 22. On call of case for trial, exceptions, etc., not pre- sented, are waived. 23. Trial amendment, when and how filed. 24. Amendment of pleadings may be required by the court. 25. Cause of action or defense may be abandoned in whole or in part. 26. Repleader ordered, when. 27. Pleadings in intervention governed by the general rule. §319. Plccading defined. Pleading is the statement, in a logical and legal form, of the facts which constitute the plaintiff's cause of action, or the 419 Ch. 30.] GENEEAL RULES OF PLEADING. [§319. defendant's ground of defense; or it is the formal mode of alleging that, on the record, which would be the support or defense of the party in evidence. The established prin- ciples of pleading, which compose what is called its science, are rational, concise, luminous, and admirably adapted to the investigation of truth. In the juris^jrudence of every civilized country certain modes have been established, in which the complaints and defenses of parties are to be brought before the public tribunals. For the sake of dis- patch of business, as well as for its due arrangement with reference to the rights and conveniences of all the suitors, regulations have been adopted to induce certainty, order, accuracy and uniformity in these proceedings. There are indeed many rules founded on artificial reasoning, which, nevertheless, may be affirmed, with few exceptions, to be greatly promotive of public justice, and subservient to pri- vate convenience. If here and there any of them work an apparent hardship or mischief, it will, on close examination, be found that they also accomplish much general and per- manent good ; and in this respect they partake only of the infirmity of all general rules, which must, in particular cases, give rise to some inequalities, and shut out some in- dividual equities and rights.^ Pleadings, with the exception of those presenting issues of law, must be a statement of facts, in contra-distinction to a statement of evidence, of legal conclusions and of argu- ments. ^ The common counts of a declaration at common law are not recognized in our system of pleading, but ev- ery action is a special action on the particular case, and the petition must be framed in respect to the particular grievance for which the party seeks redress.^ This state- ment of facts is requisite to apprise the opposite party of what will be proven on the trial, in order to give him an opportunity to answer it in pleading, and to enable the court to declare the law upon the issues between the parties. The respective statements of the parties must 420 Ch. 30.] GENERAL RULES OF PLEADING. [§319. contain facts sufficient to avail the party pleading them, and must be made according to legal rules, which secure certainty, uniformity and brevity, so essential to all judicial proceedings.* The allegations of a petition should be confined to the facts which constitute the cause of action, without going into special detail ; and when the evidence relied on to sup- port the action is set forth in the pleading, it should be stricken out on exception.^ In an action on a policy of fire insurance, the plaintiff made a literal copy of the policy a part of his petition, and then undertook to de- clare the legal effect of certain provisions. It was held that the averments of legal conclusions drawn from the facts stated were not necessary to the full presentation of the right claimed, and an exception thereto was sustained.^ Though a petition may contain a more detailed statement of the facts on which a recovery is sought than may be re- quired to present properly the cause of action, yet, when the purpose is to indicate thereby particularly the scope of the evidence w^hich will be relied on at the trial, and no in- jury can result to the adversary from their statement, it is not bad on exception.'' The rule above stated requiring a statement of facts is satisfied when, from the facts stated, the law infers other fact or facts essential to show a cause of action ; for what- soever the law infers from a given statement of facts, the adverse party is presumed to know, and must take notice of, whether it is specially pleaded or not. Thus, when an action is brought upon a contract, which the statute of frauds requires to be in writing, it is not necessary to allege that the contract was in writing, for this is implied. The fact that it was in writing is matter of evidence, and if not proven, the evidence is insufficient to authorize a recovery.^ And where an action is based on such a contract, executed by the agent of the defendant, it is not necessary to allege that the agent's authority was in writing. ^ 421 Ch. 30.] GENERAL RULES OF PLEADING. [§320. The rule requiring a statement of facts constituting the cause of action, is not satisfied by a statement of conclus- ions from facts not alleged. In a proceeding to set aside the probate of a will, the execution of which was procured by undue influence, it was alleged that certain named persons conspired and confederated with themselves and others, and exercised undue influence over the testatrix, in order to fraudulently procure the execution of said instrument in writing. This is a mere statement of conclusions, without the statement of a single fact to support them, and an ex- ception thereto should have been sustained. ^° In an action for divorce, it was alleged that defendant had been guilty of excesses, cruel treatment, and other outrages toward plaintiff, and that such treatment was of such a nature as to render it insupportable for her to live longer with him. On error, a judgment of divorce was reversed, on the ground that it was not authorized by any fact stated in the pleadings. ^^ In a suit to fix upon the defendant the char- acter of a trustee, resulting from his. fraudulent acts, it is necessary to allege the facts by which the assumption of a trust character is established. ^^ 1 Chitty PL, §1; Story Eq. PL, §1; Russell v. Nail, 79 T. 664. 2 Rule 2, §325, post. 3 Caldwell v. Haley, 3 T. 317. ^Mims V. Mitchell, 1 T. 447; Carter v. Wallace, 2 T. 208; Salinas t. Wright, 11 T. 572; Thompson v. Thompson, 12 T. 329; Parker v. Beav- ers, 19 T. 410. fi McCauley v. Long, 61 T. 74. 6 Morrison v. Insurance Co., 69 T. 353. 1 Railway v. Brousard, 69 T. 617; Railway v. Pool, 70 T. 713. 8 James v. Fulcrod, 5 T. 512; Cross v. Everts, 28 T. 523; Adklns t. Watson, 12 T. 199; Dawson v. Miller, 20 T. 171; Thomas v. Hammond, 47 T. 42; Horm v. Shainblin, hi T. 243; Gonzales v. Chartier, 63 T. 36 9 Fisher v. Bowser, 41 T. 222. w Brown v. Mitchell, 75 T. 9. " Wrijrht V. Wright, 3 T. 168. 12 Hendrix v. Nunn, 46 T. 141. § 320. Riile.s of pleading in comuion law courts. Pleadings were anciently ore tenus, but afterwards mi- nuted down and entered of record, to remain as muniments 422 Ch. 30.] GENERAL RULES OF PLEADING. [§321. and precedents of the law, and to this practice of oral plead- ing some of the rules peculiar to the common law system of pleading owe their origin. Written pleadings were, how- ever, introduced at an early day, and certain rules of state- ment systematically prescribed and enforced by the judges ; but no material change was made in the principles of plead- ing, which consisted in alternate allegations, so managed as to at length to arrive at some specific point, or matter af- firmed on one side and denied on the other. The great ob- ject of this system of pleading was to bring the parties to an issue, and from the mode of trial, and that it might be decisive of the cause, it was essential that the issue should be material, single and certain. The rules of logic, tending to produce this result, were modified in their application to pleading by other arbitrary and technical rules, resulting from the fact that every cause of action had its appropriate form of remedy, and each remedy had rules of proceeding peculiar to itself.^ 1 Stevens on Pleading, §22. § 321. Rules of pleading- in courts of equity. Courts of equity owe their origin to the inability of courts of law to furnish a complete and sufiicient remedy in cer- tain cases, for which no form of action had been pre- scribed, or for which the relief they could grant was inad- equate. A different form of proceeding was selected by the courts of equity, adapted to their mode of trial, and of administering relief, and the rules of pleading are to some extent modified and controlled b}^ their mode of proceeding. The two systems of pleading differ, however, in form rather than in substance, and those logical rules which con- duce to a clear and methodical statement of the matters in controversy between the parties, apply equally to both systems.^ 1 Story's Equity Pleading, §§7-4S. 423 Ch. 30.] GENEKAL RULES OF PLEADING. [§322. § 322. Rules of pleadings the same in cases of law and equity. In our system of practice there is no difference in the mode of proceedings, or in the application of legal and equitable remedies; nor are there any forms of action adapted to different remedies. The pleadings in all cases consist of the petition and answer, and the court can ad- minister the relief appropriate to the case presented by the pleadings. Demands entitling a party to a legal and equi- table relief, can be united in the same action ; an equitable defense can be opposed to a legal demand, or a legal de- fense to an equitable demand. The court may frame its judgment, so as to afford all the relief which may be re- quired by the nature of the case, and is granted by courts of law or equity, and may grant all orders, writs and other processes necessary to obtain such relief.^ In an action brought to remove cloud from title to land, the petition was excepted to on the ground that it con- tained no averment that the plaintiff was in possession of the land. It is said by Judge Staj^ton, delivering the opin- ion of the court, that the rule requiring an allegation of former possession has been recognized by many courts exer- cising only an equitable jurisdiction ; but it may be doubted if it can be said ever to have been a rule well established even in such tribunals. When recognized, it was upon the ground that a court of equity would refuse to act where the party seeking equitable relief had a full and adequate rem- edy at law. Whatever the rule may be elsewhere, it can have no application in the courts of this state, which are not only empowered, but required, in any case, to give such relief as the facts presented may authorize or require, without ref- erence to whether the relief be such as a court of equity or a court of law may give. In every case legal and equitable relief may be given. ^ 1 Smith V. Doak, 3 T. 215; Fitzhugh v. Custer, 4 T. 391; Johnson v. Davis, 7 T. 173; Mitchell v. Sheppard, 13 T. 484. 424 Ch. 30.] GENERAL RULES OF PLEADING. [§323. 2 Day Company V. The State, 6S T. 526, citing Allen v. Stephanes, 18 T. G59; Ma^^ee v. Chadoin, U T. 4SS; Grimes v. Hobsou, 40 T. 41G; Dangerlield v. Paschal, 20 T. 537 ; The State v. Snyder, 6G T. 6S7; Thom- son V. Locke, 66 T. 383. §323. Pleadings in the courts of Texas. Before the introduction of the common law into this state, by theActof Jan. 20th, 1840, '^ the distinction between the modes of pleading in cases of law and equity was alto- gether unknown. The parties stated their causes of com- plaint and grounds of defense, and on the allegations and proofs, such relief was afforded as they were entitled to under any and all the laws of the land, without reference to that peculiarity of the English system of jurisprudence, which rendered the rights of parties, or at least their relief, dependent not only upon the facts of their case, but also upon the forum in which redress was sought. Upon the introduction of the common law, the intention of the le^is- lature is manifest to prevent such distinction from being recognized ; at least, to an extent which would deprive par- ties of any relief to which they may be entitled under the rules or principles of either law or equity. By the consti- tutions of this state, and subsequent legislation and deci- sions, the distinction between these two systems is, in a great measure, if not totally, disregarded. The courts have jurisdiction of suits, complaints and pleas, without regard to any distinction between law and equity. All civil suits in courts of record are commenced by petition, which nmst contain a clear statement of the cause of action and of the relief souo;ht. The facts constitutinoj the defense are stated in the same manner, and the judges are authorized, on an appropriate prayer for relief, to grant such orders or other process as may be necessary, and may also so frame the judgments of the court as to afford all the relief which may be required by the nature of the case, and which is granted by courts of law and equity. The only inquiry to be made at the institution of a suit is, whether the facts of a case 425 Ch. 30.] GENERAL RULES OF PLEADING. [§323. are such as entitle a party to a judgment in his favor, in either law or equity ; and if he have rights cognizable by either, such relief will be adjudged by the court, as the nature of the case demands. The rule that the courts of equity will interfere only where the party is remediless at law, has no application under a system in which the liti- gants in a suit can demand and obtain all the relief which can be granted by either courts of law or equity. ^ The verification of pleadings under the rules of proced- ure in courts of equity, in cases not required by the statute, for the purpose of imposing the burden of proof on the adverse party, as the plea of non est factum, does not make them evidence, or render it necessary to overbear them by a greater amount of evidence than would have been requi- site had they not been verified.^ In Smith v. Doak, 3 T. 215, which was an action upon a note under seal, the defendant pleaded that the note, when presented to him, had the signature of W., and that it was signed by himself as a surety, under a special agreement with the payee, that the latter should obtain thereto the signature of one J., to be placed above the signature of the defendant, and that the defendant should become the surety of both J. and W., and that he delivered the note to the payee with this express understanding; that he (the payee) failed to obtain the signature of J. as one of the makers of the note, and in consequence thereof the note was not obligatory, and conferred no right of action ; it was held that the defense was admissible. Having no separate court in which equitable rights are exclusively cognizable, and every court having jurisdiction of rights, as well equitable as legal, all the rights, both equitable and legal, appertain- ing to the parties and the subject matter, must be adjudi- cated in every suit wherein they are litigated and drawn in question. In Fitzhugh v. Custer, 4 T. 391, it is said that the intro- duction of the writ of mandamus by name did not necessarily 426 Ch. 30.] GENERAL ItULES OF PLEADING. [§324. bring with it all the rules of practice regulating the issue of the writ ; that the i)ractice of considering the return to a rule to show cause why a 'mandamus should not issue, conclusive, and of thereby remitting the plaintiff to an action on the case, or to an information for a false return, before grant- ing the peremptory writ, is repugnant to our system, which forbids a multiplicity of suits, and requires the rights of parties incident to the subject matter of the suit, whether .they be of a legal or equitable character, to be determined in a single controversy. Courts of equity, in certain cases where specific perform- ance cannot be decreed, award damages in lieu thereof, and in such cases the recovery of damages is not barred, unless the specific performance would have been barred. The general rule, where law and equity are administered in sep- arate forums, is that damages must be sought at law, and specific performance in equity. But this has no proper ap- plication where the jurisdictions are blended, and where, therefore, both objects may be embraced in the same suit, and where, consequently, the prayer may be in the alternative, and where, if one relief fails, the other may be awarded, if on the principles of equity or law, either the one or the other can be granted.* 1 Early Laws, Art. 707. 2 Smith V. Clopton, 4 T. 109; Estes v. Browning, 11 T. 337; Merlin T. Manning, 2 T. 354; Carter v. Wallace, 2 T. 206. 3 Hardy v. DeLeon, 5 T. 211. 4 Mitchell V. Sheppard, 13 T. 484. § 324. Common law rules of pleading', liow far appli- cable. There being no forms of proceeding and no distinction of actions, the rules of pleading known to the common law and equity systems are applicable only so far as they are the rules of sound logic, and conduce to a clear and methodical statement of the cause of action or ground of defense. No rule of pleading which is purely technical, 427 Ch. 30.] GENERAL RULES OF PLEADING. [§324. and has reference to the form of proceeding, has any phice in our system. The pleadings are the same in cases of legal and equitable cognizance, and the application of legal or equitable principles to the decision of the case presented, depends upon the facts, and not upon the manner of stating those facts. In Caldwell v. Haley, 3 T. 317, the petition alleged "that the defendant, on the day of , 1847, was indebted to the plaintiff in the sum of twelve hundred dollars, as well as for work and labor, care and diligence, and divers materi- als and necessary things in and about the said work of your petitioner, to and for the use of said defendant, at his special instance and request, before that time done, per- formed, bestowed and promised; and for divers goods, wares and merchandise sold and delivered ; and divers sums of money lent and advanced, paid, laid out and expended before that time by your petitioner to and for the use of the said defendant, at his like special instance and request ; as also for divers sums of money before that time by said de- fendant had and received, to the use of your petitioner ; and said defendant being so indebted to your petitioner, in consideration thereof, undertook and faithfully promised your petitioner to pay him the said sum of twelve hundred dollars, when he should be thereafter requested, etc." In commenting on this petition the Supreme Court say: "In our pleadings it has uniformly been held essential to state the facts on which the party intends to rely as constitut- ing his cause of action or ground of defense, with such cir- cumstantial accuracy as to apprise the opposite party of what is intended to be proved at the trial. That the peti- tion in this case does not contain the requisite accuracy and certainty is manifest. It apprises the defendant of no one fact going to constitute the plaintiff's cause of action, with timCj place, quantity, value, or other circumstances of identity or certainty. It can, in no just sense, be said to contain a statement of the facts of the plaintiff's case, so 428 Ch. 30.] GENERAL RULES OF PLEADING. [§''>24. set forth as to apprise the defendant of the real nature of the plaintiff's demand, and of the fa^ts intended to be proved. On the contrary, it seems well calculated to mis- lead and confound the defendant, by grouping together a multiplicity of discordant matters quite foreign to each other, and without the observance in their statement of consistency, accuracy, or certainty in any particular. The petition seems to have been framed in imitation of a declara- tion in the English system, embracing the common counts. But, in our pleadings, the common counts are unknown. Every action is a special action on the particular case; and the petition must be framed in respect to the particular grievance for which the party seeks redress." In McClelland v. Smith, 3 T. 210, it is said: "We know nothing of counts in our practice ; they belong to declara- tions at common law. Our petition was designed to be a plain, straight forward statement of the cause of action, without repetition or circumlocution ; and the same matter cannot be again and again presented by a change of phrase- ology or transposition of words." In Catlin V. Glover, 4 T. 151, the petition alleged "that the defendant is indebted to plaintiff in the sum of two hundred and seventy-two 76-100 dollars, for this: That on the 1st day of March, a. d. 1844, one William R. Crump, being in debt to the said defendant in the sum of four thousand five hundred and twenty and 96-100 dollars, ex- ecuted and delivered a deed of trust on certain property therein mentioned, to secure the payment tliereof , in which deed said petitioner was trustee, with power and authority, and rights usually conferred in such cases ; and that he and said plaintiff attended to the duties imposed on him by said trust deed, and to the interest of said defendant in that be- half, to the best of his judgment, and in compliance with the instructions of said defendant, from the time of making said trust deed, as aforesaid, until afterwards, to-wit, the 1st day of October, a. d. 1846, about which time, or at 429 Ch. 30.] GENERAL RULES OF PLEADING. [§325. some time not known to your petitioner, the said Crump settled the said debt, secured in said trust deed, with the said Glover. The premises considered, your petitioner says that he ought to have and recover the said sum of two hundred and seventy-two 7G-100 dollars from said defend- ant, as his reasonable commission for his care, trouble, at- tention and responsibility in that behalf," The defendant excepted to the legal sufficiency of the petition. The ex- ceptions were sustained and the case dismissed. It was held, that the petition contains no averment of an express promise, and that the facts pleaded did not disclose a con- tract or promise on the part of the defendant, either ex- press or implied, to pay to the plaintiff money claimed. §325. Rules of pleading prescribed by the Supreme Court. By the Constitution of 1876,^ the Supreme Court had power to make rules and regulations for the government of itself and other courts, to regulate proceedings and to expe- dite the dispatch of business therein. The amendment of the Constitution of 1891 confered upon the court power to make and establish rules of pro- cedure, not inconsistent with the laws of the state, for the government of said court and the other courts of the state, to expedite the dispatch of business therein. At the Tyler term, 1877, the court established rules of pleading that supplement the meager provisions of the statute on that subject, and with the decisions of the court heretofore an- nounced, form a system admirably adapted to develop and distinctly present for adjudication the material issues of law and fact, upon which depend the rights of the par- ties in controversy.^ 1 Art. 5, §25. 2 These rules were amended at the October term, 1892. 430 Ch. 30.] GENERAL RULES OF PLEADING. [§325. Rule 1. Pleadings by petition and answer. The pleadings in the District and County Courts shall, as prescribed by statute, be by petition and answer, in writ- ing, signed by the part}^! and filed in court. ^ ^ Hemming v. Zimmerschitte, 4 T. 159. 2 Civ. Stat. Arts. 11S5-, 1186; 84 T. 708. Rule 2. Requisites of pleadings. Pleadings, with the exce^Dtion of those presenting issues of law, must be a statement of fact, in contradistinction to a statement of evidence, of legal conclusions, and of ar- guments. Facts are adequately represented by terms and modes of expression, wrought out by long judicial experi- ence, perpetuated in books of form, in law and equity, which, though not authoritatively requisite, may generally be adopted as safe guides in pleading. In case of a violation of this rule, to such an extent as to produce confusion, un- certainty and unnecessary length in pleading, the court may require the matter set up to be repleaded, so as to exclude the superfluous parts of it from the record. Rule 3. Pleadings of plaintiff. The petition of plaintiff shall consist of an original pe- tition, and such supplemental petitions as may be neces- sary, in the course of pleading by the parties to the suit, to enable the plaintiff to state all the facts presenting his cause of action, and such other facts as may be required to rebut the facts that may be set up in the original and sup- plemental answer, as pleaded by the defendant. The orig- inal petition and the supplemental petition shall be indorsed, so as to show their respective positions in the process of pleading, as "original petition," "plaintiff's first supple- mental petition," "plaintiff's second supplemental peti- tion," and so on, to be successively numbered, named and indorsed. 431 Ch. 30.] GENERAL IIULES OF PLEADING. [§325. Rule 4. Requisites of original petition. The plaintiff, in the original petition, in addition to the names and residences of the parties and the relief sought, may state all of his facts, so as to present together differ- ent combinations of facts, amounting to a cause or causes of action, as has been the usual practice; or, he may state the cause or causes of action in several different counts, each within itself, presenting a combination of facts spe- cifically amounting to a single cause of action, which, when so drawn, shall be numbered, so that an issue may be formed on each one by the answer. Rule 5. Requisites of supplemental petition. The plaintiff's supplemental petitions may contain excep- tions, general denial, and the allegations of new facts not before alleged by him, in reply to those which have been alleged by the defendant. Rule 6. Pleadings of defendant. The answer of defendant shall consist of a;n original answer, and such supplemental answers as may be neces- sary, in the course of pleading, by the parties to the suit, to enable the defendant to state all of the exceptions and facts presenting his defense, as contained in his original answer, or his cross-action, if one be set up in the original answer, and such other facts as may be required to rebut the facts that may be stated in the original and supple- mental petitions as pleaded by the plaintiff. The original answer and the supplemental answers shall be indorsed, so as to show their respective positions in the process of pleading, as "original answer," "defendant's first supple- mental answer," "defendant's second supplemental an- swer," and so on, and to be successively numbered, named and indorsed. Rule 7. Requisites of original answer. The original answer may consist of pleas to the juris- diction, in abatement, of privilege, or any other dilatory 432 Ch. 30.] GENERAL RULES OF PLEADING. [§325. pleas ; of exceptions, general and special ; of general denial, and any other facts in defense by way of avoidance or estoppel, the same being pleaded in the due order of plead- ing, as required by statute ; ^ and it may present a cross- action, which to that extent will place defendant in the attitude of a plaintiff. Facts in avoidance and estoppel may be stated together, or in several special pleas, each presenting a distinct defense, and numbered, so as to admit of separate issues to be formed on them. 1 Civ. Stat. Art. 1265. Rule 8. Requisites of supplemental answers. The defendant's supplemental answers may contain ex- ceptions, general denial, and the allegations of new facts, not before alleged by him, in reply to that which has been alleged by the plaintiff. Rule 9. Eacli pleading shall be in one instrument. 9 The original petition, first supplemental petition, second supplemental petition, and every other, shall each be con- tained in one instrument of writing, and so with the orig- inal answer and each of the supplemental answers. Rule 10. Requisites of supplemental pleadings. Each supplemental petition or answer, made by either party, shall be a response to the last preceding pleading by the other party, and shall not repeat the facts formerly pleaded, further than is necessary as an introduction to that which is stated in the pleading then being drawn up. These instruments, to-wit: the original petition and its several supplements, and the original answer and its several supplements, shall respectively constitute separate and distinct parts of the pleadings of each party, and their posi- tion and identity, by number and name, with the indorse- (28— Plead. Forms.) 433 Ch. 30.] GENERAL RULES OF TLEADIXG. [§325. ment of each instrument, sliall be preserved throughout the pleadings of either party. EuLE 11. Supplemental pleadings filed, how. Each party who files a supplement of any number (as first, second, third, and so on), shall give notice thereof by asking: leave of the court, and filino; the same among; the papers of the cause, with the appropriate endorsement thereon, indicating its number and name. Rule 12. Amendment of pleadings. An amendment may be made by either party, upon leave of the court, for that purpose; or in vacation, as prescribed by the statute; the object of an amendment, as contra- distinguished from a supplemental petition or answer, be- ing to add something to, or withdraw something from, that which has been previously pleaded, so as to perfect that which is. or may be deficient, or to correct that which has been incorrectly stated by the party making the amend- ment. (Amended Rule.) The right to amend pleadings, after exceptions are sustained, extends only to curing, by amendment, the pleadings held to be defective; but the court may, in its discretion, extend the privilege to amend other pleadings. Glasscock v. Hamilton, 62 T. 143. Rule 13. Requisites of amended pleading. The party amending shall point out the instrument, with its date, sought to be -amended, as "original petition," or "plaintiff's first supplemental petition," or others filed by the plaintiff, or as "original answer," or "defendant's first supplemental answer," and amend such instrument by pre- paring and filing a substitute therefor, entire and com- plete in itself, to be styled and endorsed, "amended orig- inal petition," or "amended first supplemental petition," or "amended original answer," or "amended first supple- mental answer," and so on, accordingly as said instruments of pleading are designated in rules 3 and 6. ( Amended Rule. ) The rule does not require that the new pleadingshould state in terms that it is a substitute for a pleading amended, but it is made such sub- stitute'by force of the rule. Gonzales v. Chartier, 63 T. 36. 434 Ch. 30.] GENERAL RULES OF TLEADINQ. [§325. Rule 14. Amended pleading superseded. Unless the substituted instrtrraent shall be set aside on excep- tions for a departure in pleading, or on some other ground, the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause, unless some error of the court, in deciding upon the necessity of the amend- ment, or otherwise, in superseding it, be complained of, and ex- ception be taken to the action of the court, or unless it be neces- sary to look to the superseded pleading upon a question of lim- itation. (Amendment, October term, 1892.) EuLE 15. Additional facts pleaded by a substituted amendment. When either party may have occasion to plead new facts, additional to those formerly pleaded by him, which consti- tute an additional cause of action or defense permissible in the suit, he shall present it as an amendment to the original petition or original answer (unless it is in its nature a re- sponse to some pleading of the opposite party), by substi- tution, with the proper name, number and endorsement, in the same manner as other amendments. Rule 16. Amendment of pleading ground for continu- ance, when. When either supplement or amendment made to pleading is of such a character, and is presented at such time, as to take the opposite party by surprise (to be judged of by the court), it shall be cause for imposing the cost of the term upon and charging the continuance of the cause (both or either) to the party causing the surprise, if the other party demand it, and shall make a satisfactory showing, or, if it otherwise be apparent that he is not ready for trial on ac- count of said supplement or amendment being allowed to be filed by the court. Rule 17. Requisites of exceptions to pleadings. General exceptions shall point out the particular instru- ment in the pleadings, to-wit: the original petition or an- 435 Ch. 30.] GENERAL RULES OF PLEADING. [§325. swer, or the respective supplements to either; and in pass- ing upon such general exception, every reasonable intend- ment arising upon the pleading excepted to shall be indulged in favor of its sufficiency. (Amended E-ule.) See Ry. Co. v. Bayliss, 62 T. 570. Rule 18. Requisites of a special exception to plead- ing. A special exception shall not only point out the particular pleading excepted to, but it shall also point out intelligibly the obscurity, inconsistency, duplicity, generality, or other insufficiency in the allegations in the pleading objected to. The general expression, that it is vague, uncertain, and the like, alone, shall be regarded as no more than a general ex- ception. Rule 19. Exhibits in pleading-. Notes, accounts, bonds, mortgages, records, and all other written instruments, constituting in whole or in part the cause of action sued on or the matter set up in defense, may be made a part of the pleadings, by copies thereof, or the originals being attached, and referred to as such, in aid and explanation of the allegations in the petition or answer made in reference to said instruments, but will not thereby relieve the pleader from making the proper allegations of which said exhibits may be the evidence, in whole or in part. No other instrument of writing, such as a deed, will, document, record of court, or agreement, which is not sued on as a cause of action by, plaintiff , or set up as matter re- lied on in defense by defendant, but is designed to be used only as evidence of some fact that is alleged, shall be made an exhibit in pleading; and when it shall be so attempted, by attaching such instrument, and referring to it as such, the court will, of its own motion, or at the instance of a party, cause the instrument to be detached from the plead- ing, and adjudge it to constitute no part thereof, by an order 436 Ch. 30.] GENERAL RULES OF PLEADING. [§325. of court entered of record at the cost of the party violating this rule, so as to prevent the pleadings from being encum- bered with that which is or may be only evidence in the case. The use of exhibits in pleading setting out written instruments, such as articles of incorporation of a private corporation, copy of a mandate of the Supreme Court showing an affirmance of a judgment, about the construction of which no question is raised, is condemned. Holloway v. McElhenny Co., 77 T. G57. When a paper is made an exhibit in a plea, and its verity alleged, it may be taken in explanation of the averments in the pleading which refer to it. Millikeu v. Callahan Co., 69 T. 205; Jones v. Jones, 60 T. 451; Macdonnell v. I. & G. N. Ry. Co., 60 T. 590. Wben an exhibit is referred to in pleading, and its inspection shows facts contradictory of the allegations in the plea, the exhibit, on con- sidering the plea on exception, and not the allegations found in the plea, must control. Freiberg et al. v. Magale, 70 T. 116. The plaintiff's petition asserted that the claim of defendant to the land in controversy was barred by the provisions of the constitution. Exhibits attached to the petition showed what lands the defendant asserted title to, and when the certified copies of the land certificates and of certificates for unlocated balance certificates issued. Upon gen- eral exception by the defendant, it was held that the exhibits did not qualify or destroy the general averment that the claims were barred. If it was deemed necessary that the date of issuance of original certifi- cates should appear from the petition, that question should have been raised by special exception. Thomson v. Locke, 66 T. 3S3. When a chattel mortgage is referred to in a plea, and attached as an exhibit to verify the allegations as to its contents, the fact that the ex- hibit does not show by indorsement that it was filed for registration with the clerk, is immaterial on exception, which raises the question of its proper filing with tlie clerk, if the petition by distinct averment al- leges such filing. Freiberg et al. v. Magale, 70 T. 116. Pleadings, and all exhibits attached thereto and made a part thereof, whether good or bad, when no exceptions have been filed thereto, may be read to the jury as such. Jones v. Jones, 60 T. 451. The holder of a policy of insurance, claiming the same under written transfers indorsed on the back thereof, who sues thereon, making the policy and transfers an exhibit in his petition, may read the same in ev- idence, without other evidence of their execution, when the defendant has failed to put in issue the genuineness of the transfers by plea under oath. Crescent Ins. Co. v. Camp, 64 T. 521. In a suit for divorce brought by the wife, in which, among other allegations of cruel treatment, she charged that the defendant had filed a bill for divorce against her in another state, falsely charging her with 437 Ch. 30.] GENERAL RULES OF PLEADING. [§325. adulterj-, it was not improper to attach a copy of the bill to the petition as au exhibit; and exceptions to the allegation, on the ground that the bill was not sworn to, were properly overruled. Jones v. Jones, 60 T. 451. Rule 20. Office of a general denial. The office of a general denial by defendant is to throw the burden of proof as to the allegations denied on the plaintiff. The defendant cannot be permitted under this plea to introduce special matters in avoidance or estoypel in evidence for his defense. And the same rule prevails when it is filed by plaintiff to facts in the cross-action or anwer of defendant. Rule 21. Exceptions to tlie pleadings determined on regular call of docket. All motions which go to the merits of the case, and all exceptions, general and special, which relate to the sub- stance or to the form of the pleadings, shall be decided at the first term of the court when the case is called in the regular order for trial on the docket, if reached, whether there be an announcement on the facts or not, unless passed by agreement of parties, with the consent of the court. 47 T. 621, Rule 25. Rule 22. On call of case for trial, exceptions, etc., not presented are waived. When the case is called for trial, the exceptions, if any remain undisposed of, shall be presented for determination, and shall then be decided before proceeding to the trial of the case on the facts, and, if not presented, they shall be adjudged by the court to have been waived, and shall be so entered on the minutes of the court, the cost of tiling to be taxed against the party filing them, and they shall con- stitute no part of the final record, unless some question be raised upon the action of the court in reference to them, and they are presented in a bill of exceptions. 84 T. 708. Rule 26. 438 Ch. 30.] GENERAL RULES OF PLEADING. [§325. Rule 23. Trial amenclment, when and how filed. When the exceptious have been presented and decided, leave may be granted to either or both parties to file an amendment in one instrument of writing, separate from those which have been previously filed by each, which shall close the pleadings in the case to be then determined by the court, so as to decide all the questions of sufficiency arising upon them. In making this amendment, the party shall refer distinctly to such instrument as he desires to amend, by name and number, as in the other amendments, without repeating the whole of it, but shall succinctly state such additional facts to be added thereto as he may desire, and this amendment shall be styled and indorsed "plaintiff's (or defendant's) trial amendment;" but if the case should not be then tried, the party or parties shall replead as in other cases of amendment. 47 T. 622, Rule 27. Rule 24. Amendment of pleading may be required by the court. The court shall not be required to allow a case to go to trial on the facts, when the pleadings are obviously so defective as that a material issue has not been formed ; and in such case the court shall call the attention of the parties to such immaterial or defective issue or issues, so that the time of the court may not be wasted. The party in default may then waive his pleading thus found obvi- ously defective, which shall be noted on the minutes of the court, and proceed with the case, should there be other material issues or issue, or or he may take the proper steps to amend his defective pleading, under the rules prescribed for amendments, and upon such reasonable terms as the court may impose. Rule 32. 439 Ch. 30.] GENERAL RULES OF PLEADING. [§325. Rule 25. Cause of action or defense may be aban- doned in part. A party who abandons any part of his cause of action or defense, as contained in the pleadings, may have that fact entered of record, so as to show that the matters therein were not tried, and he shall be taxed with the cost incurred upon such pleading so abandoned. He shall also be taxed with the cost incurred upon pleading in supjjort of which no evidence was offered, to be determined by the court on motion at the term of the trial, and not afterwards. Rule 26. Repleader ordered, when. The court, when deemed necessary in any case, may order a repleader on the part of one or both of the parties, in order to make their oleadings substantially conform to the rules. 47 T. 622, Rule 29. Rule 27. Pleadings in intervention governed by the general rules. These rules of pleading shall apply equally, so far as it may be practicable to apply them, to intervenors, and to parties, when more than one, who may plead separately. 47 T. 623, Rule 30. 440 Ch. 31. — Rules Which Lead Simply to the " Produc- tion OF AN Issue. §326. Parties may except or reply at each stage of the proceeding. 327. Of form in pleading. 328. Exceptions to pleadings defined. 329. Exceptions may be general or special. 330. Form of an exception to pleading. 331. General exception sufficient, when. 332. Special exception necessary, when. 333. Defects in pleading sometimes aided by pleading over. 334. Pleadings construed how, on exception. §326. Parties may except or reply at each stage of the proceeding. The term pleadings comprehends all the allegations made on either side, in the various stages of the proceeding. The petition is a statement at large of the cause of action, with the addition of time, place, and circumstance, and prayer for relief. The defendant makes defense, or resists the plaintiff's suit, by his answer, which sets out the reason or ground of defense by exception or by plea.^ An exception, when used as an answer, sets up as a defense some matter of law. It collects the negative rule of law from the plaint- iff's own statement, and, neither admitting nor denvins: the matters of fact alleged in the petition, shows that, as stated, they are insufEcient to require him to answer further; or, that they are insufficient to entitle the plaintiff to the relief prayed for. A plea is an answer, showing or relying upon one or more things as a cause why the suit should be either dismissed, delayed or barred. It either denies the truth of the matter alleged in the petition, or, admitting its truth, shows some new matter to avoid its effect. In like manner the plaintiff may, by exception, reply to the answer which alleges facts as a matter of defense, and, collecting the negative rule of law, show that they are in- 441 Ch. 31.] RULES. [§§327,328. sufficient to defeat his action, or he may reply thereto by a supplemental petition, setting up facts not before stated. Both parties in supplemental pleadings may reply to the preceding pleading of his adversary, either by an exception to the sufficiency of the allegation, or setting up some new matter to avoid its effect.^ 1 Richardsou v. Pruitt, 3 T. 223; Hopkins v. Wright, 17 T. 30. 2 Rules of Pleading, ante, §325, Rules 10, 11. §327. Of form in pleading'. Two things are essential to every good pleading : first, that it be in matter sufficient; second, that it be expressed according to the forms of law. The want of due form con- stitutes a just objection to the proceedings in every court of justice; for, to reject all form, would be destructive of the law as a science, and would introduce s^reat uncertainty and perplexity in the administration of justice. Every ir- regularity of this sort is fraught with inconvenience, and generally tends to delays and doubts, and it has been well remarked that infinite mischief has been produced by the facility of courts of justice in overlooking errors in form. It encourages carelessness, and places ignorance too much on a footing with knowledge, among those who practice the drawing of pleadings; it exposes the parties themselves to no small hardship, by embarrassing them at every step in the progress of the cause, and involving the merits of the cause in superfluous details and inartificial allegations, at once loose, obscure and misleading. Caldwell v. Haley, 3 T. 317; McCauley v. Long, 61 T. 74; Mor- rison V. Ins. Co., 69 T. 353. § 328. Exceptions to pleadings defined. Under the common law system of pleading, an objection to the declaration, plea, replication, etc., of the opposite party, which on its face, and without reference to extrinsic matter, appeared to be defective either in substance or form, was made by a demurrer. This is defined to be a 442 Ch. 31.] EULES. [§328. declaration that the party demurring will "go no further," because the other party has not shown sufficient matter against him that he is bound to answer. The demurrer ad- mitted the facts pleaded, and merely referred the question of their legal sufficiency to the decision of the court. The statute defines the pleading of the parties as petition and answer. 1 It also requires issues of law arising in the pleadings to be first determined.^ The rules of court^ require objections to pleading to be made by exception, and the term, general exception, is used in this chapter as equivalent to the term demurrer in equity proceedings. In equity, whenever any ground of defense is apparent on the bill itself, either from matter contained in it, or from defects in its frame, or in the case made by it, the proper mode of defense is by demurrer. A demurrer is an allegation of a defendant, which, admitting the matters of fact alleged by the bill to be true, shows that as they are therein set forth they are insufficient for the plaintiff to proceed upon, or to oblige the defendant to answer; or that, for some reason apparent on the face of the bill, or because of the omission of some matter which ouijht to be contained therein, or for want of some circumstance which ought to be attendant thereon, the defendant ought not to be compelled to answer. It, therefore, demands the judgment of the court, whether the defendant shall be compelled to make answer to the plaintiff's bill, or to some certain part thereof. The causes of demurrer are merely upon matter in the bill, or upon the omission of matter which ought to be therein, or attendant thereon, and not upon any foreign matter al- leged by the defendant. The principal ends of a denmrrer are to avoid a discovery which may be prejudicial to the de- fendant, to cover a defective title, or to prevent unneces- sary expense. If no one of these ends is obtained, there is little use in a demurrer. For, in general, if a demurrer would hold to a bill, the court, though the defendant an- 443 Ch. 31.] RULES. [§329. swers, will not grant relief upon hearing the cause. There have been, however, cases in which the court has given re- lief upon hearing, though a demurrer to the relief would probably have beeu allowed; but the cases are rare.* 1 Civ. Stat. Arts. 1195, 1262. 2 Civ. Stat. Art. 1291. s Ante, Chap. 30, §325, Rules 17, 18. 4 Mitford's PL, 153. §329. Exceptions may be general or special. An exception may be general or special; a general ex- ception is an objection to a pleading for want of substance ; a special exception is an objection for want of form. When a pleading is defective in substance, presenting no cause of action or ground of defense upon which the court can give judgment, the defect can be reached by a general exception, without showing any particular cause. If a good cause of action is shown, but is defectively stated, or if there is an omission of a formal but necessary averment, the defect must be pointed out by a special exception, in which the causes of exception are particularly set down ; every spe- cial exception includes a general exception.^ The office of a general exception, in our practice, is sim- ilar to that assigned to it in the common law system of pleading ; and the only question which would be entertained under it is, whether the pleading excepted to discloses the existence of any cause of action or ground of defense.'^ A general exception relates back and attaches to the first substantial defect in the pleading on either side.^ Thus, where the plaintiff's petition was so defective as to present no cause of action, the general exception filed by him to the defendant's answer attached to and operated on his own petition.* On general exception, every reasonable intend- ment arising upon the pleading excepted to will be indulged in favor of its sufficiency.^ If a party desires to take advantage of any defect in the form or manner of stating a fact in the pleadings of the 444 Ch. 31.] RULES. • [§330. opposite party, he should do so by special exception.® On special exception, showing a want of form, or that the allegations are not sufficiently special and circumstan- tial, a rigid rule of construction is applied.' 1 Pryor v. Moore, 8 T. 250. 2Lambethv. Turner, IT. 367; Frosh v. Swett, 2 T. 4S5; "Warner v. Bailey, 7 T. 517; Zacharie v. Bryan, 2 T. 274; Wallace v. Hunt, 22 T. 647; Williams v. Warnell, 28 T. 610; Swenson v. AValker, 3 T.t)3; More- land V. Atchison, 34 T. 351; Hudson v. Wheeler, 34 T. 356; Robinson v. Davenport, 40 T. 333; Carson v. Cook, 50 T. 325; George v. Vaughan, 55 T. 129. 3 State V. Williams, 8 T. 384. 4 Slaughter v. Buck, 1 App. §104; Burnham v. Walker, 1 App. §899. sprewitt v. Farris, 5 T. 371; Williams v. Warnell, 28 T. 610; Burks V. Watson, 48 T. 107; Green v. Dallahan, 54 T. 281; Cooper v. Horner, 62 T. 356 ; Johnson v. Dowling, 1 App. §1090 ; T. & P. Ry. Co. v. Hamm, 2 App. §491 ; Houston Cotton Exchange v. Crawley, 3 App. §139. 6 Wells V. Fairbanks, 5 T. 582; Frosh v. Swett, 2 T. 485; Dobbin v. Bryan, 5 T. 276; Prewitt v. Farris, 5 T. 370; Moreland v. Atchison, 34 T. 351; Green v. Dallahan, 54 T. 281. 1 Prewitt V. Farris, 5 T. 370. § 330. Form of an exception to pleading. A general exception must point out the particular instru- ment in the pleadings, to the sufficiency of which in form or substance objection is made. It asserts in general terms the legal insufficiency of its allegations, without specially showing in what such defect consists. A special exception must show in what respect the pleading is informal, uncer- tain, or otherwise defective, and it reaches no faults in form other than those assigned. A special exception also reaches all substantial defects in the preceding pleading, without a special assignment.^ From what has been said, it follows that an exception cannot state facts; nor can there be an exception to an ex- ception ; but if it has been filed irregularly, it may be stricken out on motion.^ Exceptions to pleadings, unless waived, must be deter- mined before the trial on the issues presented by the plead- ings, and if sustained, on proper application, the party Id 445 Ch. 31.] RULES. [§331. fault will be permitted to amend his pleadings on such terms as required by the court. ^ 1 Rules 17, 18, ante, §325. t2Pryor v. Moore, 8 T. 250; Crayton v. Munger, 9 T. 285; Williams V. Randon, 10 T. 74; Hays v. Bonner, 14 T. 631; Dumas v. Hardvvick, 19 T. 238. 3 See, post, §§497-518. § 331. General exception sufficient, when. When a pleading is defective in substance, presenting no cause of action or ground of defense upon which the court can give judgment, the defect can be reached by a general exception. A defect is substantial, if the matter pleaded be in itself insufficient, without reference to the manner of pleading it. A general exception is an objection to pleading for the want of substance, as contradistinguished from a spe- cial exception, which is an objection to the form in which the cause of action or ^found of defense is stated. If the pleading is so defective in substance that it does not present such cause of action as would authorize a judgment to be rendered thereon, then it would be subject to the oper- ations of a general exception. In the case of Lambeth v. Turner, 1 T. 367, in treating of the operations of a general exception, Justice Lipscomb said: "It cannot avail, whatever informality, irregularity or defect there may be in any part of the petition, if there should be a good cause of action independent of those ob- jections. And in the case of Williams v.Warnell, 28 T. 612, the court held, that "the legal effect of a general exception is to admit the facts pleaded to be true, but to deny that they constitute a cause of action or ground of defense." From these and other cases decided by the Supreme Court, we deduce the true rule to be applied in testing the correctness of the ruling of the court below sustaining a general exception to a pleading, to be this : Admit- ting to be true all the averments in the pleading, does it constitute such cause of action or ground of defense as will 446 Ch. 31.] RULES. [§332. sustain a judgmeot thereon? If it does, the exception ought to be overruled; if it does not, the exception should be sustained.^ 1 George v. Vaughan. 'yo T. 129; see Frosh v. Swett, 2 T. 485; Dobbin V. Bryan, 5 T. 276; Wells v. Fairbanks, 5 T. 522; Warner v. Bailej', 7 T. 517; Wallace v. Hunt, 22 T. 647; Hays v. Bonner, 14 T. 629. § 332. Special exception necessary, when. A special exception is necessary when a good cause of action or ground of defense is shown, but is defectively stated, by the omission of a formal averment required by the rules of pleading or by the want of certainty in the statement of facts. If the fault is only in the form of the allegation, and enough appears to entitle the party pleading to a iudo-ment so far as relates to the merits of the cause, the defect is formal, and a judgment by default will be sustained on appeal.^ A special exception will, without a particular assignment, reach substantial defects in pleading that would be reached by a general exception, but all faults in matters of form not specially assigned are waived. Every reasonable intendment will be indulged in favor of a petition or answer, when the exceptions thereto, though special in form, are general in substance, and fail to point out specific defects in the pleading excepted to.^ Though a pleading, for the want of specific averments, may be bad on special exception, yet if it states, though its terms are too general, a cause of action j^r/wa facie, an excep- tion to it, which fails to point out specifically the defects in the pleading, should be overruled.^ Where time is not the essence of the contract, a plea alleging part perform- ance and tender of performance is not subject to a gen- eral exception, on the ground that it does not state with certainty the time of such part performance and tender of performance.* Exceptions to pleading, from any of the following causes, appearing from the petition, must be special: That the petition in the action of trespass to try title is not indorsed 447 Ch. 31.] RULES. [§332. as requird by Art. 4787, Civ. Stat.^ That suit, as shown by the allegations in the petition, is not brought within the time prescribed by law, and is subject to the bar of limita- tions.^ That a suit on a claim against an estate, rejected or disallowed, has not been brought within the time prescribed by law.' That there is a non-joinder of tenants in common as plaintiffs in an action of trespass quare clausum f regit. ^ That one of several claims upon which an action is based is invalid on its face.^ An {tUegation in the petition upon a promissory note to foreclose a mortgage to secure its payment, "that th^e de- fendant executed and delivered to plaintiff a mortgage, of even date with said note," on a certain described tract of land, was held sufficient on a general exception.^'' In setting out the English field-notes of a rectangular grant, alleged for the purpose of correcting an imperfect and erroneous description in the Spanish field-notes form- ing part of the title, there was an evident omission of one of the calls. The defect would not be ground for excep- tion to the field-notes in evidence on the ground of variance, and was not reached by a general exception. ^^ A petition in a suit to recover on a promissory note, which contains no averment as to the time when the note was due, but which contains the general allegation that the note "re- mains still due and unpaid," being formal in other respects, is good on general exception. ^^ On general exception, a petition was held good setting up as cause of action that the defendant had obtained pos- session of certain sheep upon which plaintiff held a lien under a deed of trust, in which defendant was trustee, and had wrongfully disposed of them, so that they were taken from the state, and that the makers of the notes secured by the trust deed upon the sheep were insolvent. The ab- sence of an express allegation of ownership by the plaintiff was supplied by allegations involving that fact.^"^ In a suit against a railway company, for damages caused at a period subsequent to its purchase by another company, 448 Ch. 31.] RULES. [§332. it was alleged that the latter company "have, or claimed to have, purchased" the property and franchises of the former ; held, on general exception, that the reasonable intendment, from the language used, was that the pleader intended to exclude the idea that any such sale as the statutes contem- plate, which would have absolved the former road from its obligation to the public, had taken place. ^* In a petition filed by creditors against an assignee ap- pointed under the Act of March 24th, 1879, for misapplying the assets received by him, there was no distinct averment that there did not remain in the hands of the assignee assets not misapplied sufficient to discharge the debts. On gen- eral exception, held; (1.) That the omission was not fatal. (2.) The statute having been made for the benefit of insolvent debtors and their creditors, no presumption can arise that a debtor who avails himself of its provisions is solvent. (3.) An exception, in a case where the property misapplied was al- leged to be of a value equal to two-thirds of the indebted- ness of the assignor, was overruled. ^^ 1 Bledsoe v. Wills, 22 T. 658; Graves v. Drane, 66 T. 658. 2 Stone V. Day, 69 T. 13; Railway v. Morris, 68 T. 49. 3 Gulf, West Texas & P. Ry. Co. v. Montier, 61 T. 122. 4 Schwartz v. B. C. Evans & Co., 75 T. 198. 5 Day Co. v. State, 68 T. 526; Bone v. Walters, 14 T. 564; Shannon V. Taylor, 16 T. 423; Wade v. Converse, IS T. 234. 6 Swenson v. Walker, 3 T. 93 ; McClenny v. McClenny, 3 T. 192; Long V. Anderson, 4 T. 422; Hopkins v. Wright, 17 T. 30; Smith v. Fly, 24 T. 345; Dickenson v. Lott, 29 T. 172; Rivers v. Washington, 34 T. 267; Hudson V. Wheeler, 34 T. 356; Sasser v. Davis, 27 T. 656. 7 Page v. Findley, 5 T. 391 ; Cotton v. Jones, 37 T. 34. 8 May V. Slade, 24 T. 205; Weinsteine v. Harrison, 66 T. 546; I. & G. N. Ry. Co. v. Ragsdale, 67 T. 24. 9 Carson v. Cock, 50 T. 325. 10 Wallace v. Hunt, 22 T. 647. " Irvin V. Bevil, 80 T. 332. 12 Pennington v. Schwartz, 70 T. 211. , "Veck V. Holt, 71 T. 715. " Railway v. Morris & Crawford, 68 T. 49. " Leon & II. Blum v. Wettermark, 56 T. 80. (29— Plead. Forms.) 449 Ch. 31.] EULES. [§333. §333. Defects in pleading sometimes aided by plead- ing over. A defect in pleading is aided by pleading over, when a material fact, omitted upon one side, is stated or by impli- cation admitted upon the other; and it may thus be made to appear from the pleadings on both sides, that a party is entitled to a judgment, although his own pleading, taken by itself, be insufficient.^ In Day Co. v. The State, 68 T. 526, it is held that where the defendant's answer was filed before the exceptions to the petition were acted upon, it must be considered in con- nection with the petition in determining the exceptions thereto. A note was described in the petition, as payable at the office of John A. Merle & Co., in the City of New Orleans; and the answer alleged that the said John A. Merle, of New Orleans, in the State of Louisiana, in the District Court of the United States for the District of Louisiana, filed his petition, etc. ; the plaintiff, without objection, proved the law of Louisiana, and the court instructed the jury in ref- erence to the law of that state. The parties having con- ducted the case upon the assumption that the note was payable at the City of New Orleans, in the State of Louisi- ana, it was held that the defendant could not take advant- age of the neglect of the plaintiff to allege and prove that the City of New Orleans, referred to by the note and the petition, was in the State of Louisiana. ^ The petition hav- ing sufficiently alleged a former judgment between the same parties, for the purpose of alleging circumstances to destroy its effect, it Avas held that it was not necessary for the defendant, who relied upon the judgment as a bar to the plaintiff's action, to plead it formall3^^ In an action to recover money, advanced on cotton re- ceived in store, it was held that the cotton was the primary fund for the discharge of the debt, and that the petition should show what disposition had been made of the cotton ; 450 Ch. 31.] RULES. [§333. but the omission of this averment in the petition was cured by the averments of the answer, to the effect that the cot- ton, after being stored with plaintiff, had been destroyed by fire.* In an action to enjoin the sale of property under a deed of trust, on account of alleged irregularities in the acts of the trustee, the plaintiff in his petition admitted his indebtness; it was held that it was not necessary for the defendants to repeat, by distinct averments in the an- swer, what the petition admitted. It was sufficient for the defendants to ask the judgment, to which they were en- titled, upon the plaintiff's own averments.^ Defects in pleading, whether of substance or form, are cured by verdict, if the issues joined be a-uch as require proof of the facts imperfectly stated or omitted, though it will not cure or aid a statement of a defective title or cause of ac- tion. *" The extent and principle of this rule is thus more fully explained — when a fact is so essentially necessary to be proved, that had it not been given in evidence the jury could not have given such a verdict, then the want of staling that matter in express terms in the petition, pro- vided it contains terms sufficiently general to comprehend it in fair and reasonable intendment, will be cured by a ver- dict; and when a general allegation must, in fair construc- tion, so far require to be restricted that no judge and no jury could have properly treated it in an unrestrained sense, it may reasonably be presumed, after verdict, that it was so restrained at the triaU It is, however, only when such fair and reasonable in- tendment can be applied that a verdict will cure the objec- tion; and, therefore, if a necessary allegation be altogether omitted in the pleading, or if the pleading contain matter adverse to the right of the party by whom it is alleged, and so clearly expressed that no reasonable construction can alter its meaning, a verdict will not aid.^ In an action by the state, based upon bond given by one McF., and the defendant as his surety, conditioned for the 451 Cb. 31.] EULES. [§333, appearance of McF. at the next term of the District Court, on a charge of burglary, there was no allegation in the pe- tition that McF. had ever been indicted, and the breach of the bond was charged in general terms, that the condi- tions of the bond were not complied with by McF,, nor has he ever made his appearance up to the present time. The defendant answered by a general exception, which was not acted on by the court, and by a general denial and the statute of limitation. There was a verdict and judgment for the state. The error assigned was, that the petition disclosed no cause of action, there being no allegation that McF., the principal in the bond, had been indicted; but it was held, that the fact that he had been indicted was in- volved in the issue submitted to the jury, and must have been found by them, before they could give their verdict for the state. ^ An answer, in a suit on a note, setting up a failure of consideration, was objectionable, inasmuch as it did not directly deny the plaintiff's appointment as administrator, and in failino- to state the facts constituting the fraud charged on the plaintiff, and omitting directly and specifi- cally to offer back to the plaintiff all title or possession of the land acquired by the purchase. If special exceptions had been taken on account of these imperfections, they would have been sustained. But these defects were not reached by a general exception; and inasmuch as the an- swer laid a sufficient predicate for the admission of all the evidence necessary to establish a good defense, the defects would have been cured by verdict. ^° A verdict will not cure or aid a statement of a defective title or cause of action." The want of an averment of the value of the property alleged to have been taken and converted, is cured by ver- dict. ^-^ But if the petition contains no allegation of the value of property sued for, evidence of the value is not ad- missible, if ol)jected to.^'^ 1 Hill V. Georojo, 5 T. 87. 2 Andrews v. Hoxie, 5 T. 171. 3 Neill V. Tarin, 9 T. 256. 452 Ch. 31.] RULES. [§334. * Grimes v. Hagood, 19 T. 246. 6 Bourke v. Vanderlip. 22 T. 221. « De Witt V. Miller, 9 T. 239. 7 Carter v. AVallace, 2 T. 206; Prewitt v. Farris, 5 T. 370; Gillies Wofford, 26 T. 76. 8 Stephens' Pleadino:, 149. 9 McClellan v. The Siate, 22 T. 405. 10 Williams v. Warnell, 26 T. 610. " Stansbury v. Nichols, 30 T. 145. 12 Carter & Hunt v. Wallace, 2 T. 206. 13 Gillies V. Wofford, 26 T. 76. § 334. Pleadings construed how, on exception. An exception, in whatever stage of the pleadings it is taken, reaches back in its effect through the tohole record, and attaches upon the first substantial defect in the plead- ings, on whichever side it may have occurred, unless it has been aided by pleading over, as stated in the preceding sec- tion, and judgment will be given for the party who on the whole record appears to be entitled to it.^ To this rule there is one exception : on an exception to a plea in abate- ment, the court will not regard any defect in the petition. ^ On a special exception, showing a want of form, or that the allegations are not sufficiently special and circumstantial, a rigid rule will be applied to the construction of the plead- ing. On general exception, the pleading will receive a liberal construction, and if it substantially disclose a good cause of action or ground of defense, the judgment will be against the exception.^ But if the pleading contains eqitiv- ocal or inconsistent averments, the allegation will be taken most strongly against the party making it.* If an answer contains several distinct pleas, one of which presents a valid defense, and the plaintiff excepts to the answer without distinguishing between the pleas, the exception will be over- ruled.^ It seems that the same rule should apply to an ex- ception to the petition which contains several distinct counts. 1 The state v. Williams, 8 T. 255. 2Steph. PI. 144. 3 Prewitt V. Farris, 5 T. 370; Green v. Dallahan, 54 T. 286; Fresh v. Swett, 2 T. 485; Warner v. Bailey, 7 T. 517; Wooters v. R. R. Co., 64 T. 294. e stated, when. Matter of aggravation is that which, in actions for forcible injuries, is intended to show the circumstances of enormity, under which the principal wrong complained of was commit- 512 Ch. 36.] RULES TO SECURE CONFORMITY, ETC. [§374. ted. Thus, if the plaintiff, in an action forbreaking his house, superadds to his statement of the l)reaking and entry that the defendant, at the same time, made an affray, beat his servants, etc., these facts are only matters of aggravation.^ Matters which go merely in aggravation or extenuation, the effect of which is but to enhance or diminish damages which naturally resulted from the act complained of, need not be stated in pleading, and, if stated, need not be tra- versed or answered, and do not require proof. They are necessarily incidental to, or intimately connected with and inseparable from, the facts which constitute the cause of action, or ground of defense, which they merely serve to qualify or illustrate, and, in connection with which, they are always admissible in evidence as a part of the res gestae, without being specially pleaded.^ In an action against a railway company, for the unlawful expulsion of plaintiff from its cars, the plaintiff may recover damages for such mental distress as naturally and usually re- sults from the trespass upon the person which may be esti- mated by the jury from their own knowledge and without other proof. Any thing and every fact beyond that proper to be considered and estimated by the jury must be alleged and proved. Thus, when the plaintiff seeks to recover damages caused by mental anxiety to reach his home on account of the sickness of his family, which he was prevented from doing within a reasonable time in consequence of his unlaw- ful expulsion from the car, these facts must be alleged and proven.^ 1 Gould's PI. 51. « Stephen on PL 217-243; McGehee v. Schafer, 9 T. 20. 3 G., C. & S. F. Ry. Co. v. Hurley, 74 T. 593. (33— Plead. Forms.) 513 Ch. 37. Averments in Actions for General Relief. §375. Necessary averments in actions upon contracts. 376. Contract must be stated with certainty. 377. Consideration must be stated. 378. Consideration must not be illegal. 379. Certainty necessary in stating consideration. 380. Breach of contract must be averred. 381. Averments in an action on a judgment. 382. Averments in an action for the recovery of property. 383. Petition must show an interest in plaintiff. 384. Averment of derivative title, how made. 385. Averments in action for tort founded on contract. 386. Averments in action for tort not founded on contract. 387. Averments in action for slander. 388. Averment of damages necessary, when. 389. General rules relating to claims for damages. §375. Necessary averments in actions upon con- tracts. In an action upon a contract, the petition must allege, by proper averments, the consideration^ the contract or promise, and its breach. A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing, and may be subjected to two classifications. — 1st, Contracts, express or implied; and, 2d, verbal contracts and written con- tracts. An express contract is one in which the terms of the agreement are expressed in words or by writing; an implied contract is one which the law raises or presumes from some precedent consideration.^ At common law, contracts were divided into contracts by specialty, and simple contracts ; the latter including all con- tracts not under seal, Avhethcr verbal or written. ^ The act of February 2d, 1858, and subsequent laws,^ to dispense with the use of scrolls and seals in certain cases, have de- stroyed the distinction between sealed and unsealed instru- ments, and contracts entered into since the passage of that 514 Ch. 37.] AVER3IENTS IN ACTIONS, ETC. [§376. act are properly distinguished as verbal contracts, or those which are expressed in words, and written contracts.* Contracts made by corporations must still be under seal, but that provision relates to the mode of execution, and does not qualify the contract. iPelham v. The State, 30 T. 422; Jones v. HoUiday, 11 T. 412; Williams v. Edwards, 15 T. 41; Henderson v. Glass, 16 T. 559; Life Ins. Co. V. Davidge, 51 T. 244. 2 1 Parsons on Contracts, 7. 3 Early Laws, Arts. 2708, 3747; Civ. Stat. Art. 4487. 4 Foster v. Champlin, 29 T. 22; Read v. Levy, 30 T. 738; Courand v. Vollmer, 31 T. 397; Dewees v. Colorado County, 32 T. 570; Hart v. Kanady, 33 T. 720; Bernhard v. DeForest, 36 T. 519; Clayton v. Moor- ing, 42 T. 182. §376. Contract must be stated witli certainty. After showing the consideration, the petition should set out with distinctness and certainty the defendant's prom- ise or contract, specifying the names of the parties b}'^ and to whom the promise was made, and the time when, with all those parts of the contract material for the purpose of enabling the court to form a just idea of what the contract actually was, or which are necessary for the purpose of furnishing the jury with a criterion in the assessment of damages.^ In Graves v. Drane, QQ T. 658, the averment in the peti- tion was that, on or about August 22d, 1884, "said defend- ant made, executed and delivered to your petitioners, his certain promissory note, for the sum of $993.30, payable at express office at Hico, Texas, with exchange on New York, and ten per cent, interest from date, and providing that if not paid at maturity, then to become payable at Drane & Johnson's office, at Corsicana, Texas, with charges for col- lection. That said note was, by its terms, due and payable, ofrace excluded, on or before January 1st, 1885." Then follows the allegation that the note was not paid, etc. It was held that the petition was subject to special exception, on the ground that it did not expressly allege a promise to 515 Ch. 37.] AVERMENTS IN ACTIONS, ETC. [§376. pay, but was sufficient on general exception, and would support a judgment by default. A plaintiff suing for rent alleged "that about the 2d of August, 1888, the defendant enclosed six sections of land belonging to plaintiff, and that by permission of plaintiff defendant has since that date occupied and enjoyed the use of said land, having promised to pay plaintiff the reason- able value thereof, which has been six cents per acre per annum." It was held that the petition set out an implied contract, and the allegations were sufficient for that pur- pose. Evidence of an express contract was not admissible under it.^ In setting out the contract, it is sufficient to state those parts a breach of which is complained of, or, in other words, to show so much of the terms beneficial to the plaint- iff in a contract, as constitutes the part for the failure of which he sues ; and it is not necessary or proper to set out in the petition other parts of the contract not qualifying or varying in any respect the material parts above men- tioned. The contract must be stated correctly, and if the evidence differ from the statement, the whole foundation of the action fails. A misdescription of the contract with regard to t\iQ parties thereto, and with whom it Avas made,^ a misstatement of the quality or nature of the defendant's promise, and his consequent liability, as, stating as an abso- lute contract, one made in the alternative, or which is con- ditional ;* an omission of any part of the contract which materially qualifies and alters the legal nature of the prom- ise which is alleged to have been broken, would be fatal od the trial. "^ In declaring upon a written contract, it may be stated according to its legal effect, or it may be set out according to its terms. ^ When the instrument is set out literally, it is not necessary to aver the meaning of its several terms and stipulations, and where it purports to be upon a certain 616 Ch. 37.] AVERMENTS IN ACTIONS, ETC. [§^77. consideration," or payable at a particular place ;^ no other averment of these facts is necessary. 1 Wallace v. Hunt, 22 T. 647; Bledsoe v. Wells, 22 T. C50. 2 Shiner v. Abbey, 77 T. 1. 3 Shepard v. Palmer, 6 Conn. 95. •* Stone V. Knowltou, 8 Wend. 374. s The plaintiff declared as upon a promissory note, which did not specify any day of payment. The legal import of such a- note is that it is payable on demand, and it is construed as if it contained these words on its face. The note offered in evidence was payable "so soon as cir- cumstances will permit me," the legal effect of which was not the same as that declared on, and for this variance it should have been excluded. Salinas v. Wright, 11 T. 575; Mitchell v. Clay, S T. 443. 6 Wallace v. Hunt, 22 T. 647. 7 English v. Helms, 4 T. 228; Williams v. McNeil, 5 T. 381; Beal v. Alexander, G T. 531; Van Xorraan v. Wheeler, 13 T. 316; Jones v. Hol- liday. 11 T. 412; Williams v. Edwards, 15 T. 41; Henderson v. Glass, 16 T. 559. 8 An action was brought in the county of Galveston, against a citizen of Jefferson county, on a note, set out in the petition, payable at Gal- veston. It was objected to the sufficiency of the petition that it did not contain the direct averment that the contract was to be performed in the county of Galveston, so as to give the court jurisdiction, but it was held that this fact sufficiently appeared. Sydnor & Bone v. Hurd, 8 T. 98. §377. Consideration must be stated. A consideriition forms a part of a contract, and is essen- tial to support it. Under the rule previously stated, that the petition must allege every fact necessary to be proven on the general denial, and which, if admitted, will entitle the plaintiff to a judgment, it follows that a consideration sufficient to support the contract must in all cases appear upon the face of the petition, whether it be necessary by the rules of evidence to prove that consideration or not.^ In actions upon hills of exchange and proinissori/ notes, the mere statement of the liability which constitutes the con- sideration is sufficient, because the character of the instru- ment imports a consideration, and in itself proves it.^ And the consideration of an instrument of this character cannot be put in issue or impeached by the defendant, except by 517 Ch, 37.] AVERMENTS IN ACTIONS, ETC. [§377. a special plea . The filing of a plea impeaching the consid- eration of a promissory note, does not shift the burden upon the plaintiff of proving the consideration. The note imports a consideration, until otherwise shown. ^ In actions upon verbal contracts, the petition must dis- close a consideration, which may consist of either benefit to the defendant or detriment to the plaintiff, otherwise the promise will appear to be nudum pactum.^ To constitute a consideration valid in law, it is not essential that it should be mutually beneficial to both parties — damage to the promisee is a suflicient consideration.^ A petition seeking to recover on a policy of insurance is insufficient on exception, unless it allege a consideration supporting the policy.^ in an action commenced in 1851, by the assignee of a title bond for land, against the obligor, it was not alleged that any consideration w^as paid to the obligor, although there was a general charge against him of fraud in the sale of the land, and the consideration paid by the assignee to the obligee was fully stated; it w^as held that an exception to the petition was properly sustained.' In an action for rent due on a written contract, the defendant pleaded in recon- vention damages from the violation of a subsequent contract with reference to the rented premises, and it was held that the plea was fatally defective for the want of an averment of a consideration for the subsequent contract.® An agreement to forbear to prosecute a suit to enforce a well founded claim in law or equity is a sufficient consider- ation to support a promissory note of the debtor or of a third person, when the creditor, in pursuance of such agreement, has forborne as agreed upon. Such forbear- ance must be in respect of a w^ell founded claim, and there must be some person liable to suit therefor. Suit upon an account for two hundred and two dollars was brought against an ad- ministrator, in a justice's court; the claim had not been verified by affidavit, and presented to the administrator for 518 Cll. 37.] AVERMENTS IN ACTIONS, ETC. [§378. allowance under the statute. An attachment was also sued out, and was levied upon the household property of the de- ceased. The administrator, upon an agreement for the dis- missal of the suit and release of the attached propert}', signed and delivered an obligation to pay the account sued on. Suit was brought upon this obligation. Held, that there was no consideration for the obligation sued on, and the petition showing all the facts, an exception thereto should have been sustained.^ 1 Ante, §342. 2 Joues V. Holliday, 11 T. 414; Williams v. Glass, 16 T. 559; Tolbert V. McBride, 75 T. 95. 3 Tolbert v. McBride, 75 T. 95. * Bason v. Hiighart, 2 T. 476. 5 Bason v. Hughart, 2 T. 476; Neil v. Shackleford, 45 T. 119, 131; Lane v. Scott, 57 T. 367. 6 Life lus. Co. V. Davidge, 51 T. 244. 7 Hall V. York, 22 T. 641. 8 Hardison v. Hooker, 25 T. 91; Holman v. Criswell, 13 T. 38. 9 Brandenstein v. Ebensberger, 71 T, 267. §378. Consideration must not be illegal. No action arises, either at law or in equity, from an illegal contract. If it has been voluntarily performed, a court of equity will not, in the absence of controlling motives of public policy, grant its aid by decreeing a recovery back of the money paid or the property delivered ; but as long as the contract is executory, it cannot be enforced in any ac- tion brought directly upon it. And this is so, for reasons of public policy, and not from regard for the interest of either party to such a contract. The fact that article 2465, Revised Statutes, declaratory of the illegality of convey ances made to defraud creditors, only declares such contracts void as to creditors, does not strip such a transaction of its fraudulent character, or give to it standing as a valid con- tract which the courts will enforce. The fact that an ille- gal contract may have been executed by one party, furnishes no reason why the other should be compelled to execute his part of it, remaining executory.^ 519 Ch. 37.] AVERMENTS IN ACTIONS, ETC. [§379. Although there may be ample valid consideration to sup- port a promise sued on, 3'et if, to the abundance of valid consideration, there has been added a leaven of that which is illegal, the whole contract is tainted. If a debtor, in pay- ment of an account, and in consideration that his creditor will do an unlawful act or refrain from a duty imposed by law, executes his note only for the amount of the account, the note is, nevertheless, void. The good consideration has no virtue to cure the bad, but the bad corrupts the whole. A mere change in the security, or in the evidence of a demand, does not render valid that Avhich was before invalid. If the transaction is illegal, no expression of it in innocent forms makes it innocent or meritorious. ^ 1 Davis V. Sittig, 65 T. 497. 2 Wegner Bros. v. Riering- & Co., 65 T. 506. §379. Certainty necessary in stating consideration. The consideration must be stated with the proper degree of certainty and particularity, and that will depend to some extent upon the particular species of consideration to be stated. If the consideration is executed, that is, consists in something past or done before the making of the promise, it may be stated generally.^ But, in an action by a merchant or trader upon an account for goods, wares or merchandise, sold and delivered, the time of the delivery of the several articles charged in the account must be particularly speci- fied.2 In an action on an account for goods sold and delivered, the account which was made a part of the petition contained an item as follows: "To merchandise, as per bill rendered, $215.70," and it was said that a recovery on such a charge would be inhibited by the spirit, if not by the letter, of the law, were it even not liable to objections on general prin- ciples.^ In May v. Pollard, 28 T. 677, suit was brought on a mer- cantile account beginning February 4th, 1853, with the item: "Amount account rendered, $380.58," and ending 520 Ch. 87. J AVERMENTS IN ACTIONS, ETC. [§379. December 4th, 1874. with one item for a steer, dated March 15th, 1856, and with a list of credits or payments extending down to the 28th of June, 1855. There were items of the account in gross, such as "amount of account," or "bill rendered," at different dates, without designating the items that made up these amounts in gross. It was said that they should have been stricken out on special exception, or, if not, evidence should not have been received to support them. The question, however, was not decided. In Hays v. Samuels, 55 T. 560, a suit between merchant and mer-shant w^as upon an account in which the items were charged as follows : 1873, August 30th. To merchandise, 1114.50. The account also included items of acceptances, in favor of divers parties. No exception was taken to the petition, and as a cause of action was stated therein which Was good on general exception, evidence was properly ad- mitted in its support. It is said that the dates of delivery of the articles charged for in an account were required, so as to prevent any evasion of the law of limitation, b}'' either post-dating or failing to give the date of sale and delivery. The account in this case being between merchant and mer- chant, it is said that the policy of the law did not apply, as such transactions were not then affected by limitation. Where the plaintiff counts upon a parol statement of ac- counts, he must set forth the original accounts by exhibits or otherwise, with such circumstantiality as to apprise the defendant of the particular accounts adjusted, that it may be seen whether the action is subject to the bar of limita- tion, and in order that the defendant may be able to plead specially any objection he may have to the statement of the account.* In the statement of an executory consideration, a greater degree of certainty is required ; for in this case the consid- eration is in the nature of a condition precedent, distinct from the promise of the defendant, and an averment of per- formance with certainty as to time, etc., is material.^ 521 Ch. 37.] AVERMENTS IN ACTIONS, ETC. [§380 In the case of mutual i^romises, when the consideration is concurrent, the promises of each party must, in general, be concurrent or obligatory on both at the same time, to ren- der the promise of either binding, and must be so stated in pleading; and in these cases it is not always necessary to aver performance of the thing stipulated to be done, unless \hQ performance of one act be the consideration of the per- formance of the other, in which case averment of perform- ance or readiness to perform is, in general, necessary.^ 1 1 Chit. PI. 299-307. 2 Civ. Stat. Art. 3204. 3 Love V. Doak & Tims, 5 T. 343. 4 Xayland v. Nayland, 19 T. 423. « Van Norman v. Wheeler, 13 T. 316. «! Chit. PI. 377. §380. Breach of contract nuist be averred. The breach of the contract, being obviously an essential part of the cause of action, must, in all cases, be stated in the petition. There can be no cause of action where no in- Jury has been done ; the advocation of the remedial aid of a court necessarily presupposes the infliction of some wrong for which redress is sought, and this wrong must be stated in all cases where the formality of pleading is re- quired; and if it be not averred, no such case is made as entitles the coinplainant to the interposition of the court. The only difficulty in holding that the averment of breach is, in all cases, an essential portion of the statement of the cause of action, consists in this: that, in some cases, it is not incumbent on the plaintiff to prove the breach or non- performance of the contract or covenant ; its execution be- ing established, and its maturity passed, its breach will be presumed; but this is a principle of evidence and not of pleading. As a general rule, the plaintiff cannot be com- pelled to assert more facts than, on a general denial, he Avould be bound to prove in order to sustain his case. But there is another general rule, of like cogency and persuasive in- 622 Ch. 37.] AVERMENTS IN ACTIONS, ETC, [§381. flueiice in pleading, and that is, the phxintiff must allege such facts in his petition as would, were they admitted to be true, entitle him to a judgment; and this, certainly, he could not demand, unless he complained that some wrong or injury had been done him, or that some right had been withheld. It is not the execution of the contract, but its violation, that gives a right of action, and that breach must be averred without regard to the mode by which it is to be established in evidence.^ The breach may be assigned, in general terms, by such allegations as will show the cause of action with reasonable certainty; thus, in an action on a promissory note, it is sufficient to allege the non-payment of the money ; in an action upon a contract, that the de- fendant has not complied with or performed the stipula- tions of the contract.^ 1 In an action to enforce specific performance, on a bond for title, a breach or non-performance of the condition of the bond must be averred, and if not averred, a general demurrer will lie. Holman v. Criswell, 13 T. 38. In an action upon a promissory note, there was no averment in the petition that the note was unpaid, and a judgment by default, in favor of plaintiff, was reversed. . Whitaker v. Record, 25 T Sup. 382; Brackett v. Devine, 25 T. Sup. 194; Grant v. Whittlesey, 42 T. 320; Hill v. Osborne, 60 T. 390. 2 Holman v. Criswell, 15 T. 394. In an action for damages, for the breach of warranty of soundness of a slave, the plaintiff set forth the ■ general fact of unsoundness, and described the symptoms and effects of the disease, and his ignorance of its name, and it was held sufficient on exception. Blythe v. Speak, 23 T. 429; Palmer v. Wilks, 17 T. 105. §381. Averments in an action on a judgment. By common law writers, judgments are classed with con- tracts, and are termed "contracts of record."^ There are two remedies upon judgments rendered in this state, to-wit: by scire facias and by an ordinary suit.^ It has been held that a proceeding by scire facias is not to be regarded as an original suit, but as a proceeding grow- ing out of, and dependent upon, the original judgment, and it must, therefore, be commenced in the county where the judgment remains of record, without regard to the residence 523 Ch. 37.] AVERMENTS IN ACTIONS, ETC. [§381. of the defendant.^ In this respect, and also as to the form of the judgment, a proceeding by sch'e facias differs from the ordinary action of debt. An action of debt on a judg- ment must be brought in the county of defendant's resi- dence.* In an action for debt, the judgment for the plaint- iff is that he recover his debt, etc. In a scire facias, the judgment simply awards execution. ^ In an action on a judgment of this state, or of one of the United States, rendered upon personal service, no defense can be admitted which existed prior to the judgment, and, consequently, it is not necessary for the plaintiff to state the circumstances, or consideration, on which the record is founded; neither is it necessary to set forth the proceedings in the suit, but it is sufficient to state the judgment concisely, and with such accuracy as to fully identify it, and avoid the danger of a variance.'' In an action upon a domestic judgment, the petition should contain averments showing the court by which the judgment was rendered, its amount, and the time and place of its rendition. In an action upon the judgment of a court of record, of general jurisdiction in another state, the jurisdiction may be alleged in general terms ; if the court is of inferior and limited jurisdiction, the statute con- ferring jurisdiction must also be pleaded.' When a judgment of a court of record in a sister state is produced, the presumption is that the court in which it was rendered had jurisdiction and authority, and, conse- quently, the jurisdiction of the court over the subject mat- ter and the parties is proven by the record itself; but, if the record shows affirmatively that the court was of infe- rior and limited jurisdiction, then it is necessary to plead and produce the statute from which it derives its powers, and the proceedings must appear to have been in conformity with the directions of the statute. It is further necessary to allege in all cases, it would seem, that the judgment re- mains in force and unsatisfied, as the fact of its being un- paid constitutes the ri~ht of action.^ 524 Ch. 37.] AVERMENTS IX ACTIONS, ETC. [§381. A judgment which, though not dormant, has lost its lien, may be made the basis of an action to restore the lien either by scire facias or by action of debt,^ But a judg- ment is barred by limitation after the expiration of ten years from the date when the last execution thereon issued.^'' The original petition, in an action to revive a judgment, al- leged that no execution had ever issued on the judgment; the amended petition alleged that execution issued within a year from the rendition of the judgment, and that nine years had elapsed since the issuance of execution. It was held that the cause of action set up by the amended peti- tion was not different from that alleged in the original pe- tition, and, in either case, the judgment could be revived. ^^ In June, 1888, G. recovered a judgment, for personal in- juries, against the receiver of the Texas Pacific Railway. After the termination of the receivership, the owners of the judgment brought suit against the railway company, and it was held that the judgment against the receiver, in the ab- sence of fraud in its procurement, was conclusive against the company, as to the fund which was subject to its pay- ment, and returned to the company at the close of the re- ceivership, in the way of improvements on its property, ^^ The Act of April 11th, 1892 (Laws, p. 5), authorizes actions against receivers, or other persons, in charge or control of a railroad, when death results from the negli- gence or carelessness of such person. It also authorizes an action when the death of any person is caused by the wrongful act, negligence, unskillfulness or default of an- other. ^^ A former judgment between parties to a suit ma}'^ be plead in bar of an action as to whatever was or might have been adjudicated, under the pleadings in the suit, when rendered.^* When the record discloses that the former judg- ment was not rendered, in whole or in part, upon the cause of action asserted in the second suit, such judgment is 525 Ch. 37.] AVEEMENTS IN ACTIONS, ETC. [§381. not a bar, though the subject of the second suit might have been litigated in the first suit.^^ The heirs of an intestate alleged, in their j)etition, that a certain party instituted suit against the intestate on a ticti- tious claim, and fraudulently employed an attorney to ap- pear for him and confess judgment; that intestate had no notice of the action, and the attorney confessed judgment without his knowledge. That afterwards the parties ob- tained letters of administration on intestate's estate, and fraudulently allowed the judgment to be proved up against the estate. Held: (1.) That such a judgment was liable to be set aside and annulled by a direct proceeding, instituted by a party to the suit, whose rights were prejudiced by the fraud. (2.) That a suit to annul the judgment, commenced in the court where the alleged fraudulent judgment was ob- tained against the party who enacted and participated in the fraud, by the heirs of the party who suffered from it, was such a direct proceeding. (3.) That, had the attempt been merely to treat the judgment as a nullity, in avoiding the proceedings had in the estate of intestate, then the attack would have been collateral. ^^ 1 Parsons on Contracts, 7. 2 Civ. Stat., Art. 3210; Bullock v. Ballew, 9 T.498; McFaden v. Lock- hart, 7 T. 573. 3 Perkins v. Hume, 10 T. 50; Masterson v. Cundiff, 58 T. 472. * Townsend v. Smith, 20 T. 4G5. 5 Bullock V. Ballew, 9 T. 498; Waller v. Huff, 9 T. 630; Taylor v. Harris, 21 T. 438. e 1 Chit. PI. 163; Schleicher v. Markward, 61 T. 99. n Chit. 1'1.4S7. 8 Reid V. Boyd, 13 T. 241; Beal v. Smith, 14 T. 305; Grant v. Bledsoe, 20 T. 456. 9 Anderson v. Boyd, 64 T. 108. 10 Willis V. Stroud, 67 T. 516. 11 Foster v. Smith, 66 T. 680. 12 Texas Pacific PtV- v. Grillin, 76 T. 441. 13 See Civ. Stat., Title 52. "Teal V. Terrell, 48 T. 491; Philipowski v. Spencer, 63 T. 604; Monks V. McGrady, 71 T. 134. 1* Pishawing v. Runnels, 71 T. 352. 16 Buchanan v. Bilger, 64 T. 589. 526 Ch. 37.] AVERMENTS IN ACTIONS, ETC. [§382. §382. Averments in an action foi* the recovery of prop- erty. In actions for the recovery of property, whether real or personal, the petition must show the thing affected, and the plaintiff's right thereto. If real estate is the subject of the suit, the land should be described by metes and bounds or by abuttals, with such certainty as to identify it. Partial discrepancies between the description of the land as given in the petition and as given in the title offered in evidence do not raise a question of variance between the allegations of the petition and the evidence offered in support of them, but a question of identity of the land described in the petition and that described in the title. Therefore, such discrepancies are not material, if it appear from the whole description in the title to be the same land described in the petition. Where the description in a deed called to commence at D. S. Qoxxth-ioest corner, and run west with D. S. line, and further described the land by the name of the original grantee, by the number of acres, and by the adjoining surveys, and it was proved that the land corresponding to the last three calls began at D. S. south-erts^ corner and ran west with D. S. line, it was held that the land was sufficient!}'' identified.^ If goods or chattels are sued for, it is, in general, neces- sary that their quality, quantity, or number and value, should be stated with convenient certainty, otherwise a former recovery cannot be pleaded in bar of a second ac- tion, nor can the defendant properly defend himself. With regard to the species of the goods, the plaintiff is bound to prove the fact as laid, without regard to the quantity or number and value of the goods ; he may prove less than he charges in the petition, but he cannot prove more."^ And in actions for land, the plaintiff will have judgment for apart daimed, to which he shows a good title. ^ 1 Smith V. Chiitham, U T. 322; Croft v. Knins, 10 T. 520; Rains v= McMills, 14 T. GU; Broxson v. McDougal, 63 T. 193; Id. 70 T. G4. 2 1 Chit. PI. 403. 8 Scott V. Rhea, 5 T. 258. 627 Ch. 37.1 AVERMENTS IN ACTIONS, ETC. [§383. §383. Petition must show an interest in plaintiff. If no projiyerty or interest in the subject matter of the suit be stated in the petition to have existed, or been vested in the phiintiff at the time the wrong was committed, the omis- sion will be fatal, even after verdict; the objection being the total omission, not the defective statement of a title ; but the error in the petition will be cured if the plea admit thfi plaintiff's property. ^ In actions against a wrongdoer or person having no color of right, possession suffices, and a special statement of title is unnecessary. For this purpose, and until the defendant has shown a superior title, he nmst be taken to be a mere trespasser. And in the action of trespass to try title, where the general rule is that the plaintiff must recover upon the strength of his own title as proved by him, mere priority of possession will enable a plaintiff to recover against a third person, a trespasser, who intrudes.^ In actions for the recovery of p)G'>'Sonal property, the title is mere inducement in pleading, and the plaintiff's right to or interest in the goods, either as absolute owner, or as hav- ing a limited right therein, is described by the averment: "That they were the goods of the plaintiff," or "that he was lawfully possessed of them as of his own property."^ In an action for the recovery of 7'ea,l estate against other than a mere naked trespasser, the plaintiff's title must be specially stated, as that he was seized of fee, and in such a case it is not necessary to show the derivation or commence- ment of his estate ; but if he claims a particular estate, as an estate for life, a term of years, or a tenancy at will, he must show the derivation of that title from its commence- ment, that is from the last seizee in fee simple, and if de- rived by alienation or conveyance, the substance and effect of such conveyance should be precisely set forth.* 11 Chit. PI. 500, 2 Lea V. Heruandez, 10 T. 139; Kolb v. Bankhead, IS T. 228; Wilson V. Palmer, 18 T. 592; Alexander v. Gilliam, 39 T. 227; Parker v. Rail- way. 71 T. 132. 3 1 Chit. PI. 493. * Hughes V. Lane, 6 T. 289; Merrill v. Eoberts G4 T. 441. 528 Ch. 37.] AVERMENTS IN ACTIONS, ETC. [§§384, 385. §384. Averment of derivative title, how made. When the plaintiff daims by a derivative title he must show how he claims ; as when a party claims by conveyance or alienation, the nature of the conveyance or alienation must, in general, be stated, as whether by devise, deed, etc. And so, where a party claims by inheritance, he must, in general show how he is heir, viz, : as son or otherwise; and if he claim by mediate and not immediate descent, he must show the pedigree; for example, if he claims as nephew, he must show how nephew. When there is a privity exist- ing between the plaintiff and the defendant, independently of the plaintiff's title, which gives the plaintiff a right to . maintain his suit, as in suits between lessor and lessee, or between principal and agent, it is not necessary to state the plaintiff's title fully in the petition, but it is sufficient to set out those facts which preclude the defendant from dis- puting the plaintiff's title. ^ 1 Steph. PL 310; Chit. PI. 378; 1 Dan. Ch. Pr. 369. § 385 . Averments in action for tort founded on contract. In actions for torts, founded on an express or implied contract, and resulting from a misfeasance or malfeasance, the petition must correctly state the contract, or the par- ticular duty or consideration from which the liability re- sults, and on which it is founded. Thus, in actions against an attorney, agent, carrier, innkeeper or other bailee, for negligence, etc., the petition usually begins with a state- ment of the particular profession, character or situation of the defendant, from which his liability results, in respect to the act for which he is charged. In an action for a breach of wirranty, the contract of sale is stated ; and in an action by a landlord against his tenant for not cultivating accord- ing to good husbandry, or for not repairing, etc., the rela- tion of landlord and tenant is concisely stated. The injury for which redress is sought should be stated positively and directly, but it is sufficient to describe it generally, with- out setting out the particulars of the defendant's misconduct.^ 1 1 Chit. PI. 385. (34— Plead. Forms.) 629 Ch. 37.] AVERMENTS IN ACTIONS, ETC. [§386. §386. Averments in actions for tort not fotmdecl on contract. In actions for injuries resulting from the non-observance of a general obligation of law, as for the negligent driving of a carriage ; or for not removing a nuisance from the de- fendant's lands; or for keeping a dog used to bite mankind or sheep, it is sufficient to state concisely the defendant's possession of the personal or real property, and his con- sequent obligation or duty, the non-observance of which is the cause of complaint.^ If the act is in itself unlawful, without any other extrinsic circumstance, the intent of the wrongdoer is immaterial in point of law, though it may enhance the damages. ^ If the act is not prima facie action- able, but is indifferent in itself, the intent with which it was done then becomes material, and requires, as any sub- stantive matter of fact does, specific allegation and proof. In an action for malicious prosecution, it is necessary for the plaintiff to allege malice and the want of probable cause. ^ And in stating the defendant's intent or motive, when necessary, the language, as in all other parts of pleading, should correspond with the real or probable facts of the case.* In some cases the scienter is material, and must then be alleged and proved, as in actions for keeping a dog used to bite mankind or sheep ; or for falsely repre- senting a third person fit to be trusted, though in the latter case the yvord fraudulently is said to be sufficient.^ In an action to recover damages against a railway com- pany for injuries resulting from its failure to construct its road as required by Revised Statutes, article 4171, negli- gence and want of skill in its^ construction need not be alleged in totiedetn verbis, if the petition contain distinct averments, from which the deduction would necessarily follow that such negligence or want of skill existed.*^ A petition, filed in a suit to recover damages for a refusal to record at legal rates an instrument required hy law to be recorded, which fails to state, cither that the defendant 530 Ch. 37.] AVERMENTS IN ACTIONS, ETC. [§387. "U'as clerk of some particular court, and who, as such clerk, was authorized and required to record such instrument, or that he was authorized and required to record it, is bad on general exception. An allegation that the defendant was, at the time the instrument was tendered for record, clerk of court, is not sufficient.'' 1 1 Chit. PL 503. 2 1 Chit. PI. 187. 3 Griffin v. Chubb, 7 T, 603; McNeese v. Herring, 8 T. 151; Hitson v. Forrest, 12 T. 320. 4 1 Chit. Pi. 390. 6 1 Chit. PI. 507. 6 Railway Company v. Hadnot, 67 T. 503. ^ George v. Vaughan, 55 T. 129. §387. Averments in action for slander. In an action for slander, w^hether written or verbal, the count commences with the inducement or prefatory state- ment of introductory matter. It is usual to state the plaintiff's good character, and his innocence of the crime imputed to him by the defendant, although this is unneces- sary. When the libel or slander is prima facie or per se actionable, it is sufficient to state the defendant's malicious intent, and the defamatory matter, showing that it refers to the plaintiff, without any prefatory inducement of the cir- cumstances under 'which the words were spoken. But if the libel or words do not naturally and per se convey the meaning the plaintiff would wish to assign them, or are ambiguous and equivocal, and require explanation by refer- ence to some extrinsic matter to show that they are action- able, it must be expressly shown that such matter existed, and that the slander related thereto. If the words are actionable onl}' in regard to their having affected the plaintiff in his profession, trade or business, there must be an allegation that the plaintiff, at the time, w^as in such profession, etc. The petition must show that the words were spoken, or the libel was composed and pub- lished, of and concerning the plaintiff. The particular 531 Ch. 37.] AVERMENTS IN ACTIONS, ETC. [§387. libelous matters or words complained of nmst be set out in JicBG verba, and nuist be proved as laid. The petition must also show a publication of the libel or slander, and that it was done with a malicious intent by a direct averment of malice, or by the use of equivalent expressions. If the meaning of the words or their application is doubtful, they should be explained by an innuendo, the object of which is to make definite a doubtful or uncertain expression.^ The general averment that the slanderous words were published, without averring that they were uttered or spoken in the presence and hearing of any one, might not be sufiicient if specially excepted to, but was held sufficient on general exception.^ Words importing want of chastity to a female, are not actionable in the absence of special damage.^ In an action to recover damages for slanderous words spoken of a mar- ried Avoman, it was alleged that the husband and wife, plaintiffs, were poor, and depended for a living upon their daily labor; and that by reason of the slander they had been refused employment, and polite and civil treatment; that they were keeping a boarding-house, and many of their boarders left them on account of the slander; that the wife was about taking up a school, and persons refused to send to her school on account of the, slander, and that she was thereby forced to abandon the idea of teaching the school ; that by reason of the slander her health was im- paired, and that she was not fully able to perform her accustomed household labor. It was held not necessary to give the names of the persons who had refused to employ plaintiffs on account of the slander, or the names of those who had refused them polite and civil treatment, or the names of the boarders ^ho left their boarding-house, or the names of those who refused to send their children to the school. It was not necessary for the pleader to set forth 632 Ch. 37.] AVERMENTS IX ACTIONS, ETC. [§388. the evidence on which he relied to sustain the facts which constituted his cause of action.* 1 1 Chit. PI. 520. 2 Linney v. M:iton, 13 T. 449. 3 Linuey v. Maton, 13 T. 449; McQueen v. Fulgham, 27 T. 463; Ross T. Fitch, 58 T. 148. * Ross V. Fitch, 58 T. 148; Mo. P. Ry. Co. v. Richmond, 73 T. 5GS. §388. Averment of damages necessary, when. ' As before stated, the count or statement of the cause of action should show the plaintiff's right, the injury thereto, and the consequent damages. Wherever there is an injury for which an action will lie, it is a presumption of law that damages have been occasioned. In some cases, however, damages do not form the gist of the action, but are a mere incident thereto, and, therefore, need not be laid specially, it sufficiently appearing from the allegations of facts that some damage has been sustained, so as to give a right of ac- tion. Thus, in the action of trespass to try title, the land itself is the object of recovery, in general, and damages are unimportant and need not be laid.^ So, in actions for the recovery of personal property, the judgment is for the prop- erty itself, or for its value, and is not properly for damages. But if damages are the pincipal or an important object of the suit, they should be alleged, and must be stated high enough to cover the whole demand. Thus, in the action of trespass to try title, the plaintiff may recover damages for the mesne profits, and in such case they must be al- leged. ^ So, where personal property is recovered, the plaint- iff may have judgment for damages, for its detention. In actions for torts, generally, damages are the principal ob- ject of the suit, and, consequently, must be alleged. Dam- ages are either general or special. General damages are such as the law implies or presumes to have accrued from the wrong complained of. Special damages arc such as really took place and are not implied by law, and are either superadded to general damages arising from an act inju- 533 Ch. 37.] AVERMENTS IN ACTIONS, ETC. [§388. rious ill itself, or are such as arise from an act indifferent and not actionable in itself, but injurious only in its conse- quences.^ General damages may be recovered under the common allegation that the plaintiff has been damaged some specific sum; but in order to recover special damages, the special facts and circumstances which have occasioned the dam- ages claimed must be alleged. Thus, in an action against fhe vendor of an estate, it is held, that if the purchaser proceed for interest and expenses, he must declare specially, stating such expenses, and the loss arising from the not having the use of the deposit money, etc., otherwise the deposit money only can be collected.* In an action of trespass to try title, the petition alleged that the defendant had entered upon the premises of plaint- iff, and had cut down and carried off timber, to the damage of plaintiff one thousand dollars. It was held that there was no necessity to allege the value of the timber cut and carried off the plaintiff's land. The injury done to the plaintiff's possession was the gist of the action, and the value of the timber was admissible in proof of the damage sustained.^ In an action of trespass, the petition alleged that defend- ants, with force, etc., made an assault upon plaintiff and the members of her family, entered her dwelling-house, and attempted to set it on fire; that she and her said family were alarmed and abused by the violence aforesaid, prays for citation and for judgment against the defendants for $10,000 damages for the injuries aforesaid, and for costs, etc. The defendants answered by a general denial. On error, it was urged that there was no sufiicient allegation of damages. The court say, the mode of stating damage is by stating the trespass and other wrongs, "to the damages of the plaintiff ten thousand dollars," or other like gross amount. This is the formal mode of laying such damage. It is in cases of special damage when some amount of damage is 534 Ch. 37.] AVERMENTS IN ACTIONS, ETC. [§389. directly averred to have been sustained. ° In an action for damages caused by a continuing nuisance, where the dam- ages are necessarily continuous, it is generally held that a recovery can be had only for such damages as were sus- tained before the suit was brought ; but in Texas a different rule prevails, and, to avoid multiplicity of suits, all damages sustained up to the date of the trial may be recovered.^ 1 1 Chit. 395. 2 Civ. Stat. Art. 4809. 3T. & P. Ky. Co. V. Curry, 64 T. 85. ^Suttouv. Page, 4 T. 142; 1 Chit. PI. 395. 5 Kolb V. Baukhead, 18 T. 228. •Hoggland v. Cothren, 25 T. 345. ^ Comrainge v. Stevenson, 76 T. 642. §389. Grcneral rules relating to claims for damages. Under our system of pleading, when facts are stated con- stituting in law the elements of actual damages onlj'^, and upon which a recovery for that alone could be had, the averment of the pleader that they are exemplary damages, and the prayer for recovery as such, do not change the legal effect of the facts stated by him as his cause of action. Where the facts show a cause of action for actual damages, and there is a prayer for such damages, a judgment for a larger amount than was specifically claimed in the petition for actual damages, but within the amount claimed as caused by the facts complained of, is not error, ^ Wlien a petition in a suit to recover damages alleges generally that the plaint- iff was damao;ed in a desiijnated sum, and it afterwards claims a different suni as punitory damages, and a desig- nated sum as actual damages, the general claim for damages should be stricken out on exception. ^ An action will not lie to recover a claim for damages, if, to establish it, the plaintiff recpiires aid from an illegal transaction, oris under the necessity of showing or in any manner depending upon an illegal act to which he is a party .^ 535 Ch. 37.] AVERMENTS IN ACTIONS, ETC^ r§389. In an action for damages for the wr-ongful and ne2:li2;ent conduct of the defendant, the prayer in the petition was for $6 actual and $2,000 exemplary damages, and for general relief. The verdict of the jury was for $391 actual damage. On appeal it was held, under the rule above stated, that when the facts are alleged constituting in law the elements of actual damages only, and upon which a recovery for that alone could be had, the averment of the pleader that they are exemplary damages, and the prayer for recovery as such, do not change the legal effect of the facts stated by him as his cause of action. The question of actual damage alone was submitted to the jury, and the verdict was re- sponsive thereto, and for a less amount than the aggregate amount claimed in the petition, and, on appeal, the judg- ment was affirmed.* The measure of damages for breach of contract of sale of land by the purchaser is the difference between the con- tract price and the salable value of the land ; and this value may be fixed by a fair resale, within a reasonable time after the breach and after notice to the party to be bound by the price as the value. What is a reasonable time, is a question of fact, varied by the circumstances of each case. The lapse of such period as would give room for fluctuations in the market, in the usual order of things, or of such period as would authorize the inference that the vendee had elected not to adopt this means of fixing the manner of liability, would be unreasonable. To be bound by the price, the defendant should have no- tice of the sale. The sale is, in some sense, a sale of his property, and, to protect his interest, he is entitled to no- tice. Where the plaintiff has not made such sale as was authorized by the defendant's breach, he is only entitled to recover the difference between the market value of the land at the date of the breach and the price the defendant had agreed to pay ; and it is the dut}' of the plaintiff to estab- lish, by proof, these factors in the measure of his damages.* 53G Ch. 37.] AVEEMENTS IN ACTIONS, ETC. [§389. Damages which a party may recover on a oreach of con- tract are those which are incidental to and caused by the breach, and may reasonably be supposed to have entered into the contemplation of the parties at the time of the con- tract. •^ In a suit to recover special damages for the failure of a common carrier to transport certain pieces of machinery, by reason of which the milling operations of plaintiffs were sus- pended to their great damage, it was held that such element of damages should have been specially alleged.' An action will not lie for false representations in refer- ence to a matter, the truth or falsehood of which cannot affect the plaintiff. In an action for deceit, it should be alleged in the petition that plaintiff had sustained damage from the misrepresentation declared on.^ In a suit for damages for the breach of a contract, and for the recovery of prospective profits, which might have been realized if the contract had been carried out, it is held that any supposed successful operation the party might have made, if he had not been prevented from realizing the pro- ceeds of the contract at the time stipulated, is a consider- ation not to be taken into estimate. Besides, the uncertain and contingent issue of such an operation, in itself con- sidered, has no legal or necessary connection with the stip- ulations between the parties, and cannot, therefore, be pre- sumed to have entered into their consideration at the time of contracting. It has accordingly been held that the loss of any speculation or enterprise in which a party may have embarked, relying on the proceeds to be derived from the fultillmcnt of an existing contract, constitutes no part of the damages to be recovered; but profits or advantages, which are the direct and immediate fruits of the contract entered into between the parties, stand on a different footing.-' The measure of actual damages for the wrongful seizure and conversion of goods is their value at the place where they are seized on the day of the conversion, and interest 537 Ch. 37.] AVERMENTS IN ACTIONS, ETC. [§389. on that value. The fact that this rule would include the profit involved in that value, resulting from the goods being more valuable at the place where they are seized than at the distant market where they were purchased, does not alter the rule.^o When a deterioration of the value of property wrongfully seized under an attachment constitutes an element of dam- age, and such deterioration is not a necessary result of its seizure, the facts relating thereto must be pleaded spec- ially.^^ Evidence of their retail value in small quantities is not admissible. ^^ Evidence of value before or after the con- version of the goods does not give the true measure of dam- ages. ^^ An agent who maliciously makes the affidavit and bond in an attachment proceeding, is responsible for the damages resulting from his wrongful act; while his malice will not be imputed to his principal, his wrongful acts will be.^* In a suit by attachment, the defendant, who was a mer- chant, by his plea in reconvention claimed damages for a wrongful and malicious levy of the writ upon his real estate, by reason of which a sale of the same was prevented, his business and credit injured, etc. An exception to the plea was sustained on the ground that it did not show a direct and proximate loss to the defendant, resulting from the levy of the writ. A levy upon real estate not being at- tended Avith any disturbance of its possession, use or en- joyment, as a general rule such levy can afford no ground for the recovery of actual damages. The plea did not allege that the defendant had an opportunity to sell ; that the sale was defeated by the levy of the attachment, and that the property had depreciated in value since that time. The gist of the complaint was that he had been prevented from selling his property and using the proceeds in the payment of his debts, and the damages from this cause are certainly too remote. ^^ 538 Ch. 37.] AVERMENTS IN ACTIONS, ETC. [§389. When the injury to land is permanent, the measure of damages is the difference between its market value imme- diately before and after the act complained of.^^ When land is injured without permanently taking it, the value of the products destroyed, including fruit trees, and the injury done to the land, is the measure of damages.^'' The measure of damages for the destruction of a growing crop is the actual value of such crop at the time of its loss. The plaintiff cannot recover what his destroyed crop would have produced had it survived till harvest time ; and upon the same principle he cannot be compelled to reduce his claim for damages, by evidence of what might have been produced if another crop had been cultivated on the same ground. ^^ In an action for damages to land, and the grass growing thereon, caused by fire resulting from the negligence of the defendant, it was alleged that the fire destroyed grass of the value of $650, fence of the value of $200, and that the in- jury to the land amounted to $375, by burning of the turf and grass roots. It was held that the last averment was, in effect, that the mass of roots of the native grass growing on the land without sowing or cultivation, which, with the surface earth commingled, constituted the turf, sward or sod, were so injured as to make the land less productive of grass than it otherwise would have been in the future. ^^ The depreciation in value of plaintiff's property, and its use, is the natural and necessary consequence of a nuisance on adjoining premises; but the failure of the owner to sell his property, at a price greater than he will be able to sell it after the nuisance is abated, is not a natural or a necessary consequence of it. Such damage is seemingly too remote and speculative; but if a recovery can be had, it is indis- pensable that it should be specially alleged. ^^ A wrongdoer is liable in damages for all injurious conse- quences of his tortious acts, which, according to the usual course of events and general experience, were likely to 539- Ch. 37.] AVER3IENT8 IN ACTIONS, ETC. [§389. ensue, and which, therefore, when the act was committed, he may usually be supposed to have foreseen and anticipated.^^ Injury to feelings, caused by a negligent failure to deliver a telegram relating to domestic affairs, is an element of actual damages. ^^ When a telegraphic message is sent which con- tains nothing to indicate apprehension of the sickness of a relative to whom it is directed, and no such information is given to the agent of the company who transmits it, the mental suifering that may be occasioned by a failure to transmit or deliver it cannot be made a ground for the re- covery of punitory damages. ^^ The general allegation of damages will suffice to let in proof, and to warrant recovery of all such damages as naturally and necessarily result from the wrongful act com- plained of; the law implies such damages. But where damages do not necessarily result from the act complained of, and consequently are not implied by law, the plaintiff must state in his petition the particular damage sustained, in order to introduce testimony in regard to it ; this rule is to avoid surprise. When severe injuries to the per- son are shown to have existed, the law infers that phys- ical pain resulted therefrom, since the adverse party is presumed to know the ordinary operation of natural laws. The same is true as to mental suffering, for it is contrary to experience and the laws of nature that an ordinary per- son should sustain great bodily injury without mental pain resulting therefrom. 2* When damages are claimed for mental distress, and it is intended to offer evidence beyond the trespass or act of physical violence complained of, for the purpose of enhanc- ing the amount of damages by enlarging its degree, a proper predicate therefor must be laid in the pleadings. H., at Fort Worth, learned that his child, at Stephenville, was ill. In order to reach the child as early as possible, by contract with the ticket agent at Fort Worth he entered 540 Ch. 37.] AVERMENTS IX ACTIONS, ETC. [§389. upon a freight train for Morgan. He was put oif the train by the conductor in the night time near Fort Worth. Suing for damages on the trial, plaintiff was permitted to prove, over objections, his mental anxiety and suffering on account of his child's condition. These facts were not alleged in the pleading. The court refused to instruct the jury to disregard the evidence as to his mental anxietv and suffering from the cause above stated. Held to be error. ^ 1 1. & G. X. K. R. Co. V. Gordon, 72 T. 44; Commenge v. Stevenson, 76 T. 642. 2 Mc Allen v. Telegraph Co., 70 T. 243. 3 Railway v. Johnson, 71 T. 619. * I. & G. N. R. R. Co. V. Gordon, 72 T. 44. fi Kempner v. Heidenheimer, 65 T. 587. « Jones V. George, 61 T. 345. 1 Pacific Express Co. v. Darnell, 62 T. 639; Parks v. O'Connor, 70 T. 377. « Bremond v. McLean, 45 T. 10. 9 Cates V. Sparkuian, 73 T. 619. 10 Blum V. Merchant, 58 T. 400; Blum v. Thomas, 60 T. 158; Tucker V. Hamlin, 60 T. 171. " Wallace v. Finberg, 46 T. 36. 12 Tucker V. Hamlin, 60 T. 171; Railway Co. v. Joachimi, 58 T. 456; Railway Co. v. Young, 60 T. 201 ; Miller v. Jannett, 63 T. 82; Heiden- heimer V. Schlett, 63 T. 394; AVillis v. Lowry, 66 T. 540. 13 Block V. Latham, 63 T. 414. " Wallace v. Finberg, 46 T. 35. 15 Trawick v. The Martin Brown Co., 79 T. 460. 16 Ry. Co. V. Hogsett, 67 T. 685. " S. & E. T. Ry. Co. v. Johnson, 65 T. 389; Ry. Co. v. Helsley, 62 T. 593; Railway v. Horn, 69 T. 643; Railway v. Pool, 70 T. 713. 18 6., C. & S. F. Ry. Co. v. Holliday, 65 T. 512; Railroad Company v- Helsley, 62 T. 596; Railroad Company v. Tait, 63 T. 223; Railroad Company v. Johnson, 65 T. 393; Railway v. Pool, 70 T. 713. 19 F. W. & X. O. Ry. Co. v. Wallace, 74 T. 581. 20 Commenge v. Stevenson, 76 T. 642; Railway v. Curry, 64 T. 87. 21 McAllen v. Telegraph Co., 70 T. 243. 22 Telegraph Co. v. Cooper, 71 T. .507. 28 McAllen v. Telegraph Co., 70 T. 243. 24 T. & P. Ry. Co. v. Curry, 04 T. 85. 25 G., C. & S. F. Ry. Co. v. Hurley, 74 T. 593. 541 Ch. 38. — Of the General Division of Pleadings. §390. Pleadings defined. 391. Pleas, division of. 392. Dilatory pleas, division of. 393. Pleas in bai-, division of. 394. An issue on pleadings, how made. §390. Pleadings defined. The term pleadings comprehends the allegations of law and fact made by the parties to a suit in the various stages of the proceedings therein. The petition is a statement at large of the cause of action, with the addition of time, place and circumstance, and prayer for relief. The defendant makes defense by his answer, stating the reason or ground therefor by an exception or plea. Either part}'^ uiay, by an amendment, correct his pleadings by a more full and accurate statement of facts, in which case the amended pleading takes the place of the original pleading in the record. He may, also by a supplemental pleading, reply to the last pre- ceding pleading of his adversary, but must not repeat the facts formerly pleaded, further than is necessary as an in- troduction to that which is stated in such supplemental pleading.^ 1 A7Ue, §§279-292, 325, §391. Pleas, division of. Pleas may be dilatory or peremptory; exceptions also are subject to this classification. Dilatory pleas are such as delay the plaintiff's remed}^, by questioning the propriety of the present proceeding, and not the plaintiif 's right to recover upon the merits. A peremptory plea goes to the merits of the case, and denies that the plaintiff has any cause of action; or, admitting that he once had, shows that it has been determined by some subsequent matter. Per- 542 Ch. 38.] or THE GENERAL DIVISION OF TLEADINGS. [§392. emptory pleas are also termed pleas in bar, and pleas in chief, being substantial and conclusive answers to the ac- tion.^ 1 1 Chit. PI. 568. §392. Dilatory pleas, division of. Dilatory pleas are divided into three kinds : 1st. Pleas to the jurisdiction of the court, as, that it has no jurisdiction over the matter in controversy or over the person of the defendant. 2d. Pleas to the disability of the plaintiff or defendant. 3d. Pleas to the petition. All dilatory pleas are sometimes called pleas in abatement, as contradistinguished from pleas to the action ; but that term properly applies only to the last two subdi visions. ^ 1 1 Chit. PI. 576. §393. Pleas in bar, division of. Pleas in bar are divided into three kinds : 1st, the general denial; 2d, the denial of a particular allegation; and 3d, a special plea of new matter in avoidance. When the de- fendant proposes to deny all the material allegations in the petition, his proper plea is the general denial. If the cause of action consists of several distinct but connected facts, capable of being separated in pleading, the defendant, in- stead of denying them all, may deny singly any one of them which is essential to the plaintiff's right of recovery, without taking notice of the others; and such a denial is a sufficient answer to the whole petition. When the defense does not involve a denial of any of the material allegations- in the petition, the defendant may still deny the rigJU of action by pleading some new matter, which admits the pe- tition to be true, but shows, nevertheless, either that the defendant Avas never liable to the recovery claimed against him, or that he has since been discharged from his liability. To this classification maybe referred a plea in estoppel, which neither admits nor denies the plaintiff's allegations, but al- 543 Ch. 38.] OF THE GENERAL DIVISION OF PLEADINGS. [§394. leges some matter of estoppel, as by record or deed, to which he is a party or privy, and which, being inconsistent with his allegations, precludes him from availing himself of them.i 1 1 Chit. PI. 603. §394. An issue on pleadings, how made. An issue in law is formed by a general or special excep- tion to the preceding pleading, and want of form or matter is not aided by the allegations in a supplemental pleading. The issue of law so made is tendered to the court for de- cision without any written formal joinder by the adverse party. ^ If the answer is by plea which tenders an issue, the plaintiff joins in issue without any formal written join- der; if the answer sets up neio matter, either in bar or by way of reconvention, an issue upon the facts alleged arises without any written denial, and the defendant must estab- lish the material allegations of his answer. ^ The pleadings formally close with the supplemental plead- ings, which have the qualities of the special replication in equity.^ At common law, the replication might be followed by a rejoinder; the plaintiff could answer the rejoinder by a surrejoinder; the defendant could again answer by a re- butter, and the plaintiff reply by a surrebutter. The object of these various pleadings, at common law, was to produce an issue, but although from the nature of the process there was no inherant impossibility of carrying the series further, the pleadings have never in practice been extended beyond the surrebutter. In equity, the pleadings anciently pro- ceeded to the rebutter, but in modern practice they close with the general replication, which is a general denial of the truth of the defendant's plea or answer, and of the suffi- ciency of the matter alleged in it, to bar the plaintiff's suit, and an assertion of the truth and sufficiency of the bill. Matter that was the subject of replication, or of any subse- quent pleading under the ancient practice, could be supplied 544 Ch. 38.] OF THE GENERAL DIVISIOX OF PLEADINGS. [§394. by amendment. Analogous to the practice in equity, mat- ter which at common hiw should be plead by a rejoinder, etc., must be set up by amendment, and under the leave of the court.* In Underwood v. Parrott, 2 T. 163, it is said that the practice long pursued permitted evidence in rebuttal of that adduced in support of the answer, or of repelling the legal effect of the latter, though there was no averment in the pleadings of the plaintiff of the facts sought to be established. In Thouvenin v. Helzle, 3 T. 57, it was held that an aver- ment in an answer in confession and avoidence of an alle- gation in the petition must be affirmatively established, although not denied by a supplemental pleading of the plaintiff. In Wright v. Wright, 6 T. 3, it is said that allegations in the answer, not denied by replication or amendment of the petition, are not thereby admitted. In a suit on a note secured by a mortgage, and to foreclose a lien on land, the defendant answered that he had executed another note in satisfaction of the note sued on, and of the mortcrase, which note the plaintiff still held; and also that he had given another note for a part of the amount secured by the original note, and prayed that plaintiff be required to pro- duce the note before judgment of foreclosure. It was held that it was not necessary for the plaintiff to reply and tra- verse the averments of the answer.^ Facts explanatory of those averred and as giving weight to them are admissible, though not specifically alleged.^ When a cause of action appears on its face to be barred by the statute of limitations at the commencement of the suit, and the plaintiff relies upon a subsequent promise to remove the bar, if the statute is relied upon as a defense by exception or by plea, he must allege the promise which thus becomes the foundation of his action, the original cause of action being only the consideration for the subse- (35— Plead. Forms.) 545 Ch. 38,] OF THE GENERAL DIVISION OF PLEADINGS. [§394. quent promise.'^ And so, if the plaintiff relies upon a con- ditional promise to pay, he must allege the happening of the condition.^ In an action for damages for the loss of cotton stored in the defendant's warehouse, the petition alleged the delivery of the cotton to defendant, to be compressed and returned to the former, and total failure and refusal of defendant so to do. The defendant pleaded the destruction of the cotton thus delivered by fire, without any negligence or fault on his part, and that the fire originated in an adjoining room, not occupied by or under the control of the defendant. These pleadings necessarily raised the issue whether the destruc- tion of the cotton was the result of accident, or was caused by defendant's negligence, which was denied in the answer. It was a proper and logical issue, growing out of and raised by the combined pleadings of the parties, and the defend- ant was entitled to the benefit which might ensue from the establishment, by proof, of the fact that the destruction by fire of the cotton was accidental and without fault on its part. The plaintiff was likewise entitled to whatever ad- vantage might accrue to him from the proof of the fact that such destruction was occasioned by want of proper care and prudence on the part of the defendant and his servants.^ 1 Bry.'in v. Knight, 1 T. LSO; Rule 17, ante, §325. 2 McDonald v.Tinnon, 20 T. 245. 3 Rivers v. Foote, 11 T. GG2; Rules 5-S, ante, §325. * Rules 12, 13, ante, §325. * Gouhenant v. Brisbane, IS T. 20. 6 Jones V. Jones, GO T. 451. ' Coles V. Kelsey, 2 T. 541; Riggs v. Ilanrick, 59 T. 570. 8 Mitchell V. Clay, 8 T. 443; Salinas v. Wright, 11 T. 572;' McDonald V. Grey, 29 T. 80; Leigh v. Linthecum^ 30 T. 100; Lange v. Caruthers, 70 T. 7 IS; Gath Wright v. Wheat, 70 T. 740. s Texas Elevator Co. v. Mitchell, 78 T. G4. 546 Ch. 39. — The Petition. §395. Petitioa defined. 396. Requisites of a petition. 397. Title and address. 398. Ttie marginal venue. 399. The names of the parties must be stated. 400. The residence of the parties must be stated. 401. The count or statement of the cause of action. 402. The petition must show plaintiff's right. 403. The petition must show plaintiff's right to recover in the ca- pacity in which he sues. 404. Performance of preliminary acts should be averred. 405. Performance of a condition precedent should be averred. 406. Petition must show defendant's liability. 407. Damages must be specially alleged, when. 408. Allegations of actual and exemplary damages, how made. 409. Allegation of damages resulting from negligence, how made. 410. Allegation of damages in an action against an officer. 411. Prayer for relief. 412. Petition must be signed and filed. §395. Petition defined. A petition is a written statement, in a methodical and le- gal form, of the names and residence of the parties to the suit, and of the material facts which constitute the plaintiff's cause of action, together with such other allega- tions as may be pertinent to the case, concluding with a prayer for relief .^ The statement of the cause of action is properly termed the "count," 2 and as a suit may embrace two or more causes of action, each of which should be distinctly stated, each several statement is termed a count, and all of them collectively, taken with the other parts of the pleading, constitute the petition. The count, however, is never used as in the English system of pleading, for the purpose of varying the statement of the same cause of action, so as to accommodate it to the possible state of proof on the trial; 547 Ch. 39.] THE PETITION. [§§39(5,397. but as every action is a special action on the particular case, the "count," or statement of the cause of action, must set out truly the particular grievance for which the party seeks redress.^ 1 Civ. Stat. Arts. 1185, 1195. 2 Early Laws, Art. 1755 ; ante, §1 (5) ; Beal v. Alexander, 6 T. 531 ; Rule 4, ante, §325. 3 Carter V. Wallace, 2 T. 206; Caldwell v. Haley, 3 T. 317; Beal v. Alexander, G T. 531. §396. Requisites of a petition. A petition contains certain requisites, either prescribed by statute, or essential to a logical and methodical statement of the cause of action. These are : 1st, the marginal venue ; 2d, the term of the court; 3d, the address; 4th, the com- mencement; 5th, the count or statement of the cause of action; 6th, the statement of the nature of the relief de- manded; 7th, the signature of the party or his attorney. The omission of any one of these requisites would render a petition defective, and could be reached by a special or general exception, as the defect is one of form or of sub- stance} 1 Civ. Stat. Arts. 1185, 1186, 1187, 1195. §397. Title and address. The petition is entitled of the term of the court to which the citation is made returnable. The title of the term^ with reference to the ancient proceedings ore tenus, was consid- ered as a statement or memorandum of the time when the plaintiff and defendant came into court, and in form made their allegations. The time of the actual com- mencement of the suit, which is by filing the petition, is shown by the endorsement of the filing nuide by the clerk. The petition is in general addressed to the court of the proper county. The title and address are merely formal matters, and serve as an appropriate introduction to the statement of the case.^ 1 Story's Eq. PI. 26. 548 Ch. 39.] THE PETITION. [§§398,399. §398. The marginal venue. The petition should contain in the margin a statement of the venue; that is, of the state and county in which it is to be filed. The local jurisdiction of the District and County Courts is prescribed by statute, and is dependent upon the residence of the defendant, or upon the place where the cause of action arose, or where a contract upon which the action is based is to be performed.^ As a general rule, the defendant must be sued in the county of his residence, as alleged in the petition ; and if any fact exists which gives jurisdiction of the cause to the court of another county, that fact must be stated, or the petition will be defective. The marginal venue is inserted for the purpose of making the petition complete within itself, and thus permitting the question of local jurisdiction to be raised upon the plead- ing itself by exception ; for it cannot be made to appear from the pleading itself, otherwise than from the marginal venue, that the suit is not properly pending in a court of a particular county.^ 1 Civ. Stat. Art. 1198; ante, §317. 2 Civ. Stat. Arts. 1198, 1199; ante, §§314-317. §399. The names of the parties must be stated. The commencement precedes the more circumstantial statement of the cause of action, and contains the names of the parties to the suit and their residence. ^ It is sufficient if the names are stated in the caption.'^ There cannot be a judgment against a person not named as a party in the 3 pleading The petition, in a suit commenced in Gonzales county, was entitled as of the State of Texas, county of Gonzales, and commenced as follows: The petition of S. W., a res- ident of Colorado county, State of Texas, to Hon. Fielding Jones, Judge of the 10th Judicial District of Texas, hold- ing court in and for said county, respectfully shows, that on the third day of December, 1855, M. K., also a resident 549 Ch. 39.] THE PETITION. [§399. of said county and State, made and executed, etc. ; it was held that the obvious construction of the recital was that the defendant was a resident of the county of Colorado, and that a plea in abatement claiming defendant's privilege to be sued in his own county, not supported by affidavit, should have been sustained.* The petition must set forth the christian and surname both of the plaintiff and defend- ant; but if the defendant signs a bill, note or other written instrument, upon which suit is brought, by the initial or a contraction of his christian name, or habitually was or is known by it, he may be sued in the same manner.^ When a corporation is a party, the proper mode of describing it is by its corporate name, and that it is duly incorporated, this being the only name or description by which a body politic is known in law. For the law takes no notice of the individual members of a corporation, as such, except when the individual right of a corporator is the subject in ques- tion.^ A middle name or initial is not knoAvn in law, and will not be noticed except to show identity.' When the names have once been given, it is suiEcient and proper afterwards to use the words, "plaintiif" and "defendant" without again repeating the names. '^ If two or more persons sue or are sued as partners, they must be described by their proper names, and not by their firm name.^ In a suit against a firm, the petition alleged that the christian names of the members composing it were unknown, and the citation followed the petition. The return on the citation showed service on parties having the same surnames given in the petition, and also stated their christian names. On a judgment by default, it was held that the presumption existed that those thus served were members of the defendant firm.^*' Where parties were described in the petition as the "heirs of a deceased person," and were not named, but were cited, appeared and made defense without special exception to the 550 Ch. 39.] THE PETITION. [§399 petition on that ground, it was held that the objection could not be made under a generalexception.^^ An objection on account of a misnomer must be made by a plea in abatement, which must give the proper name of the party, and the defect can be cured by an amendment. ^^ The plaintiffs were a firm, doing business under the name of George Butler & Brother. In settinsr out the names of the members of the fiim, the petition stated them as George Butler and Jonas Butler. The defendant pleaded in abate- ment that the names of the members of the firm were not George and Jonas, but were George and L. M. H. Butler, and the plaintiff was permitted to amend his petition, con- forming to the plea.^^ In an action on a note given by D. W. and H. W., and to foreclose a mortgage to secure its payment, the allegation in the petition was, "that said W." executed said mortgage; it was held that the omission of the christian name of W. should have been taken advantage of by special exception, rather than by an objection to the evidence, when the mortgage was offered.^* Suit was brought on account in favor of John Focke, Henry Wilkens and Herman Lauge, constituting the firm of Focke, Wilkens & Lano-e. An attachment issued in the case on an aflldavit that defendants were indebted to John Focke, John Wilkens and Herman Lange, composing the firm of Focke, Wilkens & Lange, upon an account having the same amount due, and the same amount to become due, as stated in the petition. Held: (1) No presumption can be indulged to sustain proceedings by attachment. (2) The petition being based on a demand due a firm com- posed of members designated therein, and the affidavit on a demand alleged to be due a firm composed of other and different individuals, the variance was fatal to the pro- ceedinsfs. The fact that the stvle of the firm in each in- stance was the same is immaterial. ^^ In an action against a railway company, on a note ex- ecuted by B. as its president, the citation directed the sheriff 551 Ch. 39.] THE PETITION. [§400. to summon B. , president, etc., and the return of the sheriff showed that it was executed by delivery of a copy of the writ and petition to B. On error, a judgment by default against the company was affirmed. ^^ A mistake in the name of a party to the suit cannot be objected as a variance at the trial, but the name of a person not a party, of whom mention has been made in a pleading, must be proven as alleged. Thus, when a bill of exchange drawn by John Couch, was declared upon as drawn by John Crouch, and the defendant pleaded the general issue, the plaintiff was non-suited. ^^ 1 Civ. Stat. Art. 1195; Weems v. The Sheriff of Brazoria County, 48 T. 481. 2 Clark V. Haney, 62 T. 511. SBellv. Vanzandt, 54 T. 150; Dunlap v. Southerliii, G3 T. 38; Wil- liams V. Barnwell, 78 T. 3'26. 4 Keabadour v. Weir, 20 T. 254; see Camp v. Gainer, 8 T. 372; Eakins V. Groesbeck, 24 T. 179. 5 Cummings v. Rice, 9 T. 527; McKay v. Speak, 8 T. 376; Brown v. Hunter, 38 T. 626; Edmundson v. Yates, 24 T. 373. 6 Civ. Stat. Art. 575; Holloway v. R. R. Co., 23 T. 465; L. I. Co. v. Davidge, 51 T. 244. 1 McKay v. Speak, 8 T. 376; Cummings v. Rice, 9 T. 527; The State V. Manning, 14 T. 402; Stockton v. The State, 25 T. 772; Steen v. The State, 27 T. 86; Page v. Arnim, 29 T. 53. 8 1 Chit. PI. 343. 9 Andrews v. Ennis, 16 T. 45; Burden v. Cross, 33 T. 685. 10 Sun Mutual Ins. Co. v. Seeligson, 59 T. 5. " Wooten V. Dunlap, 20 T. 183. 12 Cartwright v. Chabert, 3 T. 261. 13 Tousey v. Butler, 9 T. 525; Tryon v. Butler, 9 T. 653. " Wallace v. Hunt, 22 T. 647. 15 Focke et al. v. Hardeman et al., 67 T. 173. 16 G. & H. R. R. Co. V. Shepherd, 21 T. 274; see Guimond v. Nast, 44 T. 114; Putman v. Wheeler, 65 T. 522; Graves v. Drane, 66 T. 658. " 1 Chit. PI. 350. §400. Tlic rcsideiK'C of the parties must be stated. The residence of both plaintiff and defendant must be correctly stated, if known ; and if not known, the fact should be stated.^ It is the right of the defendant, by plea in abatement, to force the plaintiff to state in his petition his 552 Ch. 39.] THE PETITIOX. [§401. true place of residence. ^ It is said that the object of the statute in requiring the plaintiff to specify his place of residence is not very apparent, and hence a general alle- gation of residence is held sufficient. Thus, when the plaintiff described himself in his petition as "a resident citizen of the State of Tennessee," the allegation was held sufficiently certain on special exception.^ The residence of the defendant must be stated with certainty, as that is the locality in which suit must be brought, unless authorized or required to be instituted elsewhere, under some of the ex- ceptions of the statute. It has been held that the words, "of the county of Jefferson," annexed to the name of the defendant, was a sufficient averment of his residence, at least on general exception.* A special exception will lie to a petition which does not state the residence of the parties, and, if the residence is falsely stated, the fact may be taken advantage of by a plea in abatement.^ 1 Civ. Stat. Art. 1195. 2 Gildart v. Grumbles, 22 T. 15. 3 Harper v. Nichol, 13 T. 160. < Warner v. Bailey, 7 T. 517; Trammel v. Trammel, 20 T. 406. fi Gildart v. Grumbles, 22 T. 15. §401. The count or statement of the cause of ac- tion. After the commencement of the petition, the count or statement of the cause of action follows in its natural order, and should show the rights whether founded upon contract or toit independent of contract, the injury to such right, and the consequent damages. In stating these, all of the facts essential to the right of action must be alleged, for the plaintiff can recover only according to the allegation and proof, and no fact can be jjvoveji which is not alleged in the petition.^ 1 Story's Eq. PI. 257; Holman v. Criswell, 13 T. 3S; ante, §§365-374. 553 Ch. 39.] THE PETiTiONo [§'102, § 402. The petition must sIioav the plaintiff's right. The first and most important rule in respect to the re- quisites of a petition is that it must show clearly that the plaintiff has a right to the thing demanded, or such an interest in the subject matter as gives him a right to in- stitute a suit concerning it.^ Thus, when a plaintiff claims under a will, and it appears from his statement of the in- strument that he has no title, an exception will lie. The want of interest is not only a good cause of exception in the case of a sole plaintiff, but, if the suit is joint, a want of interest in either of the plaintiffs is equally fatal, though it appear that all the other plaintiffs have an interest in the matter, and a right to institute a suit concerning it. Upon a similar ground, if two plaintiffs should sue, and the peti- tion should allege that the title was in one or the other of them, in the alternative, it would be subject to exception; for not only is such an allegation objectionable on account of uncertainty, but also because it shows that there must necessarily be a misjoinder of one or the other of the plaintiffs. The interest of the plaintiffs must be an actual existing interest, and not dependent upon a future prob- ability or possibility. Thus, a person claiming as devisee in the will of a person who was living, but a lunatic, could not sustain an action to prevent waste of the property. But, if there is any vested interest, however slight or trifling in value, it is wholly immaterial whether it be absolute or con- tingent, or whether it be present, or remote and future, in enjoyment. The facts constituting the plaintiff's right to recover, and showing the liability of the defendant to the plaintiff, must be averred directly and distinctly, and it is not suffi- cient that they may be supplied by inference from the alle- gations of the petition. 2 1 Dan. Ch. Pr. 3G0; Story's Eq. PI. 503. 2 :MaIone v. Craig, 22 T. GOO; Gray v. Osborne, 24 T. 167; Thigpen v. Mundine, 24 T. 282; Colbertson v. Beeson, 30 T. 7G. 554 Cb. 39.] THE PETITION. [§403. § 403. The petition must show the plaintiff's right to recover in tlie capacity in which he sues. The plaintiff must not only show that he has an interest in the subject matter of the suit, but also that he has a right to recover in the capacity in which he sues. Thus, when the plaintiff sues, or the defendant is sued, as a public or private corporation, it is necessary to allege that such cor- poration was duly incorporated, and such allegation by either party will be taken as true, unless denied by the affi- davit of the adverse party, his agent, or attorney.^ A* petition contained the following allegations: "John C. Gibbons and D. G. Scott, executors and trustees under the last will and testament of E. Gibbons, deed., plaintiff's, complaining etc., * * * represent that on the first day of January, 1883, plaintiffs were lawfully seized and pos- sessed of the tract of land hereinafter described, * * hold- ing the same in fee simple. That afterwards * * defend- ants entered upon said premises, etc." It was held that these allegations show that plaintiffs were suing in their own right, and not as executors and trustees.^ A stockholder in an incorporated company may sue the corporation for damages for a depreciation of the value of the stock and of the corporate property, alleged to have been caused by the fraudulent acts of the ofiicers. The concurrence of three things are regarded as indispensable as the basis for such a suit. 1, The company must refuse to sue. 2, There must be a breach of duty. 3, There must be injury to the stockholder. The breach of duty author- izing suit by a stockholder for such damage does not refer to mere mismanagement or neglect of the officers or direc- tors in the control of the corporate affairs, or in the abuse of discretion in the conduct of the business of the company. In such a case courts do not interfere. Courts, however, will entertain complaints in cases of injurious acts ultra virex, fraudulent practices, abuse of power, and oppression on part of the company or its controlling agency clearly 555 Cll. 39.] THE PETITION. [§403. subversive of the rights of the minority, where such mi- nority would be otherwise without remedy.^ When the phiintiff sues as administrator, executor or guardian, the petition must allege a valid appointment by a competent court. ^ In actions by and against executors, administrators and guardians, the character in which the plaintiff sues, or the defendant is sued, is not put in issue by the general denial, and it is not necessary to prove it, unless it is specially denied.^ To this rule there is no exception in the action of trespass to try title, although the defend- ant is not required to plead any special plea but the statute of limitations, and the general denial does not put the plaintiff upon proof of his representative capacity, or ad- mit rebutting evidence upon the part of the defendant.^ Where the ancestor died, in 1833, owing no debts, and the heirs accepted the succession, it was held that an ad- ministration on his estate, granted in 1849, was void, and an action of trespass to try title brought by the adminis- tratrix was dismissed.'' The statute prohibits the grant of administration upon the estate of a decedent, unless appli- cation is made therefor within four years from the death of the testator or intestate.^ Though the legal representative of a deceased person's estate is the proper party to bring suit for the recovery of a debt due the estate,^ since this rule has its foundation in the necessity of protecting the creditors of the estate, it does not exist for the benefit of debtors, and is subject to exceptions. The legal representative is entitled to the property of the estate only in a qualified manner and for a specific purpose ; for all other purposes the title is in the heir from the moment when descent is cast. When over three years had elapsed since the death of the intestate, whose estate was alleged to have been insolvent, and during which time no one had applied for administra- tion thereon, the surviving widow brought an action of debt on a judgment which was the community property of her- 556 Ch. 39.] THE PETITION. [§403 self and her deceased husband, and which was rendered nearly seven years before his death. Held, that under the facts stated in the opinion the surviving widow could main- tain the action. Independent of the special facts of the case, the wife, as survivor of the community estate, could, being the owner of the judgment rendered during the life- time of her deceased husband, preserve the debt, against which limitation was nearly complete, by an action in her own name.^° And so, the interest of a legatee in the prop- erty bequeathed to him can, in general, be asserted only through the legal representative of his testator. But an heir or legatee may maintain an action for the recovery of specific property ^ when there has been no administration, and there is no necessity for the same ; or where the ad- ministration has been closed; or when there is a fraudulent combination between the administrator and others. ^^ For the same reason — the want of privity between the parties — a creditor of a decedent cannot maintain an action against his heir, who had taken possession of all the property, as the settlement of the estate of deceased persons is by statute devolved upon an executor or administrator, and the creditor must pursue the ordinary remedy. An executor de son tort, with his rights and liabilities as defined by the common law, is unknown to our system of jurisprudence.^^ But when no administration has or can be granted on the estate of a decedent, suit may bo brought against the heir, who is liable for the debts of the ancestor to the extent of the property inherited by him, and a personal judgment may be rendered against him therefor. ^^ 1 Civ. Stat. Art. 1190; W.iterworks v. Kennedy, 70 T. 233; The Bank V. Sinaonton, 2 T. 531 ; Holloway v. Memphis & El Paso R. R. Co., 23 T. 465. 2 Rountree v. Stone, 81 T. 299. 2 Ciites V. Sparknian, 73 T. 619. 4 Fisk V. Norvel, 9 T. 13; Boyle v. Forbes, 9 T. 35. 5 Cheatham v. Riddle, 12 T. 112; Clifton v. Lilley, 12 T. 130; Tram- mell V. Sloan, 25 T. 473; Rider v. Duval, 2S T. 622; Civ. Stat. Art. 1265. 6 Dignowitty v. Coleman, 77,T. 98; Callahan v. Heudrix, 79 T. 491, 557 Ch. 39.] THE PETITION. [§404. 7 Blair v. Cisueros, 10 T. 34; Francis v. Hall, 13 T. 189; see Martiu v- Robinson, 67 T. 36S. 8 Civ. Stat. Art. 1S27. 9 Ante, Chap. 28. M Walker v. Abercrombie, Gl T. G9; Evans v. Oakley, 2 T. 182. " Mclntyre v. Chappell, 4 T. 187; Easterling v. Blythe, 7 T. 210; Lacy V. Williams, 8 T. 182; Hurt v. Horton, 12 T. 285; Clay v. Clay, 13 T. 195; Dobbin v. Bryan, 5 T. 27G; Sevier v. Teal, 16 T. 371 ; Crain v. Crain, 17 T. SO. 12 Probate Law, 45, 97, 98, 287; Ansley v. Baker, 14 T. 607; Green v. Rugely, 23 T. 539; Cunningham v. Taylor, 20 T. 126. 13 Mayes v. Jones, 62 T. 365; Schmidtke v. Miller, 71 T. 103; Kauffman V. Wooters, 79 T. 205. § 404. Performance of preliminary acts should be averred. When the performance of some preliminary act is neces- sary to entitle the plaintiff to maintain his suit, the per- formance of such act ought to be averred. Thus, in suits against a county, it must be alleged that the claim upon which suit is brought has been presented to the County Court for allowance, and that the court has neglected or re- fused to audit and allow the same.^ No action can be main- tained against an executor or administrator upon a claim for money against the estate of the decedent, unless such claim, properly authenticated, has been presented to him for approval, and he has refused to allow the claim for the whole amount, or a part thereof ; or, unless the court has in whole or in part disapproved the allowance made by the ex- ecutor or administrator. 2 The presentation and rejection or disallowance of the claim must be specially alleged, Avith certainty as to time, and a general allegation is not suffi- cient.^ A city had authority to make a street improvement, *'when by a vote of two-thirds of the aldermen elected they may deem such improvement for the public interest," In an action by the city against an abutting land owner for the cost of a street improvement levied against his property, the petition did not allege that it had been authorized as 558 Ch. 39.] THE PETITION. [§405. above required, and, on appeal, a judgment by default against the defendant was reversed.* 1 Civ. Stat. Art. 677; Leach v. Wilson Co., 62 T. 331. 2 Civ. Stat. Arts. 2015, 201S, 2028. s Page V. Findlej% 5 T. 391; Dean v. Duffield, 8 T. 235; Danzey v. Swinney, 7 T. 626; see Millican v. Millican, 15 T. 460; Thompson v. Branch, 35 T. 21. 4 Wood v. City of Galveston, 76 T. 126; Frosh v. City of Galveston, 73 T. 401. • §405. Perforiiiance of a couditiou precedent should Tje averred. Whenever the right of recovery depends upon some act to be done or forborne by the plaintiff or defendant, or other person, or on some other event, the plaintiff must aver the fulfillment of such condition precedent, whether it were in the afiirmative or negative, or to be performed or observed by him or by the defendant, or by any other person, or must show some excuse for the non-performance.^ And in the case of reciprocal covenants, constituting mw^im/ conditions to be performed at the same time, the plaintiff must aver performance, or a readiness to perform his part of the con- tract.2 In an action upon a verbal promise to pay the pre- existing debt of another, the consideration for which was the discharge of the former debtor's liability, the petition must aver that the pre-existing debt w^as discharged, and the want of such averment may be reached b}^ exception.^ And so, a plea alleging that the note sued on was given for a mill, warranted to grind so many bushels a day, upon con- dition that the mill, if found deficient, should bo returned to the payee at a certain place, but containing no averment of a return or an offer to return, as stipulated, would be bad on general exception.* Where an action was brought upon a promise in writing to pay a certain sum of money to another, "so soon as circumstances will permit," it was held that the plaintiff could not recover without an averment and proof of the ability of the defendant to pay.^ On the con- " 559 Ch. 39.] THE PETITION. [§406 traiy, where the consideration of the defendant's contract is executed, or where an estate or interest passed or vested immediately upon the making of the contract, to be de- feated by matter ex post facto, such matter need not be averred, but it will be sufficient to state the contract and breach.^ And wherever there is a circumstance, the omis- sion of which is to defeat the plaintiff's right of action 'prima facie well founded, whether called by the name of a proviso or a condition subsequent, it must in its nature be a matter of defense, and ought to be shown in pleading by the opposite party. ^ In pleading upon statutes, or upon any article of agreement, where there is an exception in the en- acting clause of the statute, or in the body of the agree- ment, the exception must be set out, and the subject mat- ter of it must be excluded from the breach assigned. ^ But, if the exception is contained in a subsequent and independent proviso, it need not be negatived. In other words, if the exception is descriptive of an offense, or is of the substance of a contract, and qualifies or restricts the defendant's li- ability, it must be set out and negatived, otherwise it need not be.® 1 Hughes V. Lane, 6 T. 289; Bone v. Walters, 14 T. 5G4. 2 Meade V. Rutledge, 11 T. 44; Van Norman v. Wheeler, 13 T. 316; Autry V. Cannon, 11 T. 110; Hillyard v. Crabtree, 11 T. 264; Butter- worth V. Kinsey, 14 T. 495. 8 Bason v. Hughart, 2 T. 476; Warren v. Smith, 24 T. 484. < Jackson v. Marshall, 'W 324, 6 Salinas v. Wright, 1 I T. 572; Mitchell v. Clay, 8 T. 443; Rowlett v. Lane, 43 T. 274 ; Lauge v. Carutheis, 70 T. 718. 6 Van Norman v. Wheeler, 13 T. 816. 7 Fast, §476. 8 1 Chit. PI. 318, 9 1 Chit. PI. 489. §406. Petition must show defendant's liability. The petition must show that the defendant is liable to the plaintiif's demand, or has some interest in the subject matter. Thus, when the plaintiff alleged that he was the 660 » Ch. 39.] THE PETITION. [§406. holder and legal owner of a note, of which a copy was set out in the petition, but did not allege that the defendant had made or executed it, it was held, on exception, that the petition was fatally defective, because it did not show any liability on the part of the defendant.^ In an action against a husband and wife, upon their joint note, the petition was in the usual form, and a judgment by default was reversed on the ground that the petition did not disclose that the debt was contracted for the benefit of the wife's separate property, or any other fact that would authorize a judgment against her.^ And so, in an action on a joint note of husband and wife, which purported to be given for the purchase money of a town lot, the only alle- gations being of the execution, delivery and non-payment of the note, it was held that the petition disclosed no cause of action againt the wife.^ Where land is purchased in the name of a married woman, and the notes of herself and husband are given for the purchase money, with a lien on the land, in a suit on the notes no other judgment should be rendered against her, than a foreclosure of the lien. A judgment against her, generally in such case, without proof of benefit or advantage, is error. ^ The petition must also show such privity between the de- fendant and the plaintiff as to give the latter the right to sue him ; for the plaintiff may have an interest in the sub- ject matter of the suit which may be in the hands of a de- fendant, and yet, for want of a proper privity between them, the plaintiff may not be the person entitled to call upon the defendant to answer his demand. Thus, though an heir has interest in the estate of his intestate, he has no right, while there is an open administration upon such es- tate, to institute a suit against a wrongdoer who is in pos- session of the personal effects of his intestate.'' To this rule there are well-established exceptions : as, where the administrator has, after a long lapse of time, refused to (36— Plead. Forms.) 561 Ch. 39.] THE PETITION. [§407. bring suit, or where there is collusion between him and the person wrongfully in possession.^ P. contracted with W. & R.., a firm of lawyers, for their services in her behalf in the matter of the estate of her de- ceased husband, in which she had a large interest, agreeing to pay them $5,000 "as soon as she was in funds from the estate." W. & R. at once entered upon their employment under the contract, but P. shortly afterwards discharged them, without cause, notifying them that she had employed other counsel, and refusing to accept further service from them. Held: (1) That W. & R. might maintain an action against P. for such breach of the contract, without averring that P. was in funds from her deceased husband's estate.'' 1 Jenniugs v. Moss, 4 T. 452; Frazier v. Todd, 4 T. 4G1 ; Ross v. BreediDg, 13 T. IG; Blount v. Ralston, 20 T. 13-; Sueed v. Moodie, 24 T. 159; Gilder v. Mclntyre, 29 T. 89; Colbertson v. Beeson, SOT. 76; Fortune v. Kerr, 25 T. Sup. 309; Belcher v. Wilson, 31 T. 139; Moody v. Benge, 28 T. 545; Parr v. Nolan, 2S T. 798. 2 Trimble v. Miller, 24 T. 214; Kavanaugh v. Brown, 1 T. 481. 3 Covingtons V. Burleson, 28 T. 308; Menard v. Sydnor, 29 T. 257; Harris v. Williams, 44 T. 124; Wofford v. Uuger, 55 T. 480. 4 Lynch v. Elkes, 21 T. 229; Haynes v. Stovall, 23 T. 625. 5 Evans v. Oakley, 2 T. 1S2; Moore v. Moss, 2 T. 400; Bufford v. Holliman, 10 T. 560; Giddings v. Steele, 28 T. 732; Lee v. Turner, 71 T. 204. c Evans v. Oakley, 2 T. 185; Patton v. Gregory, 21 T.513; Giddings v. Steele, 28 T. 732; Rogers v. Kenuard, 54 T. 30; Sanders v. Devereux, 25 T. Sup. 12; Walker v. Abercrombie, 61 T. 69. 1 Putman v. Wheeler & Rhodes, 65 T. 522. §407. Damages must be specially alleged, when. Damages are either general or special. General damages are such as the law implies or presumes to have accrued from the wrong complained of. Special damages are such as really took place, but are not implied by law, and are either superadded to general damages arising from an act injurious in itself, or are such as arise from an act Indiffer- ent and not actionable in itself, but injurious only in its consequences, as where words become actionable only by 562 Cb. 39.] THE PETITION. [§407. reason of special damage ensuing. The general rule is thus stated by Mr. Sedgwick in bis work on damages, as follows : It does not appear necessary to state specially the former description of damages in the petition, because pre- sumptions of law are not in general to be pleaded or averred as facts. But when the law does not necessarily imply that the plaintiff sustained damages by the act complained of, it is essential to the validity of the petition that the resulting damages should be shown with particularity; and when the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, then, in order to prevent the surprise on the defendant, which might otherwise ensue on the trial, the plaintiff must, in general, state the particular damage w^hich he has sus- tained, or he will not be permitted to give evidence of it. Mr. Sedgwick adds that "all legal damage must, whether the action be in contract or in tort, naturally result from the act complained of * * * and where special damage is essential to the maintenance of the action, such special damage must be alleged. "1 In Moore v. Anderson, 30 T. 230, the rule is stated as follows : Such damages as necessarily result from the in- jury are known as general damages, and may be recovered on a general allegation of damages. But when the damages are the natural consequences, but not the necessary result of the act complained of, they are termed special damages, which the law does not imply, and must be specially pleaded in order to lay a basis for proof and recovery. Such dam- ages are always presumed to follow the violation of any right or duty, and, therefore, the party injured is entitled to nominal damages if greater are not proved. In Irwin v. Cook, 24 T. 244, which was an action for slander, it is said that no special damages were alleged, and, therefore, the party injured is entitled to nominal damages only. 563 Ch. 39.] THE PETITION. [§408. In Heiligman v. Rose, 81 T. 222, in an action for poi- soning dogs, the plaintiff asked for actual and exemplary damages, under appropriate statements. It Avas held that dogs were property, and their value could be determined by their market value, or some special or pecuniary value to the owner, which may be ascertained by reference to their usefulness and services. The court instructed the jury that if the defendant intentionally and willfully poisoned the dogs, or any one of them, as charged by plaintiff, they should find a verdict in favor of plaintiff for their actual value and in addition such exemplary damages as they deemed ad- equate, not exceeding the amount claimed by plaintiif . The act being wrongful, the law implies that some damages re- sult from every illegal trespass or invasion of another's rights. In this case the verdict did not exceed the actual or exemplary damages claimed, but without specifying whether it was for actual or exemplary damages. It is said that it will not be presumed that the finding of the jury was based on grounds not proper, and the judgment was affirmed by the Supreme Court. 1 Glasscock v. Shell, 57 T. 215. §408. Allegations of actvial and exemplary damages^ how made. When actual and exemplary damages are sought, they should be claimed by proper allegations, in the nature of two distinct counts on different causes of action, with aver- ments respectively ap])ropriate to each remedy, these being essentially different in the facts necessary to be alleged and proven.^ When an act is so grossly negligent as to raise the pre- sumption of indifference, or when the circumstances show that there was a deliberate, preconceived or positive inten- tion to injure, or that reckless disregard of the safety of person or property, which is equally culpable, punitive or vindictive damages are allowed.^ 1 Riilroad Co. v. LoGierse, 51 T. 1S9; Moore v. Anderson, 30 T. 230 j, Hope V. Alley, 1) T. 3!»4; Irvin v. Cook, 2-i T. 244. 2 Brooke v. Clark, 57 T. 105. 564 Ch. 39.] THE PETITION. [§§409, 410. §409. Allegation of damaj^es resultiiij? from negli- gence, how made. In a suit for damages resulting from the negligence of the defendant, the allegations must show that such negligence was the proximate cause of the injury. In an action against the owner of a toll-brido;e across a river, it Avas alleired that jjlaintiff stopped to pay his toll at the usual place at which defendant was accustomed to receive its tolls from passen- gers over said bridge, when his mules, for some reason un- known to plaintiff, became frightened, and commenced to push the wagon backward ; that plaintiff used every pos- sible exertion and means within his power to urge them for- ward, but before he could get control of the animals, the wagon struck against the railing or siding of the bridge, which railing immediately gave way, and plaintiff, together with his wagon and mules, was precipitated to the ground below, a distance of over seventeen feet. It was also alleged that the railing was defective, and that the injuries com- plained of resulted from the fall. It was held that the al- legations in the petition were sufficient to show that the damages were the immediate result of the negligence of the defendant in failing to keep the railing in a safe condition.^ 1 Bridge Co. v. Cartrett, 75 T. 628. §410. Allegation of damages in an action against an officer. In general, any officer whose duties are merely minis- terial, audio whom process is issued which is apparently in due form of law, and which neither in its recitals nor in its omissions apprises him that it is issued without legal right, will be protected in serving it, even though in fact it was issued without authority of law. This is a rule not only es- sential to the protection of such officers, but absolutely re- quired also for the due dispatch of public business. It would seem to be impolitic in a very high degree to compel such an officer to ascertain, at his peril, the illegalities that 5G5 Ch. 39.] THE PETITION. [§411. might lie back of a process apparently legal, and it might be justly expected to force prudent men to decline the of- fice altogether, or to proceed with such hesitation and cir- cumspection as sometimes to render the process of little or no avail. The general rule is that such an officer is legally protected against any illegalities except those committed by himself, and it is not illegal for him to execute process which comes to him as a ministerial officer from other offi- cers, whose actions he has no authority to revise or review. It has accordingly been held that any one who had paid taxes assessed upon property not subject to taxation, could not recover the amount so paid from the collector.^ iC. L. & C. Co. V. Board, SO T. 489. §411. Prayer for relief. The statute requires the plaintiff to state the nature of the relief which he requests of the court. ^ At common law, the action is commenced by the writ, and consequently a prayer for process has no place in the declaration. ^ In equity to which our system of pleading is analogous, the suit is commenced by bill, and the prayer for pi'ocess forms one of its important parts ; it is necessary to pray for pro- cess against all who are intended to be made parties, and, as a general rule, none are parties, although named in the bill, against whom process is not prayed.-^ The ordinary process issued on the filing of the petition is the citation for per- sonal service; if other process is asked for, the prerequisite prescribed by the statute must be complied with.* It has been held by the Court of Appeals that a prayer for pro- cess in the petition is not necessary.^ In Duncan v. Bul- lock, 18 T. 544, it was held that an exception to a petition might be made on the ground that it did not contain a prayer for process, but the defendant having been in fact cited, and also appeared, the objection, if made, might have been removed by an amendment. 566 Ch. 39.] THE PETITION. [S'iH- When the phiintiff sued out an original attachment, but did not pray for or sue out citation for personal service upon the defendant, the court having quashed the attach- ment on motion, the defendant who had come in without service and filed an answer to the petition moved the court to dismiss the suit; it was held that, had the defendant not filed his answer, the motion should have been sustained; but, as it was, the motion was properly refused.^ When the ground for attachment is sufficiently set forth in the affidavit, a general prayer in the petition for "process" is sufficient to authorize the issuance of the writ. The writ becomes a matter of right on the filing of the proper affi- davit and bond required by the statute.^ In Baber v. Brown, 54 T. 99, a citation issued to the county in which it was alleged the defendant resided was returned, "defendant not to be found in W. county, but resides in G. county;" it was held that service of process issued to G. county, without an amendment of the petition, was sufficient. The prayer for judgment must vary according to the cir- cumstances of the particular case, and the nature of the relief sought. The usual course is for the plaintiff to make a special prayer for the particular relief to which he thinks himself entitled, and then to conclude with a prayer for gen- eral relief, at the discretion of the court. ^ The latter can never be properly and safely omitted ; because, if the plaint- iff should mistake the relief to which he is entitled in his special prayer, the court may yet afford him the relief to which he has a right, under the prayer for general relief ,9 provided it is such relief as is agreeable to the case made by the petition.^*' But if there is no prayer for general relief, then if the phiintiff shoukl mistake the relief to which he is entitled, no other relief can, in general, be granted him : for a special prayer for relief, consistent with the case stated, will be regarded as evidencing the nature and object of the suit, and in this respect as giving charac- 567 Ch. 39.] THE PETITION. [§411. ter to it.^^ If, therefore, the plaintiff doubts his title to the relief he wishes to pray, the petition should be framed with a double aspect, so that, if the court should decide against him in one view of the case, it yet may afford him assistance in another. ^^ When the petition contains a prayer for specific relief only, and the judgment is not pre- scribed by statute, the judgment cannot go 'beyond the prayer ;i^ but if the judgment is prescribed by statute it will be granted, though it be different from and even incon- sistent with the special relief prayed for.^^ In an action by the husband and wife for money, the separate property of the wife, where offsets are pleaded greater than the amount sued for, which are found by the jury to be claims against the husband, the court will not render judgment against the husband separately, unless such judgment be prayed f or.^^ In a petition for an injunc- tion, the plaintiff admitted his indebtedness to the defend- ant, and upon the dissolution of the injunction the defend- ant had judgment as prayed for in his answer, although his pleadings did not set forth the amount of the plaintiff's indebtedness.'^ To an action of trespass to try title, the defendant plead not guilty, and under that plea showed that the deed under which plaintiff claimed was in fact a mortgage; it was held that the court could not render a decree of foreclosure, as the petition was framed solely with the view to a recov- ery of the premises, and did not ask that alternative relief.^' The judgment of the court must conform to the pleadings, the nature of the case proved, and the verdict, if anj^, and will be so framed as to give the party the relief to which he may be entitled in law or equity. ^^ Facts not alleged, though proved, cannot form the basis of a judgment. ^^ When in an action for breach of contract there is no allegation of damages, none but nominal dam- aires can be recovered.-'' When there is a judgment by defjiult, the facts set out in the petition are to be taken as 56S Ch. 3[>.] THE PETITION. [§411. proved.-^ But if the pleading does not set forth the cause of action as to names of parties, dates and amount chiimed, so as to enable the court to render judgment without re- sorting to evidence aliunde, a judgment by default cannot he sustained. 22 A plaintiff must recover in the right in which he sues, and upon the facts stated in his pleadings as to the basis of that right, and cannot recover through a risht adverse to that asserted, it matters not what the prayer of the petition may be.^^ A prayer for relief incon- sistent with the facts stated as the basis for relief is of no value whatever. Where a petition stated that suit was brought to recover property in the separate right of the wife, and there was no averment of any fact that would make the property community, but the plaintiff prayed that in case the property were proven to be community, he might recover it as such ; held, that it was error to charge the jury "to find for plaintiff, if the property belonged to either the separate or community estates," For no matter what the prayer of the petition is, the plaintiff must recover in the right in which he sues, and upon the facts stated in his pleadings as the basis of that right. The allegata and probata must correspond and the judgment must be based upon the facts in evidence.^* Under the prayer for specific and for general relief, when the judgment is not prescribed by statute, relief is some- times granted different from the relief specially prayed for, but it must be consistent Avitli the objects of the petition. ^^ Such different relief is never allowed, when it is calculated to surprise the other party ; as when it is inconsistent w\i\\ the relief prayed for, or when there is no obstacle in the way of the relief prayed for, and the plaintiff proposes to neglect and pass over the prayer he has made, and take an- other decree, even though it be according to the case made by his petition. 2^ The general rule, where law and e(iuity are administered in separate forms, is that damages must be sought at law, and specific performance in equity. But 5G9 Ch. 39.] THE PETITION. [§411. this has no i^roper application, where the jurisdictions are blended, and where, therefore, both objects may be em- braced in the same suit, and where, consequently, the prayer may be in the alternative, and where, if one relief fails, the other may be awarded, if, on the principles of law or equity, either the one or the other can be granted. ^^ When a judg- ment is rendered against the principal in a note, and also against an indorser, on a petition which asks execution against the indorser only, in the alternative, it is error to render judgment directing execution against the property of both jointly. 2^ In a suit to enjoin the defendant from appropriating to individual use a piece of ground alleged to be a public street, and in the alternative that, if not a public street, it be ad- judged to plaintiff, the verdict was for the plaintiff, "and that it embraces the triangular tract as shown on the plat, and that it is not a part of the homestead." It was held that the verdict afforded no basis for a judgment declaring the ground a street. Nor did it authorize a judgment in favor of the plaintiff as his individual property, the descrip- tion in the petition being irreconcilably conflicting, and the verdict describing the land with reference to its shape and a plat not mentioned in the petition. ^^ While a confession of judgment cures all errors commit- ted in defectively stating a cause of action, the pleadings must disclose a basis for the judgment. A judgment by confession for $792.54 in a suit to recover $298.75, there being no pleading to authorize it, was reversed on error.^'^ 1 Civ. Stat. Art. 1195. 2 1 Chit. PI. 311. 3 Mitford's PI. 78; Executor of Brasher v. VanCortlandt, 2 John. Ch. R. 24-1. * Civ. Stat. Arts. 1227, 1231, 1235. s Ins. Co. V. Holland, 2 App. 443. • « Green v. Hill, 4 T. 4G5; Tulane v. McKee, 10 T. 339. ' DeCaussey & Anderson v. Baily & Pond, 57 T. 665. 8 Story's Eq. PI. 40. » Wartelsky v. Schafer, 77 T. 501. 570 • ' Cb. 39.] THE PETITION. [§412. 10 Smith V. Clopton, 4 T. 109. 11 Hogan V. Killiun, 13 T. 39G. 12 Mitchell V. Sheppard, 13 T. 484. 13 Moore v. Guest, 8 T. 117. " Hipp V. Huchett, 4 T. 20. i« Hubby V. Camplin, 22 T. 5S2. 16 Bourke v. Vanderlep, 22 T. 221. " Mann v. Falcon, 25 T. 271; Hall v. Layton, 10 T. 55; Bozev. Davis, 14 T. 331. 18 Civ. Stat. Art. 1335. 19 Hall V. Jackson, 3 T. 305; Young v. Lewis, 9 T. 73; Denison v. League, IG T. 399; Chrisinau v. Miller, 15 T. 159; Parker v. Beavers, 19 T. 406; Lemmon v. Hanley, 28 T. 219; Stephenson v. Bassett, 51 T. 544; "Wallace v. Bogel, 62 T. 636; Harris v. Spence, 70 T. 620; Morris v. Kasliug, 79 T. 141. 20 City of Laredo v. Russell, 56 T. 398. 21 Longv. Wortham, 4T. 381; Willard v. Conduit, 10 T. 213; Guest v. Rhine, 16 T. 549; Ricks v. Pinson, 21 T. 507; Niblett v. Shelton, 28 T. 548. 22 Kimmarle v. Ry. Co., 76 T. 686. 23 Owen V. Tankersley, 12 T. 411; Hatchett v. Conner, 30 T. Ill; Holloway v. Holloway, 30 T. 178; Hutchins v. Bacon, 46 T. 414. 24 Milliken v. Smoot, 64 T. 171. 25 Wartelsky v. Schafer, 77 T. 501. ^ 26 Denison v. League, 16 T. 399, ' 27 Mitchell V. Sheppard, 13 T. 484. 28 Lewis V. Dennis, 54 T. 4S7. 29 Burnett v. Harrington, 58 T. 359. 30 Frazier v. Woodward, 61 T. 449. § 412. Petition must l>e signed and filed. A citizen has the right in all cases personally to prosecute or defend any suit to which he may be a party, but no per- son can represent another in a suit unless he is a licensed attorney of the court. ^ The statute requires that the plead- ings in a suit in the District or County Court shall be signed by the party or by his attorney, and filed with the clerk of the court. ^ It has been held that a pleading not signed should not be regarded by the court. ^ But the signature to a pleading is a formal requisite. The failure to comply with this reciuirement is an irregularity that may subject the pleading to be stricken out on motion, or to be treated as a 671 Ch. 39.] THE PETITION. [§412. nullity by the court ; but it is one which does not operate to the injury of the opposing party, and, therefore, its amend- ment cannot jirejudice his rights upon the trial of the cause.* The person signing the petition, whether as party or as an attorne}'^, is responsible for its contents ; and if it contains matter which is irrelevant, impertinent, or scandalous, such matter may be expunged at the costs of the person, whether party or attorney, whose signature appears to the pleading.^ 1 Civ. Stat. Art. 1210. 2 Civ. Stat. Art. 1186. s Hemming v. Zimmerschitte, 4 T. 159. 4 Boren v. Billington, 82 T. 137. ^ Story's Eq. PI. 47. 572 Ch. 40. — Of the Answer. §413. The answer includes all defensive pleadings. 414. The answer may include several matters of defense. 415. The due order of pleading defined. 416. Several defenses may be set up by several pleas. 417. The answer may be by exception and by plea. 418. Inconsistent pleas in an answer admissible. 419. All defenses must be filed at the same time. 420. Issues presented by the answer, how disposed of. §413. The answer includes all defensive pleadings. All defensive pleading is stjled the answer,^ and it in- cludes exceptions and pleas. ^ Exceptions are divided into general and special ; pleas are distinguished as pleas to the jurisdiction, pleas in abatement, and pleas in bar. The mode or form of making defense varies according to the foundation on which it is made. If the ground of defense is apparent on the petition itself, either from the matter contained in it, or from the defect in its frame, or in the case made by it, the proper mode of defense is by excep- tion ; and the exception must be general or special, as the defense is matter of substance or of form.^ If the defense is not apparent on the face of the pleading, or if, in other words, it arises from matter dehors the petition, the defend- ant must show the matter to the court by his plea. If the defense is such as merely to dismiss, suspend or obstruct the suit, without touching the merits, it is presented b}'^ a dilatory plea. If the defense is that the plaintiff never had any right to institute the suit, or that the original right, if any, is extinguished or determined, it is presented by a peremptory plea, or as it is sometimes termed, by a plea in bar, or plea in chief. The statute of limitation, in order to be available to the defendant, must be specially set forth as a defense in the answer; and this can be done by a special 573 Ch. 40.] OF THE ANSWER. [§414. exception, when the bar appears upon the plaintiff's plead- ings.* But this defense is not available on a general excep- tion.^ 1 Richardson v. Pruitt, 3 T. 223.' 2 Hopkins v. Wright, 17 T. 30; Smith v. Flj% 24 T. 345; Dickinson v. Lott, 29 T. 172; Rivers v. Washington, 34 T. 267; Hudson v. Wheeler, 34 T. 356; Alston v. Richardson, 51 T. 1 ; Gathright v. Wheat, 70 T. 740. 3 Story's Eq. PI. 436. * Hopkins v. Wright, 17 T. 30; Smith v. Fly, 24 T. 345. fi Dickinson v. Lott, 29 T. 172. §414. The answer may include several matters of de- fense. The defendant in his answer may plead as many several matters, whether of law or fact, as he shall think necessary for his defense, and which may be pertinent to the cause; provided he files them all at the same time, and in the due order of pleading. At common law, the defendant was confined to a single mode of defense. Upon a joinder in demurrer, the facts in the declaration were admitted so far as they were well pleaded, and consequently a final judgment was rendered according to the nature of the pleading demurred to. As by the demurrer the defendant admitted the fact^ alleged in the declaration, he was not afterwards permitted to con- trovert them by his plea. In pleading, the defendant was confined to a single plea, consisting of a single matter of defense, although he might in fact have two or more dis- tinct grounds of defense to the same demand. The conse- quence was, that from a misapprehension on his part, or that of his counsel, in regard to the law, or the facts of the case, or as to the eventual state of the proof, he might choose an unavailing defense, in preference to another which would have been successful, and thus might be sub- jected to a recovery, when the right of the controversy, both in law and in fact, was on his side. This injustice and ab- surdity is obviated b}'' the permission given to the defend- ant to rely upon all of his defenses, whether of law or fact, 574 Cll. 40.] OF THE ANSWER. [§415. which are pertinent to the actlcn.^ Should there be incon- sistent or contradictory allegations in the same pleading, for the purpose of the issue presented by that pleading, the allegation most favorable to the adverse party may be treated as an admission in his favor ;^ and when an equivocal ex- pression is pointed out by exception and the pleader declines to amend, it will, in general, be construed against the party using it.^ 1 Civ. Stat. Art. 1262; Fowler v. Davenport, 21 T. 626; Smith v. Sub- lett, 28 T. 163; Lemmon v. Hanley, 28 T. 219; Duncan v. Magette, 25 T 245; Express Printing Co. V. Copeland, 64 T. 354; Young v. Kuhn, 71 T. 645. 2 Fowler v. Davenport, 21 T. 620; Camp v. Gainer, ST. 372. 3 Barry v. Screwmen's Association, 67 T. 250. §415. Due order of pleading" defined. The statute authorizes the defendant in his answer to plead as many several matters, whether of law or fact, as he shall think necessary for his defense, and which may be pertinent to the cause, provided that he shfill file them all at the same time, and in due order of pleading. ^ A plea in abatement filed after an answer to the merits will be disregarded. ^ The an- swer may consist of pleas to the jurisdiction, in abate- ment, of privilege, or other dilatory pleas. He may also answer by a general denial, or may set up facts by way of avoidance, which may be stated together, or in sev- eral special pleas, each presenting a distinct defense, and numbered so as to admit of separate issue. ^ These several defenses may be consistent or inconsistent'with each other. ^ If the action is based on a contract, the defendant nuiy deny its existence or validity, and in a separate answer may claim the benefits of its terms. ^ A corporation may allege in its plea to the jurisdiction that it is a non-resident corporation, and owns no property, and carries on no business in this state, and in another plea may allege that it had an office and agent in a designated county in this state, and not else- where. ** Where, in action for libel, the defendant pleads 675 Ch. 40.] OF THE ANSWER. [§415, the truth of the matter charged to be libelous, and also a general denial, the former plea can not be read in evidence by the plaintiff to show motive.^ The order of pleading which the defendant is to pursue has been fixed by the practice of the courts, and has not va- ried much from the earliest periods of the law ; it is founded upon the principle that the pleading of any one of the pleas in that enumeration is a tacit waiver of those of the pre- ceding class. The rules of court^ provide that the original answer may consist of the following pleadings in the order named: 1. Plea to the jurisdiction. 2. Plea in abatement. 3. Plea of privilege. 4. Any other dilatory plea. 5. Special denial. 6. General denial. 7. Plea of confession and avoidance. 8. Plea in estoppel. 9. A special plea in the nature of a cross-action, which to that extent places the defendant in the attitude of a plaintiff. Facts in avoidance and estoppel may be stated together, or in several special pleas, each presenting a distinct de- fense, and numbered so as to admit separate issues to be formed on them. The plea may be by exception when the matter relied upon as a defense is apparent on the face of the petition. The exception must be special where the de- fect is in the manner and form of the pleading. When the defect in the pleading consists in the want of sufficient mat- ter to show a cause of action, the exception may be general and need not show in what particular the pleading is defec- tive.^ When a plea has been inadvertently filed out of its due order, so as to cut off a substantial defense, upon proper application the court will permit it to be withdrawn to en- al)lc the defendant to plead his several defenses in due or- der.i« 1 Civ. Stat. Art. 12G2. 2 Allen V. Read, G6 T. 13; Graham v. McCarty, 69 T. 323; Howard v. Brifton. 71 T. 2S7. ^liules, 84 '^\ (195. 576 Ch. 40.] OF THE ANSWER. [§416. < Smith V. Sublett, 28 T. 1G3; Fowler v. Davenport, 21 T. 627; Dun- can V. Magette, 25 T. 245. » Welden v. Texas Continental Meat Co., 65 T. 487; Express Printing Co. V. Copeland, 64 T. 354. 6 St. L., A. & T. Ry. Co. v. Whitley, 77 T. 126. 7 Young V. Euhn, 71 T. 645. M7T. 617; an(e, Chap. 30, 9 Coles V. Perry, 7 T. 145; Drake v. Brander, 8 T. 351 ; Cheatham v. Riddle, 12 T. 112; Clifton v. Lillay, 12 T. 130; Trammell v. Swann, 26 T. 473; Manningv. Hunt, 36T. 118; Simpson v. Foster, 46 T. 618; Allen V. Read, 66 T. 13; Russell v. Railway, 68 T. 646; Dignowilty v. Cole- man, 77 T. 98; Callahan v. Hendrix, 79 T. 494. 10 Simpson v. Foster, 46 T. 618. §416. Several defenses may be set up by several pleas. The defendant may at the same time answer to the juris- diction of the court, in abatement of the action and in bar thereof. He may object that the court has no jurisdiction over the subject matter, or over the person of the defend- ant; he may allege that the plaintiff cannot sue, or that the defendant cannot be sued ; he may object to the writ for matter apparent upon the face if it, as that it has no seal or that it wants any of the essential requisites prescribed by statute ; or for matter dehors^ as that it has not been properly served. He may object to the petition for matter apparent upon the face of it, as that it wants any essential requisite prescribed by statute, or for matters dehors, as that the residence of the parties is falsely stated. Or he may object to the action in bar thereof, any and all defenses which will preclude a recovery by the plaintiff. The de- fenses, whatever they may be, and whether their eifect be to dismiss, suspend or obstruct the suit, or determine the action, are presented by the answer, and it is immaterial that such defenses are inconsistent. From what has been before said of the 7node of defense, that when it is appar- ent upon the/ace of *the petition, it can be presented by ex- ception, and otherwise must be presented by plea, it will follow that the defendant may set up each class of defense by exception or by plea, as it may be a defense of law or of (37— Plead. Forms.) 577 Ch. 40.] OF THE ANSWER. [§§417, 418. fact, so that, as there may be several pleas there may be several exce2Jtions, and an exception may be filed in the due order of pleading after a plea of the preceding class. ^ 1 Civ. Stat, Art. 12G2; ante, Chap. 30; Drake v. Brander, S T. 351 ; Taylor v. Hall, 20 T. 211 ; Welden v. Texas Continental Meat Co., 65 T. 487. §417. Tlie answer may be by exception and by plea. The defendant may except to the petition, and at the same time plead to it as many several matters as he may think necessary; or he may except to a part and plead to another part. If any one of the several defenses thus pre- sented together is determined in the defendant's favor, it is a good bar to the plaintiff's demand, to the extent of the ansAver.^ 1 Ante, Chap. 30. §418. Inconsistent pleas in an answer aclmissible. A defendant is authorized to plead as many several mat- ters of law or fact as he ma}^ deem necessary, ^ and it is immaterial that the averments in one plea are inconsistent with and contradicted by the averments of the' other pleas. ^ When the answer contains several defenses, whether in law or of fact, to one and the same thing or demand, each of them is treated and operates as if it were pleaded alone.' One plea cannot be taken to help or destroy another, but every plea must stand or fall by itself; and, therefore, no one of them can have the effect of dispensing with the proof of what is denied by the other, although the pleas may be apparently contradictory or inconsistent.* Hence, if the defendant* pleads first the general denial, and then pleads specially matter in avoidance, which impliedly con- fesses the petition, as if he pleads first oion est factum and adds a special plea of usury ^ duress, infancy, payment, etc., or pleads all these in successive special pleas; or pleads first not guilty, and then special matter of justification or discharge, the matter of avoidance thus pleaded, though 578 Ch. 40.] OF THE ANSWER. [§418. inconsistent Avith the general issue, does not supersede the necessity of the phiintiff's proving the facts alleged in his petition.^ A general denial is not abandoned, defeated or qualified, by subsequent special pleas of confession and avoidance. It is, therefore, erroneous to sustain exceptions to the whole answer, when a general denial has been filed. ^ When the plaintiff's right to recover depended upon the fact being shown that defendants were partners in or joint owners of a boat, upon which cotton was freighted and lost, and there was a plea of the general denial, and a special plea admitting the joint ownership, it was held that each plea presented a separate issue, and the admissions contained in the special plea must be taken in reference only to the issue presented by it; and that the admis- sion thus made did not dispense with the necessity of the plaintiff's proving the joint ownership, except as to the issue presented by such special plea.' An intervenor who is occupying the attitude of a defendant, and who is resisting a claim to his property asserted by a plaintiff, is entitled to the same latitude in his pleadings.^ In an action on a draft, the defendant pleaded the gen- eral denial, and also several pleas of confession and avoid- ance; and it was held that the draft sued on should have been read in evidence, for the want of which a judgment for the plaintiff was reversed.^ In an action where it was necessary for the plaintiff to prove a demand, the plaintiff read in evidence one of the special pleas of the defendant, in which a demand was admitted. The general denial having been pleaded, it was held that one of two incon- sistent pleas could not be thus used to disprove the other. ^^ Where in a suit for slander or libel the defendant fails to sustain his plea of justification, that plea will not be taken as a circumstance tending to establish malice. ^^ 1 Ante, Chap. 30. 2 Civ. St:it. Art. 1262: Hillebrant v. Booth. 7 T. 409; St. L.. A. & T. Ry. Co. V. Whitley, 77 T. 126; Welden v. T. C. M. Co., 05 T. 487. 579 Ch. 40.] OF THE ANSWET?. [§§419, 420. 3 Hillebrant v. Booth, 7 T. 499; Hurt v. Blackburn, 20 T. 601. * Fowler v. Davenport, 21 T. 626; Express Printing Co. V. Copeland, 64 T. 354. fi Thatcher V. Mills, 11 T. 692. 6 Hurt V. Blackburn, 20 T. 601 ; Smith v. Snblett, 28 T. 163; Lemmon V. Hauley, 28 T. 19. ' Fowler v. Davenport, 21 T. G26. 8 Smith V. Sublett, 28 T. 163. 9 Thatcher v. Mills, 11 T. 692. ^0 Duncan v. Magette, 25 T. 255. " Express Printing Co. v. Copeland, 64 T. 354. § 419. All defenses must be filed at tlie same time. The defendant is allowed to plead as many several matters as he may think necessary, provided he files all of his de- fenses at the same time and in the due order of pleading.^ The object of the statute is to require the defendant to dis- close as early as practicable all of the grounds of his defense, to enable the plaintiff to prepare at once to meet and rebut them, and thus to avoid unnecessary prolixity and delay in the conduct and trial of the cause. If the defendant an- swers by an exception alone, it does not follow that upon the overruling of the exception he has the right as a mat- ter of course to amend his answer, so as to present an issue of fact by his pleas, but he must obtain leave of the court to amend as in other cases ; and if he fails to obtain leave to amend, upon the overruling of the exception, judgment will be rendered against him as for want of an answer. And so, if a party pleads to an issue of fact, he will not be al- lowed to file additional pleas, except by leave of the court, and under the rules applicable to amendments in general.^ 1 Civ. Stat. Art. 1262. » Post, Chap. 47; De Witt v. .Jones. 17 T. (bz^. § 420. Issues presented by the answer, how disposed of. An answer by exception should precede a plea of the same class, and issues of law should be determined by the court before the issues of fact are submitted to the jury.^ Pleas. 580 Ch. 40.] OF THE ANSWER. [§420. must be heard and determined in the due order of pleading, ^ and consequently issues on pleas in abatement should be tried before the issues on the merits ; but all of the issues may .be submitted to the jury together, and the jury can re- turn separate verdicts upon each distinct issue. ^ 1 Walliug V. Williams, 4 T. 427; Civ. Stat. Arts. 1269, 1289. 2 Civ. Stat. Art. 1269. SHolstein v. Gardner, 16 T. 114; Robertson v. Epbraim, IS T. 118; Ereen v. Ry. Co., 44 T. 302; Blum v. Strong, 71 T. 321. Note.— By the Act of March 20, 1S93, 23 Leg. 31, in all eases in which the citation has been personally served at least ten days before the first day of the term to which it is returnable, exclusive of the day of service and return, the answer of the defendant shall be filed in the County and District Courts on or before the second day of the return term and before the call of the appearance docket on said second day. 581 Ch. 41. Of Pleas to the Jurisdiction. §421. Objection to the jurisdiction of the court, how taken. 422. Pleas to the jurisdiction as to subject matter. 423. Pleas to the jurisdiction of the person of the defendant. 424. Privilege of defendant to be sued in a particular county. §421. Objection to the jviriscliction of tlie court, how taken. The first plea in the regular order of pleading, on the part of the defendant, is to the jurisdiction of the court. The want of jurisdiction xa^y arise from one of several causes : 1st, from the cause of action having arisen out of the limits of the court's jurisdiction ; 2d, from a vs^ant of power in the court to take cognizance of the subject matter of the suit; and 3d, from the privilege of the defendant to be sued in a particular county, and his consequent exemp- tion from liability to suits in the court in which the action is brought. In some cases, exception to the jurisdiction of the court must be taken by the ansAver, or it will be waived ; in other cases, the want of jurisdiction is a fatal objection at any stage of the proceeding, and may be made the ground of a motion in arrest of judgment, or may be taken advantage of on appeal or error. In all cases where the want of jurisdiction is apparent from the averments of the petition, the objection can betaken by exception ; otherwise it must be taken by plea. A plea to the jurisdiction maybe pleaded by attorney, as any other plea.^ When the jurisdiction of a court of general jurisdiction is brought in question in a collateral proceeding, and the rec- ord is silent on that subject, the presumptions are in favor of the regularity of its proceedings, and its judgment can- not be impeached in such proceeding. ^ In an action of trespass to try title, the plaintiff, T'owler Letney, exhibited title under the patentee. The defendant 582 Cll. -41.] OF PLEAS TO THE JURISDICTION-. [§422. then introduced a judgment rendered on the 2d day of De- cember, 1880, in a cause in which it was recited tliat the widow, who was the only heir of Isom Palmer, deceased, was plaintiff, and the said Fowler Letney was one of the defendants. The judgment contained a recital that the "de- fendant. Fowler Letney, has answered by general exceptions and pleas of general issue and not guiltj^" and also that the plaintiff established title in herself from and under the sov- ereignty of the soil for the league of land of which the sur- vey sued for by Letney forms a part. Letney offered, but the court refused to permit him, to prove that he was never served with citation in the cause in which the judgment was rendered, had never voluntarily appeared therein or author- ized any one to appear for him, and that he neither author- ized the filing of said answer nor had any notice of the suit until after the present swit was filed. It was held that the judgment could not be impeached in this manner.^ 1 Richardsoa v. Wells, 3 T. 223. 2 Alexander v. Maverick, IS T. 179; Bardett'v. Silsbee, 15 T. G04; Murchison v. White, 54 T. 78; Herndon v. Kuykendall, 5S T. 341; Mc- Nally V. Haynes, 59 T. 583; Mills v. Herudou, 60 T. 353; Rutherford v. Stamper, 60 T. 447; Bradley v. Love, 60 T. 472; Gilleawaters v. Scott, 62 T. 670; Heath v. Layne, 62 T. 686; Collins v. Miller, 64 T. 118; Pel- ham V. Murray, 64 T. 477; Edwards v. Halbert, 64 T. 667; Martin v. Robinson, 67 T. 368; Mills v, Ilerndon, 77 T. 89; Weems v. Masterson, 80 T. 45; Henderson v. Moss, 82 T. 69; Smith v. Lee, 82 T. 124; Hiuzie V. Kempuer, 82 T. 617; see Paul v. Willis, 69 T. 261. 8 Letney v. Marshall, 79 T. 513. §422. Pleas to the jurisdiction as to subject matter. As a general rule, an objection to the jurisdiction of the court, on the ground that it has not cognizance of the sub- ject matter of the suit, is fatal at any stage of the proceed- ing. If the objection is apparent upon the pleadings of the plaintiff, it can be reached by an exception, or the court may dismiss the suit, without a motion, as the judgment will be coram nonjudice, and void. It will confer no right and afford no defense.^ 583 Ch. 41.] OF PLEAS TO THE JURISDICTION. [§423. When an allegation is falsely made as to the value of the amount in controversy, for the purpose of giving the court jurisdiction, the defendant must plead the want of jurisdic- tion on that ground. In the absense of such a plea, a court ma}^ render a judgment for a less amount than was requisite to confer jurisdiction. ^ A mistake in stating the value of the claim sued on may be corrected by the plaintiff in a trial amendment, for the purpose of giving the court jurisdiction. If the value stated in the amendment is fictitious, the defendant can allege and prove that fact ; but if the fact does not appear upon the face of the record, it furnishes no grounds for sus- taining an exception to the jurisdiction.^ If a judgment has been obtained by fraud, not apparent upon the face of the proceedings, it can be set aside by a direct proceeding instituted for that purpose.^ 1 Sutherland v. De Leon, 1 T. 250; Bowers v. Chaney, 21 T. 363; Thouvenin v. Rodrigues, 24 T. 468; Murchisou v. White, 54 T. rS. a Graham V. Roder, o T. 141; Sherwood v. Douthit, 6 T. 224; EHett V. Powers, 8 T. 113; Bridge v. Ballew, 11 T. 2G9; Ilarrell v. Hill, 15 T. 270; Dwyer v. Bassett, 63 T. 274; Tidball v. Eichoff, 66 T. 58; Ratigan V. Holloway, 69 T. 468. 8 McDannell v. Cherry, 64 T. 177. 4 Buchanan v. Bilger, 64 T. 589. §423. Plea to the jurisdiction of the person of the defendant. The statutes authorize the service of process in suits on persons not residing in this state, either by publication or by personal service.^ It has been held by the Supreme Court of the United States that a personal judgment, rendered by a state court in an action upon a money demand against a non-resident of the state, who was served by a publication of summons, but upon whom no personal service of process within the state was made, and who did not appear, is without any validity, and the sale of property under process issued on such judgment is absolutely void.^ 5S4 Ch. 41.] OF PLEAS TO THE JURISDICTION. [§423. In a suit to recover land, and to remove a cloud upon the title thereof, brought in a court of the state in Avhich the land is, against W., H. and others, the petition alleged that W. ejected the plaintiff and unlawfully withheld pos- session from him ; that H. set up some pretended claim or title to the land ; that the other defendants had recorded deeds thereof, which were fraudulent and void; and that the pretended claims and deeds cast a cloud upon the plaintiff's title. Due service was made on the other defend- ants, and a citation to H., who was a citizen of another state, was published as directed by the laws of Texas. All the defendants were defaulted, and upon a writ of inquiry the jury found that H. claimed the land, but had no title of record or otherwise, and returned a verdict for plaintiff. Judgment was rendered that the plaintiff recover the land of the defendants, and that the deeds mentioned in the petition be canceled and annulled, and the cloud thereby removed and for costs, and that execution issue for costs. It was held that under the pleadings in this case the only judgment, rendered against H. was one removing the cloud created by his pretended claim of title, and this was no bar to an action brought by him, in the Federal Court in Texas, to recover the land above mentioned. "Generallv, if not universally, equity jurisdiction is exercised in personam and not in rem, and depends upon the control of the court over the parties, by reason of their presence or residence, and not upon the place where the land lies in regard to which relief is sought. Upon a bill for the removal of a cloud upon title, as upon a bill for the specific performance of an agreement to convey, the decree, unless otherwise expressly provided by statute, is clearly not a judgment in rein, establishing a title in land, but operates in personam ojily, by restraining the defendant from asserting his claim, and directing him to deliver up his deed to be canceled, or to execute a release to the plaintiff.^ 585 Ch. 41.] or PLEAS TO THE JURISDICTION. [§423. It would doubtless be within the power of the state in which the land lies to provide by statute that, if the de- fendant is not found within the jurisdiction, or refuses to make or to cancel a deed, this should be done in his behalf by a trustee appointed by the court for that purpose. But in such a case, as in the ordinary exercise of its jurisdiction, a court of equity acts in personam, by compelling a deed to be executed or canceled by or in behalf of the party. It has no inherent power, by the mere force of its decree, to annul a deed or to establish a title. A decree merely in personam can only be supported against a person who is not a citizen or resident of the state in which it is rendered, by actual service upon him within its jurisdiction, and constructive service by publication in a newspaper is not suiEcient.'* The statutes of Nebraska authorize an action by any per- son in actual possession or not, claiming title to real estate against any person who claims an adverse estate or interest therein, for the purpose of determining such estate or inter- est, and quieting the title to such real estate. Upon the necessary pleadings and proofs, the court has authority to determine the question of title, and decree title to the party entitled thereto. The statute also authorizes service upon a non-resident defendant by publication, and also provides that where a party has not made a conveyance, release or acquittance within the time directed by the decree, the judgment or decree will operate as a conveyance, etc. It was held in Arndt v. Greggs, 134 U. S. 316, that a decree of the court under this statute operated to pass the title in accordance with its terms. An action was brought by H. & T. C. Ry. against K. & H. to recover possession of and to remove clouds from four- teen surveys of land; the defendants claimed eleven of the surveys, disclaimed as to the balance, and impleaded their warrantors, one of whom resided in this state and the other resided in Georgia, and was personally served with process 5SG Cb. 41.] OF PLEAS TO THE JURISDICTION. [§423. in that state. The phiintiff recovered the lands in contro- versy, and the defendants recovered judgment by default against their warrantors for the purchase money of the sur- veys recovered by plaintiff. On appeal, the judgment in. favor of the plaintiff was affirmed ; the judgment in favor of K. & H. against their warrantors was reversed, and the suit, so far as it related to the issues between K. & H. and their warrantor, who resided in this state, was remanded for further proceedings.^ If a party, not amenable to the process of the court, enters an appearance for the j)urpose of asking an adjudica- tion upon the validity of the service of such process, he, by this act, makes himself a party to the suit, and must appear and answer to the succeeding term of the court. ^ A suit for divorce from the bonds of matrimony cannot be maintained in the courts of this state, unless the plaintiff therein, at the time of exhibiting his or her petition, is an actual bona fide inhabitant of this state, and shall have re- sided in the county where the suit is filed six months next preceding the filing of the sanie.'^ In Jones v. Jones, 60 T. 451, the plaintiff, a married woman, had resided in Camp county, Texas, for more than six months next preceding the filing of a suit for divorce. She alleged in her petition that her husband was a resident citizen of the City and State of New York. The defendant answered that at and before the filing of this suit he had and still has his domicile and residence in said City and State of New York, that he had no effects in Texas, and no pro- cess had been served upon him in Texas. He further an- swered that plaintiff had left her residence in New York secretly, to avoid the service of process in that state, and that she was not a bona fide resident of Texas. The jurisdiction of the District Court of Camp County was sustained. 'Civ. Stat. Arts. 1230, 1235. 2 Pennoycr v. Neff, 92 U. S. 714. 587 Ch. 41.] OF PLEAS TO THE JURISDICTION. [§424. 3 Viindever v. Freeman, 20 T. 333; and see Lehmberg v. Biberstein, 51 T. 457. 4 Hart V. Sansom, 110 U. S. 151. 5Kimmarle & Hirsh v. H. & T. C. Ky. Co., 76 T. 686; York v. The State, 73 T. 651. See Hardy v. Beatty, 84 T. 562. 6 Civ. Stat. Art. 1243; York v. The State, 73 T. 651; St. L., A. & T. Ry. Co. V. Whitley, 77 T. 12G; Legion of Honor v. Larmour, 81 T. 71. "' Civ. Stat. Art. 2862; Hammond v. Haymond, 74 T. 414. §424. Privilege of defendant to be sued in a partic- ular county. As a general rule, every person who is an inhabitant of this state must be sued in the county of his residence, ex- cept in certain specified cases where the cause of action arose in a different county, or where he is joined as a co-defend- ant with one who resides in another county.^ The object of the statute in prescribing the place at which suits must be commenced, is to provide for the protection and con- venience of resident citizens, and this cannot be defeated by any evasions or artifices intended merely for that purpose.^ Thus, where the payer and payee of a promissory note re- sided in different counties, it was held that the latter could not, by a fraudulent indorsement, confer jurisdiction upon the District Court of the county in which he resided, where the suit was in fact prosecuted for his use and benefit.^ Nor can a suit be maintained ae plead In abatement, when. The death of a plaintiff, pendente lite, and before verdict, will not cause the suit to abate, if the cause of action sur- vive ; and in no case will the death of the plaintiff between verdict and judgment abate the suit. But if the plaintiff dies before verdict, and the cause of action does not sur- vive, such death can be plead in abatement of the action.^ The right of action on contracts and for the recovery of real or personal property survive.^ The right of action for torts, unconnected with contracts, does not survive, except in actions for injuries resulting in death given by statute.^ That the person named as plaintiff is wot in rerum natura is a good plea of this class, as where he is a fictitious or imaginary person or is dead; that the plaintiff was never m esse is a good plea in bar, for that a right of action should exist in favor of an imaginary person is plainly impossible.* 1 Civ. Stat. Arts. 1246, 1248. 2 McCampbell v. Henderson, 50 T. 601 ; G., H. & S. A. R. R. v. Free- man, 57 T. 156. 3 Civ. Stat. Arts. 1246, 1255; Watson v. Loop, 12 T. 11 ; Tanev v. Ed- wards, 27 T. 224; Cherry v. Speight, 28 T. 503; G. C. Ry. Co. v. Nolan, 53 T. 139. * 1 Chit PL 526. § 435. Death of defendant, pendente lite, may he plead in abatement, when. The death of a defendant before verdict, in a suit where the cause of action survives, may be brought to the atten- tion of the court by a supplemental petition of the plaintiff, properly filed, upon which process will issue to make neces- sary parties. When the court is in session, the suggestion of death is made and entered of record in open court. ^ The suggestion of death of either party, if controverted, will be tried by the court. ■^ If not controverted, no further pro- ceedings will be had in the case until the proper party is made.^ 1 Civ. Stat. Art. 1248; Blum v. Goldman, 66 T. 621. - Aniistroiiir v. Nixon, 16 T. 610. 3 Bissell V. Lavaca, (i T.,')4; Martel v. IlernRheim. 9T. 294; Armstrong V. Nixon, 16 T. 610; Brown v. Terrey, 22 T. 54; Ins. Co. v. Brower, 38 T. 230. 605 Ch. 42,] OF PLEAS IN ABATEMENT. [§§43(i, 437. § 436. Surviving party may prosecute or defend suit, when. When there are two or more plaintiffs or defendants, and one or more of them die, if the cause of action survive to the surviving plaintiff and against the surviving defendant, upon the entry of record of the suggestion of such death the suit will proceed in favor of or against such survivor, as the case may be.^ When an executor or administrator, party to a suit, dies before verdict, the suit will not abate, and the successor of such party, or the heir of the decedent, where there is no administration and no necessity therefor, may be made a party to the suit.^ A suit for injuries re- sulting in death, brought under Title 53 of the Eevised Statutes, is not abated by the death of a party thereto. In case of the death of the sole plaintiff, one or more of the parties entitled to the money recovered may prosecute the suit to judgment. If the defendant dies, his executor, ad- ministrator or heir may be made a party. ^ When a plaint- iff, suing for the use of another, as shown by the allega- tions in the pleadings, dies before verdict, the usee may prosecute the suit in his own name,* 1 Civ. Stat. Art. 1250. 2 Civ. Stat. Art. 1249. 3 Civ. Stat. Art. 1255. 4 Civ. Stat. Art. 1254; Price v. Wiley, 19 T. 142; Clark v. Hopkins, 34 T. 139; Moore v. Kice, 51 T. 289; Smith v. Wingate, 61 T. 54. §437, Plea in abatement of petition. If the court has jurisdiction of the cause — if the plaintiff can sue and the defendant be sued, and the latter has been cited, the defendant may then set up by his answer matter in abatement of the petition. The grounds of answering in abatement of the petition ayq axiXiQV intrinsic ov extrinsic ; if the defect or mistake is apparent upon the face of the petition, the proper mode of taking advantage of it is by a special exception; on the contrary, when not apparent upon the face of the petition, it must be presented by a plea in 60G Ch. 42,] OF PLEAS IN ABATEMENT. [§§438, 439. abatement. From the nature of the subject, some matters can only be presented by an exception, as the insufficiency of the petition in legal form, in that it does not state the name or residence of the parties, etc.^ 1 1 Chit. PI. 584. §438. Misnomer of plaintiff or defendant may be pleaded. The petition must state the names of the parties and their residences, if known. ^ The individual names of partners must be stated.^ But if the christian names of the de- fendant partners are unknown, it is sufficient to state the partnership name and allege that the christian names of the persons who compose the firm are unknown.^ The misstatement of the name of a party may be pleaded in abatement, and it may be corrected by amendment.^ 1 Civ. Stat. Art. 1195; Weems v. The Sheriff of Brazoria County, 48 T. 481; Heath v. Fraley, 50 T. 209; Norvell v. Garthwaite, 25 T. 583. 2 Andrews v. Ennis, 16 T. 45; Burden v. Cross, 33 T. 685; Putnam v. Wheeler, 65 T. 522. 3 Sun Mutual Ins. Co. v. Seeligson, 59 T. 3; Rogers v. Bradford, 56 T. 630. 4 Cartwright v. Chabert, 3 T. 261 ; Tousey v. Butler, 9 T. 525; Tryon V. Butler, 9 T. 553; Gildart v. Grumbles, 22 T. 15. §439. Misjoinder or non- joinder of parties may be plead. The non-joinder or misjoinder of persons who ought or ought not to be joined as co-parties, either as plaintiffs or defendants, may be plead in abatement.^ It may be laid down as a general rule, applicable to all actions, that if one jjerson sues alone, when the right of action is in two or more jointly — or if two or more sue, when the right of ac- tion is in one of them onl}^ — the mistake is pleadable in abate- ment. And on the other hand, if one is sued alone, when by law another should have been joined Avith him as a co- defendant — or if two or more are sued toijether, when bv law the action should have been brought against one of 607 Ch. 42.] OF PLEAS IX ABATEMENT. [§440. them only — the non-joinder or misjoinder is in all cases pleadable in the same manner. ^ In some cases, the excep- tion can be taken on7?/ by plea in abatement; in others, it may be taken, at the election of the defendant, either by pleading in abatement, or under the general denial, or, as the case may be, by exception, by motion in arrest of judg- ment, or by writ of error, or by apportionment of dam- ages.^ 1 1 Chit. PI. 1. 2 1 Chit: PI. 38. 3 May V. Slade. 24 T. 208; Railroad Co. v. Knapp, 51 T. 592; Hill v. Newman, 67 T. 265. § 440. Effect of noii-joiiider or misjoinder of plaint- iffs in action on contract. In an action on a joint contract, if one sues alone, when the right of action is in himself and another, or if two or more sue together, when the right of action is in one of them only, advantage may be taken of the mistake either by plea in abatement or under the general denial.^ It has been held that the surviving partner of a law firm can sue for an amount due for services rendered by the firm before its dissolution by the death of one of its mem- bers. In the same action, he was permitted to sue also for an amount due him individually for such services as he ren- dered in the performance of the same contract after the death of his partner, the client having continued the em- ployment with the survivor. 2 If it appear upon the face of the petition that there is a non-joinder or misjoinder oi parties plaintiff in actions upon contract, the defendant may except, or may, after verdict, move in arrest of judgment, or may reverse a judgment against hiin on error. For, in this case, as it appears from the plaintiff's own showing that he alone has no right of action, the defendant need not plead the fact.^ So, the rule that the want of proper parties plaintiif may be taken ad- vantage of under the general denial does not extend to ac- 608 Ch. 42,J OF TLEAS IX ABATEMENT. [§441. tions brought by one suing in a representative capacity ; and, consequently, if one of two co-executors sues alone, ad- vantage can be taken of the non-joinder of the other only by plea in abatement.^ 1 1 Chit. PI. 32, 36; Holliman v. Rogers, 6 T. 91; Speake v. Prewitt, 6 T. 252; Stachley v. Pierce, 2S T. 328; ante, §296. 2 O'Brien v. Gilleland, 79 T. 602. 3 Stachley v. Pierce, 2S T. 328. * 1 Chit. PL 32, 71. §441. Effect of non-joinder or misjoinder of plaint- iffs in action for tort. An action for injury to property must, in general, be brought in the name of the person whose legal right has been affected and who was legally interested in the property at the time the injury thereto was committed.^ An action for an injury to the absolute rights of persons, as for assaults, batteries, w^ounding, or injuries to the health, liberty and reputation, can only be brought in the name of the party immediately injured, and, if he die, the renied}^ de- term ines.^ When an injury is committed to the person of the wife during coverture, by battery, slander, etc., the wife cannot sue alone in any case. The husband may sue alone for dam- ages sustained by him from being deprived of her company or assistance, or from the expense occasioned thereby. The husband and wife must join if the action be brought for the personal suffering and injury to the Avife, and in such a case the damages will survive to the wife if the husband die before they are recovered.^ By statute,* an action maybe brought for injuries resulting in death, caused by the negligence or carelessness of the pro- prietor, owner, charterer, or hirer of any railroad, steamboat, stage coach or other vehicle for the convej^ance of goods or passengers, or by the unfitness, negligence or carelessness of their servants or agents. An action may also be maintained when the death of any person is caused by the wrongful act, (39— Plead. Forms.) 609 Ch. 42.] OF PLEAS IX ABATEMENT. [§441. neffliofence, unskillfulness or default of another. The wrongful act, etc., must be of such a character as would, if death had not ensued, have entitled tlie party injured to maintain an action for such injury. This action is for the sole and exclusive benefit of the surviving husband, wife, children and parents of the decedent, and may be brought by all, or any one or more of the parties for the benefit of all. If one thus related is not made a party, and the ex- istence of such necessary party is made known to the court during the trial, it would seem to be the duty of the court to suspend the trial, and require such relative to be made a party. ^ An action was brought in a court of this state by a minor> to recover damages for an injury to her father in the State of Louisiana, from which he died in that state within a few hours after he received the hurt. The action was brought to recover the damages given by the Statute of Louisiana.^ which was not operative in this state, and the question was, can the right given by it be enforced in this state. Stay- ton, Chief Justice, in determining this question, says: "There are three classes of cases in which the question may arise as to whether a right given solely by the statutes of one state will be enforced in the courts of another. 1. Cases in which a right given by the statutes of one state is sought to be enforced in the court of another, in w'hich laws exist giving a like right under the same facts; and, in this class of cases, while there is some conflict of decision, it seems to be generally held that courts of the latter state will recognize and enforce the right given b}" the statutes of another state. 2. When facts transpire in a state whose laws give no right of action upon them, and an action based on those facts is brought in another state under whose laws a right of action would exist had the facts trans- pired within its jurisdiction. In this class of cases, it i^ held that no action can be maintained.^ 3. Cases in which a right of act/on given in one state is sought to be enforced 610 Ch. 42.] OF PLEAS IN ABATEMENT. [§-441. in a state whose laws deny the right given by the statutes of auotlier; and in this class of cases it would seem neces- sarily to follow that the court of the state in which the action is brought would be compelled to follow the law of the state in which it sits, whose laws only it has the power to enforce. This would seem to be true, whether the law of such state affected the right or only the remedy. Under the common law, as well as the civil law, the cause of action souo;ht to be enforced did not survive the father's death, and there is no statute in this state changing the rule."^ No rule of law authorizes a court of this state to give ef- fect to the laws of another state conferring such right as is claimed in this case, when the laws of this state declare that the same facts, transpiring here, could confer no right what- ever to the relief sought. The most liberal state comity cannot, in reference to such a matter, require one state to enforce the laws of another when in conflict with its own law.^ In Railway v. McCormick, 71 T. 660, the action was brought in a court of this state against a railway compan}^ for damages for the negligent killing of the husband of plaintiff in Arkansas. It was held that while the cause of action as alleged was good under the statutes of both states, the statutes of Arkansas are so different from the laws of Texas upon the subject that the court would not take juris- diction of the case. That tenants in common must join in the action of tres- pass, quare clausum fregit^ is well settled. There is noth- ing in our practice to require a departure from this rule of the common law; but there is great reason to adhere to it to prevent multiplicity of suits, and the inconvenience that would arise from the bringing of several suits, and al- lowing several recoveries for the same trespass. The ob- jection of the non-joinder of the co-tenant, it is true, can, in general, only be taken by plea in abatement, or by way of apportionment of the damages on the trial. But here 611 Ch. 42.] OF TLEAS IN ABATEMENT. [§441. the objection was apparent upon the face of the petition, and was, therefore, well taken by exception.^ The surviving wife has such an estate in the homestead, being part of tlie community estate of herself and deceased husband, as will enable her to maintain an action in her owu name for its injury. If she afterwards become sole owner of the land by partition, she may maintain in her own name an action for the recovery of damages for injury to the land and crops growing thereon before she became such owner. ^'^ The doctrine that proof of possession of land is alone sufficient to entitle the occupant to maintain an action of trespass against a wrong-doer is founded on the tact thsit possession is prima facie evidence of title. But» if the title be in another, the right of the possessor is lim- ited to the amount of damage to the possessory interest. If the damage be beyond this, and to the freehold, the pos- sessor or tenant at sufferance cannot maintain an action for its recovery.^^ But an action for damages to land cannot be maintained by a subsequent purchaser. ^^ In a suit to recover an undivided half interest in personal property situated on the ground of another, the name of the owner of the other interest was not set forth in the petition. His non-joinder as a party to the suit could not be con- sidered on general exception, but, if urged in proper time and manner by plea in abatement, the plea should have been sustained.^^ Pending an administration, the heirs of the decedent can- not sue, except where it is shown to be necessary for their protection. A joinder of heirs in a suit brought by the ad- ministrator without an allegation in the petition showing the necessity therefor, is error, and a plea in abatement thereto will be sustained.^* Four creditors, by simple contract, in one action, sued their common debtor, and, charging that other parties had conspired with him to defraud plaintiffs, and were in pos- session of the proceeds of his property, sought against them 012 Ch. 42.] OF PLEAS IN ABATEMENT. [§442. a personal judgment for the amount of plaintiffs' claims against the debtor. Held, it being the law that the pro- ceeds of property fraudulently convej^ed and in the hands of a transferee who was a party to the fraud, cannot be reached by personal judgment against the transferee, there ■was a misjoinder of parties plaintiff. ^° In the case last cited, after the court had sustained an exception to the petition, the plaintiffs declined to amend, and judgment was entered, dismissing the suit. One of the jDlaintiffs appealed, assigning as a ground of error that he should have been permitted to prosecute the suit alone. It was held that if appellant had asked permission to amend and to prosecute the suit alone it should have been granted, but the court was not bound to anticipate their wishes in this regard, and the judgment having been rendered dis- missing the suit, the court was not required to set aside the judgment as to such plaintiff. UChit. PI. 90. 2 1 Chit. PI. 90. 3 1 Chit. PI. 108. 4 Civ. Stat. Arts. 2899-2909. 5 Railway Co. v. Culbersou, 68 T. 664; G., H. & S. A. Ry. Co. v. Ku- tai, 72 T. 643. 6 Willis V. Railroad Co.^ 61 T. 432; Railway v.McCormick-, 71 T. 060. 7 Watson V. Loop, 12 T. 12; Taney v. Edwards, 27 T. 224; Gibbs v. Belcher, 30 T. 81. 8 Railway Co. v. Richards, 68 T. 375. 9 May V. Slade, 24 T. 205; I. & G. X. Ry. Co. v. Ragsdale, 07 T. 24; Rowland v. Murphy, 66 T. 34; Wcinsteiue v. Harrison, 66 T. 546. 10 Railroad Co. v. Knapp, 51 T. 592. " I. & G. X. Ry. Co. V. Ragsdale, 67 T. 24. 12 G., 11. & S. A. R. R. Co. V. Pfeuffer, 56 T 66. 13 Hill V. Newman, 67 T. 205. " Lee V. Turner, 71 T. 264; Schmidtlce v. Miller, 71 T. 103. 15 Le Gierse & Co. v. Kellum & Rotan, 66 T. 242; Blum v. Goldman & Son, 66 T. 021. §442. Effect of non-joinder ov misjoinder of defend- ants in action on contract. In an action on contract, if a person be omitted as a de- fendant who ought to have been joined, the objection can (13 Ch. 42.] OF PLEAS IN ABATEMENT. [§442. only be taken advantage of by a plea in abatement, unless it appears from the pleading of the plaintiff that a person not made defendant in the suit was a joint contractor with the defendant, and that such person is still living (as he must be presumed to be, unless the contrary is alleged), when such non-joinder is a good ground of exception, ov motion in arrest oi jiidgmeiit, or maybe assigned for error. ^ On 2i joint and several contract, made by three or more, an action can be brought against tivo or more, and the non- joinder of the other contractors is not the ground of a plea in abatement.'^ In a suit on a lost note alleged to have been executed by several, the plaintiff assumes the burden of proving that the note, with all the signatures upon it as described in the petition, once existed. After doing this, he is not required to prove the genuineness of the signatures or the binding force of the note on all of the defendants. If he prove the execution of the note by some of those who he alleged made it, he may recover against them, and judgment may be ren- dered in favor of those defendants against whom no proof is made, or the suit may be dismissed as to them. He is not bound to prove that all the defendants are bound in or- der to recover against any of them.^ If in an action upon a joint contract too many persons be made defendants, and the objection appear on the plead- ings, either of the defendants may except, move in arrest of judgment, or support a writ of error; and, if the objection do not appear upon the pleadings, advantage may be taken of it under the general denial, as the plaintiff, having sued upon & joint contract, cannot recover if he fail in proving SL joint contract.* 1 1 Chit. PI, 69. 2 Cook V. Phillips, 18T. 31; Austin v. Jordan, 5 T. 130; Deanv.Duf- field, S T. 23.j; Horton v. Wheeler, 17 T. 52; White v.Leavitt,20T. 703; Payne v. Bentley, 21 T. 452; Shipman v. Allee, 2!J T. 17; Glasscock v. Hamilton, G2 T. 109, 3 Keithley v. Seydell, 60 T. 78; Stevens v. Bank, 02 T, 499. * 1 Chit. PI. 60. 014 Cll. 42.] OF PLEAS IX ABATEMENT. [§§443, 444. §443. Effect of non-joinder or misjoinder of defend- ants in action for tort. If several are sued for a tort committed by one of them only, the joinder of the others is no ground of abatement, nor can advantage be taken of it, as a misjoinder ^ in any way, for of co-defendants, in actions ex delicto, some may be convicted and others aquitted ; and the proper plea for those not actually guilty is the general denial. If, on the other hand, one is sued alone for a tort committed by him- self and others jointly, the non-joinder of the others is, in general, no ground of exception, either in abatement or otherwise; for a tort, committed by several, may regularly be treated as joint or several, or as partly joint and^ar% several, at the election of the plaintiff. And as he conse- quently has, by the general rule, the right by law, to sue any one of them only, or all, or any number of them to- gether, OY each of them, in a several action, the non-joinder of any of the wrong-doers is no defense in any form.^ 1 Chit. PI. 112. §444. Ifon-joinder or misjoinder of parties, how plead. The plea in abatement for non-joinder of parties may be pleaded by each or all of the defendants; it must name all who should be made parties, and show that they are living, and within the jurisdiction of the court. ^ A defendant, who has pleaded the non-joinder of one joint contra(;tor, can- not afterwards plead that there is still another joint con- tractor, who should have been made defendant; but the lat- ter may plead in abatement, that still another ought to have been sued. And each new defendant disclosed by a plea in abatement, whenever made a party to the suit, may plead, in the same manner, that still another should have been joined as defendant.'^ The defect of parties set up by the answer can be obviated by dismissing as to those improp- erly joined, or by an amendment adding new parties.^ In an action for the cancellation of a deed made by plaint- iff to one of the defendants (Johnson), it appeared from the G15 Ch. 42.] OF PLEAS IN ABATEMENT. [§444. petition that the other defendants were improperly joined, having no interest in the subject matter of the suit. There was a judgment by default as to all of the defendants, which, was subsequently set aside as to the defendant John- son, who answered by a general denial, and afterwards filed an exception, objecting that improper parties, having no in- terest in the subject matter of the suit, were joined with him. The exception w^as overruled, and there w^as a judgment canceling the deed, and againt all of the defendants for costs. On error by Johnson, it was held, that the improper joinder of the other defendants, was not a ground for dis- missing the suit as to him. But the improper joinder of parties who have no interest in the litigation, and against whom no decree can be rendered, may operate to the preju- dice of those who are properly sued. It may occasion har- rassing delays, and a needless, and it may be an oppressive, accumulation of costs to be visited ultimately upon those properly sued. It would have been a better practice, more in consonance with justice, to have dismissed the suit as to those improperly joined, when the objection was made and the misjoinder first brought to the notice of the court. But, however the court should have decided on the excep- tion at the trial, when it appeared that there was no ev- idence in any way affecting the defendants improperly joined, the court, proceeding to' make a final decree, and to do complete justice between all the parties, ought to have dismissed the case as to those impr()i)erly joined, at the costs of the plaintiff; and this, although they had suffered judgment to go by default. The rule of practice, pre- scribed by the statute, where the defendant may be in de- fault for the want of an answer, does not authorize a judgment against him even for costs, when it manifestly appears that, as to him, there was no cause of action.^ Where parties have improperly joined as plaintiffs, in a suit on two different causes of action, it is not error to permit them to amend their petition by dropping one of G16 Cb. 42.] OF PLEAS IX ABATEMENT. [§444. the parties plaintiff, and withdrawing his cause of action. Such amendments, however, are subject to the supervision and control of the court, and shoukl be granted only on just and equitable terms; and if a party, through ignorance or carelessness, joins unnecessary parties, he should be taxed with all costs up to the time of amendment.^ The common law rule is, that when the surety on a joint obligation dies, there is no remedy at law on the obligation against his estate, and, in the absence of fraud or mistake, equity will not charge his estate. The rule is different as to obligations that are joint and several. The common law rule above stated had no obligation in Texas from 1840 up to the adoption of the Revised Statutes. The Act of Feb- ruary 5th, 1840,^ provided that the representative of one jointly bound with another for the payment of a debt, or for performance or forbearance of any act, or for any other thing, and dying in the lifetime of the latter, may be charged, by virtue of such obligation, in the same manner as such representative might have been charged if the oblifjors had been bound severallv as well as jointly." This Act was omitted from the Revised Statutes.^ The Act of 1840 was re-enacted by the Act of March 10th, July 4th, 1887.9 1 ] Chit. PI. 32, 71. - 2 1 Chit. PI. 5S3. 3 In every case where a defendant need not have been joined, or where it m^ AY. Brackett, on a prom- issory note executed by O. B. Brackett and defendant. The petition alleged the making of the note, the death of O. B. B., that the defendant "filed, in the County Court of Bexar county, her inventory of the community property of herself and the deceased, as required by law ; " whereby she became liable to pay, etc., and prayed for judgment against her in her representative character and individually. There was a verdict and judgment for plaintiff, and a motion to arrest the judgment, on the ground that defendant was a feme covert at the time she signed the note, was sustained. It was held that the motion should have been overruled — that the statement of the fact that she was a feme covert, as stated in the motion, came too late, — that it should have been plead, and the judgment of the court below wais re- versed and reformed.^ In an action to recover damages for removing a fence from plaintiff's premises, it was held, that if the defend- ants intended to justify under a paramount title in them- selves, they should have alleged it — that in actions quare clausum f regit, the general issue, even by the English rules of pleading, is not a denial of the plaintiff's possession, or right of possession in the locus in quo ; and in trespass de bonis asportatis, the general issue is only a denial of the trespass, and not of the plaintiff's property in the goods;* in either action, all matters of justification or excuse must be specially plead. *^ In an action on a promissory note, ev- idence that the note was given for property that did not l)elong to the i)ayee of the note was held not admissible under the plea of general denial.^ 624 Ch. 43.] OF PLEAS IN BAR. [§450. In an action on an order for the delivery of twenty-five head of average stock cattle, to which there was a pica of general denial, evidence that the cattle had been levied on and sold as the property of the plaintiff was excluded.'*' In an action for the value of certain negroes, wrongfully sold by the defendant, it was held that evidence that the de- fendant had acted merely as the agent of another party was not admissible under the plea of general denial. ^^ The appellees, part of the heirs of Jesse Kelly, brought an action against the appellant as co-heir to obtain a dis- tribution of the property of Jesse Kelly. The defendant pleaded a deed of gift of all the property from Jesse Kelly* to him, and pleaded also a receipt, signed by the plaintiffs, for a slave in full of their share of the estate. It was held that if the plaintiffs proposed to impeach the deed or re- ceipt, on the ground that they were obtained by fraud, ac- cident or mistake, or that they were canceled, or were for any other cause invalid, the facts should have been plead. ^^ 1 Guess V. Lubbock, 5 T. 535; Lewin v. Houston, 8 T. 94. 2 Phelps V. Brackett, 24 T. 236; Caldwell v. Brown, 43 T. 216. 3 Cooper V. Singleton, 19 T. 2G0; Herron v. De Bard, 24 T. 181 ; Clif- ton V. Brundage, 25 T. 331 ; Johnson v. Long, 27 T. 21 ; May v. Taylor, 27 T. 125. * In an action upon an agreement within the statute of frauds, if the defendant denies the agreement, he throws on the plaintiff the burden of proving a valid agreement, capable of being enforced. But if he ad- mits the agreement, and intends to rely on its invalidity, because not in writing, he must s;iy so in his pleadings. Patton v. Rucker, 29 T. 411; Garner v. Stubblefield, 5 T. 552. 5 1 Chit. PI. 622. « Bailey v. Hicks, 16 T. 222; Hollingsworth v. Ilolshousen, 17 T. 41; Guess V. Lubbock, 5 T. 535. ^ Phelps V. Brackett, 24 T. 236. 8 Carter & Hunt v. Wallace, 2 T. 206. 9 Love & Chappell v. Melntyre, 3 T. 10. 10 Towner v. Sayre, 4 T. 28. "Mayfield v. Averitt, 11 T. 140. J2 Kelly V. Kelly, 12 T. 452. (40— Plead. Forms.) 625 Ch. 44. — Of Special Pleas in Bar. §451. Requisites of a special plea in bar. 452. Oyer of written instrumeuts. 453. Partnership of p.irties must be specially denied. 454. Execution of a written instrument unist be denied. 455. Want or failure of consideration must be specially plead. 456. Fraud or mistalie must be specially plead. 457. Limitation must be specially plead. 458. Lis pendens may be plead in abatement of a suit. 459. Coverture must be specially plead. 460. Minority must be specially plead. 461. Contributory negligence must be plead, when. 462. Matter of estoppel must be specially plead. 463. Former judgment must be plead. 464. Payment must be plead. 465. Matter of discount must be plead. 466. Discount defined. 467. Discount dt-iiueU. 46S. Rules as to limitation and costs. 469. A counter-claim or set-off may be plead. 470. Set-off defined. 471. Debis which may be set-off. 472. Debts must be due in the same right. 473. Debts must be mutual. 474. Rule as to unliquidated damages. 475. Plea, qualities of; rule as to costs. 476. Matter of avoidance must be plead. 477. Discharge in bankruptcy must be plead. 478. Denial of special matter of defense not necessary. §451. Requisites of a special plea in bar. A plea in bur may be defined as a statement, in a logical and legal form, of the /rtc^.s constituting the grounds of de- fense to an action ; and the rules of pleading, in relation to the statement of the cause of action in the petition, apply with equal force to the statement of the grounds of defense in the answer. The ol)ject of pleading is to apprise the ad- verse party, who is to answer them, of the facts intended to be relied on as the support or defense of the party in ev- idence. If the defense goes beyond a simple denial of one 626 Cb. 44.] OF SPECIAL PLEAS IX BAR. [§452. or more of the fads stated by tbe plaintiff, sucb matter must be averred with that precision, clearness and certainty essential to a clear understanding of it, by the party, by the jury, and by the court, In other words, the answer should show the very facts intended to be proven njjon the trial. This wafe the theory of pleading under the English common law system, both before and since the new rules of plead- ing; but, in consequence of the introduction of the general issue, there has been, and still is, a wide departure from these principles in practice in common law courts. In this state, the rule that the proofs must conform to the plead- ings is rigidly adhered to in all cases, except the action of trespass to try title. The statute permits the defendant to plead several matters of law or fact.^ This right is gen- eral, al)solute, and unlimited. If the pleas are pertinent, and filed in the due order of pleading at the same time, it cannot be objected that they are inconsistent.^ If the alle- gations in the petition are put in issue by one plea, the plaintiff cannot read in evidence the allegations of another plea, in order to maintain his action.^ Should there be in- consistent and contradictory allegations in the same plea, the rule might well obtain that, for the purpose of the is- sue presented by that plea, an allegation favorable to the plaintiff might be treated as an admission in his favor.* iCiv. Stat. Art. 1262. s Fowler v. Davenport, 21 T. 620; Smith v. Sublett, 2S T. 163; Rail- way V. AVhitley, 77 T. 120. 3 Duncan v. Magette, 2.5 T. 245; Express Printing Co. v. Copeland,64 T. 304; Young v. Kuhn, 71 T. 645. 4 Fowler v. Davenport, 21 T. 020; Camp v. Gainer, 8 T. 373; Barry v. Screwmen's Association, 67 T. 250. §452. Oyer of written in strum cuts. It is a principle of pleading at common law that, when a party relies upon a deed, probate of a will, letters of ad- ministration, or other instrument under seal, the other party may pray oyer, which cannot in such case be refused by the court. In alleging a deed, etc., the plaintiff need 627 Cll. 44.] OF SPECIAL PLEAS IN BAR. [§452. not in his pleading show more than answers his own iniiiie- diate purpose; and even that part which he states may be set forth according to its legal purport, or in substance. The obtaining oyer, therefore, becomes frequently import- ant, especially on the part of the defendant, not only to ascertain the authenticity of the instrument, bufc also for the purpose of rendering available other parts of the deed which may restrict or explain that portion of the instrument which is shown in the adverse pleading. It is demandable by either party, whether plaintiff or defendant, and ia every action, Avhether real, personal or mixed. If the plaintiff in his petition, or the defendant in his answer, has necessarily made a profert of any deed, probate of a will, letters of administration, or other instrument in writing, the other party, before pleading in bar, may pray oyer, which in such case cannot be refused.^ If the deed be lost or destroyed, the party instead of making a profert thereof, should state the excuse for omitting it."^ A profert is not necessary where the party, though he relies on a deed, is not by the form of his pleading com- pelled to state or allude to it in his pleading.* Letters testamentary and letters of administration must be plead with a profert, at least when the executor or administrator is plaintiff.* In Ilart v. King, Dallam 456, it is said that at common law oyer of an agreement, note, or other instrument, not under seal, cannot be craved, and, if the defendant improp- erly demand it, the plaintiff should be allowed to proceed as if no such demand had been made. But, when the court may deem it necessary, it will, before issue joined, by analogy of the doctrine of oyer, order that the plaintiff permit the defendant to have an inspection of the instru- ment sued on. In Turner v. Matthews, Dallam 491, it is held that there is no distinction between sealed and unsealed instru- ments under the laws of Texas, and no distinction can 62S Ch. 44.] OF SPECIAL PLEAS IN BAR. [§453. properly exist as to the rules of pleading applicable thereto. The right of oyer under the common law was founded on the necessity imposed on the opposite party when relying on a deed, bond, etc., as the foundation of the cause of action, or as a ground of defense, to make profert of the deed, bond, etc. No profert was made of a promissory note, and, therefore, the right of oyer did not arise. These are technical distinctions of the system of pleading under the common law. Under the simplicity of the system adopted by the statutes of Texas, they are unknown. The statute prescribing the essential allegations of a petition, makes no discrimination between the petition on a bond and one on a note. It certainly does not contemplate that profert should be made in the one case and not in the other; and as the basis on which the right of oyer, tech- nically so called, is swept away, it would seem absurd that this obnoxious distinction should continue to exist. ^ Where the proceedings of the court in which suit is brought, are referred to in the pleadings, it is not neces- sary to copy the record of such proceedings into the plead- ing, nor to annex a copy thereof. It is sufficient if the record be referred to with such certainty s to enable it to be used, if required.^ 1 1 Chit. PI. 480. 2 Wooten V. Dunlap, 20 T. 183. 3 1 Chit. PL 481. 4 1 Chit. PI. 482. 5 Levering v. McKenney, 7 T. 521. « Long V. Woitham, 4 T. 381. §453. Partnership of parties must be specially denied. In some cases a special denial is necessary to put the plaintiff upon proof of an allegation, or to enable the de- fendant to contest it in evidence. In suits brought by or agamBt partners, the partnership of the plaintiffs or defend- ants as alleged in the petition is not in issue, unless speci- ally denied. The answer must be verified by the affidavit 629 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§454. of the party, and, if not sworn to, is a nullity and may be disregarded by the plaintiffs.^ It is a general rule that all the partners must join in an action on a contract made with, or to recover a debt due the firm. In actions ex contractu^ where the legal interest is joint, those in whom such interest is vested must, if living, join in an action for the breach of such contract. This is the general rule at law, and in equity, it is the rule subject to certain exceptions, that all persons materially interested, either legally or beneficially, in the subject matter of the suit, are to be made parties to it, either as plaintiffs or de- fendants. A dormant partner, who is not privy to the con- tract, need not be joined; but this rule is said to be limited to commercial partnerships. A dormant partner, in the legal acceptation of the term, is one who participates in the profits of the trade, but conceals his name. A dormant partner differs from an actual, ostensible partner in that his name is suppressed and his interest is consequently not apparent.^ A judgmen.t rendered in a suit brought by the recognized partner in a firm as such, is generally as binding upon a dormant partner as though he had been made a party.^ 1 Civ. Stat. Art. 12G5; Lee v. Hamilton, 12 T. 413; Persons v. Frost, 25 T. Sup. 129. 2 Speak V. Prewitt, 6 T. 252; Jackson v. Alexander, 8 T. 109; Garrett V. Muller, 37 T. 589; Levy v. McDowell, 45 T. 220; Tynburg v. Cohen, 67 T. 220. 3 Tynburg v. Cohen, 67 T. 220; see, ante, §296. §454. Execution of written instrument must be de- nied. In an action against a person or corporation,^ party to any instrument in writing upon wdiich any pleading is founded, in whole or in part, and charged to have been ex- excuted by him or by his authority, and not alleged to be lost or destroyed, 2 the execution of the instrument is not in issue unless specially denied by a plea verified by aftidavit.* 630 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§454. When such instrument in writing is charsed to have been executed by a person then deceased, the affidavit will be suf- ficient if it state that the affiant has reason to believe, and does believe, that such instrument was not executed by the decedent or by his authority.* In an action by an assignee or indorsee of a written in- strument, the assignment or indorsement is regarded as fully proved, unless the defendant shall deny by his plea that the same is genuine, and moreover shall file, with the papers in the cause, an affidavit stating that he has good cause to be- lieve, and verily does believe, that such assignment or in- dorsement is forged.'* In the absence of a verified answer, putting in issue an indorsement on a note, the assignment wdiich includes the delivery of the instrument is held to be fully proved.^ A bill of lading is within the statute. '^ When an instrument purports to have been executed by partners under a firm name, a defendant in a suit on such instrument and alleged to be a member of the firnl, cannot, under the plea of gen- eral or special denial, not verified by affidavit, introduce ev- idence that he was not a member of the firm.^ When an instrument in writing or an indorsement of it purports to have been made by an agent, in an action on such instru- ment, it is not necessary to prove the authority of the agent, unless it is specially denied under oath.^ The fact that the instrument is ambiguous on its face and does not clearly, by its terms, purport to be the act of the principal, docs not vary the rule.^^ In Compton v. Stage Co., 25 T. Sup. 78, it was held that, when a contract was signed in his own name by an agent representing other parties, his authority was put in issue by the general denial. This decision seems to be in con- flict with many of the decisions above cited, and, as the rul- ing was not required in the case, it has been treated as obiter dicta. ^^ G31 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§455. The case of a lost instrument is not within the provisions of the statute, dispensing with proof of the execution or assignment of written instruments, and, in an action upon such, a general denial puts in issue the execution of the in- strument and of the assignment. ^^ 1 City Water Works v. White, 61 T. 536. 2 Erskine v. Wilson. 20 T. 77. 3 Reld V. Reid, 11 T. 591; Prince v. Thompson, 21 T. 480; Ferguson V. Wood, 23 T. 177; May v. Pollard, 28 T. 678; Lewis v. Lowery, 31 T. 663. 4 Civ. Stat. Art. 1265. 5 Civ. Stat. Arts. 271, 1265. 6 Grounds v. Sloan, 73 T. 6G2. 7 Barrow v. Philleo, 14 T. 345; May v. Pollard, 28 T. 677. 8 Drew v. Harrison, 12 T. 279; Kelly v. Kelly, 12 T. 452; Parsons v. Frost, 25 T. Sup. 129; Ferguson v. Wood, 23 T. 177. 9 Herndon v. Ennis, 18 T. 410. io City Water Works v. White, 61 T. 536; Railway v. Tisdale, 74 T. 8. " City Water Works v. White, 61 T. 536. 12 Erskine v. Wilson, 20 T. 77; Robinson v. Brinson, 20 T. 438; Jordan V. Robsou, 27 T. 612; Hampshire v. Floyd, 39 T. 103. §455. Want or failure of consideration must be specially plead. The defendant in an action upon a written instrument may plead a want or failure or partial failure of consider- ation, where such written instrument shall remain in the possession of the original payee or obligee; or when it shall have been transferred or assigned after its maturity ; or when the defendant may prove a knowledge of such want or failure of consideration on the part of the holder prior to such transfer.^ Such plea must be verified by affidavit, unless its truth appears of record. ^ A plea of failure of consideration, if not properly verified, will, on exception, be stricken out; but if the objection is not made at the proper time it will be waived, and evidence is admissible under the plea.-^ When a consideration is im- pli(!d, the burden of proof rests upon the party impeaching the instrument for want of consideration.* 632 Ch. 44.] OF SPECIAL PLEAS IX BAR. [§455. The assignee of :i negotiable note retaining a vendor's lien and transferred before maturity, sued the maker and prayed for a foreclosure of the lien. The maker answered, pleading failure of consideration. In the absence of an alleiration charoino- the assignee with notice at or before the assignment of the failure of consideration, it was held that the answer presented no defense.^ In Pierce v. Wright, 33 T. 631, it was held that the de- fense of want of consideration apparent from the pleadings cannot be made by an exception, or otherwise than by a verified plea.*^ In Short v. Price, 17 T. 397, and Tumlinson v. York, 20 T. 694, it is held that the specific performance of an agree- ment to convey land will not be enforced, unless it be founded upon a valuable consideration. Where the receipt of a valuable consideration is recited in the agreement, its existence would be prima facie presumed; but, where it is not expressed in the agreement, or admitted in the plead- ings, proof of its existence must be adduced by the plaint- iff. It is said in these cases that the statute then in force, which provided that a consideration was implied in all sealed instruments, did not create an exception to the rule that equity will not interfere to enforce an executory con- tract for the conveyance of land, unless it was founded on a valuable consideration, recited in the contract or estab- lished by extrinsic evidence. In Downs v. Porter, 54 T. 59, where a bond for title executed in 1839 was relied upon to support title by limita- tion, it was held, that the fact that it did not recite a con- sideration did not prevent its use as "color of title" for that purpose; and it is said that if affirmative relief were sought, as for specific performance, then, according to well established rules, a consideration must be proven either by direct evidence or presumption, A bond was given in 1837 in the sum of $5,000, condi- tioned that the obligor should make to the obligee a title to 633 Ch. 44,] OF SPECIAL PLEAS IN BAR. [§455. two-thirds of a league and labor of land, "the remaining portion" of the headright to which he believed himself en- titled, but for which no certificate or evidence of right had then issued. In 1838 a certificate was issued to the obligor for one league and labor of land as the head of a family. It was located for the obligor in the bond, and the patent issued in his name in 1852. In a suit brought by the heirs of the. obligee in 1885, against persons in possession as purchasers from the heirs of the obligors, it was held, that in order to entitle the plaintiffs to recover the land they should establish, 1st, a consideration; 2d, a trust in the certificate; and 3rd, through this, a trust in the land.'' A purchaser of land in possession under deed with cov- enant of warranty from several vendors, one of whom only is alleged to be insolvent, cannot be relieved against a claim for unpaid purchase money, unless there was fraud in the sale perpetrated by the vendors at or before the sale, or a defect in the title not known to him when he purchased.^ A vendee holding under an absolute deed with general warranty, and seeking to defend a suit for the purchase money on the ground of failure of title to a part of the land, must aver in his answer that he was ignorant of the defect in his title at the time of the purchase.^ When no consideration is recited in a written contract, the rule at common law permits the consideration to be shown by extraneous proof; whether this bean exception to the rule, or in consonance with it, the rule is as well established as that other general rule, that parol evidence cannot be resorted to for the purpose of varying or contra- dicting a written contract. When the whole consideration is not expressed in a written contract, parol evidence is permissible to supply the deficiency, but it cannot establish a consideration incon- sistent with that expressed in the written contract. The riffht to varv or add to the consideration of an instrument by parol is, as a general rule, confined to the parties to the G34 Cb. 44.] OF SPECIAL PLEAS IN BAR. [§455. contract. It is not necessary that allegations of fraud, accident or mistake, should be made to account for tbe failure to express tbe full consideration ; the right to show it by parol evidence, under tbe rules above announced, exists at common law. Hence, when in a suit on a promis- sory note, and to enforce a lien expressed in it, upon a tract of land for tbe purchase money for which it pur- ported on its face to have been given, it was alleged in the answer that the vendor represented falsely to the maker of the note, who relied on his representations, that certain specific articles were on tbe land, and which formed part of tbe consideration, and that certain improvements existed on tbe land, which had in fact never been made, it was held that the allegations were sufficient to let in proof of tbe real consideration as between tbe original parties to the transaction, or as against a nominal plaintiff suing on tbe notes, if the original payee was tbe real beneficiary. ^^ A contract for tbe future delivery of stocks, produce, or other merchandise, in which an actual delivery is not con- templated, but only a payment of the difference between tbe contract price and tbe value of tbe article at tbe time agreed on, will not support an action. If, however, tbe contract has been completed, another contract, collateral thereto and supported by a new consideration, may be en- forced. ^^ To an action on a note the sureties answered that they signed tbe note upon an express agreement with the agent of tbe plaintiff making a loan of money to the principal, that tbe money should only be paid to tbe principal for tbe purpose of paying for cattle, and that upon such payment a chattel mortgage on the cattle should be taken to secure the payment of the note. It was held that the answer sought by parol evidence to vary a written contract, and that an exception to it was properly sustained. ^^ When an agent has received money growing out of an illegal con- 636 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§456. tract, he may be compelled to pay it over in a suit by his principal. ^^ 1 Civ, Stat. Art. 272; Claiborne v. Yoeraan, 15 T. 44; Fortson v. Cald- well, 17 T. 627; Lemmon v. Hunley, 28 T. 219. 2 Civ. Stat. Art. 12G5. 3 AVilliams v. Bailes, 9 T. 61; Steagall v. Levy, 3 Appeals, §469. -* Newton v. Newton, 77 T. 508. fi Gee V. Saunders, 66 T. 333. « See Tumlinson v. York, 20 T. 694. 7 Wilson V. Simpson, 68 T. 306. « Neyland v. Neyland, 70 T. 24. 9 Carson v. Kelley & Sweatt, 57 T. 379. 10 Robertson v. Guerin, 50 T. 317; Taylor v. Merrill, 64 T. 494. "Seeligsonv. Lewis, 65 T. 215; Floyd v. Patterson, 72 T. 202; Oli- phant V. Markham, 79 T. 543. 12 Lauius V. Shuber, 77 T. 24. 13 Floyd V. Patterson, 72 T. 202. §456. Fraud or mistake must be specially plead. The intentional misrepresentation or concealment of a material fact, by which another has been induced to make a contract to his prejudice, is a ground of defense to an action based on such contract.^ In a suit to recover a tract of land on the ground that the vendee had refused to pay the purchase money, the allegation that the vendor had no title thereto, and that he had fraudulently represented that he had a good title and that defendant had made valuable improvements on the land, was substantially a good defense to the action, as it was inequitable to permit plaintiff to recover without making compensation. That the averment was not suffi- ciently specific should have been objected to in the answer on that particular ground. ^ But a purchaser of land taking a quit claim deed with special warranty, and executing his note therefor, in the absence of fraud, he fully understanding the facts, cannot defend against suit upon the purchase money note by showing that the vendor had no title to the land, and that no title passed.^ 636 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§457. "When land is purchased under mutual mistake on the part of the vendor and vendee, as to the locality of adjoin- ing surveys called for in a deed, the true position of which limits and diminishes the area of the land, so that title for the full tract bargained for does not pass by the deed, equity will afford relief to the purchaser, and it is imma- terial that the conveyance was with special warranty. The mistake may be set up, and, under a plea of partial failure of consideration, relief obtained when the vendor seeks the collection of unpaid purchase money. ^ 1 Mitchell V. Zimmerman, 4 T. 75; Horton v. Reynolds, 8 T. 284; Culbertson v. Blauchard, 79 T. 4S6. 2 Hays V. Bonner, 14 T. 629; Copeland v. Gorman, 19 T. 253; Rhode V. Alley, 27 T. 443; Roehl v. Pleasants, 31 T. 45. 3 Mclntyre v. De Long, 71 T. 86. ■* Moore et al. v. Hazelwood, 67 T. 624. §457. Limitation must be specially plead. If the matter which bars the action appears from the pleading of the plaintiff, this defense may be made b}'^ spe- cial exception.^ In all other cases, this defense must be made by plea.^ An exception, such as minority or cover- ture, Avhich prevents the running of the statute, must be specially pleaded by way of replication.^ Where coverture is relied upon to defeat limitation, as a defense in the action of trespass to try title, it must be al- leged that the marriage took place prior to the commence- ment of the hostile possession, for, if the plaintiff was then a minor,* the statute would commence to run from the date of the marriaije. If the marriaije occurred after the lios- tile possession commenced, the disabilities could not be tacked.^ Where fraudulent concealment of the cause of action is relied upon in answer to the plea of limitation, it must be specially plead .^ It has been held that a provision in a contract which lim- its the time within which suit may be brought for its breach 637 Cb. 44.] OF SPECIAL PLEAS IN BAR. [§*^>6. is valid, but such limitation must be reasonable." The ex- ception in favor of minors does not affect an agreement of this character which limited a suit on a life insuran^^ pol- icy .^ The act of March 4, 1891, (22 Leg. p. 20), p-ohibits any stipulation, contract or agreement by reason whereof the time within which to sue is limited to a shorter period than two years. 1 Hopkins v. Wright, 17 T. 30; Smitli v. Fly, 24 T. 345; Lowe v. Dow- barn, 26 T. 507; Rivers v. Wasliiugton, 34 T. 2G7; Rucker v. Dailey, 66 T. 284. 2 Civ. Stat. Art. 3220; Horton v. Crawford, 10 T. 382; Cunningham V. Frandzen, 26 T. 34; Dickenson v. Lott, 29 T. 172. 3 Hughes V. Lane, 25 T. 356; Gillis v. Rosenheiraer. 64 T. 243; Ortiz V. De Benavides, 61 T. 60; Alsup v. Jordan, 69 T. 301; Thompson v. Jones, 77 T. 626. 4 Taylor V. Bland, 60 T. 29; Parish v. Alston, 65 T. 194. » Ortiz V. De Benavides, 61 T. 60. 6 Smith V. Fly, 24 T. 345; Munson v. Hallowell, 26 T. 475; Ripley v. Withee, 27 T. 14; Anding v. Perkins, 29 T. 348; Hudson v. Wheeler, 34 T. 356; Andrews v. Smithwiok, 34 T. 544; Bremond v. McLean, 45 T. 10; Kuhlnian v. Baker, 50 T. 630; Alston v. Richardson, 51 T. 1 ; Connolly V. Hammond, 51 T. 647; Brown v. Brown, 61 T. 45; Kennedy v. Baker, 59 T. 150; Life Association v. Goode, 71 T, 90. ^ Ins. Co. V. La Croix, 35 T. 249; Railway v. Traiwick, 68 T. 314. 8 Suggs v. Insurance Co., 71 T. 579. §458. Lis pendens may be plead in abatement of a suit. Lis pendens may be plead in abatement of a second suit for the same cause of action between the same parties. Such suit must be pending in a court of this state, ^ between the same parties,^ and at the time of filing the plea in abate- ment.^ The plea in abatement does not necessarily require a dismissal of the second suit, but puts the plaintiff to his election, and, on dismissal of the former, he may prosecute the latter suit.^ 1 Drake v. Bender, 8 T. 351. 2 Laugham v. Thoraason, 5 T. 127. ' Oldliam V. Erhart, IS T. 147. * Payne v. Benham, 16 T. 364. 638 Cb. 44.] OF SPECIAL PLEAS IX BAR. [§459. §459. Coverture must be specially plead. One sued as a /erne sole, who is at the time maiTJed, but who appears and answers without pleading her coverture, is concluded by the judgment rendered against her.^ At common law, the civil as well as the natural death of the husband restored to the wife her rights and powers as a feme sole, if she was thus deprived of the benefits of mar- riage. Humanity requires that when thrown upon her own resources by the abandonment of the husband, or by his lunacy or imbecility, she shall be unfettered in her struggle for existence and independence. Here her separate being has not been merged in her husband's, as at common law, but, so far as it could be done consistently with the preser- vation of the home and family, she has been disenthralled. She has equall}^, with her husband, an interest in the com- munity property, and whilst her husband is the managing partner, and may assert his prerogative as long as he exer- cises it in good faith, when he abandons the wife and their property there is no principle in our law or practice which would prevent the wife, as a party in interest, from assert- ino; her rights in the courts. The husband has abdicated his authority, and by that act enabled the wife to appear in court in her own name and right. ^ She may also, when abandoned by her husband, manage and dispose of her sep- arate estate as a /erne sole, and, to support a sale made by her, it is not necessary to show a necessity therefor, as re- quired to support a sale of the community property.^ In cases where she is thus authorized to act alone, her coverture cannot be plead in defense to an action, or, if pleaded, a replication setting up the abandonment, etc., is sufiicient to show her liability.'^ 1 Cakhvell v. Brown, 43 T. 216. 2 Davis V. Siiliidee, 57 T. 32G; Cullers v. James, 66 T. 494. scieineuts v. Ewing, 71 T. 370. < 2 Chit. PI. 368 (2). 639 Ch. 44.] OF SPECIAL PLEAS IX BAR. [§§460, 461. §460, Minority must he specially plead. Minority is a personal privilege or exemption in actions on contracts, and must be specially plead. ^ But an infant may be sued for necessaries, the burden of proof resting upon the plaintiff to show that they were in fact necessary, and their value. ^ He may also contract for necessary em- ployment.^ An infant may be sued for a tort,^ or for the possession or conversion of property.^ A minor who has no guardian may sue by his next friend.^ When he is a defendant in a suit, the court will appoint a guardian ad litem for him.'^ The failure to appoint a guar- dian does not render the judgment void,^ but on appeal, the judgment would be reversed for that reason.^ 1 Campbell v. Wilson, 23 T. 252. 2 Stone V. Dennison, 13 Pick. 1; Breed v. Ludd, 1 Gray, 455; Burr v. Wilson, 18 T. 367; Carpenter v. Pridgeu, 40 T. 32; Parsons v. Keys, 43 T. 557; Searcy v. Hunter, 81 T. 644. 3 T. & P. Ky. Co. V. Carlton, GO T. 397; T. & N. O. EJ^ Co. v. Crow- der, 61 T. 262; Id. 63 T. 502; Id. 76 T. 499. 4 Carpenter t. Pridgen, 40 T. 32; 1 Chit. PI. 112, 179. s 1 Chit. PI. 179. 6 Evansich v. G. C. & S. F. Ry. Co., 57 T. 126; R. R. Co. v. Hewitt, 67 T. 473. 7 Civ. Stat. Art. 1211. 8 Montgomery v. Carlton, 56 T. 361. 9 Ashe V. Young, 68 T. 123. §461. Contributory negligence must be plead, when. In an action for negligence, the plaintiff must show that the injury of which he complains was produced by the nejzlisfGnt acts of the defendant under such circumstances as do not develop any negligence on his part contributing to the injury. The failure of duty on the part of the de- fendant, and the injury being shown without the develop- ment in the evidence of plaintiff of any fact tending to show that the injury was caused by his negligence, the burden of proof is on the defendant to prove that plaintiff avus guilty of contributory negligence. The defense of contributory 640 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§462. neirliirence under such circumstances is matter of avoidance, and must be specially plead. ^ J Murray v. G. C. & S. F. Ry. Co., 73 T. 2; M. P. Ry. Co. v. Watson, 72 T. 631; T. & N. O. Ry. Co. v. Crowder, 63 T. 502; Id. 76 T. 499; Railroad v. Murphy, 46 T. 363; Railroad v. Specker, 61 T. 427; R. R. Co. V. Parker, 50 T. 346. §462. Matter of estoppel iiuist be specially plead. If one acts in such a manner as intCxitionally to make another believe that he has no right, or has abandoned it, and the other, trusting to that belief, does an act which he would otherwise not have done, the fraudulent party will be restrained from asserting his right, unless it be such a case as will admit of compensation in damages.^ It nuist be a representation or concealment as to present or past things, and not of future things, ^ from one ignorant of the truth. 3 In Bynum v. Preston, 69 T. 287, it is said, that to con- stitute an estoppel there must have been, (1.) A false representation or concealment of material facts; (2.) The representation must have been made with a knowledge of the facts; (3.) The party to whom it was made must have been ignorant of the truth of the matter; (4.) It must have been made with the intention that the other party should act upon it; and (5.) The other party must have been induced to act on it.* In the action of trespass to try title, an equitable estoppel may be proven under the plea of not guilty.^ In other actions, it must be specially pleaded by the party relying on it, and the particular acts, representations, or conduct relied on should be stated with reasonable certainty.^ A bank was sued by a depositor, whose pass book had been balanced and all checks returned to him in June, for an amount paid by the bank on forged checks drawn in depositor's name, which forgery was discovered during the following August, when re-payment was demanded. The bank pleaded that the depositor, having failed to discover (41— Plead. Forms.) 641 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§463. and give notice of the forgerj in ii reasonable time, the phiintiff was estopped from questioning the correctness of the account, but failed to allege any injury or loss to the bank from the failure to sooner notify it of the. forger3\ Held, that exceptions to the defense were properly sus- tained.^ i Burleson v. Burleson, 28 T. 416; Scoby v. Svveatt, 2S T. 714; Page V. Ariiim, 29 T. 53. 2 Edwards v. Dickson, 66 T. 613. 3 Steed V. Petty, 65 T. 490. 4 See Fielding v. DuBose, 63 T. 631; Mortgage Co. v. Noiton, 71 T. 683. 5 Mayer v. Ramsey, 46 T. 371 ; McDow v. Kabb, 56 T. 154. 6 Texas Banking Co. v. Hutchius, 53 T. 61; Crescent Ins. Co. v. Griffin, 59 T. 509; Dunham v. Chatham, 21 T. 231. 1 Weinstein v. Banks, 69 T. 38. §463. Former judgment must be plead. A former judgment in an action between the same parties or their privies, in relation to the same subject matter, may be plead in bar. It should be averred that there had been a trial on the merits, and the facts should be definitely stated and the adjudication against the adverse party. ^ In suit on a promissory note, res adjudicata w^as pleaded to defendant's plea of payment, in which it was set forth that the same charges and items of payment made in produce, pleaded in the pending suit, were set up in another suit upon other notes also payable in produce, given for the pur- chase of land, and that those items of payment were con- sidered settled, paid off, and discha»rged by the judgment rendered in that cause; held, that to render the plea of res adjudicata good, it w^as necessary that it should have negatived the idea that the note in suit was taken in con- sideration in the former action in determining how much of the produce paid was to be applied to, and the liquidation of, the notes sued on in that action. A judgment which was competent to establish a plea of res adjudicata cannot be defeated when relied on for that purpose, by a writ of er- 642 Ch. 44.] OF SPECIAL PLEAS IN BAR, [§464. ror prosecuted for its review. ^ The plaintiff had sued the defendant and his vendee in trespass to try title, in a former action, and recovered judgment, which it was claimed was a bar to recovery for a wrongful seizure under sequestration. Held, the former action being against the defendant and his vendee, and the present being against the defendant and his securities on the sequestration bond, and the cause of action being different, the former judgment was no bar.^ 1 Teal V. Terrill, 48 T. 508; Philipowsky v. Speucer, 63 T. 604; Monks V. McGrady, 71 T. 134; Pishaway v. Runnels, 71 T. 352. 2 Thompson v. Griffin, 69 T. 139. 3 Blum V. Gaines, 57 T. 135. §464. Payment niiist be plead. The plea must plainly and distinctly state the nature of the payment and the several items thereof, or the same must be distinctly stated in an account filed with the plea , so as to give the plaintiff full notice of its character.^ Objec- tions to the plea for want of sufficient particularity and cer- tainty, should be made by a special exception.^ Proof of payment of a debt in money is admissible under a general plea of payment ; but proof of payment in other articles than money, is not admissible under such a plea, if objected to.^ Payment may be made in other articles besides money — in such a case when the articles have not been received, the debtor, to discharge himself, must set apart the article, so that it can be designated, and the right of property pass to the payee.* If no time or place be specified, the articles are to be delivered where they are at the time of the con- tract, unless collateral circumstances designate a different place. If the time be fixed, but not the place, they must be delivered at the residence of the receiver, unless some- thing in their very nature or use, or some other circumstance of equivalent force, distinctly implies that they are to be left at some other place; or the receiver may designate a reasonable time beforehand, a place of delivery reasonably convenient to both parties. If no expression used by the 643 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§464, parties, and nothing in the nature of the goods or the cir- cumstances of the case controls the presumption, then the place where the promise is made, is the place of perform- ance.^ If specific articles have been delivered and accepted- or set apart and designated, where the contract authorizes, it constitutes a payment. Where the makers of a promis- sory note past due, delivered to the payees, who still re- tained the note, a quantity of corn to be shipped to Galves- ton, a part of which was so shipped, and the balance of which was suffered to rot in the pens in which it was placed when delivered, it being proved that opportunities for ship- ping to Galveston were frequent at that time, it was held, in a suit by the assignee of the note against the maker,, that the jury were authorized to find that the corn was a payment upon the note to the extent of its market value at the tinie.^ It has been held that a bill of particulars is required only when it is proposed to prove "items of payment," or to prove apayment otherwise than in money. In a suit on a joint and several promissory note, one of the defendants alleged that the note was given for land purchased by defendants from the plaintiff; that "it was expressly understood and agreed" that each of the defendants should pay for his re- spective portion ; that defendant had so paid and had re- ceived from plaintiff a separate deed for his portion, and thereupon had been released by plaintiff from further li- ability on his note. It was held, that the answer might have been specially excepted to, as not being suflSiciently specific and certain as to date, manner of payment and re- lease, but was sufficient on general exception.'^ In a suit between merchant and merchant upon a mutual current account between them for debts incurred from time to time, the defendant plead paj'ment by his negotiable promissory note, an action on which was barred by lim- itation. It appeared from the pleadings and evidence that the note mentioned was not taken in payment or satisfac- 644 Ch. 44.] OF SPECIAL TLEAS IN BAR. [§4G4. tion of money advanced by plaintiff to defendant, to enable bini to prosecute the business in which he was engaged, l)ut that it was taken to enable plaintiff to have in hand paper upon which he could obtain money should he find it neces- sary to do so, as well as to evidence the indebtedness of the defendant to him. It was held that the note, not having been taken in payment or satisfaction of the item for money advanced, interposed no obstacle to a suit upon the account containing that item, for the balance due.^ In a suit on a promissory note, the defendant by a special answer, alleged that the amount due had been paid "except one hundred and fifty dollars." In the absence of a special exception, it was held that evidence of such payment was admissible.^ Whatever is received by the creditor in satis- faction of his debt, is a payment. ^° An administrator de bonis sued an independent executor, alleging an abandonment of the trust and a refusal to pay over or account for moneys collected belonging to the es- tate. The defendant pleaded a general denial. Held, er- ror to allow testimon}'^ to items of payments and expendi- tures ihade in due order of administration on part of de- fendant, in absence of pleading such payments and credits. ^^ In a proceeding for the trial of the right of property seized under execution, the claimant alleged that he had purchased the property from the defendant in the writ, for the con- sideration of eight hundred dollars paid by him. On the trial it was developed in evidence that the defendant in the writ was indebted to claimant, and the consideration was paid by a credit on that demand. To this proof the plaint- iff objected, on the ground that the allegation could not be substantiated by evidence of payment otherwise than in money. It was held, that proof of a set-off cannot be ad- mitted in support of a plea in payment, and a plea of pay- ment in money nuiy not be proved by evidence of a pay- ment in property, but the substance of the claimant's aver- ment was that he had bought the property in controversy at G45 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§465. the price of eight hundred dollars, and that he had paid the consideration agreed upon. It was not stated that it was paid in money, and the averment that the consideration was paid by him was sustained by the admitted evidence. ^^ 1 Civ. Stat. Arts. 645, 646, 1266. 2 Holliman v. Rogers, 6 T. 91 ; Gaines v. Salmon, 16 T. 311; Marley T. McAnelly, 17 T. 60S; May v. Taylor, 22 T. 348; Grotliaus v. VVitte,72 T. 124. 8 Able V. Lee, 6 T. 427 ; Holliman v. Rogers, 6 T. 91 ; Tinsley v. Ryon, 9 T. 405. 4 Dewees v. Lockhart, 1 T. 535; Hughes v. Prewitt, 5 T. 264; Cherry V. Newby, 11 T. 457; Davis v. Bradshaw, 12 T. 336; Mayfleldv. Cotton, 21 T. 1. 5 2 Parsons on Contracts, 161. « Copes V. Perkins, 6 T. 150. 7 Marley v. McAnelly, 17 T. 658. 8 McGnire v. Bidwell, 64 T. 43. 9 Marley v. McAnelly, 17 T. 658. 10 Swearingen v. Buckley, 1 U. C. 421, citing Abies v. Lee, 6 T. 434; McNeil v. McCamley, 6 T. 165; Boulware v. Robinson, 8 T. 330; Rob- son v. Watts, 11 T. 76S; Cartwright v. Jones, 13 T. 4; Jennings v. Case» 17 T. 673; Murphy v. Garrett, 48 T. 249; Life Ins. Co. v. Ray, 50 T. 518. " Grothaus v. Witte, 72 T. 124. 12 Hamburg v. Wood, 66 T. 168. §465. Matter of discount may be plead. The statute authorizes the assignee of a negotiable in- strument to maintain an action thereon in his own name. He is required not only to allow all just discounts against himself, but, if he obtained the same after it became due, he is required to allow all just discounts against the assignor before notice of the assignment was given to the defendant. If the assignee acquired such instrument before its maturity by giving for it a valuable consideration, and without no- tice of any discount or defense against it, he is required to allow only the just discount against himself. The obligee or assignee of any written instrument not negotiable by the law merchant may, by assignment, transfer to another all the interest which he may have in the same, and such as- signee may maintain an action therein in his own name. 646 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§466. He must allow every discount and defense against the same which it would have been subject to in the hands of any previous owner before notice of the assignment was given to the defendant, and due diligence must be used by the as- signee to collect the same.^ 1 Civ. Stat. Arts. 266, 267. §466. Discount defined. At common law, and independent of the statutes of set- off, a defendant is, in general, entitled to retain or claim by way of deduction, all just allowances or demands accruing to him, or payments made by him, in respect of the same transaction or account, which forms the ground of action ; or which, though not arising out of the same transaction, have by subsequent express agreement been stipulated to be deducted or set-off against each other. In these cases, the debts being connected in their origin or b}^ a subsequent agreement, the balance only is the debt, and he to whom it is due, should sue only for that ; and if he sue for more, the opposite debt may be offered in evidence under the plea of discount, reducing the claim of the plaintiff to the balance.^ The term debt implies any claim for money, whether due by a certain and express agreement or from an implied contract.^ The partial or total failure of consideration, or even fraud between the antecedent parties, is no defense to a bill in the hands of a bona fide holder, for a valuable consideration, at or before it becomes due, w-ithout notice of any infirmity therein . The same rule" applies, although the present holder has such notice, if he derived a title to the bill from a prior bona fide holder for value, ^ and although a bill or note may have been indorsed after it became due, there may exist equities between the parties which will preclude the defend- ant from setting up the defense. Thus A. contracted with '' B. on the 27th of January, foi- the l)uilding of ;i house to be completed on the 25th of December following, for the sum 647 Cb. 44.] OF SPECIAL PLEAS IN BAR. [§467. of five thousand dollars, in several pajaiients, the first of which vi'as due on the 1st of February. About that time, as part of the first payment, B. having given bond and se- curity for the performance of the work, A. gave to B. a note for three hundred dollars, payable one day after date. Sometime afterwards, B. indorsed the note in blank to C. as collateral security for his indebtedness to C. B. failed to comply with his contract for building the house, no work being done that was of any value. In a suit by C. against A. on the note, it was held that A. was in equity liable for its payment, although it was transferred after it was due. The note was given to make up a deficit in the cash pay- ment, with the knowledge that it would be transferred in the course of business, and be made to serve in the place of money.* 1 1 Chit. PI. 726. 2 Robinson v. Varnell, 16 T. 383. 3 Watson V. Flanagan, 14 T. 354. * Rohde V. Lafayette Lodge, 15 T. 446. §467. Difference between discount and set-off. It is often difficult to discriminate matter of discount from. set-off, but the distinction is important, both with reference to the question of costs and the replication thereto of the statute of limitations. It may be said that the demand plead in discount must grow out of the transaction which is the basis of the suit, or be so closely connected with it as fairly to authorize the defendant to s;iy that he does not owe the plaintiff on that cause of action so much as he seeks, and not that he ought not to pay the plaintiff so much be- cause on another cause of action the plaintiff owes liim.^ Thus, in assumpsit for dyeing goods, the defendant may, at common law, show that there is a custom of the trade, by which damages done the goods in dyeing shall be deducted from the price of dyeing. ^ So a master may show in an, action by a servant for his wages, that the plaintiff agreed to deduct therefrom the value of goods lost by his negli- 64S Ch. 44.] OF SPECIAL PLEAS IX BAR. [§468. fifence.^ In an action for work and labor and materials, the defendant may show, by way of discount, that he supplied part of the materials himself.* So to an action on a note, the defendant, under a plea of discount, may claim credit for the value of articles furnished the payee, under an agree- ment that they shall be credited upon the note.^ Voluntary payments of usurious interest may, under the plea of dis- count, be appropriated to the reduction of the principal.® 1 2 Parsons on Contracts, 733. 2 Bamford v. Harris, 1 Stark, 343. 3 LeLoir v. Briston, 4 Campb. 134. 4 Newton v. Forster, 12 M. & W. 772. 5 Baird v. Ratcliff, 10 T. 81; Baker v. Smith, 8 T. 346. * Tliat a payment of usurious interest was voluntary is no answer to the application of the debtor to have it set-off or appropriated to the re- duction of the p"incipal; nor is the statute of limitations an answer to such application, while any part of the principal remains unsatisfied. It is treated as a payment upon that which the law recognizes as a sub- sisting debt; and the statute of limitations does not apply to payments. Ware v. Bennett, IS T. 794; Smith v. Stevens, 81 T. 461. §468. Rules as to liniitatiou and costs. As matter of discount extinguishes the debt pro tanto, and the plaintiff is entitled to recover only the balance re- maining due, the statute of limitations does not apply, ex- cept when by a plea in reconvention, the defendant might claim judgment for the excess. The defendant may plead any matter of discount he may be entitled to, at the time of making his defense, according to the rijlcs of pleading. "Whenever any plaintiff may institute his suit for and es- tablish a demand in any court having jurisdiction of the same, and his claims be reduced by payment to an amount not within the jurisdiction of the court, judgment shall still be given for the amount due the plaintiff, and for the de- fendant for costs of suit;^ should the counter claim of the defendant exceed the amount established by the plaintiff, then iud<»:ment shall be given in favor of the defendant for the amount that his claim may exceed that of the plaintiff, and in case the defendant ac(|uire such set-off before the 649 Ch. 44.] OF SPECIAL PLEAS IX BAR. [§4G9. commencement of the suit, he shall recover the costs of suit;^ but should the claim of the defendant have been ac- quired after the commencement of the suit, if the plaintiff establishes a cause of action, existing at the commencement of the suit, he shall recover his costs. ^ 1 Civ. Stat. Art. 1248. 2 Civ. Stat. Art. 648. 3 Civ. Stat. Art. 648. §469. A counter-claim or set-off may be plead. The statute provides that in any suit for the recovery of a debt due by judgment, bond, bill or otherwise, the de- fendant may plead therein any counter-claim which he may have against the plaintiff, subject to^uch limitations as may be prescribed by law. Matters which arise out of, or are incident to or connected with the plaintiff's cause of action may be plead as a counter-claim.^ The counter-claim or set-off must be so plainly and par- ticularly described in the plea, or in an account accompany- ing the plea, as to give the plaintiff full notice of its char- acter. ^ The plaintiff may reply thereto under the rules prescribed for the pleadings of defensive matter by the de- fendant so far as the same may be applicable. Whenever, under such rules, the defendant is required to plead any matter of defense under oath, the plaintiff must in like manner plead such matters under oath, when relied on by him.^ Theactof February 5th, 1840,^makinguseof theterm "dis- count," in place of "counter-claim," permitted the defendant in a suit for any "debt due by judgment, bond, bill or otherwise, to make all the discounts he can against such debt, and upon proof thereof the same shall be allowed in court." The word debt in this statute was used in a general sense to denote any sort of promise or obligation to pay money, such as open accounts, notes, bills, bonds, judg- ments and the like. The word discount was also used in its 650 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§469, most ofeiieral sense, which embraces both a defalcation in an action and a set-off.^ Under the law now in force, as well as under the act of 1840, if the plaintiff's cause of action be a claim for unliquidated or uncertain damages, founded on a tort or breach of covenant, the defendant is not per- mitted to set off any debt due him by the plaintiff; when the suit is founded on a certain demand or debt, the defend- ant is not permitted to set off unliquidated or uncertain dam- a<2;es founded on a tort or breach of covenant on the part of the plaintiff.^ In a suit upon a contract to recover the contract price for specific articles delivered to defendant, no set-off for unliquidated damages, the right to which was assigned to defendant, and which accrued by trespass in procuring the specific articles, can be allowed,'' November 14th, 1883, S. recovered a judgment against M., as assignee of Fondard & Yglesias, for $1,280.62, and foreclosure of a lien on certain goods then in the possession of M. as such assignee. By agreement between S. and M. this judgment was, on December 13th, 1883, in part satis- fied, by the former's accepting and receiving from the latter a portion of the goods, at a valuation of $660.63, December 15th, 1883, S. executed to M., as assignee, his promissory note for $817.62, with the understanding and agreement between himself and M,, at the time, that he did not thereby waive or release his right to the unpaid balance of the judgment or to his lien on the portion of the goods retained by M,, but that the latter, notwith- standing the execution of the note, should pay the balance of the judgment or deliver to S. the remainder of the goods. M. appHed the goods retained by him to the payment of his sssignor's creditors consenting to the assignment, and failed to satisfy S.'s judgment against him. In a suit by M, against S., on the note. Hehl: (I,) That the balance due on ttie judgment was a li(juidated demand against the * 651 Cli. 44,] OF SPECIAL PLEAS IN BAR. [§469. assignee, and could be pleaded in set-off against the promis- sory note sued on ; (2.) That the judgment against M. in favor of S. was not superseded by the subsequent agree- • ment between them, and that, even if such were the case, the balance due for the goods undelivered under the agree- ment would be a liquidated demand, the amount of which could be easily ascertained, and might, under the statute of this state, be set off against the note executed by S. to M.^ A counter-claim cannot be set up in the District Court by a defendant in a cause appealed from a justice's court to the County Court, and afterwards transferred to the Dis- trict Court, which was not set up in the justice's court. If the counter-claim exceeded the jurisdiction of a justice of the peace, that fact affords no ground for entertaining it, when urged for the first time in the District Court in a case originating before a justice of the peace. The defendant must resort to a suit before some court having jurisdiction of the amount claimed for the enforcement of his rights.^ An unliquidated demand, resulting from the breach of one contract, may be pleaded as a set-off to an unliquidated demand growing out of the breach of another contract.^" As a general rule, damages cannot be set-off unless the}?- are mutual and between the parties. Damages claimed to have been caused by the alleged wrongful act of plaintiff's attorney, in directing the execution of a writ, cannot be recovered under a plea in reconvention filed by the defend- ant, in which the attorney is sought to be made a party to a suit instituted to recover rent.^^ A separate debt cannot, ordinarily, be set-off against a joint debt, or a joint debt against a separate debt, but cir- cumstances may occur, which in equity will justify such a pleading. 12 ^\^q general rule that set-offs must be mutual and due in the same right with the debt sued on, is subject to an exception where the party against whom the set-off is pleaded is insolvent; which fact it devolves upon the party pleading it to prove, in order to bring a demand not G52 Ch. 44.] or SPECIAL pleas in bar. [§470. mutual or due in the same right within the exception. ^^ A judgment against two persons separately liable for its full amount, may be set-off against the separate demand of one of the judgment debtors.^* 1 Civ. Stat. Arts. 645-650. 2 Civ. Stat. Art. 12G6. 3 Civ. Stat. Art. 1195, 1196. 4 Early Laws, Art. 720. « Duucan v. Magette, 25 T. 245. <5 Civ. Stat. Art. 649; Duncan v. Magette, 25 T. 245; Stieldon v. Mar- tin, 65 T. 409. 7 Parks V. Dial, 56 T. 261. 8 Sheldon v. Martin, 65 T. 409. 9 Boudon v. Gilbert et al., 67 T. 689. 10 Bodman v. Harris, 20 T. 31 ; Sanders v. Bridges, 67 T. 93. " Casey v. Hanrick, 69 T. 44. 12 Henderson v. Gilliam, 12 T. 711. 13 Hamilton v. Van Hook, 26 T. 302. " Rust v. Burke, 57 T. 341 ; Greathouse v. Greathouse, 60 T. 597. §470. Set-off defined. A set-off is in the nature of a cross-claim or demand, for which an action may be maintained against the plaintiff, and is very different from a discount, which consists in a right to a deduction from or reduction of the plaintiff's demand, on account of some matter connected therewith, or in consequence of a subsequent exjjress agi^eetnent, by which demands originally cross, have been connected and stipulated to be set-off against or deducted from each other. ^ The defendant is not bound to avail himself of his set-off, as he is of matter of discount, and may bring a separate action for the debt due him;^ and when he is not prepared at the time the plaintiff sues him, to prove his set-off, it is most advisable not to plead it; for in case he should go into evidence upon the trial in support of his cross-demand and fail in the attempt, he cannot afterwards proceed in a cross-action for the amount. If the amount of the set-off is not equal to the plaintiff's demand, he may prevent a cross-action by allowing the set-off;^ if the de- 653 Ch. 44.] OF SPECIAL PLEAS I^" BAR. [§471. fendant pleads a set-off and it exceeds the demand of the phiintiff, he will have judgment for the excess.^ 1 Ante, Arts. 4G5-469. 2 Wright V. Treadwell, 14 T. 255; Stone v. Darnell, 25 T. Sup. 430. 3 1 Chit. PI. 571. 4 Civ. Stat. Arts. 1335, 1336. §471. Debts wliicli may be set-off. As a set-off is in the nature of a cross-action, it follows that it cannot be plead to an action by the state, unless ex- pressly authorized by statute. ^ Debts to be set-off, must be similar in their nature, but need not be of the same de- gree.^ Mutual judgments may be set-off against each other ;^ and a dormant judgment not barred by limitation, may be set-off against one on which execution could issue.* Where judgments have been rendered in an inferior tribu- nal, as in a justice's court, an action can be sustained for the purpose of offsetting one judgment against the other; and a writ of certiorari and supersedeas is proper auxiliary process.^ And so judgment may be set-off in an action on an open account,^ even where the judgment has been obtained after suit was brought.^ But a judgment pending in an appellate court on appeal or error, cannot be plead in set-off.^ Mutual outstanding open accounts, may be plead in offset, and though not between merchant and merchant, will be considered as balancing each other; and if the account of the defendant plead in offset was not barred at the date of the accrual of the account of the plaintiff, the former will be held to extinguish the latter pro tanlo, notwithstanding it may be barred at the time it is plead in offset;'"^ but this principle of "compensation" is not recognized except in the case of running accounts. ^° Where there are mutual debts between two individuals, and one dies, the survivor is en- titled to plead his claim as a set-off to an action brought by the administrator, on the claim due the deceased. ^^ But as a general rule, a defendant cannot plead in offset any G54 Ch. 44,] OF SPECIAL PLEAS IN BAR. [§471. demand against an estate, accruing since the death of the deceased. To an action upon certain promissory notes, given for property purchased at an executor's sale, the defendant plead in reconvention and set-off, that he had acquired b}^ assignment a large debt due from the estate, which consti- tuted a lien upon the lands of the estate, for the purchase of which the notes sued on had been executed ; that this lien had priority over the other debts of the estate and was for a greatly larger amount than the notes sued on ; that the estate owed debts to but few persons, and the whole es- tate could be easily settled and distributed by bringing in the parties in interest into the District Court. It was held that the answer presented no defense to the action, and that the jurisdiction of the County Court could not be ousted on the facts stated. ^^ n seems that the rule which prevents one who has purchased property at an administrator's sale, from pleading in set-off a debt due him from the intestate, is subject to exceptions ; where, for example, the purchaser is sole creditor of the estate, or where the rights of pur- chasers under him are involved, and they allege facts which demand the interposition of a court of equity. ^^ In Alford v. Smith, 40 T. 77, it is hekl that, in a suit by an administrator for a debt due for property sold by him as administrator, to entitle the defendant to offset an approved claim against the estate owned by him, it is necessary that the answer show that defendant is the only creditor entitled to the fund to which he seeks to apply the offset; or, if other creditors are interested in the fund, to state the extent and character of such other claims, so that the court may determine whether such relief can be allowed. In a suit by an administrator on a promissor}'' note given by the defendant and his sureties for land bought at an administrator's sale, the defendant pleaded that he held an approved claim against the estate, and that he was induced to purchase the land bv the administrator asrreeinjr that C55 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§472. said claim might be applied in making a pr^o rata payment on the land, to the extent of two thousand five hundred dollars. This was denied bv the administrator. The estate as to general creditors was insolvent. The evidence showed that on the day of sale the defendant, on approaching the administrator, took from his pocket the claim referred to, and which that administrator had not before seen, and asked him how much land it would buy, to which question, after a hasty calculation, he answered, "twenty-five hun- dred dollars worth." It was held that the answer of the administrator, under the circumstances, was rather the ex- pression of an opinion than a proposition to receive the claim in payment for that amount of money in case of a purchase of land. The good faith of defendant in the pur- chase of the claim being denied, nothing short of the clearest proof and the most perfect good faith could sus- tain the defense. An understanding of the sureties, when they contracted the obligation, that it was to be paid with the approved claim of their principal, would be no defense for them, unless such understanding resulted from the acts or representations of the administrator.^* 1 Borden v. Houston, 2 T. 594; Bates v. The Kepublic, 2 T. 616; Chevallier v. The State, 10 T. 315. 2 Civ. Stat. Art. 049. 3 Wright v. Treadwell, 14 T. 255; Duncan v. Bullock, 18 T. 541. * Simpson v. Houston, 14 T. 476. 5 Duncan v. Bullock, 18 T. 541. 6 VVeatherred v.' Mays, 1 T. 472. 1 Parrott v. Underwood, 10 T. 48. 8 Weatherred v. Mays, 1 T. 472. 9 Hall V. Hodge, 2 T. 323. 10 HoHimau v. Rogers, 6 T. 91. "Smalley v. Trammel, 11 T. 107; Dickenson v. McDermott, 13 T. 252; Guthrie v. Guthrie, 17 T. 543. 12 Atchison v. Smith, 25 T. 22S. 13 Hall V. Hall, 11 T. 526; Guthrie v. Guthrie, 17 T. 541. 1* Floyd V. Rust, 58 T. 503. §472. Debts must be due in the same right. A defendant, sued as executor or administrator, cannot set off a debt due to him personally, nor can a person, who 656 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§472. is sued for his own debt, set off a debt due to him in his representative character.^ A defendant sued by an admin- istrator, can set off a debt due him from the intestate ;2 but where he is sued for a debt due to the administrator in his representative character after the intestate's death, he cannot in general set off a debt due to him from the plaint- iff's intestate.^ Equitable circumstances may exist which will create an exception to this rule, as where the sole cred- itor of an estate, whose claim has been allowed and ap- proved, has purchased property at the administrator's sale.* The executors of an estate had agreed to allow the amount of a claim against the estate, as a credit upon a note given to them as executors. It was held, that an exe- cutor will not, unless under special circumstances, be forced to admit a claim against the estate in set-off to a debt con- tracted after the death of the testator. But this rule is for the protection of executors and administrators. It exempts them from compulsion, but does not affect their voluntary action, or deprive them of the power of paying up claims against the estate, by giving credit on claims which are due to the estate, or the ultimate benefit from which will go to the succession ; and that an agreement to allow such credit will be enforced.^ To an action by a mere trustee, the defendant may set off a debt due to him from the party beneficially entitled to the debt sought to be recovered, and for this purpose he may plead that the real interest in the demand sued on is in another.^ In an action brought by a principal, on a contract entered into by the agent, the defendant cannot set off any debt due from the agent, if he was known to the defendant, to be acting on behalf of the plaintiff; but, if he did not know it, it would be otherwise. Where an agent sells goods as his own, or has a lien on them, and parts with the goods on the express agreement of being paid, and afterwards such agent sues for the price, the purchaser cannot set off a debt (42— Plead. Forms.) 657 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§473. due to him from the owner, but it would be otherwise if there was no such agreement.'' 1 Saunders PI. .aud Ev. 7S9. 2 Smalley v. Trammel, 11 T. 10; see ante §471. 3 Atchison v. Smith, 25 T. 228. 4 Hall V. Hall, 11 T. 520. « Dickinson v. McDermott, 13 T. 248. 6Holliman V. Kogers, G T. 91; Thatcher v. Mills, 14 T. 13; Thomp- son V. Cartwright, 1 T. 87. 7 Saunders PI. aud Ev. 790. §473. Debts must be iinitiial. As a fi^eneral rule, mutual debts only can be set-off against each other; therefore, as well th-e debt sought to be re- covered as that to be set-off must be due in the same right ; and so, a joint debt cannot be set-off against a separate de- mand, nor a separate debt against a joint one, unless it be so agreed by the parties;^ but, if the legal or equitable liability of a joint demand becomes vested in or may be urged against one, it may be set-off against a separate de- mand, and vice versa; thus, when the plaintiff alleged that the defendant had recovered a judgment against himself and W. for $750 ; but that theretofore the plaintiff had re- covered a judgment against the defendant for $709.36, upon which there had been an execution with a return of "no property;" and that the said defendant had no property, within the knowledge of the plaintiff, with which to satisfy the debt,' and prayed that the two judgments might be set- off against each other, on demurrer, it was held that the allegations presented a proper case for the relief prayed for. 2 If a firm be carried on in the name of one person only, a separate debt due from that person only may be set-off to an action at the suit of all the partners. A debt due to the defendant as surviving partner may be set-off against a debt due from him to the plaintiff only ; and a debt due from the plaintiff as surviving partner may be set against a debt to the plaintiff from the defendant in his own right. ^ 658 Ch. 44,] OF SPECIAL PLEAS IN BAR. [§474. Independent of our statutory plea of reconvention, it is competent for the courts to entertain any matter of defense which would be the proper subject of a cross-bill in equity; and where a claim is unliquidated, and therefore not plead- able in set-off, dissimilar to, and unconnected with, the plaintiff's cause of action, and, therefore, not pleadable in reconvention, simply equitable grounds of relief may inter- vene, (for example, insolvency of the plaintiff, and a rea- sonable fear that the claim of the defendant will be lost, un- less he be permitted to interpose it,) and entitle the claim to be entertained.* 1 Allbright v. Aldrich, 2 T. 166; Henderson v. Gilliam, 12 T. 71. To this rule there is an exception where the party against whom the set-off is pleaded is insolvent. Hamilton v. Van Hooli, 26 T. 302. 2 Hanchett v. Gray, 7 T. 549. 3 Masterson v. Goodlett, 46 T. 402; Greathouse v. Greathouse, 60 T. 597. 4 Castro V. Gentiley, 11 T. 28; Henderson v. Gilliam & Co., 12 T. 71; Sterrett v. Houston, 14 T. 153; Brady v. Price, 19 T. 285; Cardthers v. Thorp, 21 T. 358; Hamilton v. Van Hook, 26 T. 302; Coleman v. Bunce' 37 T. 171 ; Beckham v. Hunter, 37 T. 551. §474. Rule as to unliquidated damages. If the plaintiff's cause of action is founded on a claim for unliquidated or uncertain damages, growing out of a tort or breach of covenant, the defendant cannot plead in set- off any debt due him from the plaintiff; and, if the suit be founded on a certain demand, the defendant cannot set-off unliquidated or uncertain damages founded on a tort or breach of covenant, on the part of the plaintiff.^ A debt to be set-off must be a les-al and subsisting demand for which an action would lie by the defendant against the plaintiff; a debt, therefore, barred by the statute of limita- tions at the commencement of the suit, cannot be set-off; but if the set-off was not barred at the commencement of the suit, and was then a debt due the defendant from the plaintiff, it will be good, although it may be barred at the time the answer is filed. ^ To this rule there is an exception in the case of open mutual accounts.^ 659 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§474. It is not necessary that the debt to be set-off must be actually due at the commencement of the suit, and a plea in offset that the plaintiff is indebted at the time of the plea pleaded is good.* To an action upon an account for merchandise, the de- fendant was permitted to plead in off-set, a claim for dam- ages growing out of a breach of contract — the plaintiff hav- ing employed defendant to haul certain goods, and failed to furnish the goods. In this case, it is said by the court that the plaintiff's account was unliquidated.^ In an action for a certain sum of money paid to the de- fendant at his request, to be returned on request with law- ful interest, the defendant plead that the plaintiff, while acting as his overseer, wantonly and without lawful excuse, killed a certain slave of defendant, of greater value than the sum sued for, and that he was a transient person, with na visible means, within the knowledge of defendant, sufficient to satisfy defendant's claim. It was held that the insol- vency of plaintiff did not constitute a qualification or excep- tion to the statute, which prohibited unliquidated or uncer- tain damages, founded on a tort or breach of covenant, being plead in off-set in a suit founded on a certain demand; that a court of equity will not grant such a remedy, b}'' ex- tending it to a case positively prohibited by law; though it will do so by virtue of its inherent power, in the advance- ment of the spirit of the law, in cases of mutual demands, which cannot be set-off under the statute, in cases of in- solvency of the plaintiff.^ In an action on a promissory note for the purchase of land, and to foreclose the vendor's lien, the maker cannot plead in reconvention unliquidated damages, resulting to him from the action of the plaintiff in selling another tract of land for defendant, in violation of a trust, for less than its value. ^ 1 Civ. Stat. Art. G49. 2 Cook V. McGreal, 3 T. 487; Holleman v. Rogers, 6 T. 91. 8 Hall V. Hodge, 2 T. 323. 660 Ch. 44.] OF SPECIAL PLEAS IX BAR. [§§475, 47G. •4 Thomas v. Young, 5 T. 253; Parrott v. Underwood, 10 T. 48; Gaines V. Salmon, 16 T. 311. s Bodman v. Harris, 20 T. 31. « Duncan v. Magette, 25 T. 245. '' Kiddle v. McKinney, 67 T. 29. §475, Plea, qualities of; rule as to costs. The plea must show that the debt is of a nature which entitled the defendant to set it off against the plaintiffs, and must describe the debt, with the same certainty as in a pe- tition on a like demand; or the defendant may file with his plea an account stating the nature of the set-off and the several items thereof, so plainly and particularly as to give the plaintiff full notice of its character.^ If there is any want of certainty in the plea or notice, the defendant will not be permitted to offer proof under it.^ The plaintiff may reply denying the set-off, or may set up the statute of lim- itations, or any other matter w^hich would defeat a recovery if it had been made the foundation of a cross-action. If the claim of the plaintiff is reduced by a set-off to an amount not within the jurisdiction of the court, judgment will never- theless be given for the amount due the plaintiff, and for costs of suit — if the set-off of the defendant exceeds the amount established by the plaintiff, judgment will be given in favor of the defendant, for the amount that his claim may exceed that of the plaintiff, and, in case the defendant acquired such set-off before the commencement of the suit, he will recover costs of suit; otherwise the plaintiff will have iudo-ment for the costs of suit.* •3 ~ 1 Civ. Stat. Art. 646. 2 Holliman v. Rogers, 6 T. 91. 2 Civ. Stat. Art. 647; Weatherred v. Mays, 1 T. 472; Hall v. Hodge, 2 T. 323; Watts v. Harding, 3 T. 386. §476. Matter of avoidance must be plead. The pleadings of the defendant must correspond with the character of proof upon which he relies to meet the prima facie case of the plaintiff. If he proposes to disprove the 661 Ch. 44.] OF SPECIAL PLEAS IN BAR. [§477. facts alleged by plaintiff, a general denial is sufficient. But, if the facts alleged in the petition are true, and the defend- ant wishes to explain or avoid them, he must aver, specially, the matters of avoidance or explanation upon which he relies. The application of this rule is shown in the case of Smoth- ers V. Field, G5 T. 435, a proceeding on motion against the sheriff for failure to levy an execution upon the property of the defendant in a judgment. The plaintiff averred a conveyance of land for a valuable consideration to the wife of the defendant in execution, which prima facie made the land community property and subject to execution against him ; if the sheriff proposed to show that the land was not conveyed to the wife, in that the grantee was not the wife of the defendant in execution, or was not conveyed for a valuable consideration, the only necessary pleading on his part was a general denial, under which evidence disproving the allegations in the petition was admissible. But, if the defendant proposed to admit these allegations and avoid them bv showiuo: that the land was paid for with the separate estate of the wife, and that it thereby became her separate property and not liable for her husband's debts, these facts should have been specially alleged. §477. A discharge in Ibaiikruptcy must toe plead. The discharge in bankruptcy of the defendant, when re- lied upon as a defense in an action for the recovery of a debt, must be specially plead, and it is immaterial whether such action was commenced before or after his discharge.^ The discharge of a bankrupt will not defeat an action in a court of this state to enforce a vendor's lien upon land against a purchaser with notice from such bankrupt before the commencement of the proceedings in bankruptcy. ^ The title of a purchaser of land under a junior judgment, whose sheriff's deed has been duly recorded, is not affected by a subsequent sale of the same land, made by order of a 662 Cll. 44.] OF SPECIAL PLEAS IX BAR. [§478. bankrupt court for the enforcement of a senior judgment lien, if the purchaser under the junior judgment was not a party to the bankrupt proceedings ordering a sale.^ 1 Flaunagan v. Piersou, 42 T. 1 ; Coffee v. Ball, 49 T. IG; Manwar- ring V. Kouns, 35 T. 172; Miller v. Cleineuts, 54 T. 35i, 2Elliottv. Booth, 44 T. 180; Jackson v. Elliott, 49 T. 62; Boone v. Bevis, 44 T. 384; Hancock v. Henderson, 45 T. 479. 3 Spring V. Eisenach, 51 T. 432; Bassett v. Proetzel, 53 T. 569. §478. Denial of special matter of defense not neces- sary. It is not necessary for the plaintiff to deny any special matter of defense pleaded by the defendant, but the same is regarded as denied unless expressly admitted.^ In an action for the value of cotton owned b}'- the plaintiff and detained by the defendant, the latter pleaded that the cot- ton had been destroyed by fire without neali2:ence on his part. It was held that this allegation of absence of negli- gence could be rebutted by the plaintiff by affirmative tes- timony showing negligence of defendant without plead- ing it. 2 1 Civ. Stat. Art. 1197. 2 Texas Elevator Co. v. Mitchell", 78 T. 64. 663 Ch, 45. — Of Pleadings in Eeconvention. §479. Plea in reconvention defined. 480. Counter-claim defined. 481. Reconvention permitted in suits relating to personal property. 482. Reconvention permitted in suits by attachment or sequestra- tion. 483. Reconvention permitted in suits by injunction. 484. A party to a suit may reconvene against an intervener. 485. Form of the plea in reconvention. §479. Plea in reconvention defined. The act of February 5th, 1840/ contains the following provision: When the defendant may have a claim against the plaintiff, similar in its nature (but they need not be of the same degree), to that of the plaintiff, he shall be per- mitted to file in his answer a plea of reconvention, setting forth the amount due him, and judgment shall be given in favor of that party who may establish the largest claim for the excess of his claim over that of his opponent and for costs. This provision is incorporated in the amended act of January 2d, 1800.2 xhe- Eevised Statutes, Art. 649, provide that a debt shall not be plead as a set-off in an ac- tion for unliquidated or uncertain damages founded on a tort or breach of covenant, and that unliquidated or uncer- tain damages shall not be plead as a set-off in a suit founded on a certain demand. Article 650 provides that the preced- ing article shall not be construed so as to prohibit the de- fendant from pleading in set-off any counter-claim founded on a cause of action arising out of, or incident to or connected with, the plaintiff's cause of action. From the use of the word reconvention in the act of 1840, sujwa, that act has been construed as introducing the plea of reconvention as it w^as known in the civil law.^ A plea in leconvcntion is substantially a suit by the defendant against the plaintiff upon the cause of action set up in the 604 Ch. 45.] OF PLEADINGS IX RECONVENTION. [§480. answer. If a suit is pending on the cause of action so al- leo-ed, the same matter cannot be litio-ated in another suit. If two suits are pending in the same court, they may, on leave of the court, be consolidated; otherwise the matter in litigation in one action, cannot be put in litigation in the other.* 1 Early Laws, Art. 720, §4. 2 Early Laws, Art. 2S0S. 3 Walcott V. Hendrick, 6 T. 415; Egery v. Power, 5 T. 506; Bradford V. Hamilton, 7 T. 58; Cannon v. Hemphill. 7 T. 208. ■* Lumber Company v. Williams, 68 T. 656. §480. Counter-claim defined. The term counter-claim used in article 650 of the Revised Statutes includes all matters which could have been set up in the plea of reconvention. ^ Independent of the statutory plea of counter-claim, or reconvention, the court may enter- tain any matter of defense which would be the proper sub- ject of a cross-bill in equity. ^ 1 Duncan v. Magette, 25 T. 245; Scalf v. Tompkins, 61 T. 476, 2 Castro V. Gentiley, 11 T. 28; Pliillips v. Patillo, 18 T. 518. §481. ReconA'ention permitted in suits relating" to per- sonal property. In a suit for the hire of personal property, the defendant claiming ownership can reconvene for the property or its value and compensation for its use.^ In a suit by an over- seer for wages, the defendant was permitted to plead in re- convention damages to his property by plaintiff during his employment as an overseer. ^ In an action for rent, the de- fendant may plead a breach of the plaintiff's covenant to repair,^ or a breach of plaintiff's covenant to furnish teams and implements for the cultivation of the land rented.'* One who sold machinery sued the purchiiser on his note given therefor, and to enforce payment sold the machinery under a mortgage with power of sale. He became the pur- chaser, but the articles sold were still in the vendee's pos- 665 Ch. 45.] OF PLEADINGS IN RECONVENTION. [§-481. session. In a suit to recover possession of the property, the defendant pleaded in reconvention that the plaintiff had deceived him in the character of the machinery sold, of which he gave the vendor notice on discovery. He charged fraud in the sale, and prayed a judgment for damages sus- tained in loss of time in attempting to run the machinery, and for damages sustained in the expense incurred in mov- ing it after the contract of sale. He also asked exemplary damages for the fraud practiced on him. It was held that, after discovering the defect in the machinery, the defend- ant had a right to rescind in a reasonable time, and recover the purchase money, or sue for damages and recoup them against the balance of the purchase money. Having re- tained the machinery after discovering its defect, on the plaintiff's agreeing to pay him for any damages he might sustain from using it, he could not, after sale under the mortgage, set up his claim for purchase money already paid. Having continued to use the property by agreement, after discovery of the alleged fraud, he could not, after the sale under the mortgage, renew the offer to rescind the trade and obtain the benefit of it in his pleadings.^ Where suit is brought to vacate and annul a former de- cree, the defendant may, by plea in reconvention, pray for a revival of the same, and for process to carry it into exe- cution.^ Where the plaintiff brought suit to enjoin an exe- cution, on the ground that the judgment had become dor- mant by reason of the failure to issue executions from year to year, it was held, that the defendant might plead the judgment in reconvention and have judgment for the amount due thereon.'' And so, in a suit to enjoin an execution is- sued on a judgment, the record of which has been destroyed and not renewed by substitution, the defendant may, by a proper prayer, obtain a renewal of such record by substitu- tion, but the injunction having been properly issued, the defendant must pay the costs. ^ 666 Cb. 45.] OF PLEADINGS IX RECONVENTION. [§482. Ill an action on a promissory note for the purchase of land, and to foreclose the vendor's lien, the maker cannot plead in reconvention unliquidated damages, resulting to him from the action of the plaintiff in selling another tract of land for defendant, in violation of a trust, for less than its value. ^ 1 Alford V. Cochrane, 7 T. 4S5. 2 Brady v. Price, 1!) T. 285. 3 Coleman v. Bunce, 37 T. 171. 4 Beckham v. Hunter, 37 T. 551. fi Scalf V. Tompkins, 61 T. 476. « Cannon v. Hemphill, 7 T. 184. 7 Oldham v. Erhart, 18 T. 147; North v. Swing, 24 T. 193. 8 Cyrus V. Hicks, 20 T. 483. 9 Rev. Stat. Art. 640; Duncan v. Magette, 25 T. 251; Carothera v. Thorp, 21 T. 358: Cato v. Phillips, 28 T. 101; Riddle v. McKinney, 67 T. 29. §482. Reconvention permitted in suits by attachment or sequestration. Damages occasioned by wrongful attachment or seques- tration, may be pleaded in reconvention in the suit in which the writ was issued.^ When the suing out and levy of a writ of attachment or sequestration is malicious, exemplary damages may be recovered. Where its issuance is merely wrongful, and without malice, actual damages only can be allowed. The value of the defendant's time, while attend- ing court, the pecuniary loss in defending the suit, or any such incidental expenses, do not constitute element of act- ual dam ages. 2 A defendant whose goods have been seized under an at- tachment wrongfully issued in the suit, may, by plea in re- convention, recover back all the goods not necessary to sat- isfy the debt, or their value if sold, together with compen- sation for their detention, which ordinarily would be legal interest on their value from the time of the levy. If the plaintiff should fail to establish his debt, the defendant may recover back all of the property seized, or if sold, its value at the time of the levy, with legal interest thereon.^ 667 Ch. 45.] OF PLEADINGS IN RECONVENTION. [§482. In an action of trespass to try title, the plaintiff having sued out a writ of sequestration, the defendant pleaded in reconvention for damages for the wrongful and malicious suing out of the writ. There was no evidence tending to show that the plaintiff wrongfully or maliciously sued out the writ of sequestration, or that the defendant, in whose favor a judgment for the land was rendered, sustained any other injury or loss therefrom than those which accrued to him in the expense and loss of time in defending the suit. It did not appear from the character of the suit, and the le- gal questions involving the titles of the parties respectively to the land, that the plaintiff instituted it otherwise than to assert a supposed legal and valid claim to the land; and, if so, the evidence fully warranted the supposition that owing to the destruction of timber on the land by the defendant, there was good and probable cause for suing out the writ. The evidence did not disclose any fact showing a malicious intention on the part of plaintiff towards defendant in so doing, or to wantonly oppress, vex or harass him. The pecuniary loss sustained by the defendant in the defense of the suit cannot be considered as actual damage for which he ma}'^ recover; and, there being no actual damage, there existed no basis for exemplary damages.* R. contracted in writing with D. for sale of certain tracts of land and one thousand head of cattle at stip- ulated prices. Of the lands, one tract as alleged in the answer was represented and pointed out by the vendors as valuable for water. The title to this failed. In an action by the vendors upon the contract for balance due on the cattle, D. was allowed to reconvene and set up the misrep- resentations touching the tract of land and damages 'there- from. The matters so pleaded grew out of the contract sued upon.'' 1 Wolcott V. Hendrick, G T. 40G; Peiser v. Cushman, 13 T. 390; Wiley V. Traiwick, 14 T. G62; Reed v. Samuols, 22 T. 114; Pnnchard v. Taylor, 23 T. 424; Portier v. Fernandez, 35 T. 534; Harris v. Finberg, 46 T. 79; Tompkins v. Toland, 4G T. 584. 608 Ch. 45.] OF PLEADINGS IX RECONVENTION. [§483. 2 Punchard v. Taylor, 23 T. 424; Harris v. Finberg, 46 T. 80; Vance V. Lindsey, 60 T. 286; Bear Bros. v. Marx, 63 T. 298; Lewy v.Fisclil, 0& T. 311. 3 Wallace v. Finberg, 46 T. 35. * Vauce V. Lindsey, 60 T. 286. 5 Du Bois V. Rooney, 82 T. 173. §483. Reconvention permitted in suits by injunction. In a suit by injunction, the defendant who has been re- strained by preliminary order from doing an act, may, by plea in reconvention, recover the damages occasioned by the enforcement of the writ.^ In a suit to enjoin an execu- tion on the ground that the judgment was dormant, the de- fendant, by a plea in reconvention, may obtain a judgment for the amount due.^ In a suit by injunction to restrain the enforcement of a judgment rendered by a justice of the peace, on notes improperly described, and without ci- tation or legal notice to the defendant, the defendant, by his answer in reconvention, recovered a judgment on his original cause of action. ^ Punitory or vindictive damages are not recoverable on the dissolution of an injunction, un- less the evidence shows that the injunction Avas sued out maliciously and without probable cause. In the absence of such proof, the defendant is entitled to no more than simple compensation for the actual loss sustained by the delay, not exceeding ten per cent, on the amount released by the dis- solution of the injunction, exclusive of costs.* 1 Hammonds v. Belcher, 10 T. 271; Carlin v. Hudson, 12 T. 202; Brown v. Tyler, 34 T. 168. 2 Oldham v. Erhart, IS T. 147; Boiirke v. Vandcrlip, 22 T. 221; Tre- Vino V. Stillman, 48 T. 561. 3 Willis V. Gordon, 22 T. 241 ; Witt v. Kaufman, 25 T. Sup. 385; Mas- terton v. Ashcorn, 54 T. 324; Hale v. McComas, 59 T. 484; Chambers v. Cannon, 62 T. 293; Stein v. Frieberg, 64 T. 271; Seymour v. Hill, 67 T. 385; Carter v. Hubbard, 79 T. 356. 4 Civ. Stat. Art. 2891; Smith V. Sherwood, 2 T. 460; Hammond v. Belcher, 10 T. 271; Jordan v. David, 20 T. 712; Reed v. Samuels, 22 T. 114; Culbertsou v. Cabeen, 29 T. 247; Brown v. Tyler, 34 T. 168. 669 Ch. 45,] OF PLEADINGS IN RECONVENTION. [§484. §484. A party to a suit may reconvene against an in- tervenor. A bank, by its president and certain stockholders in the bank, instituted a suit asfainst certain of its creditors and other stockhoklers, alleging its insolvency, and praying for the appointment of a receiver, and for the collection and distribution of its assets among its creditors according to their respective priorities. Afterwards, one claiming to be a creditor of the bank, and entitled to a priority of payment out of the assets in the hands of the receiver, intervened in ' the suit. The receiver resisted the claim of the intervenor, denying his right of priority, and answering further, set up a counter-claim against the intervenor for money and notes, the property of the bank and in the possession of the intervenor. It was held, that as the intervenor had sought the jurisdiction of the court to establish equities against the estate in the hands of the receiver, it was proper to allow the latter to reconvene and set up all the rights of the in- solvent corporation growing out of a continued course of dealing under one general agreement.^ 1 Bauk V. Weems, 09 T. 489. §485. Form of the plea in reconvention. A plea in reconvention is not only a mode of defense, inasmuch as it opposes a recovery by the plaintiff, but it is also in the nature of an action, as it seeks a judgment against the phiintiff in relation to" the subject matter of the plea. The plea must be filed as a part of the answer in the due order of pleading, and the rules governing the state- ment of the cause of action in the petition ai)ply to the statement of the facts constituting the subject of the plea. The plea need not aver the previous proceedings of record in the case, but must allege the existence of facts which render the plea admissible and entitle the defendant to the judgment prayed for.^ As to the demand in reconvention, the defendant is as much a plaintiff as the latter is in rela- 070 Ch. 45.] OF PLEADINGS IN RECONVENTION. [§485. tion to his demand ; and neither can put the other out of court by simply dismissing his own claim. ^ But the plaint- iff may abandon his claim, and the defendant will be allowed to prosecute his demand.^ It is not necessary for the plaint- iff to traverse a plea in reconvention by a general denial, but it is incumbent upon the defendant to establish by proof the allegations of his answer, in order to entitle him to a judgment.* In Cyrus v. Hicks, 20 T. 483, it is held that an injunction will be granted to restrain an execution on a judgment, the record of which has been destroyed and not renewed by substitution, but the defendant, by plea in reconvention, can obtain a renewal, and the injunction having been prop- erly issued, the defendant must pay the costs. 1 Castro V. Whitlock, 15 T. 440. 2 Thomas V. Hill, 3 T. 270; Egery v. Power, 5 T. 501; Bradford v. Hamilton, 7 T. 55; McCoy v. Jones, 9 T. 363. 3 Bradford v. Hamilton, 7 T. 58. * McDonald v. Tinnon, 20 T. 245. 671 Ch. 46. — Pleas of Intervention and Interpleader. §48G. Plea of intervention allowed, when. 4S7. Party interested in the subject matter of a collusive suit may intervene. 4SS. Intervention not permitted when there is no privity of con- tract. 489. Application for leave to intervene made, when. 490. Judgment on dismissal of intervention. 491. Interpleader allowed, when. §486. Plea iii interventioii allowed, when. A person haviug an interest, legal or equitable, in the subject matter of litigation in a pending suit, may intervene therein and make himself a party thereto. To entitle him to this privilege, his interest must be such that had the oriofinal action never been commenced, he could have brought his suit in his own name as sole plaintiff against one or more of the parties to the suit, and have been en- titled to recover to the extent at least of a part of the re- lief sought; or, if the action had been brought against him as a defendant, he would have been able to defeat the re- covery in whole or in part.^ The fact that the property or fund to which a claim is made is in the hands of a receiver, strengthens the right to intervene."^ One of several parties plaintiff to a suit, who, by amend- ment of his pleading, asserts another and distinct right in the matter in controversy, is treated as an intervenor. Thus, where a number of the plaintiffs in a suit claimed the property in controversy as heirs and legatees of their father, and afterwards, by an amendment, chiimed the prop- erty in controversy wholly as the heirs of their mother and adversely to their father, it was held that the amendment set up a new and distinct cause of action, and was properly 072 Cb. 4(3.] PLEAS OF INTERVENTIOX, ETC. [§486. treated as an original plea in intervention, filed on the eve of trial. It sought to introduce into a suit already com- plicated, new issues, and was calculated to prolong the litisfation. Under such circumstances, the court had at least the discretion, upon motion of any party, to strike out the petition. This was done without prejudice, and the rights of the parties, asserted in the amendment, were unaffected by the result of the suit.^ "When the title to real estate is directly involved in a pending suit, anyone who has an interest in the property at the time of the commencement of the action has a right, on application made at the proper time and manner, to intervene. But, when the title is not directly involved, as where an attachment to satisfy a debt has been levied on the land, a third party in possession, in order to intervene, must show that the result of the suit will affect his interest and allege such facts as would authorize a court of equity to grant him a writ of injunction.* One who, pending suit involving property, purchased at a trust sale the interest of one of the parties in that prop- erty, may intervene in the suit.^ In Wolf V. Butler, 81 T. 86, it is held that, where facts existed authorizing intervention by a lis pendens pur- chaser, the failure to intervene will not conclude the rights of such purchaser, when he did not know the necessity for such intervention and the facts were withheld by the par- ties alleged to have collusively agreed upon a judgment not authorized by the facts. In a suit by the assignee of a bill of lading against a forwarding merchant holding goods in transitu, the con- signors were permitted to intervene and assert their right of stoppage, the goods not having been paid for and the vendee being insolvent.^ But, if a seller of goods attach them for debt, the remedy of stoppage in transitu is thereby destroyed.^ (43— Plead. Forms.) 673 Ch. 46.] PLEAS OF INTERVENTION, ETC. [§486. In a suit against the assignee of a bankrupt, to recover an alleged trust fund in his hands, the creditors whose claims had been allowed, were permitted to intervene for the protection of their interests in the assets in the hands of the assignee.^ In ordinary attachment suits, third parties claiming only an interest in the property attached, and not in the subject matter of the suit, cannot intervene in the principal action, for the purpose of asserting their right to the attached property. The proper course, as a general rule, if they desire to set up their right to the property, is to file a claimant's bond, or institute suit against the ofiicer who levied the writ.^ A subsequent attaching creditor may intervene in an action in which a prior attachment has been levied, for the purpose of showing that the older attachment is based on a fraudulent demand, or one Avhich has in fact no existence, for the purpose of having his lien declared superior and enforcing payment out of the attached property. ^"^ But a subsequent attaching creditor cannot, in a direct proceeding or by intervention in the first suit, abate an attachment, on account of defects in the affidavit or bond, this right being by statute restricted to the defendant in attachment. ^^ A party intervening in a suit for the recovery of personal property, which had been sequestered and replevied by the plaintiff, is not required to file the oath and claim bond required in the original suit, to entitle the plaintiff to pos- session pending litigation.^'' An assignee of a debtor brought suit for the recoverv of property in the possession of a inarshall of the United States. The creditors, at whose instance the property was seized by the marshal 1, sought to intervene, on the ground that they had by bond indemnified the marshall who had notified them to defend the suit. It was held that the right of intervention was not given by the statute in this cause; that the creditors, by their own statement, were G74 Cll. 40.] PLEAS OF INTERVENTION, ETC. [§486. authorized to employ counsel, manage the case, and make every defense they could make, were they parties to the record. And no fact was stated which made their inter- vention necessary for the protection of any right claimed by them.^^ A petition to intervene is filed simply upon leave of the court, and need not be verified by affidavit, even in a suit for injunction commenced by a sworn petition.^* Parties properly before the court are required to take notice of an intervention filed by leave of the court. ^^ An order dismissing the suit after such intervention, and dis- missing the petition of intervention by agreement between the original parties and over the objection of the intervenor, is error. ^^ An intervenor asking relief against the other parties to the suit, occupies the position of a plaintiff, and the burden of proof rests upon him.^^ If no affirmative relief is asked by the other parties to the suit, and he fails to appear and prosecute his suit, the proper judgment is to dismiss his suit by intervention, for want of prosecution.^^ iBurdett v. Glasscock, 25 T. Sup. 45; Legg v. McNeill, 2 T. 428; Eccles V. Hill, 13 T. 67; Graves v. Hall, 27 T. 148; Smith v. Allen, 28 T. 497; Smalley v. Taylor, 33 T. 66S; Pool v. Sanford, 52 T. G21 ; Flem- ing V. Seeligson, 57 T. 524; Building Ass'n. v. King, 71 T. 729; Nenney V. Schluter, G2 T. 327; Stansell v. Fleming, 81 T. 294; State v. Farmers' Loan & Trust Co., 81 T. 530. 2 Graves v. Hall, 27 T. 147. 3 Mcllhenny v. Benz, 80 T. 1. * Whitman v. Willis, 51 T. 421; Fanbiou v. Rogers, G6 T. 472; Braden V. Gose, 57 T. 37; Spencer v. Rosenthall, 58 T. 4; Whitman v. Willis, 52 T. 421 ; Building Ass'n. v. King, 71 T. 729. 5 Fleming v. Seeligson, 57 T. 524. 6 Chandler v. Fulton, 10 T. 2. 7 Fox V. Willis, GO T. 373. 8 Mills V. Swearingen, 67 T. 269. 9 Carter v. Carter, 3G T. 693; Ryan v. Goldfrank, 58 T. 356; Rod- riguos V. Trevino, 54 T. 198. 1" Goodbar v. National Bank, 78 T. 461 ; Bateman v. Ramsey, 74 T. 589; Jolinson v. Heidenlieimer, 65 T. 263; Cook v. Pollard, 70 T. 723. "Nenney v. Schluter, 62 T. 328; Bateman v. Ramsey, 74 T. 589; Goodbar v. Nat. Bank, 78 T. 491. 675 Ch. 46.] PLEAS OF INTERVENTION, ETC. [§4:8( 12 Irvin V Ellis, 76 T. 164. 13 McKee v. Coffin, 66 T. 304. " Smith V. Allen, 28 T. 497. 15 Fleming v. Seeligsou, 57 T. 524. 16 Nix V. Dukes, 58^T. 96. " Wyatt V. Foster, 79 T. 413. 18 Noble V. Meyers, 76 T. 280. § 487. Party Interested in the subject matter of a collusive suit may intervene. A fraudulent diversion of a debtor's property may be as effectually accomplisbed by a collusive suit as by a direct transfer; and to prevent the illegal result of such a suit between an attaching creditor and the debtor, a junior attaching creditor may intervene in the case and protect his interests in the attached property, by showing that the plaintiff's demand is fictitious. An attachment secures to the creditor such a lien as en- titles him in equity to have all the obstructions to its fair enjoyment removed, and the creditor having a lien upon the property which he seeks to disencumber, need not aver the insolvency of the debtor.^ In a suit by an administrator upon a note given to his in- testate for the hire of personal property, a claimant of the property, alleging that.the intestate in hiring the property acted as his agent, and that the ownership of the property was then in controversy between the plaintiff and the inter- venor in another suit, was permitted to intervene.^ In a proceeding in garnishment the debtor is not a neces- sary party, but ho may intervene in the proceeding, and controvert the answer of the garnishee. And it seems that a garnishee who has failed to disclose the facts within his knowledge, showing that the property of the debtor in his hands was not subject to garnishment, is not protected by a judgment against him.'^ 1 Johnson & Co. v. Ileidenheimer, 6.") T. 263; citing Nenney v- Schliitor, 62T. 3.28. 2 Eocles V. Ilifl, 13 T. 65; see Robb v. Smith, 40 T. 80. 8 Civ. Stat. Art. 212 ; M. P. Ry. Co. v. Whipsker, 77 T. 14. 076 Ch. 46.] PLEAS OF INTERVENTION, ETC. [§§488, 489. § 488. Intervention not permitted when there is no privitj' of contract. Where there is no privity of contract between the plaint- iff and an intervener in a suit, and the cause of action sought to be enforced by the latter against the defendant is a contract between such intervener and the defendant, distinct from that which is the subject of litigation between the plaintiff and defendant, an intervention will not be allowed.^ The right of the intervener must be such that, had the original action never been commenced, and the intervener had brought the suit in his own name as sole plaintiff, he would have been entitled to recover in his own name, to the extent, at least, of a part of the relief sought; or, had the action been first brought against him as a defendant, he would have been able to defeat the recovery, in whole or in part.^ The proper remedy for one whose property is seized for the debt of another is by a claimant bond, and not by intervention.^ 1 Burditt V. Glasscock, 25 T. Sup. 45. 2 Pool V. Sanford, 52 T. G21; Rodrigues v, Trevino, 54 T. 198; Build- ing Ass'a. V. King, 71 T. 729. 3 Ryan v. Goldfrank, 5S T. 356; see Fleming v. Seeligson, 57 T. 524. § 489. Application for leave to intervene made, when. To entitle a party to intervene, his petition must shovr that his rights are involved in the cause, and that he is en- titled to the relief which he asks. His application for leave must be made in time to enable the original parties to meet and contest the issues raised by the intervention.^ It is immaterial at what stage of the case, previous to its final submission, this interest is interposed, provided the prin- cipal suit is not delayed to the prejudice of the other par- ties litiojant.^ 1 Smith V. Allen, 28 T. 497. 2 buialley v. Taylor, 33 T. 668. 677 Cb. 46.] PLEAS OF INTERVENTION, ETC. [§§490, 491. §490, Judgment on dismissal of intervention. On sustaining exceptions to a petition in intervention, the bill should be dismissed, without prejudice to the claim sought to be set up.^ A judgment dismissing a petition of intervention, is not such a final judgment as will authorize an appeal before final judgment in the suit.^ 1 Building Ass'n. v. King, 71 T- 729. 2 Stewart v. The State, 42 T. 242; Linn v. Arambould, 55 T. 620. §491. Interpleader allowed, when. When two persons claim the same debt or duty from an- other, and the person so charged does not know to whom he is liable, he is not required to expose himself to the hazard of a double judgment, and may compel such persons to interplead.^ When a judgment is obtained against a garnishee, on account of his indebtedness to another, and he is afterwards sued by his original creditor, he is entitled to have the plaintiff in the garnishment proceeding made a party to the suit, and to have a judgment which will protect him against being required to pay the same debt twice. ^ A garnishee who fails to disclose that the funds of the debtor in his hands are exempt from garnishment can- not claim protection for the amount so paid, where the de- fendant in the writ has not been cited, and has not volun- tarily appeared for the purpose of protecting his rights.^ 1 Wybrants v. Nichols, 3 T. 45S; Williams v. Wright, 20 T. 499; Iglehart v. Moore, 21 T. 50. a Westmoreland V. Miller, 8 T. 168; Iglehart v. Moore, 21 T. 501; Miller V. Taylor, 14 T. 538; Denison v. League, 16 T. 399; Taylor v. Gillean, 23 T. 508. 8 Mo. Pac. Ry. Co. v. Whipsker, 77 T. 14. 678 Ch. 47. — Verification of Pleadings. §492. Petition for a remedial writ by iuteriocutory order must be verified. 493. Answer must be verified, wben. 494. Afiidavit must cover tbe material issuable facts. 495. Affidavit must be positive and certain. 496. Effect of want of verification of an answer. §492. Petition for a remedial writ by interlocutory order ninst be verified. Judo;es of the District and County Courts have authority, either in term time or in vacation, to grant writs of man- damus, injunction, sequestration, attachment, garnishment, certiorari and supersedeas, and all other writs necessary to the enforcement of the jurisdiction of the court. ^ These writs may be issued upon the petition of the applicant show- ing himself entitled thereto, and verified by affidavit.^ As a general rule, it is not necessary to verify a petition for an injunction or other remedial writ, when the prayer is for relief only on final hearing.^ When a petition for injunc- tion shows a case entitling the plaintiff to relief, but the injunction is dissolved on the defendant's answer denying the equities alleged, the case should stand over for a hear- ino-.* When the answer denies the material alleirations in the petition, and the plaintiff, b}^ a verified amendment, traverses one material fact alleged in the answer, but leaves the truth of other equally material facts uncontroverted, it is proper to dissolve the injunction.-^ But it is the duty of the plaintiff, if he desires that his petition, after a dis- solution of the injunction, should be continued over as an original suit, to call the matter to the attention of the court and ask that the case be given that direction. Having failed to do so, he cannot complain in the appellate court that the entire proceedings were dismissed.^ It is not er- 679 Ch. 47.] VERIFICATION OF PLEADINGS. [§493. ror to dismiss a bill for injunction which is defective, where the plaintiff does not ask that it be continued for hearing with leave to amend.'' A mandamus may be issued to compel an officer to per- form a duty clearly imposed upon him by law,^ but not to control his action, when he is empowered to exercise dis- cretion in the matter.^ The petition for a mandamus must anticipate and answer every objection which may be urged against it.^° 1 Civ. Stat. Arts. 1123, 1170. a Civ. Stat. Alt. 1123. 3 Hamblen v. Knight, 60 T. 36; Eccles v. Daniels, 16 T. 136; see Lively v. Briston, 12 T. 60; Edringtou v. Allsbrooks, 21 T. 186; Dear- born v. Phillips, 21 T. 449. 4 Floyd V. Turner, 23 T. 292; Kelley v. Whitmore, 41 T. 647; Texas Land Co. v. Turman, 53 T. 619; Hall v. MeComas, 59 T. 484; Washing- ton County V. Schulz, 63 T. 32; Love v. Powell, 67 T. 15. s Herron v. De Burd, 2S T. 602. 6 Baldridge v. Cook, 27 T. 565; Washington County v. Schulz, 63 T. 32; Pullen v. Baker, 41 T. 419. 7 Gaskins v. Peebles, 44 T. 390; Hall v. McComas, 59 T. 484. 8 Marshall v. Clark, 22 T. 23; Puckett v. White, 22 T. 559; Durrettv. Crosby, 28 T. 687; Railroad Co. v. Commissioner, 30 T. 382; A^oorhies v. Mayor, 70 T. 331. 9 Cullem V. Latimer, 4 T. 329; Auditorial Board v. Aries, 15 T. 72; Walker V. Tarrant County, 20 T. 16; Auditorial Board v. Heudrick, 20 T. 60; Commissioner of the General Land Olllce v. Smith, 5 T. 471; Rains v. Simpson, 50 T. 495; Bledsoe v. International Railroad Co., 40 T. 544; Ewiug v. Cohen, 63 T. 4S3; Sansom v. Mercer, 68 T. 488. 10 Houston Tap & Brazoria R. Co. v. Randolph, 24 T. 317; Cullem v. Latimer, 4 T. 331. §493. Answer must Tbe verified, when. An answer setting up any of the following matters, un- less the truth of the pleadings appear of record, nuist be verified by affidavit : 1st. That the suit is not commenced in the proper county. 2(1. That the plaintiff has not legal capacity to sue. 3d. That plaintiff is not entitled to re- cover in the capacity in which he sues. 4tli. That there is another suit pending in this state between the same parties for the same cause of action. 5th. That there is a defect 680 Ch. 47.] VERIFICATIOX OF PLEADINGS. [§494. of the parties plaintiff or defendant. 6th. A denial of partnership as alleged in the petition, whether the same be on the part of the plaintiff or defendant. 7th. That the plaintiff or defendant, alleged in the petition to be duly in- corporated, is not duly incorporated. 8th. A denial of the execution by himself, or by his authority, of any instrument in Avriting upon which any pleading is founded, in whole or in part, and charged to have been executed by him, or by his authority, and not alleged to be lost or destroyed. Where such instrument is charged to have been executed by a person, then deceased, the affidavit will be sufficient if it state that the affiant has reason to believe, and does be- lieve, that such instrument was not executed by the dece- dent, or by his authority. 9th. A plea denying the gen- uineness of the indorsement or assignment of a written in- strument. In this case the affidavit must state that affiant has good cause to believe, and verily does believe, that such assignment or indorsement is forced. 10th . That a written instrument, upon which a pleading is founded, is without consideration, or that the consideration of the same has failed, in whole or in part. 11th. That an account, which is the foundation of the plaintiff's action, and supported by an affidavit, is not just. In this case the answer must set forth the items and particulars which are unjust. 12th. That the contract sued upon is usurious.^ 13th. That no- tice for a claim for damages, as required by contract, has not been given. ^ 1 Civ. Stat. Art. 1265. 2 Act March 4th, 1801; 21 Leg., p. 20. §494. The affidavit must cover the material, issu- able facts. The affidavit must be to the truth of the facts set forth in the pleading, by which is meant the material issuable facts; constituting, on the one hand, the plaintiff's right to a recovery on the merits of the case, and, on the other 681 Ch. 47.] VERIFICATION OF PLEADINGS. [§494. hand, the defense relied upon in the pleu; and Hot such matters as are only issuable or available to the defendant by pleading in abatement, such as the residence of the par- ties,^ facts alleged to give jurisdiction, etc.^ It is, there- fore, a sufficient compliance with the statute, if the affidavit contain all the material substantive matter set forth in the petition, or in the answer,^ without other formal verifica- tion of the truth of the matter set forth in the pleading. In a suit by attachment, the facts which must be verified are the material, issuable facts alles-ed as constitutins: the plaintiff's right to a recovery on the merits of his case, and the additional fact or facts which authorize the issu- ance of the writ for which application is made.^ In a suit by attachment on a promissory note, an affidavit of the amount due from the defendant to the plaintiff, is a substantial compliance with the statute which requires the petition to be sworn to,^ The nature or character of the debt, or the fact that it is secured by a mortgage, need not be stated in the affidavit for attachment.^ In a suit by attachment, the petition alleged that the defendant is justly indebted to plaintiffs in the sum of two thousand dollars. The note is then set out, with certain credits in- dorsed on it. It is evident the plaintiff's agent, who made the affidavit, "that the facts set forth in the petition are true," did not intend to make oath that two thousand dol- lars (the sum claimed in the petition) was the amount of the plaintiff's demand; for the petition itself showed that that sum was not due. The amount of the defendant's in- debtedness is not stated in the petition or affidavit. It can only be arrived at by a calculation founded upon the state- ments of the petition of the amount of the note sued on, and the payments and credits to which it is entitled. The statute has not been complied Avith in terms, nor certainly in substance. It is not a necessary conclusion from tlie petition that the amount of the note, less the admitted payments, is justly due the plaintiffs. The defendant may CS2 Ch. 47.] VERIFICATION OF PLEADINGS. [§494. have demands which he is entitled to have set off against the note. The requirement of the statute is plain and positive, and ought to be observed. A literal compliance is just as easy as a substantial or virtual compliance, andL has the advantage that it avoids the necessity of construing language which may admit of different meanings. Proceed- ings in attachment are construed strictly, and so construed, the court rightly held the affidavit insufficient.'^ In a suit on promissory notes and accounts, an affidavit that the defendant is indebted to the plaintiff "in the sev- eral sums of money mentioned in the petition," was held to be a substantial compliance with the statute, which re- quires the affidavit for attachment to state the sum due.^ In Kennedy v. Morrison, 31 T. 207, the two cases last cited are reviewed, and it was held that if the petition, verified by affidavit, gave a full statement of the causes and foundation of the indebtedness, as well as the non-payment of the same, there was a sufficient compliance with the 'statute; that the omission of the word "justly" in the affidavit, was no objection ; that whether or not the claim is justly due, does not depend upon the sworn statement of the party to the justness, but upon the proper allegations of the indebtedness, showing the same to be just, and this statement to be under oath. For the purpose of determining the sufficiency of the petition on an exception to the writ by a motion to quash the attachment, the petition and the affidavit will be con- sidered together as parts of the same pleading. Thus, it has been held that in a proceeding by attachment upon claims, part of which are due and part not due, it is not necessary that the affidavit should show, in terms, how much of the debt was due and how much not due, when the petition and affidavit, whjch refer fo each other, contain the requisite data for making certain that fact by calculation.^ Plaintiff prayed in his petition for a writ of attachment against the property of the defendant for $100. In his 683 Cll. 47.] VERIFICATION OF PLEADINGS. [§494. petition, he stated the amount of his demand at $231.37, with interest on $146.20 thereof at the rate of ten per cent, per annum, and with hiwful interest on $85.17 thereof from December 8tii until paid. His affidavit for attach- ment stated the amount of his demand at the sum of $257.40, for which the writ was issued. It was held that the amount of the debt was not shown with sufficient cer- tainty by the averments of the petition and affidavit, and that the writ was properly quashed on account of the vari- ance. ^*^ Where the affidavit stated that the debt was due at one time, and the petition stated a different time, the pleading was fatally defective, and the error could be reached by a plea in abatement as well as by a motion to quash. ^^ Where the word "is" was omitted before the words * 'justly indebted," reading, "the defendant F. justly in- debted," it was held that the language had no meaning, and the attachment was fatally defective. ^^ In a suit against two defendants, an affidavit which stated that "the attachment is not sued out for the purpose of injuring or harassing the defendant," was fatally defective on account of the use of the word "defendant" instead of "defend- ants. "^^ Where the petition alleged that the plaintiffs and de- fendant were non-residents of this state, but that the de- fendant had property in the county where the suit was commenced, it was held that the allegation as to the de- fendant's property was of a jurisdictional fact, which it was not necessary to verify by affidavit, in order to obtain an attachment; that the separate affidavit of the non-residence of the defendant, that the chum was just, stating the amount due, and that the attachment was not sued out to injure or harass the defendant, was sufficient.^* And in such separate affidavit, it is not necessary to state the 684 Ch. 47,] VEEIFICATIOX OF PLEADINGS. [§495, nature or character of the debt, or the fact that it is secured by a mortgage.^^ 1 Primrose v. Eoden, U T. 1 ; Schrimpf v. McArdle, 13 T. 36S. 2 Wilson V. Adams, 15 T. 323; Wriglit v. Kagland, IS T. 289. 3 Schrimpf v. McArdle, 13 T. 368; Trimrose v. Eoden, U T. 1. * Primrose v. Roden, 14 T. 1; Morgan v. Johnson, 15 T. 568; Seawell V. Lowery, 16 T. 47. 5 Seawell v. Lowery, 16 T. 47; Morgan v. Johnson, 15 T. 568. 6 Barbee v. Holder, 24 T. 225. 7 Marshall v. Alley, 25 T. 342. * Morgan v. Johnson, 15 T. 568. 9 Willis V. Mooring, 63 T. 340; Miinzenheimer v. Cloak Co., 79 T. 318. 10 Joiner v. Perkins, 59 T. 300; citing Brown v. Martin, 19 T. 343; Marshall v. Alley, 25 T. 342; Espey v. Heidenheimer, 58 T. 662. " Evans v. Tucker, 59 T. 249. 12 Bank v. Flippen, 66 T. 610. 13 Berrill v. Kaufman, 72 T. 214; Gunst v. Pelham, 74 T. 586. " Wright V. Ragland, 18 T. 289. 15 Barbee v. Holder, 24 T. 225; see Espey v. Heidenheimer. 58 T. 662; Lewis V. Stewart, 02 T. 352. §495. The affidavit iiuist he positive and certain. The affidavit must be to the truth of the facts set forth in the pleading, not to the best of the knowledge and be- lief of the affiant, but to his actual knowledge of the facts. ^ If the facts stated are not within the personal knowledge of the affiant, he should state them on information and be- lief, and annex the affidavit of the person from Avhom he obtained the information, or of some person who can swear to the truth of the material allegations in the pleading. ^ To this rule there is an exception in the case of the plea of non est fa ciwn, hy ii person who is sued as the repre- sentative of another; in this, it is sufficient to cast suspi- cion upon the instrument to which the plea is offered, by the affidavit of such representative,^ that he has reason to believe, and does believe, that such instrument was not ex- ecuted by the decedent or by his authority.'* In a suit instituted by the assignee or indorsee of any written instrument, the indorsement or assignment may be put in issue by a plea denying that the same is genuine, 085 Cb. 47.] VERIFICATION OF PLEADINGS. [§495. accompanied by an affidavit of the defendant stating that he has good cause to believe, and verily does believe, that such assignment or indorsement is foroed.^ The verification of a pleading may be made by the party, his agent, or attorney.*^ The verification or affidavit must be in writing, and must be certified by the officer by whom the oath is administered. It is necessary that it shoukl be signed by the affiant. If the pleading has in fact been sworn to, but the authentication by the proper officer has been omitted, or is informal, or defective, it may be sup- plied or corrected by amendment.'' But if the affirmation has not in fact been made, or if any material fact has not been stated, by the omission of which it is defective, the defect cannot be cured by amendment.^ Though an 'affi- davit for attachment may be bad for uncertainty, yet if there be another affidavit verifying the allegations in the petition for the writ, and the allegation as to the cause of attachment be distinct, specific and sufficient as to the ex- istence of a statutory ground, it will support the writ.^ The statutory grounds for attachment which must be sworn to, may be verified by the affidavits of two different at- torneys, each attorney 'swearing to different facts, provided the two affidavits cover all the facts required to be sworn to by the statute to authorize the writ. In this case, one affidavit was to the justness of the debt and its amount, and the other covered the other statutoiy grounds for the writ.^" 1 Sydnor v. Totinan, 6 T. 189; Wilson v. Ailams, 15 T. 323; Davis v. Campbell, 35 T. 779; Graham v. McCaity, 69 T. 323. 2 3 Dan. Ch. Pr. 1834, note 2. 3 Civ. Stat. Art. 5. 4 Civ. Stat. Art. 1265. fi Civ. Stat. Arts. 271, 1265. «Civ. Stat. Art. 6. 7 May v. Fcrrell, 22 T. 340; Whittenberg v. Lloyd, 49 T. 633; see Gray v. Steedman, 63 T. 95; Focke v. Hardeman, 67 T. 173. 8 Sydnor v. Chambers, Dallam 601 ; Avery v. Zander, 77 T. 207; Marx v. Abramson, 53 T. 264. 9 DuntKMibaiun v. Schram, 59 T. 281. "> Lewis v. Stewart, 62 T. 352. 6S6 Ch. 47.] VERIFICATION OF PLEADINGS. [§496. §490. Effect of want of verifleation of an answer. The statute requires that an answer setting up certain matters of defense shall be verified.' In Williams v. Bailes, 9 T. 61, a plea impeaching the consideration of a sealed instrument, but not verified by affidavit, was filed by the defendant, and the admission of evidence under the plea was objected to on that ground. It is said by the court, that if the plea, without an aflldavit, was a nullity, it is no plea, and may be wholly disregarded. But this requirement of the statute is not for the benefit of the defendant, but for that of the plaintiff. Were it not for the restriction of the statute, the plea would not re- quire the support of an oath. This is an advantage to the plaintiff which could be expressly waived, and, if waived by implication, he is bound by his act. As a general rule, all exceptions touching the legal sufiicienc}', whether of form or of substance, of the pleading of the parties, should be taken before they go to trial upon the issues of fact. If an objection were subsequently allowed, it might operate as a surprise, and greatly to the injury of a party, especially as he is then precluded from curing the defect by amend- ment. And it was held that, while the plea, not verified by affidavit, did not cast the burden of proof upon the plaintiff, the defendant could introduce evidence in his own defense. An objection to the form in which a defense is presented must be taken and disposed of by exception. ^ When a special plea, not verified as required by statute, has been filed, and there has been a trial, and afterwards a new trial granted, the objection, for want of verification, is waived.^ In Drew v. Harrison, 12 T. 279, it was held that a plea which denied the execution of the note sued on, or the partnership of the defendants who are charged to have exe- cuted the note in their partnership name, if not verified by affidavit, was a nullity, and evidence under it was inadmis- sible. This case is distinguished from Williams v. Bailes, GS7 Cll. 47.] VERIFICATION OF PLEADINGS. [§496. fiupra, in this, that under the plea impeaching the consid- eration of an instrument in writing, which implies a consid- eration, the defendant took upon himself the burden of proof, while the plea of non est factum imposed the burden of proof upon the plaintiff, and this he could not be re- quired to assume, unless imposed upon him in the mode pre- scribed by the statute. In a suit upon partnership note against the surviving partner, whose name did not appear in the j^artnership name, he pleaded that he was at no time a member of the firm, and denied the allegations of the petition. The plea was not sworn to. It was held that his answer was in effect a plea of non ef^t factum, and a nullity.^ AVhere the petition alleged that the defendant, through his agent, executed the instrument sued on, though the name of the defendant be not siijned thereto, the burden of proof is upon the defendant to show that he did not authorize it to be executed, in the absence of a plea of non est factum duly verified.^ In an action upon a note and account, the defendant plead payment and offsets, and set out in his answer a receipt for the amount paid. It was held that the instrument was within the statute requiring a denial of its execution to be verified by affidavit.*" When the petition alleged that the defendant, through his agent, executed the instrument sued on, but the name of the defendant was not signed thereto, in the absence of a plea of non est factum, the burden of proof is upon the defendant to show that he did not siirn it, or authorize it to be executed.^ The denial of the execution of an instrument in writing, on which a pleading is founded in whole or in part, and which is charjifcd to have been executed bv defendant, an incorporated company, through its president and secretary, nuist be verified bv affidavit. The fact that the instrument set forth in the pleading is ambiguous on its face, and does GSS Ch. 47.] VERIFICATION OF PLEADINGS. [§496. not clearly, by its terms, purport to be the act of the com- pany, does not vary the rule. If the statute referred only to such instruments as, on their face, purport to be the act of the person by whom or by whose authority they are alleged to have been executed, a different rule might apply.^ ^Ante, §493. 2 Gaines v. Salmon, 16 T. 311; Williams v. Bailes, 16 T. 61; Powers V. Caldwell, 25 T. 352; Johnson v. Granger, 51 T. 42; Booth v. Pickett, 53 T. 436. 3 Rankert v. Clow, 16 T. 9. 4 Persons v. Frost, 25 T. Sup. 129. « Sessums v. Henry, 38 T. 37. 6 May V. Pollard, 28 T. 677. 7 Sessums v. Henry, 38 T. 37. 8 City Water Works v. White, 61 T. 536. (44— Plead. Forms.) 689 Ch. 48. — Amendment of Pleadings. §497. Pleadings may be amended. 498. Pleadings may be amended in vacation. 499. Defensive pleadings may be amended. 500. Verified pleadings may be amended. 501. Amendments in suit by attachment. 502. Amendment in suits on service by publication. 503. Amendment allowed as a matter of course, when. 504. Terms may be imposed. 505. Amendment alleging new matter made, when. 506. Amendment, how made. 507. Trial amendment, when and how made. 608. Notice of amendment must be given, Avhen. 509. Amendments allowed in matters of form. 510. Omissions may be supplied. 511. Mistakes may be corrected. 512. Parlies maybe changed. 513. A new cause of action may be set up. 514. An amendment setting up a new cause of action subject to existing defenses. 515. New cause of action defined. 516. Cases in which a new cause is alleged. 517. Cases in which a new cause of action is not alleged. 518. Effect of an amendment upon previous pleadings. §497. Pleading's may be anioinletl. At common law, parties were allowed to correct and adjust their pleadings during the oral altercations, and were not held to the form of statement they might first advance. When the pleadings Avere afterwards reduced to writing, either party was at liberty to amend before judgment was signed, leave to do which was granted as of course upon proper and reasonable terms. ^ Under the statute^ regulat- ing proceedings in the District and CoinUy Courts, plead- ings in all suits may be amended when the court is in ses- sion under leave of the court, upon such terms as it may pre- scribe, at any time before the ])artics announce themselves ready for trial, and not thereafter. But an announcement 690 Ch. 48.] AMENDMENT OF PLEADINGS. [§498. of readiness for trial made before the issues of law have been disposed of, is made subject to the right to amend after the judgment of the court upon the issues of law.^ A permission to amend will not ordinarily be given after an announcement for trial on t*he facts ; but the permitting of an immaterial amendment after such announcement is not reversible error.* In Harris v. Spence, 70 T. 616, it is said, that after an- nouncement of ready for trial the court cannot allow an* amendment to the pleadings as a matter of course. In this case no showing of surprise or injury was made at the time or afterwards, as a basis for the court to act upon the amendment to the j)leadings as asked. In Railway Co. v. Goldberg, 68 T. 685, it is said, that the statute is directory and that it is not error for the court, in the exercise of a sound discretion, to alloAV the pleading to be amended after the trial has commenced.^ A defendant who has been cited, but has not answered, must be notified of every amendment which sets up a new cause of action, or authorizes a more onerous judgment against him. If the defendant has an- swered, the only notice to which he is entitled is the order of the court granting leave to file the amendment.^ 1 Stephens on PL 75. 2 Civ. Stat. Art. 1192, and the amendment of March 6th, 1S89; 21 Leg., p. 9. 3 Jennings v. Moss, 4 T. 4,i2; Croft v. Kains, 10 T. 520; De Witt v. .Jones, 17 T. 620. * Petty V. Lang, SI T. 238. 5 See Whitehead v. Foley, 28 T. 10; Obert v. Landa, 59 T. 475; Par- ker V. Spencer, 61 T. 155; Foster v. Smith, 66 T. 680; Hefliu v. Burns, 70 T. 347. 6 Rabb V. Rogers, 67 T. 336; and see Armstrong v. Bean, 59 T. 492. §498. Pleadings may be amended in vacation. All parties to a suit may, in vacation, amend their plead- ino;s, may file suggestions of death and make representative parties, and may make new parties, and file such other pleas with the clerk of the court in which suit is pending as they 691 Ch. 48.] AMENDMENT OF PLEADINGS. [§499. may desire. Any party may, in vacation, intervene in any suit pending such amendments and pleas, subject to be stricken out at the next term of the court, on motion of the opposite party to the suit, for sufficient cause shown or ex- isting, to be determined by the court. It is the duty of the party filing such pleadings to notify the opposite party or his attorneys of the filing of such papers, within five days from the filing of the same.^ 1 Act March, 1S89, 21 Leg., p. 9. The language of the act is not very clear, but seems intended to authorize an intervention in vacation in any pending suit. §499. Defensive pleadings may be amended. The defendant is required to present all of his defenses, whether consisting in matters of law or fact, at the same time and in the due order of pleading ;i but the same indul- gence will be allowed to him as to the plaintiff, in amend- ing his pleadings for the purpose of correcting any error, or suppljnng any omission in the statement of the grounds of his defense ;2 and where a ground of defense has arisen or been discovered since the answer was filed, it mav be pre- sented by an amendment in the nature of a plea ^^^^s dar- rein continuance. Where a set-off against the plaintiff's claim was acquired after suit was brought, the defendant was permitted to plead it by an amendment.^ The defendant cannot, under leave to amend, present an- swers out of the due order of pleading; he cannot present a special exception after a plea;'^ or offer a plea in abate- ment after a plea in bar.^ If, however, after pleading to an issue of fact, the defendant discovers that there was a legal defense which should have been interposed, by mak- ing a timely application tp the court for leave to withdraw the defense, first made, and to interpose the defense at law, leave will be granted, upon such terms as niay be just and proper;^ but leave would rarely, if ever, be granted to with- 692 Cb. 48.] AMENDMENT OF PLEADINGS. [§§500, 501. draw a plea in order to interpose a special exception,' or a jjlea in abatement,^ as these are not favored by the court. 1 Civ. Stat. Art. 12G2. 2 Lee V. Hamilton, 12 T. 413. ^ Gaines v. Salmon, 16 T. 311. 4 Walling V. Williams, 4 T. 427. 5 Moke V. Fellman, 17 T. 367. « Walling V. AVilliams, 4 T. 427; Williams v. Randon, 10 T. 74. 7 Williams v. Randon, 10 T. 74. « Moke V. Fellman, 17 T. 367. §500. Verified pleadings may be amended. A pleading which has been verified by aifidavit may be amended as in other cases, but if the amendment is not in some merely formal matter, and varies materially the orig- inal statement, it ought to be made clearly to appear that the misstatement was founded upon a mistake, and the fact is open to observation, unless clearly explained.^ 1 Lee V. Hamilton, 12 T. 413; Forbes v. Davis, IS T. 268; McDonald V. Tinnon, 20 T. 245. §501. Amendments in suit by attachment. In Tarkington v. Broussard, 51 T. 550, a suit by attach- ment, the petition was defective in not alleging the execu- tion, delivery and ownership of the note upon which the suit was based, but the affidavit for the writ stated all the facts required by the statute. It was held that the petition could be amended so as to support the attachment. In Marx v. Abramson, 53 T. 264, it is said that, while an amendment of a petition will relate back and cure defective allegations in the original petition in regard to the same cause of action, it will not aid a defective affidavit for at- tachment. In a suit by attachment upon a promissory note, by an amended petition, the plaintiff set up the account for which the note was given, and a judgment was rendered upon the account. It was held that the change in the cause of action in the pleadings was fatal to the attachment.^ 693 Cll. 48.] AMENDMENT OF PLEADINGS. [§502. In a suit upon several notes and accounts, an affidavit for attachment was made, alleging the indebtedness to be the aggregate of the claims set out in the petition. Neither the petition nor the affidavit showed what of the claims were due and what not due at the filing of the suit. This defect in the petition was subsequently cured by amendment. It was held that the defects in the writ of attachment pre- viously issued were not cured by the amendment. ^ In a suit to recover a debt, in which an attachment was issued, the petition alleged that a certain part of the entire sum claimed became due on Januarj'^ 1st, 1887, and the amendment so varied this as to allege that the same sum was due before the filing of the suit on the thirteenth of that month, and it further stated, when the sum, not due when the action was brought, would become due. These were matters subject to amendment at any time before the trial began, and in no manner a:ffected the validity of the attachment. The right to an attachment docs not depend on the fact that the debt sued for is due ; but it has been held that, if all the claims be not due, the affidavit should show how much has matured and how much has not.^ When, however, the petition and affidavit, which refer to each other, contain the requisite data for making certain that fact by calculation, the omission to state how much is due and how much is not due is immaterial.^ 1 Lutterloh v. Mcllhenny Co., 7-4 T. 73. 2 Avery v. Zander, 77 T. 207. 3 Cox V. Reinhardt, 41 T. 591; Evans v. Tucker, 59 T. 250; Selegson V. Hobby, 51 T. 147; Donnelly v. Elser, 69 T. 2S2. 4 Willis v. Mooring, 63 T. 340; Munzenheimer v. Cloak and Suit Co., 79 T. 318. §502. Amendment in suit on service by publication. The seizure of the property of a non-resident by attach- ment, in a suit by publication, is not notice. Notice must be given either by personal service or by publication ; and when by publication, it will not authorize as against a de- 694 Ch. 48.] AMENDMENT OF PLEADINGS. [§503. fendant not personally served, and who makes no appear- ance, a judgment on a new cause of action set up by way of amendment, and of which no notice is given by publication. Unless this notice is legally given, no court has the power or jurisdiction to order a sale of the defendant's property though in custodia legis by virtue of its seizure under a valid attachment.^ 1 Stewart v. Anderson, 70 T. 5SS. §503. Amendments allowed as a matter of course, when. Amendments are allowed as a matter of course after an exception to a pleading has been sustained,^ and in any small matter, such as filling blanks, correcting errors in dates, misdescription of premises,^ misnomer of parties,^ clerical errors, and generally in matters of form ;^ — and where such amendments have been made, without leave of the court, but are proper in themselves, and in proper time, and do not occasion surprise or prejudice to the opposite party, the court will refuse to strike them out upon motion, such refusal being in effect equivalent to leave to amend.* Amendments may be made after a plea in abatement, so as to obviate the objections presented by the plea, such as mis- nomer, ° or improper joinder of parties.*^ AVhere an excep- tion to a pleading has been overruled, it is not error to per- mit the pleading to be amended in the matter pointed out by the exception." ♦ i.Tenniugs v. Moss, 4 T. 452; Croft v. Rains, 10 T. 520; De Witt v. Jones, 17 T. 620. 2 Connelly. Chandler, 11 T. 249. 3 Cartwright v. Chabert, 3 T. 261 ; Phillips v. Patillo. IS T. 5] 8. n^hillips V. Patillo, IS T. r)18; Teas v. McDonald, ];{ T. :Uii. 6 Cartvvright v. Chabert, 3 T. 261 ; Tryon v. Butler, 9 T. 553; Eabb v. Rogers, 67 T. 335. •^ Toiisey v. Butler. 9 T. 525. ' Hutchins v. Wade, 20 T. 7. 695 Ch. 48.] AMENDMENT OF PLEADINGS. [§504. §504. Terms may be imposed. Amendments must be made under the direction of the court and upon such terms as it shall impose/ which are, usually, the payment of the costs of the amendment, or the costs occasioned by the defective jjleadings.^ So the court may require the amendment to be made within a spec- ified tinie.^ If new matter is embraced in the amendment, the opposite party will be entitled to a continuance, if it is necessary for the purpose of preparing for trial;* but, if the amendment is proper, and in proper time, and the party offering it has been guilty of no laches, it will not author- ize a continuance of the cause, unless it is made to appear by affidaA'it that the amendment makes it necessary to jjro- duce evidence which would not have been required if the amendment had not been made, and that the party has a good defense, which can be proved by witnesses, whose at- tendance was not procured, because not expected to be needed.^ As the party has the right to amend when an exception to a pleading has been sustained,^ or to correct any error or mistake apparent upon a pleading,'^ the motion to amend may be made orally, and it is not necessary to show spe- cifically the character of the amendment intended to be made. Motion for leave to amend, in all other cases, should regularly be made in writing and signed; should specify the particular pleading desired to be amended, and the nature of the amendment proposed, and siiould be filed, together with the showing in support of it (if its necessity be not apparent of record), and docketed. If the motion to amend is overruled, the bill of exceptions must show the proposed amendment, and all of the facts upon which the court acted. *^ 1 Act March Gth, 18S9; 21 Leg., p. 9. 2D!iu.Cb. Pr. 4G7. 3 Hardy v. De Leon. 5 T. 211 . 4 Turner v. Lanibetli. 2 T. 365; see Cowan v. Williams, 49 T. 380; Railway v. Henuing, 52 T. 466. 696 Ch. 48.] AMENDMENT OF PLEADINGS. [§'"305. * Cummings v. Rice & Xichols, 9 T. 527; Fisk v. Miller. 13 T. -224; Johns V. Xorthcutt, 49 T. 444. « Rittcr V. Hamilton, 4 T. 325; Hollis v. Border, 10 T.360; McDonald V. Tiunon, 20 T. 245. " Danzy v. Smith, 4 T. 411. 8 De Witt V. Jones, 17 T. 620; Reid v. Allen, IS T. 241; Dauzy v. Smith, 4 T. 411 ; Hall v. York, 22 T. G41. §505. Amendnieut allegiug- new matter made, when. If the amendment presents new matter, rendering neces- sary the introduction of proof, it should be made at the ear- liest practicable period, so as not to operate as a surprise upon the opposite party, or delay the progress of the cause unnecessarily. If the matter is not newly discovered, or has not occurred since the filing of the pleading sought to be amended, some good excuse should be shown for the failure to plead it sooner. It is the duty of parties to pre- sent the grounds upon which they rely for their action or defense, clearly and distinctly, within the time allowed for pleading, and they have not the right to hold back the real matters in controversy to an indefinite future time. No course could more effectually thwart the administration of justice than this mode of pleading. A primary object of judicial proceeding is that litigation may be not only justly but speedily terminated. The delay of the law, even when unavoidable, operates frequently as a most grievous hard- ship ; but the oppression would be intolerable if courts had no power to arrest experiments resulting inevitaljly in the indefinite extension of such dela}^ and to enforce such promptitude as, while not sacrificing the rights of the vigi- lant, would yet prevent the course of justice from being trifled with, and the cause from being unreasonabi v retarded. There would be no end of a cause, if it were indefinitelv open for new pleadings and issues. Dispatch in judicial proceedings cannot be too highly appreciated.^ When the court refuses leave to amend, the point should be reserved by a bill of exceptions, in which the amendment proposed and the facts upon which the court acted should be stated.^ 697 Ch. 48.] AMENDMENT OF PLEADINGS. r§§5<^<^j ^07. Where the plaintiff, by an amendment, changes the char- acter of his case, or introduces new matter, it must clearly appear that the defendant will not be prejudiced by such amendment ; and, consequently, where a defendant was sued out of his county, and the averment of the original petition which gave the court jurisdiction was abandoned by the amendment, the suit was dismissed. '^ ^ McKensie v. Hamilton, Dallam 461; Levvin v. Houston, S T. 94; Keid V. Allen, IS T. 241; Trammell v. Swan, 25 T. 473; Moke v. Fell- man, 17 T. 3G7; Dan. Ch. Pr. 454-469. 2 De Witt V. Jones, 17 T. 620. 3 Henderson v. Kissam, 8 T. 46. § 506. Amendment, how^ made. An amendment of a pleading is made by a substitute therefor, entire and complete in itself, pointing out the instrument amended, and properly styled and endorsed, so as to show its character.^ The amendment need not state in terms that it is a sub- stitute for the pleading amended, but it is made such sub- stitute by the rule above cited.^ The sufficiency of an amended pleading is determined by its own allegations, without reference to anything contained in the original pleading.^ When new matter is, in its nature, a response to a preceding pleading of the opposite party, it may be stated in a supplemental pleading, styled plaintiff' s "supplemental petition," or defendant's "supplemental answer."* 1 Kule 13, District Court, ante, §325. 2 Gonzales v. Chartler, 63 T. 36. 3 Sinclair v. Dalieu, 73 T. 73. 4 Ante, §325, Rules 12, 13. §507. Trial amendment, when and how made. When exceptions to pleadings have been presented and decided, either party may file a "trial" amendment in one instrument, separate from those previously filed, which closes the pleadings in the case. Should the case not be then tried, the parties must replead as in other cases of amendments.^ 698 Ch. 48.] AMENDMENT OF PLEADINGS. [§508. When a pleading has been abandoned, it is not error to refuse leave to file it as a trial amendment.^ When an exception to a pleading has been overruled, there is no impropriety in, or injury resulting from, per- mitting a trial amendment, for the purpose of supplying in detail the defects pointed out by the exception. This is especially true when there is a doubt as to the correctness of the ruling of the court. ^ A mistake in stating the value of the claim sued on may be corrected by the plaintiff in a trial amendment, for the purpose of giving the court jurisdiction. If the value stated in the amended petition was fictitious, the defendant could have alleged and proved that fact, and so defeated the jurisdiction ; but, if that fact does not appear upon the face of the record, it furnishes no grounds for sustaining an exception to the jurisdiction.* A trial amendment cannot be made after the trial has commenced.^ 1 Ante, §325, Rule 23; Radam v. Microbe Destro5'er Co., 81 T. 122. 2 Contreras v. Hayues, 61 T. 103. 3 Hutchins v. Wade, 20 T. 7 ; Hays v. H. G. N. R. R. Co., 46 T. 272; Moore v. Moore, 73 T. 387 ; T. & P. Ry. Co. v. Huffman, S3 T. 286. * McDannell v. Cherry, 64 T. 177. 5 Contreras v. Haynes, 61 T. 103. §508. Notice of amendiuent must be given, when. It may be stated as a general rule that, where there has been a change in the pleadings of the plaintiff, by which a different cause of action from that set up in the original petition is stated, a judgment by default cannot be taken against the defendant, who has made no original appearance merely by reason of the service of the original petition.^ The filing of a paper in a cause, designated therein as an * 'amended petition," wherein one not before a party to the cause seeks to make himself a plaintiff in lieu of the orig- inal plaintiff, is an irregularity though filed w'ith leave of the court, and no judgment can be rendered thereon until 699 Cb. 48.] AMENDMENT OF PLEADINGS. [§509. after service thereof upon the defendant as in an original suit. The fact that defendant has not been cited to appear and answer the petition of such a party affords no ground for exception to the petition, thougli a plea to the jurisdic- tion of the person for want of service should be sustained. If, howev^er, after attempting to except to such petition, because there was no service thereof, the defendant answers in full to the merits, he will be regarded as having waived the irregularity of the proceeding. The rights of a party thus permitted to be made a party plaintiff were neither en- larged nor restricted by any proceedings had formerly between the original parties to the cause. ^ 1 Morrison v. Walker, 22 T. 18; Hntchinson v. Owen, 20 T. 287; Weatherford v. Van Alstyne, 22 T. 22; DeAValt v. Snow, 25 T. 321; Erskine v. Wilson, 27 T. 118; Furlow v. Miller, 30 T. 29; MeXeil v. Childress, 34 T. 371 ; King v. Goodson, 42 T. 153; Hewett v. Thomas, 46 T. 232; Pendleton v. Colville, 49 T. 526; Rabb v. Rogers, 67 T. 339; Stewart v. Anderson, 70 T. 588. 2 Armstrong v. Bean, 59 T. 492. § 509 . Amendments allowed in matters of form. It is the object of our system of practice to attain the real and substantial merits of the case, and mispleading in matter of form is never allowed to prejudice a party. If the cause of action or ground of defense is informally or defectively stated, the error is ground for a special excep- tion only,^ and may always be cured by amendment; or, if the exception is not made or insisted upon, it will be re- garded as waived. 2 But if, after a special exception has been sustained, a party fails to amend, and rests his cause upon a defective or insufficient pleading, judgment final will be rendered against him, and he can obtain no relief at any subsequent stage of the proceedings.^ On a motion to dissolve an injunction and dismiss the petition, because, among other reasons, "the petition is not verified by affidavit of the plaintiff," the plaintiff filed a motion to complete the affidavit to the petition nunc pro 700 CIl. 48. ] AMENDMENT OF PLEADINGS. [§510. tunc; and supported his motion by an affidavit that he swore to the petition at the time the judge of the district granted the^a^. The defect of the jurat was that there was no officer's name subscribed. The court said, if the judge was satisfied that he had administered the oath to the phiintiff at the time of granting the fiat, he could have completed the affidavit by signing his name to the jurat. If the judge would not thus amend it, because he was not satisfied of the fact, or for any other reason, plaintiif had no means of compelling him to do it, any more than he can compel an officer to amend a return ; nor had he any other means, by his own oath or otherwise, of supplying the defect.* When the claimant of property seized by attachment files, as such claimant, the statutory bond, and at the same time makes a written oath that his claim is made in good faith, the absence of the jurat, which through inadvertence was not attached to the affidavit, will not vitiate the proceed- ings if cured in time by amendment. ° 1 Frosh V. Swett, 2 T. 485; Wells v. Fairbanks, 5 T. 582; Holliman v. Rogers, 6 T. 91; Warner v. Baily, 7 T. 517; Perry v. Herbert, 8 T. 1; Moreland v. Atchison, 34 T. 351; Robinson v. Davenport, 40 T. 333; Hurt V. Cooper, 63 T. 362. 2 O'Conner v. Towns, 1 T. 107; Mims v. Mitchell, 1 T. 443; Jones v. Black, 1 T. 527; Petty v. Cleveland, 2 T. 404; Carter v. Carter, 5 T. 93; Chambers V. Miller, 9 T. 236; Elliott v. Mitchell, 28 T. 105; Floyd v. Rice, 2S T. 341; Headley v. Obenchain, 33 T. 082; Collins v. Warren, 63 T. 311. 3 Pitts V. Ennis, 1 T. 604. * Sims V. Redding, 20 T. 386. 5 Ryan v. Goldfrank, 58 T. 356; see Gray v. Steedman, 63 T. 95. §510. Omissions may lie supplied. In an action on a conditional promise, there was no aver- ment in the petition of the happening of the condition ; but afterwards, and after four years, an amendment was filed, which averred that the condition had happened before the commencement of the suit; it was held, that limitation was 701 Cll. 48.] AMENDMENT OF PLEADINGS. [§511. interrupted by the filing of the petition.^ In an action upon an account againi^t an estate, an allegation that the account had been duly presented and rejected by the admin- istrator was supplied by amendment. ^ Where the description of land, on which it was sought to foreclose a lien, was deficient in certainty, the plaintiff was permitted to give a more specific description in an amended petition.^ An amendment, which differs from the original petition only in stating more fully the result of injuries caused by defendant, does not set up such a new cause of action as would let the statute of limitations run between the filing of the two petitions.* An amended petition which sets up a right in the plaintiff to land, and which specifically sets forth the facts which constitute the alleged unfounded claim of defendants to such land, does not set up a new cause of action ; nor is a new cause of action set up by specifying more particularly the relief sought.^ 1 Kinney v. Lee, 10 T. 15"), 2 Coles V. Port is, 1ST. ir)5; Scoby v. Sweatt, 28 T. 713. 3 Lewis V. Denis, .fJ4 T. 4S7. * I. & G. N. Ky. Co. V. Irvine, 64 T. 529. fi Ross V. KornruQipf , G4 T. 390. §511. Mistakes may be corrected. In a petition for malicious prosecution, it was alleged that "defendants" made the affidavit for the warrant of arrest which constituted the gravamen of the action. By an amendment, it was alleged that the affidavit was made by only one of the defendants whose name appeared to it. It was held that the correction was properly nuide, "and did not constitute a new cause of action. ^ After a misnomer is plead in abatement, the plaintiff may correct the mistake by an amendment stating the true name.^ The names of the plaintiffs suing as a mercantile firm were stated as George Butler and Jonas Butler. After a plea in abatement, on account of a misnomer, the plaintiff was permitted, by an amendment, to set out the name cor- rectly.^ 702 Cb. 48.] AMENDMENT OF PLEADINGS. [§511. In Henderson v. Kissjim, 8 T. 46, in a suit on a note against the surviving co-maker and the representative of the other, whom he sought to charge as administrator, and after an action on the note was barred, the phiintiff amended bis petition by striking out the allegations against the last named defendant, and sought to charge him in bis indi- vidual capacity. It was held on appeal that the amend- ment set up a new cause of action barred b}* limitation. The jurisdiction of the suit was dependent upon the resi- dence of the last named defendant, and the judgment of the trial court was reversed and the suit dismissed. On the 15th of October, 1849, plaintiff commenced suit on a note due on the 2d of December, 1840. On the 7th of November, 1849, the plaintiff amended, alleging that, on the 21st of October, 1845, the defendant, by his indorse- ment in writing, signed by him, acknowledged the justice of the debt. On the 12th of December, 1850, the plaintiff again amended, alleging that the indorsement acknowl- edging the debt was made on the 25th of September, 1846. It was held, that the first amendment set up a new promise — and that the last amendment was an amendment of the first. Both set up the new promise. In that first filed, its date and precise terms were not accurately described; but the inaccuracies were corrected by the amendment last filed. It cannot be denied that it is the ofiice of an amendment to correct a misdescription of the cause of action, as well in respect to dates as in any other respect.^ A party suing as administrator, on a note alleged to be due his intestate, was allowed, after a plea of 7ie unques ad- ministrator, to amend by alleging that the note belonged to himself, and praying judgment thereon in his own right, subject to payment of costs, and any defense that mioht have accrued since the commencement of the suit.^ 1 Usherv. Skill more, 28 T. GIG; Walling v. Wini:iiiis,4 T. A-11 ; Turner V. Brown, 7 T. 4-^!). 2 Ciirtwright v. Chabcrt. S T. 2G1 ; AVillianis v. ITiilinir. 4!^ T. 113. STousev V. Butler, !) T. r)2.'); 'J'rvou v. Butler, 'J T.'o53; I'rldu-en v. McLean, 12 T. 4-20. " " 4 Turner v. Brown. 7 T. 4Sfl; Uslier v. Skidmore, 28 T. 616. « Whitehead v. Ilerron, 15 T. 127. 703 Ch. 48.] AMENDMENT OF PLEADINGS. [§512, §512. Parties may be chauged. Parties may be changed by the omission of an original party, or by the addition of a new one.^ The addition of the name of a silent partner to an amended petition in the firm name, does not change the character of the suit, pro- vided it does not deprive the defendant of any defense he would otherwise have." In a suit brought by husband and wife, as plaintiffs, on a cause of action in favor of the community interests of both, though the wife be an improper party, yet if her name be stricken from the case as plaintiff, and judgment be sought by the husband alone on the same cause of action, limitation against the action was stopped at the date of filing of the original petition.^ If a new party plaintiff is made after the filing of the original petition, limitation runs as to such party up to the date of his making himself a party.* The original petition was in the name of C. & J. W. T., as partners. An amendment alleged that the account was made with A. B., C. & J. W. T., as partners, and that A. B. died before the commencement of the suit. The change in the descrip- tion of the parties did not constitute a new cause of action.^ The plaintiff may change the character in which he sues, as where he sued as administrator he may amend and pray judgment in his own right ;^ and so, when a party uses the name of another in suino; for his own use, when he mil ; Lewis v. Davidson, 30 T. GGO. 3 Pennington v. Scliwartz, 70 T. 211. ^ Beal V. Alexander, G T. 531 ; Carter v. Reynolds, G T. 561. -5 Worthain v. Boyd, 06 T. 401. « Croft V. Rains, 10 T. oiO; Martin v. Parker, 2G T. 253, 7 Bradford v. Hamilton, 7 T. 5.5. « I. & G. N. R. R. Co. V. Pape, 73 T. 501. 706 Ch. 48.] AMENDMENT OF PLEADINGS. [§§514, 515. §514. An ameudiucut setting up a new cause of action subject to existing- defenses. An amendment setting up a new cause of action is subject to defenses existing at the time it is made. When the phiintiff claimed personal property by the ordinary allega- tions of ownership, and by an amendment claimed the prop- erty by a derivative title, subordinate to a right of posses- sion in the defendant, the latter constituted a different cause of action, which was subject to the bar of limitation.^ In a suit to enforce a vendor's lien against two-thirds of a half interest in a town lot, the plaintiff, by an amendment of which the defendant had no notice, claimed a lien upon one-half interest in the lot; on error, a judgment enforcing the lien last mentioned was reversed. ^ 1 Hopkins v. Wright, 17 T. 30. 2 King V. Goodson, 42 T. 152. §515. New cause of action defined. It is important to determine whether new matter intro- duced by amendment is merely for the correction of the original petition, wherein it is defective as a statement of the cause of action by reason of some mistake or omission, or whether it constitutes a new cause of action. In the former case, the amendment relates back to the filing of the original petition, and is regarded as having been made then; in the latter case, the amendment does not have relation back, but is considered as pending only from the time of filing, and is subject to all defenses then existing. It is difficult to state any general rule which is certain and pre- cise within itself, but the following rule may be deduced from the adjudicated cases, and is, perhaps, as definite as the subject will admit — if the subject matter of the suit or the rights or liabilities of the parties are changed by the amend- ment, it sets up a new cause of action; if the amendment contains matter of description only, or shows the right of action to be perfect, which, by the averments of the origi- 707 Ch. 48.] amp:ndment of pleadings. [§516. nal petition, was imperfect or iiiclioate, it relates baclv to and forms a part of tlie original petition. That an amendment enlarges the scope of recovery upon the act declared on in the original petition, does not set up a new cause of action.^ An amendment, seeking a different I'elief does not set up a new cause of action, nor does a prayer for a larger amount of damages, claimed as result- ing from facts set up in the former pleading. ^ "i Ry. Co. V. Pape, 73 T. 501. 2 Raleigh et al. v. Cook, GO T. 43S. §516. Cases in which a new cause of action is alleged. Suit was brought in October, 1848, to foreclose a mort- gage dated January, 1834, and an amendment was filed in 1851 setting up a decree obtained before a primary judge in 1835, for the seizure and sale of the mortgaged property ; it was held that the mortgage was merged in the judgment, and consequently that the amendment by which it was set up, alleged a new cause of action.^ Where the petition was founded upon a verbal request to pay an account, and a promise to refund the money, it was held that a new cause of action was set up by an amend- ment alleging, as the foundation of the suit, a ivritten order for the payment of the money. ^ When the plaintiff instituted suit upon two judgments, for the sura of seven hundred and fifty dollars each, alleged to have been recovered by him against the defendant upon two promissory notes, for the sum of seven hundred and fifty dollars each, in the State of Alabama, on the day of , 1846, and afterwards amended by striking out that description of the cause of action, and describing it as a judgment recovered by him against the defendant in the State of Alabama, on the 11th of May, 1846, for the sum of nineteen hundred and six 42-100 dollars, upon two prom- issory notes, for the sum of seven hundred and seventy-five dollars each, it was held that the amendment set up a new and distinct cause of action.^ 70S Cb. 48.] AMENDMENT OF TLEADINGS. [§516. When the instrument upon which the action is based is made an exhibit and filed as a part of the petition, it cannot be excluded on the ground of variance. If the instrument described and that exhibited are not substantially the same, the petition may, perhaps, be obnoxious to exception on acr count of repugnancy or inconsistency in its averments, but the objection cannot be taken to the admissibility of the instrument in evidence.* Suit was brought in Harris count}'^ against A., who re- sided in San Augustine county, and C, the representative of B., on a joint promise of A. and B. A. pleaded that he had been improperly sued out of the county of his dom- icile, and both defendants plead in bar of the action. After- wards, plaintiff amended by striking out so much of his pe- tition as charged C. in the capacity of representative of B., and substituting allegations charging him as the universal partner of B. He afterwards amended by alleging that no administration had been taken out on the succession of B. On appeal, it was held that, upon exception to the juris- diction of the court, the suit should have been dismissed." Suit was brought on a promissory note by plaintiff as ex- ecutor. By amendment, over two years after the institu- tion of the suit, plaintiff alleged that defendant had con- verted to his own use a horse, for which the note had been given, and asked judgment for the value of the horse. To this the defendant pleaded limitation, and it was held that the amendment set up a new and different cause of action, against which limitation ran until the filins; of the amend- ment.^ In a petition upon a note for the purchase money of land, and to enforce the vendor's lien, it was recited, on the face of the note, which was set out in the pleadings, that it was given as the purchase money for two-thirds of an un- divided interest in a designated lot of land. An amended petition, of which defendant had no notice, claimed a vendor's lien upon the one undivided half of the lot for 709 Cb. 48.] AMENDMENT OF PLEADINGS. [§516. which the note sued on was given, and judgment was rendered accordingly. Upon appeal, the judgment was reversed, on the ground that the defendant had no notice of the amendment.^ The plaintiff, in her original petition, claimed the prop- erty for which the suit was brought, as her individual prop- erty. By an amendment, she claimed the property as sur- viving widow under the laws of Virginia. It was held that the amendment presented a new cause of action.^ In the case last cited, a further averment in the amend- ment, that if the title of the plaintiff was not sustained as alleged, she was nevertheless entitled to a Avidow's share of said property, and other property of her deceased husband, was held to present a new cause of action. Her original claim was for the whole of the property by a title par- amount, antecedent to, and subversive of any right ou title in the estate of her husband, while, by the last averment in the amendment, it is admitted that the property belonged to her deceased husband, but claimed that she M'as entitled to a third by virtue of her marital rights. The amend- ment changed the suit from one for the recovery of prop- erty by a paramount and absolute title to one for the par- tition of property held by her in common with others. A petition, asserting title in the plaintiff, and seeking a re- covery in his right, Avas amended to assert title in an estate of which the plaintiff was administrator. Held, the amend- ment operated an abandonment of suit as first filed, and set up a cause of action in the estate.^ A married man brought suit to recover personal property in the separate right of his wife, and there was no aver- ment of any fact that made the property community prop- ertv. It was held that a lilaiutiff must recover in the riffht in which he sues, and upon the facts stated in his petition as the basis of that right, and that he cannot recover through a right adverse to that asserted, it matters not Yrhut the prayer of the petition may be.^'^ 710 Ch. 48.] AMENDMENT OF PLEADINGS. [§516. In an action for recoveiy of land, a warrantor of the de- fendants was made a party, but tiled no pleadings. At a subsequent term, the defendants, by amendment, set up the amount and payment of their purchase money, and asked judgment against their warrantor. This constituted a new cause of action different from that alleored in the ori<2;inal answer. ^^ The original answer onl}^ vouched the war- rantor in order that he misjht defend the suit ao'ainst the plaintiffs who claimed title to the land warranted, but did not state what had been paid for the land, nor ask any judgment against the warrantor upon a breach of the cov- enant for the purchase money. The only effect of this impleading was to require him to defend the suit against the plaintiffs, and to bind him in case a judgment of eviction should be rendered. ^'^ By the amended answer, the de- fendant alleged specifically the amount of the purchase money, the dates of payment, and other facts showing the liability of his warrantor upon the covenants of warranty, and then, for the first time, prayed for a personal judgment against him in case the land should be recovered by them. This constituted a new cause for action, different from that of the original answer, and the warrantor should have been given notice thereof .^^ In a suit filed on the 10th of November, 1886, the peti- tion alleo;ed a breach of an obligation on part of the de- fendantto plaintiff, to give him employment "for whatever length of time plaintiff might desire to retain such employ- ment." The breach of contract was alleged as of July 1st, 1886. By an amendment January 7th, 1881), it Avas alleged that the agreement was to give employment "for the pe- riod and term of the natural life of the plaintiff." It was held that the amendment set up a new cause of action, which was barred by the limitation of two years. ^^ D. having instituted suit against K., as administrator, upon a rejected account, assigned the claim to H., who filed a plea of intervention, setting up his purchase of the 711 Cll. 48.] AMENDMENT OF PLEADINGS. [§516. account, and asked to have the name of the original jDhiint- iff stricken out, and that he be allowed to prosecute the suit in his own name, it was held that the action was changed by the intervention so as to constitute a new suit, and that it should be regarded as pending only from the time of intervention, and was barred. ^^' Suit was brought on a promissory note by plaintiff, as executor. By amendment, over two years after the institu- tion of this suit, plaintiff alleged that defendant had con- verted to his own use a horse, for which the note had been executed, and asked judgment for the value of the horse. It was held that the amendment set up a new and different cause of action, against which limitation ran until the filing of the amendment. ^^ While an intervenor in an attachment proceeding may not have the ris^ht to attack the attachment for irreo^ular- ities, should a new debt in fact be substituted he would be entitled to protection against such new debt as basis for' the attach m en t.^^ 1 Ayres v. Cayce, 10 T. 99. 2 Williams v. Randen, 10 T. 74. 3 Carter v. Reynolds, 6 T. 561. •* Greenwood v. Anderson, 8 T. 225; Peters v. Crittenden, 8 T. 131; Pyrou V. Grinder, 25 T. Sup. 162; Spencer v. McCarty, 46 T. 213; Beham v. Gbio, 75 T. 87. 5 Henderson v. Klssam, 8 T. 46; Pool v. Pickett, 8 T. 122. 6 Wooldridge v. Hathaway, 45 T. 380. 7 King V. Goodson, 42 T. 153. 8 Hopkins v. Wright, 17 T. 30. 9 Morales v. Fisk, 66 T. 189. 10 Mllliken v. Snioot, 64 T. 171. " Morrison v. Walker, 22 T. 18; DeWalt v. Snow, 25 T. 320. 12 Clark V. Mumford, 62 T. 531; Johnson v. Heidenheinier, 65 T. 263. "Mann v. Mathews, 82 T. 9S, citing DeWalt v. Snow, 25 T. 320; Morrison v. Walker, 22 T. 18. " Ry. Co. V. Scott, 75 'J\ 84; see Morris v. Kasling, 79 T. 141 ; Mann V. Mathews, 82 T. 98; Sweetzer v. Claliin, 82 T. 513; Fort Worth Pub. Co. V. Hitson, SOT. 217. i« Koschwitz V. Healy, 36 T. 666. J« Wooldridge v. Hathaway, 4.j T. 380. 17 Sweetzer v. Claliin, 82 T. 513. 712 Ch. 48.] AMENDMENT OF PLEADINGS. [§517. § 517. Cases In whicli a new cause of action is not al- leged. Where suit is brought in the name of a nominal plaintiff, for the use of another person who is the real plaintiff, the substitution by amendment of the name of such other per- son as the sole plaintiff does not make a new party to the cause. ^ A suit was brousfht on an official bond in the name of the county judge for the use of the county. It was held, that this was, in effect, bringing the action in the corporate name of the county. That the county was the real plaint- iff, and the former, who was only nominally a party, could withdraw from the suit, which thereafter could be con- ducted and carried on by the county, and no new party was thereby made.'^ The addition of the name of a silent partner, by an amendment of a petition tiled in the firm name, is not a statement of a new cause of action. The cause of action accrued to the partnership, the style of which was correctly stated. The cause of action remained the same after the amendment.^ A change in the christian name of the plaintiff is not such an amendment as to require notice to the defendant.* After the dissolution of a partnership, by the withdrawal of a member, the other partner in the firm name executed a note for an account due tlie payee from the firm at the time of its dissolution. In a suit on the note against the firm, including the outgoing partner, the latter pleaded non est factum. Plaintiff, by an amendment, alleged that the note was taken for a debt of the old firm, setting out the items of the account. It was held that the action could be maintained on the account, but the change in the cause of action in the pleadings was fatal to an attachment ■ issued before the amendment was made."^ In a suit by A. against B. & C, it was alleged as cause of action that plaintiff had deposited with C. a certain 713 Cb. 48.] AJIENDMENT OF PLEADINGS. [§^17. anicunt of money, which had been misappropriated by all of the defendants. By an amendment, it was alleged that plaintiff had deposited with C. a certain amount of money, a part of which had been misappropriated by him, and the remainder had been misappropriated by all of the defend- ants. It was held that the amendment did not set up a new cause of action.^ The original petition, in an action to revive a judgment, alleged that no execution had ever issued upon the judg- ment; the amended petition alleged that execution issued within a year from the rendition of the judgment, and that nine years had elapsed since the issuance of execution. It was held that the cause of action set up by the amended petition was not different from that alleged in the original petition. Upon either statement, the plaintiff was entitled to a revival of the judgment. The time within which an action is barred, not having expired when the original pe- tition was filed, the plea of limitation presented no defense to the amended petition.' In a suit brought on a conditional promise, there was no averment of the happening of the condition. After- wards, an amendment was filed averring that the condition had happened before the commencement of the suit. It was held, that it did not set up a new cause of action.^ In a petition for malicious prosecution against a husband and wife, it was alleged that the defendants made the affi- davit for the arrest, which was the gravamen of the action. By amendment, it was alleged that the affidavit was made by the wife, whose name appeared to it. It was held not to set up a new cause of action.^ Certain stockholders in a private corporation brought suit against the directors of the corporation, the other stockholders, and against others interested in the matter of litigation. The petition charged that the directors, in fraiul of their trust, had consolidated and merged its ex- istence in another competing but insolvent corporation, 714 Ch. 48.] AMENDMENT OF PLEADINGS. [§517. misusing the revenues of the corporation and parting with the possession of its property, endangering its corporate existence, etc. There was a prayer for a receiver and a recovery in behalf of the plaintiffs, and for general relief. By amendment, relief was asked in the name of the corpor- ation, and specific acts were alleged in addition to the general allegations in the petition. It was held that, as all the parties were before the court, and no new facts alleged by the amendment, and as the relief requested was sub- stantially the same in the amendment, such amendment did not make a new party or allege a new cause of action, against which limitation could be pleaded.^" In a suit for damages from the destruction of growing crops upon a tract of land described by its boundaries, an amendment was filed describing sub-divisions of the tract and giving the items of damages. It was held that, as the general description of the land upon which the injured crops were growing was sufiicient, an amendment curing defective allegations as to the sub-divisions was but an amendment of the original cause of action. Under such an amendment, the plea of limitation would not apply to the time between the filing of the original petition and of the amendment. ^^ In an action for damages for personal injuries, the cause of action is the injury resulting from the alleged negligence of the defendant. The time, place and circumstances, re- lating to the act of the defendant complained of, ^re mat- ters of description. An amendment in such an action, stat- ing more fully the result of the injuries caused by defend- ant, does not set up such a new cause of action as would permit the statute of limitations to run between the filing of the original petition and amendment. ^^ In an action for damages for personal injuries, caused by the negligence of the defendant, a railway company, it was alleged that "plaintiff fell about five feet to the ground, and was knocked, by the shock of the fall, entirely lifeless, and 715 Ch. 48.] AMENDMENT OF PLEADINGS. [§517. t liis left arm, striking some hard substance, was badly broken and shattered at the elbow joint; that in conse- quence of said injuries he was confined to his bed, under treatment of physicians, five or six weeks ; that he suffered painfully from his wounds, and that his arm is now stiff from tlie effects of said injury, and that he cannot now get his left hand to his mouth in consequence of the stiffness of the elbow joint; that in consequence of said injuries he was a cripple for life." In an amendment filed more than two years after the cause of action accrued, it was alleged that plaintiff fell about five feet to the ground and was knocked by the shock of the fall entirely lifeless, and his left arm striking some hard substance, was badly broken and shattered at the el- bow joint, and his back badly injured, and two of his ribs were broken, and his kidneys and bladder and his backbone and his hips have been so injured that at the present time and since the injury he has for days been unable to go about; that inconsequence of the injuries he was confined to his bed under treatment of physicians for five or six weeks, and that he suffered painfully from said wounds, both men- tally and physically, and that he continues to suffer both mentally and physically, and to suffer in every other way that a human being can suffer from the effects of the wounds ; that his arm is now stiff from the effects of the injury, to such an extent that he cannot get his hand to his mouth, and his back and hips are so injured that he can scarcely walk, and often times, from the effects of the in- juries, is confined to his bed for weeks at a time, so that at this time, the 12th of April, 1885, he is' a cripple for life. The plaintiff further alleged that "at the time of the in- jury he was about thirty-five years of age and in fine health, and by occupation a merchant and partner in the mercantile establishment to which he belonged, and that his duty in the house was to travel and transact outside business in the wholesale department of the house, which 71G Ch. 48.] AMENDMENT OF PLEADINGS. [^ oil . is located in the city of D ; that the duties of the posi- tion require perfect health and phj^sical strength and en- durance; that, in consequence of those injuries, his useful- ness, both mentally and physically, was impaired to such an extent that during the month of February or March, 1885, said partnership was dissolved as to him; that besides the pain and suffering, mentally and physically, to which he was subjected in consequence of the injuries, he has been put to great expense in emploj'ing medical aid, to-wit: in the sum of 1 1,000, and that his loss of time is worth the sum of $5,000." The entire damage was laid at $20,000. An exception to the new and distinct grounds of dam- age alleged in the amendment was overruled. It was held that the cause of action was the injury resulting from the alleged negligence of the defendant, time, place and cir- cumstances of which were stated in the orighial petition. The amendment did nothing more than to state more fully than did the original the several results of the injury. ^^ In a suit on a promissory note, the defendant set up an agreement with a bank, then holder of the note sued on, pro- viding for a novation of the original indebtedness, and an agreement to pay the same in installments, etc. The plaint- iff was permitted, by amendment, to make the bank a party and enforce the agreement. ^^ In an action for the value of 250 bales of cotton, it was alleged in the petition that the cotton was "delivered by plaintiff," In an amendment filed more than two years after the commencement of the suit, it was allco-ed that three bales of the cotton were delivered by plaintiff, that the remaining 247 bales were delivered by seventeen differ- ent persons, whose names were set out, and that the plaint- iff became the owner of the same. It was held that no new cause of action was presented by the amendment, citing Railway v. Irvin, 64 T. 533; Railway v. McGowan, 73 T. 355; Railway v. Rape, 73 T. 501. ^^ 717 Cb. 48.] AMENDMENT OF PLEADINGS. [§517. Plaintiffs, in an attachment suit upon several claims, de- scribed one note as having been "made, executed, delivered O 7 7 and indorsed to said plaintiffs," and "indorsed as follows, to-wit: Dreben & Lewis." By amendment, plaintiffs al- leged that the note of Dreben & Lewis was made paj^able to themselves, and was thereafter indorsed by them in blank to Isaac Lewis, and that it was afterwards indorsed and delivered by said Lewis to plaintiffs. The orig- inal and amendment contained an accurate description of the note. Intervenors in the attachment suit moved to set aside the attachment as to the note, as a new cause of ac- tion. It was held that the same debt was fully described in each pleading, the only difference being in the allegations in regard to the means by which the plaintiffs became own- ers, and that there was no change in the cause of action. ^^ In a suit upon an open account against an administrator, an amendment, alleging the presentation of the account, duly authenticated, and its rejection by the administrator, did not set up a new cause of action. The indebtedness, as shown by the account, was the cause of action, and the pre- sentation to and disallowance by the administrator was a prerequisite to the right to institute the suit,^" and must be alleged to show that right, ^^ except in suit against an inde- pendent executor. ^^ In a suit by the vendor for the purchase money of land, the defendant relied as a defense upon a defect in his ven- dor's title; an amendment alleging that, since the com- mencement of the suit, the defendant had himself perfected the title, was held not to set up. a new and independent cause of action. ^'^ So amendments — correcting the descrip- tion of a note sued on^^ — alleging the happening of a con- dition, where suit had been brought upon a conditional promise''''^ — supplying a date, by the omission of which a previous amendment failed to show that the claim sued on was not barred by limitation,-^ were held to be merely cor- rections of the petition, wherein the statement of the cause 718 Cll. 48.] AMENDMENT OF PLEADINGS. [§^17. of action was defective, and did not set up new causes of action. When the plaintiff sued for the recovery of certain prop- erty, cUiiniing the same by the ordinary allegations of own- ershij), and without specifying the character of her title, an amendment alleging that the plaintiff, having inherited the property from her father and brother, was entitled to it in her separate right, was held not to be a departure from the oriojinal cause of action. ^^ Where an amendment setting up a new cause of action is allowed, the plaintiff will be required to pay the costs which would have been adjudged against him, had he dismissed the original petition and filed a new one — the amendment will not have relation back to the time of filing the original petition, but will be considered as pending only from the time of filing the amendment — it may be answered by demurrer or plea, as in the first instance, and is subject to all defenses then existing. '-^^ A plaintiff in the court below filed an amended petition, praying that, in the event he was not entitled to judgment upon a note set up in the original petition, recovery might be had upon a note previously executed, and for which the other was intended as a substitute. , Held, that the amend- ed petition was good on exception, and that, under the Texas system, it is no objection to a petition that it sets up a new cause of action, or asks alternative relief of this nature if each character or relief sought is appropriate to the pleadings in the cause. ^^ 1 Price V. Wiley, 19 T. 142; Martel v. Somers, 26 T. 551. 2 Smith V. Wingate, Gl T. 54; see King v. Governor Ireland, 68 T. 682. 3 Mcllheuny v. Lee, 43 T. 205; Pridgen v. McLean, 12 T. 420; Chap- man V. Sneed, 17 T. 428; Thouvenin v. Lea, 26 T. 614. 4 Williams v. Iluling, 43 T. 113. ' s Lutterloh v. Mcllhenny Co., 74 T. 73. « Cotter V. Parks, SO T. 539. 7 Foster v. Smith, 6G T. 680. « Kinney v. Lee, 10 T. 155. » Usher v. Skidmore, 28 T. 616. 10 Becker v. Street Ry. and Real Estate Co., 80 T. 475. 719 Ch. 48.] AMENDMENT OF PLEADINGS. [§518. " G., C. & S. F. Ry. Co. v. McGowan, 73 T. 355. 32 Ry. Co. V. Irvine, 64 T. 529; Ry. Co. v. Pape, 73 T. 501; Ry. Co. v. McGowan, 73 T. 355. " I. & G. N. Ry. Co. V. Irvine, 64 T. 529; Railway v. Pape, 73 T. 501; Railway v. McGowan, 73 T. 355. " Lanes v. Squyres, 45 T. 382. " Texas Elevator Co. v. Mitchell, 78 T. 64. 16 Sweetzer v. Claflin, 82 T. 513. " Coles v. Portis, 18 T. 155. 18 Fulton V. Black, 21 T. 424; Walters v. Prestidge, 30 T. 65; Gillmore V. Dunson, 35 T. 435. 19 Smyth V. Caswell, 65 T. 379. 20 Smith V. McGaughey, 13 T. 464. 21 Walling V. Williams, 4 T. 427. 22 Kinney v. Lee, 10 T. 155. 23 Turner v. Brown, 7 T. 489. 24 Hopkins v. Wright, 17 T. 30. 25 Speake V. Prewett, 6 T. 252; Henderson v. Kissam, 8 T. 46; Wil- liams V. Raudon, 10 T. 74; Ayres v. Cayce, 10 T. 99. 26 Wiebusch & Patterson v. Taylor, 64 T. 53. §518. Effect of an aniendiuent upon previous plead- ings. If the amendment introduces new matter, it opens the whole pleadings, which may be answered, as in the first in- stance, by demurrer or plea*;^ an amendment which merely corrects an error or mistake, or supplies an omission appar- ent upon the face of the pleadings, will not have this ef- fect. 2 If a new cause of action is set up by an amendment, or new matter which cannot properly be added, the objection must be taken by exception, or by answer.^ If an amendment has been filed without leave, and is cal- culated to operate as a surprise, or cause a continuance, the proper course is to move to strike it out ;* but if the party has had no notice of the filing of the amendment, it will be disregarded at the trial, and treated as a nullity.'^' 1 Speake v. Prewett, 6 T. 252; Williams v. Randon, 10 T. 74; Jones V. George, 56 T. 149; Ilanrick v. Hanrick, 63 T. 618. 2 Walling V. Williams, 4 T. 427. 3 Greenwood v. Anderson, 8 T. 225. * Frosh V. Holmes, 8 T. 29; Connell v. Chander, 11 T. 249. « Lee V. Hamilton, 12 T. 413. 720 Ch. 49. — Pleadings in Action of Trespass to Try Title. §519. Action of trespass to try title, defined. 520. Action to remove cloud from title, defined. 521. Allegations held to constitute an action of trespass to try title. 522. Action of trespass to try title not maintainable to establish boundaries. 523. Action may be brought to recover any interest in land. 524. Plaintiff must recover upon his title at the institution of suit, 525. Indorsement of petition. 526. Executor, administrator or guardian may sue for land. 527. Parties liaving a joint, legal or equitable interest may join as plaintiffs. 528. Parties claiming several and distinct tracts cannot join. 529. Suit not abated by a discontinuance by one of several plaint- iffs. 530. One tenant in common can recover against a mere trespasser. 531. Proper parties defendant. 532. The owner or warrantor may become a party to the action. 533. Necessary parties to an action for land by or against the es- tate of a decedent. 534. Defendant may disclaim interest in land. 535. Defendants may sever in their defense. 536. Answer by plea of not guilty. 537. Matter of estoppel admissive upon plea of not guilty. 538. A superior outstanding legal title may be shown under th& plea of not guilty. 539. Defendant may establish an equitable defense, not requiring affirmative relief under the plea of not guilty. 540. A defendant asking equitable relief must plead specially. 541. Equitable title will prevail over legal tit>e. 542. A legal title in plaintiff cannot be defeated by an outstanding equity with which defendant is not connected. 543. Defense of limitation must be specially plead. 544. Special matter of defense need not be denied. 545. A party pleading his title specially is limited thereto. 540. Title may be deraigned from common source. 547. Abstract of title may be demanded. 548. Requisites of abstract of title. 549. Writ of sequestration mny be sued out. 550. A purchaser lis pendens bound by judgment. §519. Action of trespass to try title, defined. The conunon law of England, so far as it was not incon- sistent with the Constitution and laws of Texas, was adopted (46— Plead. Forms.) 721 Ch. 49.] PLEADINGS TO TRY TITLE. [§519. as a rule of decision by the act of January 20th, March 16th, 1840.1 By the act of February 5th, March IGth, 1840,2 providing the mode of trying titles to land, the ficti- tious proceedings in the action of ejectment were abol- ished, and the method Of trying title to lands or tenements was by the action of trespass, wherein the real names of the plaintiff and defendant were used, and judgment was given for the recovery of the land and for damages. The act also provided that an indorsement should be made upon the petition that the action was brought as well to try the title as for damages, and the action should be tried on its merits conformably to the principles of trial by ejectment. Under the civil law in force in Texas prior to the act of February 5th, 1840, the mode of pleading and the proceed- ings in actions for the recovery of land were the same as in other civil suits. The land was described in the petition, with sufiicient certainty to identify it, and the title was dis- tinctly stated. The prayer was for a restitution of the premises, and compensation for the use of the premises dur- ing the time they had been unjustly occupied by the de- fendant, and for costs of suit.^ Prior to the act of 1840, the form of proceeding at common law, b}^ which possessory titles to corporeal hereditaments were tried and possession obtained, was by the action of ejectment. In its origin, this was an action of trespass, by which a tenant for j'ears could recover damages against a person Avho had ousted him of his possession without right. To the judgment for dam- ages was added a judgment for possession, upon which the plaintiff became entitled to a writ of possession. The real action first used for that purpose was subject to many tech- nical rules, and was inconvenient and expensive, and another form of action was devised to accomplish the same re- sult. In the original action the plaintiff was obliged to prove a lease from the person shown to have title, an entry under the lease, and an ouster by some third person. Ch. 49.] PLEADINGS TO TRY TITLE. [§519. The new method depended upon a string of legal fictions; no actual lease was made, no actual entry by the plaintiff, no actual ouster by the defendant; but all were mercl}' ideal, for the sole purpose of trying the title. To this end, in the proceedings, a lease for a term of years was stated to have been made by him who claimed title to the plaintiff Avho brought the action, as by John Rogers to Richard Smith, which plaintiff, it was said, ought to be some real person, and not merely an ideal, fictitious one who hath no existence. It was also stated that Smith, the lessee, en- tered, and that the defendant, William Stiles, who was called the casual ejector, ousted him, for which ouster he brought the action. As soon as the action was brought and the complaint fully stated in the declaration. Stiles, the casual ejector or defendant, gave a written notice to the tenant in possession of the lands, as George Saunders, in- forming him of the action brought by Richard Smith, and transmitting him a copy of the declaration ; withal assur- ing him that he, Stiles, the defendant, had no title at all to the premises, and shall make no defense: and, therefore, advising the tenant to appear in court and defend his own title, otherwise he, the casual ejector, will suffer judgment to be had against him, and thereby the actual tenant, Saun- ders, will inevitably be turned out of possession. On re- ceipt of this friendly caution, if the tenant in possession did not, within a limited time, apply to the court to be ad- mitted a defendant in place of Stiles, he was supposed to have no right at all; and, upon judgment being had against Stiles, the casual ejector, Saunders, the real tenant, will be turned out of possession by the sheriff. But, if the tenant in possession applied to be made a defendant, it was allowed him upon this condition, that he enter into a rule of court to confess, at the trial of the cause, three of the four requisites for the maintenance of the plaintiff's action, viz: the learn of Rogers, the lessor, the entrij of Smith, the plaintiff, and his ouster by Saunders himself, then made 723 Ch. 49.] PLEADINGS TO TRY TITLE. [§519. the defendant instead of Stiles. As these requisites are wholly fictitious, and the plaintiff was, therefore, unable to prove them, he must, of course, be non-suited for want of evidence; but by such stipulated confession of lease, entry and ouster, the trial was permitted to stand upon the merits of the title only. This done, the declaration was altered by inserting the name of George Saunders, instead of William Stiles, and the cause was tried under the name of Smith, plaintiff, on the demise of Rogers, lessor, against Saunders, the new defendant. . On the trial, the lessor of the plaintiff was required to make out a clear title, otherwise his fictitious lessee could not obtain judgment to have possession of the land for the term supposed to be granted. If the lessor made out his title, then judgment and a writ of possession went for th^ nominal plaintiff, who by this trial had proved the right of John Rogers, his supposed lessor. To prevent fraudulent recoveries of the possession, by collusion with the tenant of the land, tenants were obliofed by statute, under heavy penalties, to give notice to their landlords, when served with any declaration in ejectment. The damages recovered in this action were generally nom- inal, and, to complete the remedy, it was provided by statute that, when the possession has been long detained from him that hath the right to it, an action of trespass also lies after a recovery in ejectment, to recover the mesne profits which the tenant in possession had wrongfully received.* At common law, the unsuccessful party could retry the same question as often as he pleased, without leave of the court, by making a fresh demise to another nominal char- acter, when it became the action of anew plaintiff upon an- other riifht.^ The Texas act of 1840, supra, authorized an unsuccessful plaintiff, or any other person claiming under him, to bring a second action within one year after judgment against him ; but, in case a verdict and judgment again pass against the 7 -24 Cll. 49.] PLEADINGS TO TRY TITLE. [§^19- pliiintiff, they were finally conclusive on the part of such plaintiff, and he was barred and excluded from any further action or suit for the recovery of the same lands. The Revised Statutes provide that any final judgment rendered in any action for the recovery of real estate there- after commenced, shall be conclusive as to the title or right of possession established in such action, upon the party against whom it is recovered, and upon all persons claiming from, through or under such party, by title arising after the commencement of such action.*^ Our action of trespass to try title, is intended to serve all the purposes of an action of ejectment, as known to the law of England. Whenever ejectment will lie at common law, trespass to try title ma}^ be used under our statutes. It is in the nature of a suit to recover possession of land unlawfully withheld from the owner, and to which he has the right of immediate possession. It is not important, so far as his right to the action is concerned, whether the de- fendant is upon his property under a claim of title or is a naked trespasser. It is enough that he is there without right or authority. If the defendant is not in possession, then he must set up a claim to the land in order to justify the proceeding, but, if in possession, how he came there becomes unimportant, if the occupancy is illegal.^ An expression used in the statute,^ that the trial shall be conducted conformably to the principles of trial by eject- ment, was not intended to introduce all the incidents and consequences attached to that form of action in common law. Its object was not to determine upon what character of title an action may be maintained, but simply to furnish a mode of procedure to ascertain in whom the right of property resides.^ It is necessary in this statutory action, as in the action of ejectment, to allege thait plaintiff was in possession w^hen the right of action accrued, or when ousted, or that he was entitled to snich possession.^" It is held in Day Co. v. The State, 68 T. 526, that, as proof of plaintiff's Ch. 49.] PLEADINGS TO TRY TITLE. [§519. former possession and ouster is uiniecessary, an omission of the allegation of these facts does not subject the peti- tion to a general exception, nor can the objection be made for the first time on appeal. When the owner of realty is dispossessed by a trespasser, he cannot treat the property as belonging to the wrong- doer and recover its value, as in case of personal property ; but he must sue for the specific property, and may recover the value of the rents, and all damages resulting in legal contemplation from the trespass. In estimating these damages, the general rule is that the defendant is only answerable for the natural, ordinary and reasonable conse- quences of his conduct. ^^ In an action of trespass to try title, the plaintiff claimed damages for trespasses committed on the premises, such as pulling down fences and destroying a growing crop and the like. An exception to the petition, on the ground of a misjoinder of the causes of action, was overruled. ^^ When the deed under which plaintiff claims is shown to cover more land than is embraced in the description given in the petition, that fact constitutes no variance. ^^ The plaintiff in trespass to try title may so frame his petition as to secure a foreclosure of a lien, if on the trial what he believes to constitute title should, in the judgment of the court, be only a mortgage; but, to effect this, the petition must set forth facts suflicient to entitle the plaintiff to such relief. A prayer, asking the alternative relief in the event the court should decide that a deed which plaint- iff relies on as evidence of title is only evidence of a mort- gage, without setting forth the facts which constitute it a mortgage, is not sufficient.^* If the facts set forth as the basis of recovery are the same in an original and in an amended petition, though the relief prayed for in the amended petition may be different, the cause of action re- 726 Cll. 49,] PLEADINGS TO TRY TITLE. [§520. mains the same, and the defense, if not valid against the original petition, will not prevail against the amended. ^^ 1 Early Laws, Art. 707. 2 Early Laws, Art. 739. 2 Manuel del Al)ogado Americano. ^ 3 Blackstone Coin., 198. 5 3 Blackstone Com., 204, note U. 6 Civ. Stat. Art. 4811. 1 Hays V. T. & P. R. R. Co., 02 T. 397. 8 Civ. Stat.,Art. 4785. 9 Ea-sterling v. Blythe, 7 T. 210. 10 Stephens v. Motl, 82 T. 81. " Willis & Bro. v. Morris, 66 T. 629. 12 llillniann V. Baumbach, 21 T. 203. 13 Broxson v. McDougal, 70 T. 04. " Nye V. Gribble, 70 T. 458. 15 Telfener v. Dlllard, 70 T. 139. §520. Actions to remove cloud from title, defined. A suit to quiet title or to remove a cloud from title, con- sidered technically, except in those cases in which it is per- mitted to establish a right between one person and many others claiming distinct and individual interests, is limited to cases in which a person in possession seeks relief ag:iiinst one who has repeatedly, and without success, sought to obtain possession by the common law action of ejectment. That action Avas simply a possessory action, and no question of title was settled by it, hence the frequent necessity for a suit to quiet title. The action of trespass to try title serves the purpose of an action of ejectment in this state, but in it the question of title as well as the right to posses- sion, are determined, and as fully settled as they could be by a suit to quiet title; hence, seldom, if ever, could a suit to quiet title, technically considered, be here necessary. The suits contemplated must be of a broader puipose, embracing suits founded even on equitable titles to remove cloud from such titles, and suits necessarVj as occasion may require it, to enable the holder of the feeblest e<|uity to remove from his way to a legal title any unlawful hindrance having the appearance of better right. 727 Ch. 49.] PLEADINGS TO TRY TITLE. [§520. It is a settled rule in equity, that one will not be (juieted in his title until he has establi.shod it at law, and that one not in possession cannot maintain the action. This rule in equity is based on the general doctrine that a court of equity wnll not interpose and give relief wdiere a party seek- ing its aid has a plain and adequate remedy at law. Under the laws of this state, one in possession of land may have his action of trespass to try title against an adverse claim- ant, and in such case no one w^ould doubt the ability of a District Court, if it be found that the plaintiff, though in possession, has title, to enter just such a decree as a court of equity would enter in a case proper for the removal of cloud from title. It is by no means unusual for such relief to be sought and given in actions of trespass to try title. ^ Such relief could not be given in a court not having juris- diction possessed by both courts of law and equity; but there is no hindrance in this state to the joinder of legal and equitable causes of action, nor to granting relief in the same cause, "which, wliere the jurisdiction is not blended, could only be given by an action at law and a separate suit in equity. When the estate or interest to be protected is equitable, the jurisdiction should be exercised, whether the plaintiff is in or out of possession, for under these circum- stances legal remedies are not possible. The facts of this case illustrate the application of these rules. Under the Revised Statutes, Art. 4795, the action of trespass to try title cannot be maintained upon a mere location under a valid certificate, but location and survey is the lowest ev- idence of right on which this statutory action can be main- tained. The plaintiff in the suit applied to the proper officer to make a location and survey of a land certificate, which he refused to make upon the ground that there was a better rio;ht in another. The law refuses the applicant the ordinary remedy to es- tablish the superior right in a contest of title, Avhiie recog- nizing a right in him, if what he asserts is true, but in one 728 Cll. 40.] PLEADINGS TO TRY TITLE. [§520 respect inferior to that which, for remedial purposes, is equal to a legal title evidenced by a patent. Before the surveyor can be compelled to act, it is essential that the superior right of the plaintiff be established, and this can be done only through some proceeding to which the adverse claimant is a party, and in which the question of title may be passed upon. Were an action of trespass to try title brouoht against the adverse claimant, on the evidences of right held by the plaintiff, it could not be sustained because he has not a survey or surveys. If the plaintiff had broui2:ht an action to remove cloud from his title, or to quiet it, by having an adjudication that the adverse claim has no validity, is he to be met with the defense that he has not established a legal title, or that he is not in posses- sion, and, therefore, not entitled to relief? If so, aright recognized by law may exist, and yet no remedy be allowed for its enforcement. The laws of this state are not subject to such a reproach. In Herrington v. Williams, 31 T. 448, it was held that one out of possession could not maintain a suit to remove a cloud from title, but in that case there was no consideration of the right of one out of possession who holds an equit- able title. One holdino; such a title could have no redress in a court of law, whether in or out of possession ; hence, the rule enfc)rced in courts of equity against one out of possession and holding a legal title, can have no application.- The opinion of the court in this case, delivered b}^ Chief Jus- tice Sta3'ton, so far as it relates to the particular question above discussed, has been incorporated in the text, with- out material alteration or abbreviation, as tiiis could not be done without impairing the full and lucid exposition of the important rules of law under consideration. A person wdio has held adverse possession of land, for the period prescribed by limitation, may maintain an action 729 Cll. 49.] PLEADINGS TO TRY TITLE. [§521. founded on the title thereby acquired to be quieted in pos- session, and to remove ch)uds, etc.*^ The act of February 5th, 1841, Early Laws, Art. 997, §§15-17, and the Revised Statutes, Art. 3196, confer by such continuous, peaceable, and adverse possession, full title, which is not lost by subsequent loss of possession.* An action by one not in possession, to remove a cloud from title, is in effect an action of trespass to try title. ^ ^ In :in action of this character, it wonld not be necessary to allege eviction on a trespass by defendant on the premises. Yoe v. Mont- gomery, 68 T. 338. 2 Thomson v. Locke, 66 T. 383. 3 Smith V. Montes, 11 T. 24; Burleson v. Burleson, 11 T. 2; Moody v. Holcomb, 26 T. 714; Craig v. Cartwright, 65 T. 413. 4 Spofford V. Bennett, 55 T. 293; Mims v. Eafel, 73 T. 300; see Forsod V. Golson, 77 T. 6G6. 5 Dangerlield v. Paschal, 20 T. 536; Shepard v. Cummings, 44 T. 502. § 521. Alleg^ations held to constitute an action of trespass to try title. Plaintiff instituted a suit against T. in the district court to quiet title and for possession of a house and lot described in the petition, and also to enjoin the defendant and L., a justice of the peace, from issuing a writ of restitution for the premises under a judgment in favor of defendant^ against one W. hereinafter mentioned. The plaintiff claimed title to the lot by purchase at a sale under an execution on a judgment against the owner of the lot. When plaintiff purchased, W. was in possession of the lot as a tenant of the defendant in execution, and there- upon acknowledged tenancy under the plaintiff. After- wards, T., the defendant in this suit, recovered a judgment in an action of forcible entry and detainer against W. It was held that the injunction was improperly issued, but that the petition, independently of the relief sought by the injunction, contained substantially the allegations of one in the action of trespass to try title. ^ 730 Ch. 49.] PLEADINGS TO TRY TITLE. [§521. Mrs. p., joined by her husband, brought suit for the purpose of restraining the sheriff of Wichita county from sellins: seven tracts of hind under an execution in favor of one Cook, against her husband. The petition alleged that the huid was her separate property, and that its sale under execution would cause her irreparable loss and injury, etc. It was held that the action of trespass to try title is an adequate legal remedy after sale in all cases in which the sale will pass only the title of the execution defendant. In this case it was presumed, from the allegations in the pe- tition for an injunction, that the deeds under which she claimed the land were made to her, and recited that the consideration was paid from her separate means, and her title therefor was not jeopardised by the threatened sale. The fact that a number of different tracts of land were levied on and might be sold to different purchasers, afforded no ground for relief by injunction, for the reason that a multiplicity of suits would be thereby prevented. ^ In an action of trespass to try title, commenced on the 6th day of October, 1852, the defendant recovered judg- ment on the 16th of December, 1853. On the 6th of May, 1854, the plaintiff in the former suit instituted an action a«:ainst one of the defendants in the same suit, alleijina:, among other things, that he was the owner of a certain lot of ground, and was in peaceable possession of the same on therlst day of September, 1852; that on said 1st day of September, 1852, said defendant, with force and arms, entered on said premises and ejected plaintiff therefrom, etc. The petition further alleged that the defendant claimed the land in controversy under a sheriff's sale; that the sale was void on account of fraud, etc. The defendant plead in be con- troverted by different persons at different times and by dif- ferent actions. "Courts of equity, having a power to bring all the parties before them, will at once proceed to the as- certainment of the right; and, if it be necessary, they will ascertain it by an action or issue at law, and then make a decree finally binding all the parties." The petition alleged a right in the plaintiffs, and trespasses by the defendants. It has been hekl by this court, at an early day, that in an action of trespass to try title to land, several defendHnts might be joined in the same action by a plaintiff whose right was the same as against all the defendants. The point of difference between this and an ordinary action of trespass to try title was that, in this, the plaintiffs sought to set aside the patents and conveyances of defendants as having been made and procured in fraud of their rights. This al- leged fraud did not relate to any transactions between plaint- iffs and defendants which rendered them fraudulent. De- fendants' title had no connection with that of plaintiffs', ex- cept that of locality. Each party claimed under different titles emanating from the government. If plaintiffs' title Was good, and they obtained a judgment on it against the defendants, that settled plaintiffs' right, for the time at any rate. Whether this would entitle plaintiffs to enjoin defend- ants from hereafter suing on their title, would depend upon facts additional and cumulative to those necessary to the maintenance of plaintiffs' mere superior riglit to the land. The superaddition of these facts, by which the plaintiffs sought this additional remedy, does none the less render it a suit to try the title; for the title of plaintiffs must be es- tal)lished as a prerequisite to the additional relief. If it be established, the plaintiff would be entitled to a judgment to 734 Ch. 49.] PLEADINGS TO TRY TITLE. [§522. that effect, whether the additional facts alleged and proved entitled them to this additional relief or not. 1 Texas Land Co. v. Tannan, 53 T. G19. 2 Piirinton v. Davis, 66 T. 455. 3 Allen V. Stephanes, IS T. 658; Grimes v. Hobson, 46 T. 419; Atchi- son V. Owen, 58 T. 610. 4 Johnson v. Bryan, 62 T. 623. ^ Grimes v. Hobson, 4G T. 416. « Dangerfield v. Paschal, 11 T. 579. ''Ante, §518. § 522. Action of trespass to try title not maintainable to establish boundaries. B. brought suit to try title and recover possession of a league of land. He averred that the southern boundary line of the land was not clearly defined and established, and prayed for judgment for title, and that the southern bound- ary line should be established, etc. The defendant plead not guilty, statute of limitations, possession in good faith, and also that the northern boundary of the league under which he claimed was the southern boundary of the league under which the plaintiff claimed, and also asked that the boundary between the leagues should be established by the court. No exceptions were taken by either of the parties to the allegations or prayer in the pleadings of the adverse party, dnd the court expressed no opinion upon the ques- tion as to the right to bring a second action authorized b}^ the statute relating to trespass to try title.^ In a second suit between the same parties, involving the same question, on a second appeal to the Supreme Court, it was held that this was not the statutory action of trespass to try title, but merely a proceeding in equity to establish the boundary line, and that, in the absence of an actual question of title, the judgment in the first suit barred the second action.^ The same question was again considered in 8[)cnce v, Mc- Gowan, 53 T. 30, where it was hold that although tlu5 lo- cation of a disputed line between adjacent surveys may be determined in an action of trespass to try title, yet, when 735 Cll. 49.] PLEADIXGS TO TRY TITLE. *[§523. the sole object of the suit is to determine the location of the line, and there is no question as to title to either survey, the action was not the statutory action of trespass to try title.3 1 Bird V. Pace, 26 T. 4S7. 2 Bird V. Montgomery, 34 T. 713. 2 Spence v. McGowun, 53 T. 30; and see San Patricio County v. McClane, 58 T. 242; Barbee v. Stinnett, 60 T. 1G7. § 523. Action may be bx'ought to recover any interest in land. The statute requires that the petition shall state the in- terest which the plaintiff claims in the premises, Avhether it be a fee simple or other estate ; if he claims an undivided in- terest, he shall state the same and the amount thereof, that he was in possession, or entitled to such possession, and that the defendant afterwards unlawfully entered upon and dis- possessed him of such premises on a day named, and with- holds from him the possession thereof.^ This action, taking the place of the common law action of ejectment, may be used where the object is to recover possession of the land unlawfully withheld from the owner, and to which he has the legal or equitable title and the right of immediate possession, whether the defendant claims under title or is a mere trespasser. ^ Where, in proceedings for partition, one party asserts superior title in himself to the entire property, thus prac- tically changing the suit to one of trespass to try title, any one may become a party who claims and asks an adjudica- tion on an adverse interest in the land.^ The statute recoj;- nizes that a less estate than one in fee simple may be the foundation of this action, and it has accordinfjlv been held that one in whose favor an action of forcil)le entry and de- tainer may be properly brought may, in lieu thereof, main- tain the action of trespass to try title.* The plaintiff can recover upon a purely equitable title. Thus, a purchaser at a sheriff's sale shows a sufficient title 73G Ch. 49.] PLEADINGS TO THY TITLE. [§523. to maintain the action by proof of the judgment, execution, levy and sale, that he was the. purchaser, and paid the pur- chase money in accordance with his bid, and that the sheriff delivered to him an instrument purporting to be a convey- ance, but defectively executed.^ A deed for land was executed by the owner to the admin- istrator of B. The deed acknowledged the receipt of the consideration, and described the land which it conveved to the administrator as a part of the succession of the de- ceased B. It was held that the heirs of B., claiming under this deed as such, could maintain an action of trespass to try title. ^ On the 16th of February, 1876, M. conveyed his home- stead toH., as a trustee, to secure the payment of a certain debt. On the 15th of April, 1876, E. paid the amount of the debt to H., and took from him a transfer of the debt and lien. On the 7tli of June, 1876, H. foreclosed the lien, and M. purchased the property and took the deed of H. On the 22d of June, 1876, M. conveyed the property to E. , and on the same day E. leased the premises to M. for six months. At the expiration of the lease, M. refused to sur- render the possession, and E. brought an action of trespass to try title. In defense of the action, M. testified that E. had advanced to him the amount of the mone}^ due him on the debt first mentioned, 'and received from him a convey- ance of the property, upon an agreement that the money so paid was advanced to him as a loan ; that the deed should be held as security, and on repayment to E. of the amount he should re-convey the property to M. It was held that, on this state of facts, E., who brought an action of tres- pass to try title to recover the premises, could not recover, and that he could not in this proceeding obtain a foreclos- ure of the lien for the money advanced by him.'' Where the purchase is of a mere equity, which cannot be enforced without the assistance of a court, all reasons for departing from the general maxim, no one can transfer (47— Plead. Forms.) 737 ^ Ch. 49.] PLEADINGS TO THY TITLE. [§523. to another a greater right than he has, are at an end, and the right acquired by .the vendee under the sale is limited to that of tlie vendor. In other words, equity deals with the purchaser of an equitable title as the law deals with the purchaser of a legal title, and regards the purchase as incapable of either defeating rights or creating them. When, therefore, a purchaser buys an equitable estate with a kno\vledo:e of its real character, and without obtainina; the legal title, he can found no claim on the mere fact of the purchase, and must stand or fall by the title of the vendors.^ The holder of a note given for the purchase money for land acquires an equitable lien on the land, but not such legal or equitable title to the laud as will enable him to maintain trespass to try title against the vendee or a subse- quent purchaser, when by his laches his remedy on the note has become barred by limitation.^ The fact that parties establish a homestead on property, which they hold by mere equitable title, cannot subordinate the legal title to their equitable right; the homestead right is dependent on their title, and must stand or fall with it. The purchaser under trust deed of the legal title to property, which, at the time the trust deed was executed, was occupied under equitable title by a third party as a homestead, acquires the superior title, unless the trustee and cestui que trust were chargeable, when the trust deed was executed, with notice of the super- ior equitable right of the occupant, as against the holder of the legal title. The wife Avho, with her husband, joins in a trust deed with one in whom the legal title is vested, con- A'eying property then occupied by her under eijuitable right as a homestead, cannot assert her equitable title as against the purchaser at trust sale, who had no notice of her equi- table claim ; by joining in the trust deed she admits in effect that the ownership of the property is in the holder of the legal title.io 738 Ch. 49.] PLEADINGS TO TRY TITLE. [§523. A petition in an action of trespass to try title alleged that petitioner, as administrator, was lawfully seized, pos- sessed, and owned the land in controversy, describing the same by metes and bounds ; that he had been ousted of the same by defendants, and continued so to be ousted by said defendants. In explanation of the title, the petition alleged that plaintiff's intestate bought said land and paid the pur- chase money therefor, but for some unknown reason took the deed for the same in the name of the plaintiff, but in truth and in fact plaintiff had no interest in the land, except simply as one of the heirs of the intestate; that as such administrator he returned in his inventory of said estate said land as belonging to said estate, and it has ever been considered and acted upon by the court as the property of said estate at the instance and with the consent of petitioner ; wherefore, he holds the legal title to said land for the use and benefit of said estate. It was held, on appeal, that an exception to the petition was improperly sustained by the court below, and the judgment was reversed and cause re- manded. ^^ Where the plaintiff instituted his suit on an equitable title, and after the commencement of the suit had acquired the legal title in conformity with his equitable right, he may introduce his legal title in evidence at the trial. 12 An action to recover title to lands may be maintained upon legal or equitable grounds. ^^ In November, 1859, Wofford sold a tract of land to Mrs. Peck, giving a bond for title on payment of the purchase money in four annual installments. On the 7th of February, 1860, Wofford transferred Mrs. Peck's obligation to R. S. and E. S. Jemison. In April, 1863, Mrs. Peck, for an ex- pressed consideration of twelve thousand dollars, con- veyed her interest in the land to P. S. and E. S. Jemison, transferring Wofford's title bond. In October, 1860, judg- ment had been rendered, in the county where the land is situate, in favor of W. G. Lane & Co., against Wofford, 739 Cb. 49.] PLEADINGS TO TRY TITLE. [§523. for $794.44, and against ]\Irs. Peck, as garnishee (in a suit brought March 20th, 18(30), for a like sum, which judg- ment was recorded. On the judgment against Mrs. Peck executions issued in March and July, 1861, and in April and February, 1868; under which last execution, and also under an execution against Wofford, the land was sold to Halbert for $50. The sale was publicly forbid at the time of sale by Jemison's attorney. R. S. Jemison went into bankruptcy November, 1868, and placed on his schedule the undivided half of the land, with a note that it was claimed by J. L. Halbert. R. S. Jemison's interest was sold on the 6th of July, 1869, at bankrupt sale, and bid off by E. S. Jemison, under whose instructions the assignee conveyed the same to Amanda K. Jemison, et al., the wife and children of R. S. Jemison, on July 7th, 1869; and, on the same day, E. S. Jemison conveyed to the same parties all his interest in the lands. This suit had been brought by J. L. Halbert, in trespass to try title for the land, on February 6th, 1869. On the 29th of October, 1870, E. S. Jemison filed his disclaimer of interest, and appellants, Amanda K. Jemison and her children, asked leave to be made parties defendant, setting up their claim to the land. On the above facts, a jury being waived, judgment was rendered for Halbert, against Amanda K. Jemison and her children, for the land. On appeal, held: 1. While one who purchases during the pendency of a suit involving title to the land bought need not be made a party, but is bound by the decree against the person from whom he bought, there is no rule which will forbid making the purchaser from the defendant a party, at the will or with the consent of the plaintiff. 2. Wofford had no interest in the land, when the judgment was rendered against him, to which a judgment lien could attach. He held the legal title only as a trustee for the holder of the obligation for the purchase money ; nor had Mrs. Peck at that time any legal title, and the lien of the judgment against her only attached to her 7^0 Ch. 49.] PLEADINGS TO TRY TITLE. [§523. equitable right to demand title on payment of the purchase money. The most that can be claimed for the purchaser under the execution against Mrs. Peck is that he acquired her equitable rights, and may be entitled to be subrogated to the lien of the judgment creditor, 3. The lien in the hands of the Jemisons was sufficient to support the deed from Mrs. Peck; the action of the parties was as effectual as a foreclosure suit against Mrs. Peck, and their voluntary action could no more than a foreclosure suit and sale oper- ate to extinguish the lien of the Jemisons, or destroy its precedence. 4. If, under regular foreclosure, the Jemisons had bought in the land, the holder of the junior lien, who was not a part}'^ to the proceeding, would not be precluded from having the land again sold, and the excess of the pro- ceeds over the amount of the preferred lien arpplied to the payment of his debt ; nor would the Jemisons thereby have lost their right to have their claim first paid. 5. The suit being in trespass to try title, in which neither party exhib- ited a legal title, the equities of the defendants being super- ior, and the plaintiff having failed to make out a case author- izing him to disturb defendants' possession, a judgment in favor of plaintiff was erroneous.^* Where a railway company occupied land with its right-of- way, without previously making compensation therefor to the owner, in accordance with the statute then in force, it was held that the company was a trespasser, and that the owner could recover possession of such lands and eject the railway company therefrom in an action of trespass to try title, ^■'^ and a subsequent purchaser of the land is subrogated to the rishts of his vendor. ^'^ But an action for damaijes merely against a railway company, for injury resulting from running trial lines over land, cannot be maintained bv a subsequent purchaser.^'' But the owner may elect to receive compensation therefor, although he was equally entitled to recover possession of the property. ^^ The right of the owner to compensation, or to recover land, is not waived by his standing by and permitting the 741 Cll. 49.] PLEADINGS TO TRY TITLE. [§523.. coin})any to construct the road.^^ But if the owner verbally permits the company to construct the road across his land, he cannot afterward repudiate the permission and recover the strip used for operating the road.^^ When suit is instituted against a railroad company to re- cover property occupied by it for railroad purposes, or for damages thereto, the court in which suit is pending may determine all matters in dispute between the parties, in- cluding the condemnation of the property, upon a petition or cross-bill asking such remedy by the defendant. The petition for condemnation is an admission of the plaintiff's title to the property. ^^ 1 Civ. Stat. Art. 47S6. 2 Hays V. T. & P. Ry. Co., 62 T. 397; Johnson v. Bryan, 62 T. 623. 3 De La Vega v. League, 64 T. 205. * Thurber v. Conners, 57 T. 96; Andrews v. Parker, 48 T. 94; Jane- man V. Franklin, 67 T. 411 ; Tyler v. Davis, 61 T. 674; McKie v. Ander- son, 78 T. 207; Fowler v. Simpson, 79 T. Cll; Webster v. Mann, 52 T. 416. 5 Miller v. Alexander, 8 T. 36; Id. 13 T. 497; Alexander v. Miller, 18 T. 893; Wright v. Thompson, 14 T. 558; Bartlett v. Cocke, 15 T. 471; Kinney v. Vinson, 32 T. 125; Viser v. Rice, 33 T. 139; -Walker v. Howard, 34 T. 478; Elliott v. Mitchell, 47 T. 445; Downs v. Porter, 54 T. 59; Hale v. Baker, 60 T. 217; Rindge v. Oliphint, 62 T. 682; Tom V. Sayres, 64 T. 339; Froht v. Wolf, 77 T. 455; Louder v. Schluter, 78 T. 103; Angier v. Coward, 79 T. 551. •^Easterling v. Blythe, 7 T. 210; and see Patton v. Gregory, 21 T. 513; Sossanian v. Powell, 21 T. 604. 7 Edrington v. Newland', 57 T. 627. 8 Herringtori v. Williams, 31 T. 448. 9 Elliott v. Blanc, 54 T. 216. «• Pepper v. Smith, 54 T. 115. " Burdett v. ILaley, 51 T. 540. 12 Ballard v. Perry, 28 T. 347. 13 Johnson v. Bryan, G2 T. 623. " Jemison v. Halbert, -17 T. ISO. ifiB. B., Brazos & C. R. R. Co. v. Ferris, 26 T. 588. MHays v. Ry. Co., 62 T. 397. 17 ( ., H. & S. A. R. R. Co. V. Pfeuffer, 56 T. 66. 18 I. & G. X. R. R. Co. v. Benitos, 59 T. 326; see Gardner v. Tisdale,. 2 Wis. 1.^3; Sherman v. R. R. Co., 40 Wis. 645. 19 Rv. Co. v. Pfeuffer, 56 T. 66. 20 Ry. Co. v. Jarri'll. GO T. "267. 21 Act March 19th, July '6th, 1891, il Leg., p. 18. 742 Ch. 49.] PLEADINGS TO TRY TITLE. [§§524, 525. §524. Plaintiff must reoover upon his title at the in- stitution of suit. In trespass to try title, as in the common law action of ejectment, the plaintiff must rely for recovery upon the title he had at the institution of the suit. If he had no title then, he must fail in his suit, though he may have acquired after suit brought and before trial a perfect title. ^ If the plaintiff relies upon an after-acquired title, he must set it up by an amended petition, which in effect is the com- mencement of a new suit, subjecting him to the payment of all costs that have accrued, and to all defenses then exist- ing. 2 In Walker v. Emerson, 20 T. 706, it is held that where a defendant in this action entered on land, the prop- erty of a third person, under a sheriif's deed, a release from such third person, executed after the commencement of the suit, was admissible in evidence to cure defects in proof of the judgment, execution and sheriff's sale. 1 Simpson v. McLemore, S T. 458; Bradford v. Hamilton, 7 T. 58; Teal V. Terrell. 48 T. 509; Collins v. Ballow, 72 T. 330; Menifee v. Hamilton, 32 T. 495. 2 Collins V. Ballow, 72 T. 330; Rucker v. Dailey, 66 T. 284. §525. Indorsement of petition. The statute requires the plaintiff to indorse on his peti- tion that the action is brought as well to try the title as for damajrcs.^ It has been held that the omission to make the indorsement above recjuired cannot control the nature of the suit when it necessarily involved the plaintiff's title; if its character and object could have been mistaken, by which the defendant was about to be misled in his defenses, he should have excepted to the petition on that ground. ^ In Day Company \. The State, 68 T. 526, it is held that an objection to a petition in trespass to try title, based on the fact that the petition does not bear the indorsement re- quired by the statute, cannot !)e raised by a general excep- 743 Ch. 49.] PLEADINGS TO TEY TITLE. [§528. tion, and cannot be considered on appeal when presented for the first time in the Supreme Court. ^ 1 Civ. Stat. Art. 4787. 2 Dangertield V. Paschal. 20 T-. 536; Bone v. Walters. 14 T. 5G4; Shan- non V. Taylor. 16 T. 413; Atchison v. Owen, 58 T. 610. 3 See Bradley v. Deroche, 70 T. 4G5. §526. Executor, administrator or guardiau may sue for land. Suits for title or for the possession of lands, or for any riaht attached to or e-rowin^ out of the same, or for any injury or damage thereto, may be instituted by executors, administrators or guardians, appointed in this state in like manner as they could have been by their testator or intes- tate, and judgments in such cases are as conclusive as if ren- dered in favor of or against such testate.^ A judgment in a suit brought by an executor or administrator to remove cloud from title of land owned by the heir, without joining the heir as a party, will conclude the heir in the absence of fraud and collusion.^ By the probate law of August 15th, 1870,^ executors and administrators could sue and be sued for the possession of real property ; but the title to such property was not af- fected by any suit to which the persons entitled to receive the remainder of the estate were not parties. The amendment of May 27th, 1873,^ provided that exec- utors and administrators may sue and be sued for the posses- sion of real property, and, when ordered by the court, may bring trespass to try title or any other character of suit in which the title to land may be decided, and in such case the judgment of the court bound the heir, distributee or leg- atee, except the proceedings be tainted by fraud. The acts of 1870 and 1873 were repealed by the act of August 9th, 1870.5 • J Civ. Stat. Art. 1201 ; Boggess v. Brownson, 59 T. 417. 2 Russell V. Railway Co., 6S T. 640. Under the law in force from 1846 to 1S70. an administrator had authority to briny and defend suits for land without Ijelny joined by the heirs. Guilford v. Love, 49 T. 715; Gunter v. F<.x, 51 'I'. 3.SS; Buniett v. Haley, 51 T. 540; ante, Chap. 28. 3Earlv Law.s, Art, :'.4s4, i>146. 4 Early Laws, Art. 3780, §10. « Early Laws, Art. 422. 744 Ch. 49.] PLEADINGS TO TRY TITLE. [§527. §527. Parties having- a joint, legal or equitable inter- est may join as plaintiffs. Suit was brought by B. and other parties, described as the heirs of E., deceased. The joint ownership of the land by the phiintiff is stated as follows : That K. was the owner in fee simple and entitled to the possession of the land; that as such she entered into a contract with A., whereby she employed him-as her attorney to sue for and establish her title, and agreed in writins; to give him an undivided half interest in the land for his services, and that she also authorized him to convey the whole of her interest; that A. afterwards made an agreement with the co-plaintiff, B., whereby he agreed to sell him his (A.'s) interest, and that he made a deed to B., whereby he transferred to him such interest, and also agreed to sell and convey to B. R.'s re- maining half interest, but no writing was drawn to consum- mate the agreement. It does not appear from the report what, if any, exceptions w^ere made. The court say: The facts disclosed, and the jury so found by their verdict, that B. had, as a matter of fact, a joint interest in the land sued for with R. before the suit was filed. In our practice, there is no distinction whatever made between legal and equitable rights, as to the time and manner of their enforce- ment. Though the legal title to the land in the suit may have been in R., yet if B. had acquired, before the suit was brought, an equitable interest in the land, based on a contract made between them, either in person or by an authorized agent, it would be competent, at least not im- proper, for them to join in a suit for the recovery of the land. At all events, the most that can be said is, that though the joinder was an irregularity, it was not fatal to the cause of action, and as it did not appear that any rights of appellants were prejudiced by it, the action of the Dis- trict Court in the matter under the circumstances did not authorize a reversal of the judgment on that account.^ 1 Satterwhite v. Rosser, 61 T. 166. 745 Cll. 49,] TLEADINGS TO TRY TITLE. [§§528, 529. §528. Parties claiming several and distinct tracts can- not join. A joint action by several, claiming separate and distinct portions of a league of land, brought to recover their re- spective parts, is irregular, and an objection to such joint action, if made at a proper time and in a proper manner, should be sustained; but the objection cannot for the first time be made in the Supreme Court, and a defendant ought not to be heard to urge it after having acquiesced so long in the particular mode of procedure as that to entertain the objection would operate to the prejudice of the plaintiffs, and secure to the defendant advantages which he would not have had, if he had urged the objection when the action was first brought. 1 1 Allen V. Read, G6 T. 13. §529. Suit not abated by a discontinuance by one of several plaintiffs. Suit was brought by P. & K., plaintiffs, on the 3d of September, 1852. The petition alleged the ouster of the plaintiffs by defendants ; the possession of the defendants and damages, and prayed judgment for damages, mesne profits and costs of suit, and for possession. The defend- ants plead not guilty and title in themselves, and suggested valuable improvements. On the 13th of August, 1857, a paper was filed by which the plaintiff, K., authorized a dis- continuance, having, as therein expressed, "parted Avith his interest in the subject matter of this suit." No order of the court appeared in regard thereto. On the trial, a ver- dict was rendered in favor of plaintiff for an undivided half of the property and for damages, and judgment was entered accordingly. On appeal, it was held that a discontinuance or abandonment of the suit by one of the plaintiffs did not abate the entire suit or preclude a recovery by the other plaintiff. Nor would the fact that there is only a verdict and judgment for one of the plaintiffs below, on the proof 740 Cll. 41).] PLEADINGS TO TRY TITLE. [§530. of his title, furnish a ground for the reversal of the judg- ment at the instance of the parties against whom it was rendered.^ 1 Biencourt v. Parker. 27 T. o.'jS; and see Pilcher v. Kirk, 60 T. 162. §530. One tenant in common can recover against a mere trespasser. A tenant in common can alone sue for the entire tract, and he can also recover a specific portion of the tract from a trespasser.^ And in such a case he may maintain the ac- tion by virtue of his prior occupancy or where he may hold by title bond merely, and, in the last case, is not required to prove a compliance with the conditions of the bond which would entitle him to a specific performance. ^ And where, after suit has been brought by a tenant in common, a par- tition has been made with his co-tenants, by which his in- terest was severed and set apart to him, he may, by amend- ment, set out such facts and recover his interest in the land.^ Suit for land was brought by 'a, feme sole. The petition alleofed that she was the owner and entitled to possession thereof, and that she held such land by a regular chain of title from J. D., that she could show to the court, etc. On the trial, she offered in evidence a deed made to her while she was a married woman, reciting a consideration of $100 paid the grantor by her. It was held that she was entitled to recover without an averment or evidence that the lands by the conveyance became her separate estate, as she, at any rate, had an undivided interest therein, as the survivor of the community, and as such could have maintained her suit asrainst the wrong-doer.^ Plaintiif brought an action against the defendant, who showed no title, to recover 687 acres of land. A part of plaintiff's chain of title was a decree of partition vesting in him the title to the tract for which he sued. It appearing that before the decree of partition he was seized of the premises as a tenant in common with others, his right to 747 Cll. 49. J PLEADINGS TO TRY TITLE. [§530. recover would not be defeated bv showinof the invalidity of the proceedings under which the partition was made." When by agreement between tenants in common one has the exclusive use and possession of a part of the common property, while the other has like use of other lands thus owjied, either may recover for an injury done to the prop- erty to which he has right of such exclusive use or occupa- tion. ^ Prior to the Revised Statutes, P. filed suit for the recov- ery of one-third of a league of land, averring the death of the grantee, and that she was his sole surviving heir, and thereby entitled to the land. The evidence adduced upon the trial tended to show that there were still living; other of the heirs of the grantee besides the plaintiff, and the court instructed the jury that, if they believed that there were living other heirs of the grantee besides the plaintiff in the suit, then to find for the defendant. It was held that, under the allegations of sole heirship, provided the case w^as otherwise established by evidence, the plainti:^ was en- titled to recover, notwithstanding the evidence might have shown there w^ere other living heirs not parties to the suit ; . provided, however, that if, as to her, the defendants occu- pied with reference to the land the attitude of strangers, trespassers and wrong-doers. A trespasser or wrong-doer is one who, not having title to the land, without the consent of the true owner, makes entry thereon. In reversing the judgment and remanding the cause for a new trial, the court called the attention of the parties to article 4786, Revised Statutes, and to the opinion of the court in Stovall v. Car- michael, 52 T. 390, directing the manner of entering a judgment in favor of plaintiff who had established an undi- vided interest in land occupied by another. On the second trial of this case, there was evidence tending to show that the plaintiff was the sole heir of the grantee, but, without passing ui)on its sufficiency, the court held that the plaint- iff, as tenant in common, was entitled to recover from the 748 CIl. -49.] PLEADINGS TO TKY TITLE. [§530. defendant who showed no title to the land.' A joint owner may recover as against a stranger, althongh in his petition he claimed exclusive ownership of the land, unless the de- fendant claims title under the other joint owners."^ In an action of trespass to try title, plaintiffs alleged in their petition that they were joint owners of the land sued for, and jointly recovered a judgment. On appeal to the Supreme Court, the judgment was reversed on the ground that it appeared from the statement of facts that the plaint- iffs, in the court below, held titles in severalty to different parts of the land sued for. This error was fundamental and went to the foundation of the judgment, although there did not appear to have been any exception taken in the court below, or that it was distinctly presented by assignment of errors.^ A joint action by several claiming separate and distinct portions of a tract of land, brought to recover their respec- tive parts, is irregular, and an objection to such joint action, if made at a proper time and in a proper manner, should be sustained. But the objection cannot for the first time be made on appeal, and a defendant ought not to be heard to urge it at all after having acquiesced so long in the partic- ular mode of procedure as that to entertain the objection would operate to the prejudice of the plaintiffs and secure to the defendant advantages which he would not have had, had he urged the objection when thp action was first brought .^'^ "W., without naming any co-tenant, brought suit on the 12th of March, 1873, alleging title to an undivided half of a league of land, and prayed judgment for the possession of the whole. No co-tenant was named in the petition and it did not appear by the pleadings who owned the other half. On the 7th of November, 1878, A. intervened in the suit, set up title in herself to the other undividelead. The defense of limitation is not available in this action, unless it is specially pleaded.^ The character of possession that will support the plea is defined by statute, and must be alleged in accordance with its provisions. ^ A plaiutijff relying on an exception in his favor to the running of the statute pleaded by the defendant, as infancy, covierture, etc., must specially plead the exception by way of replica- tion.^ 1 Civ. Stat. Arts. 3220, 4793. Ante, §536. 2 Ante, §§269-275. 8 Hughes V. Lane, 25 T. 356. ^ 770 Ch. 49.] PLEADINGS TO TRY TITLE, [§§544, 545. §544. Special matter of defense need not be denied. Tlie statute provides that it shall not be necessary for the pluiutiff to deny any special matter of defense pleaded by the defendant; but the same shall be regarded as denied, unless expressly admitted.^ In an action by one claiming to be the surviving widow of D., for the recovery of land occupied as a- homestead at the time of her husband's death, the defendant answered that plaintiff was not the surviving widow of D. ; that she was not living with him as his wife at the time of his death; that she had abandoned D., and continued to live apart from him, etc. To explain and contradict the evidence of defendant in support of the alle- gations in his answer, plaintiff was permitted, without fur- ther pleading, to introduce testimony denying abandonment, and explaining her absence, so as to contradict the charge of voluntary desertion of her honie.^ iCiv. Stat. Art. 1197. 2 Bradley v. Deroche, 70 T. 465. § 545. A partj^ pleading- liis title specially is limited thereto. Neither plaintiff nor defendant is compelled to plead his title specially; but, if either elect to do so, he is confined in his evidence to the title so pleaded. ^ This is upon the principle that, after having apprised the opposite party of the claim of title or special defense upon which he proposes to rely, it would operate as a surprise to permit him to prove another title or defense not set up in his pleading. But, while a defendant is confined in his defense to the special matters pleaded, this does not relieve the plaintiff from the necessity of proving his title, or preclude defend- ant from showing that the land sued for is not embraced in the description given in plaintiff's deed.'-^ Where the plaintiff set forth his title specially, and the* continuity of his claim depended on a link by descent, which must be established by parol, that is required to be alleged 771 Cll. 49.] PLEADINGS TO TRY TITLE. [§546. in order to authorize its proof. It would have been other- wise if the title had not been specially pleaded.^ A plea of the statute of limitations, which sets forth the title under which the defendant claims to have held ad- versely, is not within the rule above stated, and the defend- ant is not thereby restricted in his evidence.^ 1 Railway Co. v. Whitaker, 68 T. 630; Rivers v. Foote, 11 T. 662; Mills v. Alexander, 21 T. 1G2; Shields v. Hunt, 45 T. 425; Custard v. MusgTove, 47 T. 218; Nobles v. Cattle Co., 69 T. 434. 2 koenigheim v. Miles, 67 T. 113. 3 Edwards v. Barwise, 69 T. 84. < Town of Refugio v. Byrne, 25 T. 193. § 546. Title may he deraigued from common source. It is not necessary for the plaintiff to deraign title be- yond a common source,^ This rule is as old as the action of trespass to try title, and the statute is simply declaratory of what has been the law from time immemorial. The only change which the statute makes, if indeed it makes- any, is in prescribing how the fact that the defendant claims from a common source with the plaintiif may be proved, without giving evidence of title in the defendant. The statute has no reference to the pleading in the action of trespass to try title, and it is not necessary to allege in the petition that the parties claim under a common source of title.2 The fact that both parties deraign title from a common source docs not relieve the plaintiff from the necessity of proving his title, or preclude the defendant from showing that the land in controversy is not embraced in the descrip- tion contained in his deeds. ^ Proof of common source may be made by plaintiff by certified copies of the deeds, showing a claim of title to the defendant from and under such common source, which have been filed with the papers of the suit three days before the trial, and notice of which has been given to the defend- ant. Such certified copies are not evidence of title in the 772 Ch. 49.] PLEADIXGS TO TRY TITLE. [*§547. defendant, unless offered hy him iu evidence, and the plaintiff is not precluded from making any legal objection to such certified copies or the originals when introduced by the defendant.* When a deed is introduced which shows such a claim by a defendant, he cannot defeat the rule of common source by a declaration that he does not claim under it. If the defendant has superior right to the land, whether this arises from adverse possession or other facts, this he is not precluded from showing; but, iu the absence of some ev- idence on his part tending to show such superior right, the plaintiff would be entitled to recover on proof of claim of title by defendant emanating from and under the common source.^ A void tax deed, purporting to evidence the sale of land as the property of an owner named, may be used to show the claim of title by a defendant when sued by one claim- ing from the same source.^ If a defendant claims through a purchaser under execu- tion against a plaintiff, the sheriff's deed may not, for some cause, pass the title, yet such a deed will be sufficient evidence of common source, and the plaintiff iu such a case need not deraign title beyond himself as common source.' 1 Civ. Stat. Art. 4802. 2Keysv. Mason, 44 T. 140; Caplen v. Drew, 54 T. 493; Steagall v. Huff, 54 T. 193; Garner v. Lasker, 71 T. 431. 3 Koenigheim v. Miles, 67 T. 113. -» Civ. Stat. Art. 4802. ^ Burns v. Goff, 79 T. 236. « Garner v. Lasker, 71 T. 433. 7 Pearson v. Flanagan, 52 T. 266; Steagall v. Huff, 54 T. 192; Sell- man V. Hardin, 58 T. 86; CaUler v. Ramsey, 66 T. 218; Burns v. Goff, 79 T. 236. §547. Abstract of title may be deiuaiuled. After answer filed, either party may demand of the op- posite party, or his attorney of record, an abstract in Avrit- ing of the claim or title to the premises in question upon 773 Ch. 49.] PLEADINGS TO TRY TITLE. [§§548, 549. which he relies. Such demaud is made by notice in writ- ing, duly served upon the party, or his attorney, not less than ten days before the trial of the cause. The abstract must be filed with the papers of the cause within twenty days after the service of the notice, or within such further time as the court, on good cause shown, may grant; and in default thereof no evidence of the claim or title of such op- posite party shall be given on the trial. ^ When a party de- sires to know, in advance of trial, the muniments of title relied on by the adverse party, he must demand an abstract, as above provided. ^ 1 Civ. Stat. Arts. 4796, 4797. 2 Hammond v. Connolly, 63 T. 62, §548. Requisites of abstract of title. The abstract must state: 1. The nature of each doc- ument or written instrument intended to be used as ev- idence, and its date. 2. If a contract or conveyance, its date, the parties thereto, and the date of the proof or ac- knowledgment, and before what otficer the same was made. 3. Where recorded, stating the book and page of the rec- ord. If not recorded in the county where the trial is had, copies of such instrument, with the names of the subscrib- ing witnesses, shall be included. If such unrecorded in- strument be lost or destroyed, it is sufficient to state the nature of such instrument, and the loss or destruction. Either party may file an amended abstract of titles, under the same rules which authorize the amendment of plead- ings, so far as they are applicable; but in all cases the documentary evidence of title shall be confined to the mat- ters contained in the abstract of titles.^ 1 Civ. Stat. Arts. 4798, 4799. § 549. Writ of sequestration may be sued out. Judges and clerks of the District Court are authorized to issue a w^rit of sequestration, at the commencement or dur- 774 Ch. 49.] PLEADINGS TO TRY TITLE. [§550. ing the progress of a suit, for the title or possession of real property, upon proper application therefor b}^ the plaint- iff. The application, properly verified, must show that he » fears the defendant, or person in possession thereof, will make use of his possession to injure such property, or waste or convert to his own use the fruits or revenue pro- duced by the same ; or, that he has been ejected therefrom by force or violence. The writ can also be issued when any person sues to try title to any real property, or to re- move cloud upon the title to any such real property, and makes oath that the defendant, or either of them, in the event there be more than onfe defendant, is a non-resident of this state. ^ The defendant has the right to retain pos- session, by delivering a replevy bond to the officer execut- ing the writ.^ In Haile v. Oliver, 52 T. 443, it is said that the right to give a replevy bond is limited to the parties to the suit. If the landlord can execute a replevy bond for his tenant in possession, he can do so only with the consent of the ten- ant, and after he has in some proper mode been entered on the record as a party to the proceeding in which the bond is given. ^ When the plaintiff has obtained a writ of se- questration, and the verdict is in his favor, no damages can be awarded for wrongfully suing out the writ, even in fa- vor of a defendant in possession, who is found to have made improvements on the property in good faith.* ^ Civ. Stat., Art. 44S9. 2Civ. Stat., Art. 449S, 3 Harfis v. Shackelford, 6 T. 163. 4 Van Valkenburg v. Ruby, GS 'i\ 139. §550. A purchaser lis pendens bound by the .judj?nicnt. One who purchases land pending a suit in which the title to the land, or a lien upon it, is involved, does so subject to the final judgment in the cause, whether he be made a party to the suit or not. But his title is not affected, unless the t !•■> Ch. 49.] PLEADINGS TO TRY TITLE.* [§550. suit terminates adversely to his vendor. If dismissed or abandoned, no subsequent suit founded upon the same cause of action, much less one seeking a different rem- edy for different reasons against the same land, can inter- fere \yith the purchaser's title, unless he be made a party thereto. The abandonment of one cause of action and the adoption of a new one is in effect the dismissal of the former suit and the commencement of a new one, and all parties interested, not already before the court, must be served in order to be bound by the newly sought decree. All defenses accruing down to the date of the amendment may be pleaded in bar of the action. It has been held that a plaintiff cannot set up a new equity so as to affect a purchaser who bought previous to the filing of the amend- ment in which it is asserted, though the prayer for relief be -not chansed. Much less will the amendment affect such a purchaser, if the equity be different and contra- dictory of the original bill, and the relief be of a different character.^ In November, 1871, B., E. and T., as trustees of a re- ligious association, entered into possession of a lot in the town of Corpus Christi, Texas, under a deed to them from J., and they and their successors had since continuously oc- cupied and used the property as a place of public worship. In 1849, suit involving the title to the above mentioned lot was instituted in the United States Circuit Court, at Gal- veston, by D. against K., which resulted in a decree vesting the title in D. One of the links in the trustees' chain of title was a deed executed by K., in 1852, pending the suit between him and D. in the United States court. In an ac- tion of trespass to try title brought in 1882 for the lot by S.,who derived title through D., againstW., G. and P., the successors of B., E. and T. Held: (1) That the plaintiff's right of action was barred by limitation. (2) That, as the plaintiff relied on his Us jjeiideiis as matter to defeat the de- fendant's plea of limitation, it was incumbent on him to 776 Ch. 49.] PLEADINGS TO TRY TITLE. [§550. show not only that suit was pending at the time the deed made by K. in 1852 was executed, but also that this condi- tion of things continued down to such period of time as would preclude the defense of limitation. (3) That al- though there may have been lis pendens in 1852, yet, in the absence of proof to the contrary, it will not be presumed but that it ended in that year, or at least at some time suf- ficiently long before the institution of this suit in 1882, as to have made available to the defendants, under their deed executed in 1871, even the longest period of time prescribed by statute.^ 1 Wortham v. Boyd, 66 T. 401. 2 Sidbury v. Ware, 65 T. 252. 777 Ch. 50. — Removal of Civil Suits from a State Court TO THE Federal Courts. §551. Removal of a- civil suit iu which a federal question is in- volved. 552. Removal of suit in which a defendant is a non-resident. 553. Removal of suit against a non-resident defendant on account of prejudice. 554. Actions against a United States marshal removable to a fed- eral court, when. 555. Removal of eases where a civil right is denied. 556. Application for removal made, when. 557. Requisites of petition and bond. 558. Proceedings where land is claimed under grants from differ- ent states. 559. Right to remove not waived by an agreement to continue the suit. 56Q. Petition for removal of a case to the United States Circuit Court on the ground of citizenship. 561. Petition must allege the facts which authorize removal., 562. Petition must show a controversy between the parties to the proceeding for removal. 563. A corporation is a citizen of the state in which it is incorpo- rated. 564. Allegation of citizenship put in issue and tried, how. 565. Several causes may be removed on one application. 566. Petition for removal where there is a separable controversy which is wholly between citizens of different states. 567. Bond for removal to United States court. 568. Sufficiency of the bond a question for the court. 569. Petition for removal of cause on the ground of local prejudice. 570. Affidavit of prejudice. 571. Jurisdiction of federal court attaclies when a sufficient ap- plication for removal is made to a state court. 572. Effect of fan order of a federal court refusing to exercise jurisdiction in a cause transferred thereto. §551. Removal of a civil suit in which a federal ques- tion is involved. Any suit of a civil nature, at law or in equity, arising un- der the constitution or laws of the United States, or treaties 778 Cb. 50 ] REMOVAL OF CIVIL SUITS, ETC. [§§552,553. made, or which shall be made, under their authority, of which the Circuit Courts of the United States have original jurisdiction pending in any state court, may be removed by the defendant or defendants therein to the Circuit Court of the United States for the proper district.^ 1 Supp. Revised Statutes of the United States, p. 611. §552. Removal of suits in which a defeiiclant is a non- resitlent. Any other suit of a civil nature, at law or in equity, of which the Circuit Courts of the United States have original jurisdiction, and wdiich is pending in any state court, may be removed into the Circuit Court of the United States for the proper district by the defendant or defendants therein, being non-residents of that state. When in any such suit there shall be a controversy which is wholly between cit- izens of different states, and Avhich can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the Circuit Court of the United States for the proper district.^ 1 Supp. Revised Statutes of the United States, p. 611. §553. Removal of a suit against a non-resident de- fendant on account of prejudice. Where a suit is pending in any state court in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defend- ant, being such citizen of another state, may re;iiove such suit into the Circuit Court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said Circuit Court that from prejudice or local influence he will not be able to obtain jus- tice in such state court, or in any other state court to which the said defendant may, under the laws of the state, have the right, on account of such prejudice or local influence, 779 Cll. 50.] REMOVAL OF CIVIL SUITS, ETC. [§553. to remove said cause; provided, that if it further appear that said suit can be fully and justly determined as to the other defendants in the state court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said Circuit Court may direct the suit to be remanded, so far as relates to such other defendants, to the state court, to be proceeded with therein. At any time before the trial of any suit which is pending in any Circuit Court, and which has been removed to said court from a state court on the affidavit of any party jjlaint- iff that he had reason to believe, and did believe, that from prejudice or local influence he was unable to obtain justice in said state court, the Circuit Court shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice, in such state court, it shall cause the same to be remanded thereto. Whenever any cause shall be removed from any state court into any Circuit Court of the United States, and the Circuit Court shall decide that the cause was improperly re- moved, and order the same to be remiuided to the state court from which it came, such remand shall be immediately car- ried into execution, and no appeal or writ of error from the decision of the Circuit Court so remandino: such cause shall be allowed.^ When a cause is removed from a state court on the ground of prejudice or local influence, the Circuit Court must be legally satisfied, by proof suitable to the nature of the case of the truth of the allegation, that by reason of those causes the defendant will not be able to obtain justice in the state court, the amount and manner of such proof be- ing left in each case to the discretion of the court. The matter in dispute must also exceed the sum of two thousand dollars, in order that the Circuit Court may take jurisdic- 780 Ch. 50.] REMOVAL OF CIVIL SUITS, ETC. [§554. tion.2 jjj order to the removal of a cause on the ground of local prejudice, where there are several plaintiffs or several defendants, it is essential that all the necessary parties on one side be citizens of the state where suit is brought, and all on the other side be citizens of another state or states ; and the proper citizenship must exist when the action is commenced as well as when the petition for removal is filed. ^ 1 Siipp. Kevi.-;ed Statutes of the United States, p. 611. 2 In re Pennsylvania Co., 137 U. S. 451. 3 Young V. Parker, 132 U. S. 267. § 554. Actions against a United States marshal re- movable to a federal court, when. It has been decided by the Supreme Court of the United States that an action against a United States marshal for seizing a stock of goods under authority of a writ from a District Court of the United States in proceedings in bank- ruptcv, the suit being on his official bond, and the sureties therein being joined as co-defendants, is a civil suit, arising under the constitution and laws of the United States, which may be removed from a state court to the federal court. The decision is placed upon the ground that the suit is based on a bond o-iven under Art. 783, of the Revised Stat- utes of the United States, and the right of action is given by Art. 784, which authorizes a suit, in case of a breach of the condition of a marshal's bond, to recover such damages as shall be legally assessed with costs of suit. It is, there- fore, a case arising under the laws of the United States, and within the jurisdiction of the federal court. ^ A suit against a United States marshal, for seizing a stock of merchandise under the authority of a writ from a federal court, is re- movable from a state court to the proper federal court. ^ In McKee v. Coffin, (>() T. 304, it is held that a United States marshal, against whom suit is instituted in a state court to recover damages for an illegal seizure of property under au attachment not authorizing the seizure (it being 781 Ch. 50.] KEMOVAL OF CIVIL SUITS, ETC. [§554. the property of a person not named in the writ), is not en- titled, merel}^ because he is marshal, to remove the case to the federal court. In this case it was not alleaed in the pleadings or in the petition for removal that the suit is one arising under the laws of the United States, or that the de- fendant has a defense arising under such laws. The sole question was as to the marshal's liability for a seizure, under a valid writ, of property which it is claimed the writ did not authorize him to seize. ^ Suit was brought in the United States Circuit Court against the United States marshal and his sureties, for illegal seizure of plaintiff's goods, of the alleged value of $4,500. A plea in abatement averred that the alleged value was fictitious, and was so stated for the purpose of giving the court jurisdiction, and that their actual value was less than $2,000. On this plea there was a verdict for the de- fendant, and the suit was dismissed. Thereupon suit was brought upon the same cause of action, against the same de- fendants, in the District Court of Dallas Countv, allcirinir damages at $2,000. Afterwards plaintiff amended his peti- tion, in no wise changing the parties or cause of action, but alleging damages at $3,500. Thereupon the defendants, ex- cept C, filed a petition for the removal of the cause to the United States Circuit Court, together w^th a bond for remov- al. The plaintiff filed an answer to the petition for removal, setting up the facts above stated, and alleging res adjndi- cata. It was held that the judgment in the United States Circuit Court was an adiudication against the risrht of that court to exercise jurisdiction over the case, whether by original suit or by removal, and the state court was con- trolled by the jurisdictional fact ascertained in the United States court.* 1 Foibelman v. Packard, 109 U. S. 421. 2 McKee v. Brooks, 64 T. 2r)o; Bock v. Perkins, 139 U. S. G28. 3 See Buck v. Colbath, 3 Wall. 334; Bock v. Perkins, 139 U. S. 628. < Henderson v. Cabell, S3 T. 541. 782 Ch. 50.] REMOVAL OF CIVIL SUITS, ETC. [§§555,556. § 555. Removal of cases when a civil right is denied. A suit or criminal prosecution commenced in a state court, against a person who is denied or cannot enforce any equal civil right secured by law, or against any officer, civil or military, or other person, for any arrest, imprisonment, or other trespass or wrong, done under authority derived from any law providing for equal rights, may be removed for trial into the next Circuit Court held in the district where it is pending. Upon the filing of a petition for such re- moval, stating the facts, and verified b}^ oath,* further pro- ceedings in the state court will cease, and cannot be re- sumed, except upon the certificate, under the seal of the Circuit Court, stating that a copy of the proceedings, etc., in the case was not filed in the Circuit Court on the first day of its session. ^ 1 Revised Statutes, §641. §556. Application for removal made, when. Application for the removal of a cause, except upon the ground of prejudice, must be made at or before the time when the defendant is required to answer or plead in the case.^ By the statute of Texas, when a citation or service thereof is quashed on motion of defendant, the case may be continued for the term, and the defendant will be deemed to have entered his appearance at the succeeding term of the court. If the motion to quash is not acted on during the term, but is passed to another term without action, the defendant will be treated as having appeared at such term. 2 At the Juh^ term, 1886, of a District Court of Texas, a non-resident defendant, who had been joined in a suit against a resident defendant, moved to quash the service of the citation. During the same term the defend- ant moved to dismiss the cause for want of jurisdiction over his person, claiming that he could not be brought into court by service of notice without the limits of this state. He also plead to the jurisdiction on the same ground. An ex- 7S3 Ch. 50.] REMOVAL OF CIVIL SUITS, ETC. [§556. ceptioii of plaintiff to these answers was sustained, and the cause continued. At the succeeding January term, the motion to dismiss for want of jurisdiction was over- ruled. Afterwards the non-resident defendant applied to have the cause removed to the Circuit Court of the United States. It was held that the cause did not stand for trial until the January term, 1887; that the non-resident de- fendant was not obliged to plead until that term, nor could the plaintiff demand atrial before that time. At that term, and before the case was called for trial, the defendant made an application to remove the cause to the United States Circuit Court. It appeared from the application, as well as from the original petition, that a controversy ex- isted in the suit between the plaintiff, a resident of Texas, and the defendant, a resident of Louisiana, to which neither of the other defendants was a necessary or proper party. The controversy was as to the right to recover vin- dictive damajjes for alleo-ed malice in suing out an attach- ment. This could be determined without the presence of the other defendants, who were merely sureties upon the attachment bond, and not liable for vindictive damages. The application having been made at the first term, at which the plaintiff had a right to demand a trial, and to compel the non-resident defendant to join issue with him on the merits of the cause, was in time within the meaning of the act of Congress.^ Construing the Act of Congress of March 3d, 1875, re- quiring a petition for removal of a cause to be filed "before or at the term at which said cause could be first tried, and before the trial thereof," it was held that these Avords did not warrant the conclusion that a cause should be removed, if an application for this purpose is made at any time be- fore the trial of the cause is completed. It imports, on the contrary, that the party desiring to avail himself of the privilege of removing the suit must make out and file his petition before the trial has begun. An application for a 7S4 Cll. 50.] REMOVAL OF CIVIL SUITS, ETC. [§^57. removal of the cause, which is not made until the court has commenced the trial, is not made, as is required b}' che statute, before its trial. ^ In Meyer v. Schining, 55 T. 430, it is held that the ap- plication must be made at the first term, when the parties are all before the court, before or at the time w4ien the cause could be first tried on its merits, and before the trial thereof.^ 1 Mimning v. Amy, 140 U. S. 137; Railroad Co. v. Daughtiy, 13S U- S. 29S. 2 Civ. Stat., Art. 1243. 3 Feibleman v. Edmonds, 69 T. 334. * Watt V. White, 46 T. 33S. 5 Manning v. Amy, 140 U. S. 137. §557. Requisites of a petition and bond. Whenever any party entitled to remove any suit men- tioned in sections 554 and 555 may desire to remove such suit from a state court to the Circuit Court of the United States, he may make and file a petition in such suit in such state court at the time, or any time before the defendant is required by the laws of the state, or the rule of the state court in which such suit is brought, to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the Circuit Court, to be held in the dis- trict where such suit is pending, and shall make and file therewith a bond, with good and suflicient surety, for his or their entering, in such Circuit Court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said Circuit Court, if said court shall hold that such suit Avas wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit, if special bail was originally requisite therein. It shall then be the duty of the state court to accept said petition and bond, and pro- ceed no further in such suit. And the said copy being en- tered, as aforesaid, in said Circuit Court of the United (50— Plead. Forms.) 785 Ch. 50.] REMOVAL OF CIVIL SUITS, ETC. [§558. States, the cause shall then proceed in the same manner as if it had been originally commenced in the said Circuit Court. 1 ^ Supplement to Revised Statutes of the United States, pp. 611-614. §558. Proceedings where land is claimed under grants from different states. If, in an}' action commenced in a state court, the title of land be concerned, and the parties are citizens of the same state, and the matter in dispute exceed the sum or value of two thousand dollars, exclusive of interest and costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim, and shall rely upon, a right or title to the land under a grant from a state, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a grant from some other state, the party or parties so required shall give such information, or otherwise not be allowed to plead such grant, or give it in evidence, upon the trial. And if he or they inform that he or tho}^ do claim under such grant, an}^ one or more of the party mov- ing for such information may then, on petition and bond, as before mentioned, remove the cause for trial to the Cir- cuit Court of the United States, next to be holden in such district. And any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated, as aforesaid, as the ground of his or their claim. ^ Plaintiff, a citizen of Illinois, sued in ejectment, to re- cover possession of lands in that state claimed to have been granted to plaintiff's ancestor by a patent of the United States, nuiking the tenant, a citizen of that state, a 786 Ch. 50.] REMOVAL OF CIVIL SUITS, ETC. [§§559,560. defencliint. The owner under whom the tenant chiiuied, a citizen of New York, appeared, and on his motion was made a part}^ defendant. He then set up title under another patent from the United States, and moved for a removal of the cause, on the ground that there was a controversy in- volving the authority of the land department to grant a patent. It w^as held that the case was removable. ^ 1 .Supplement to Revised Statutes of the United States, pp. 611-614. 2 Mitchell V. Smale, 140 U. S. 406. §559. Right to remove not waived by an agree- ment to continvie the suit. In a suit brouo;ht in the District Court of Colorado County, Texas, by a resident of that county against the Southern Pacific Railway Company, a private corporation, chartered by virtue of the laws of Kentucky, the applica- tion of the defendant for the removal of the cause to the United States Circuit Court, on the ground that it was not a resident of this state, was resisted by plaintiff, for the reason that, before the commencement of the term of court at which the application was made, the parties had agreed that the cause should stand continued at the approaching term. It w^as held that the agreement did not deprive de- fendant of its right to remove the cause. ^ 1 Southern Pacific Ry. Co. v. Harrison, 73 T. 103. §560. Petition for removal of a case to the United States Circuit Court on the ground of citizenship. A. B., Plaintiff, ) t ^i r\- ^^ • *- r^ *. -.^ ' ' / In the District Court, No. v. > ^, . rp CD., Defendant. S ^"''"*^'' ^^''^'' To the District Court in and for the County of , Texas : Now this day comes C. D., the above named defendant, and files his petition for removal of the above entitled cause to the United States Circuit Court, in and for the District of Texas, at , and respectfully shows to the court ; that the controversy in the said cause is wholly 787 Ch. 50.] REMOVAL OF CIVIL SUITS, ETC. [§560. between citizens of different states; that A. B., the phiint- iff in said cause, was at the time of the commencement of said suit, and still is, a citizen of the State of , and the defendant, C. D., was at the time of the commencement of said suit, and still is, a citizen of the State of ; that the matter and amount in dispute in said cause exceeds, ex- clusive of interest and costs, the sum or value of two thou- sand dollars. And your petitioner further shows that the time within which defendant is required by the laws of the State of Texas, or the rule of said court in which said suit is brought, to answer or plead to the declaration or complaint of the plaintiff, has not yet expired, and your petitioner offers herewith bond, with good and sufficient surety, for his enter- ing in the Circuit Court for the District of Texas, at , on the first day of its next session, a copy of the record in this suit, and for paying all costs that may be awarded by said Circuit Court, if said court shall hold that this cause was wrongfully or improperly removed thereto. Wherefore, defendant prays this honorable court to pro- ceed no further herein, except to make the order of removal required by law, and to accept the said surety and bond,, and to cause the record herein to be removed into said Cir- cuit Court of the United States, in and for said Dis- trict, at , and as in duty bound he will ever pray. E. S., Attorney for Petitioner. CD., Petitioner.. State of Texas, County of . C. D., being duly sworn, on his oath says that he is the defendant in the above entitled cause, and h;is read the foregoing petition, and knows the contents thereof, and that the statements therein contained are true. c. D. The failure to state the existence of citizenship at the commence- ment of the suit, as well as when the removal is asl the District Court of County, C. D., Defendant. ) in the State of Texas. To the Honorable the Judges of the Circuit Court of the United /States for the District of Texas: Your petitioner respectfully shows that a suit has been brought in the District Court in and for the County of , in the State of Texas, in which A. B. is plaintiff, and your petitioner, C. D., is defendant, and that said suit has not yet been tried, but is now pending in said state court; that the matter and amount in dispute therein exceeds, exclusive of interest and costs, the sum or value of two thousand dollars; and that your petitioner desires to remove said suit into the Circuit Court of the United States for the District of Texas, at . Your petitioner further shows that there is in said suit a controversy between a citizen of the state in which said suit is brought and a citizen of another state, said controversy being between the plaintiif, A. B., who, as your petitioner avers, is and was at the time of bringing said suit a citizen of the State of Texas, and the said defendant, C. D., your petitioner, who is and was at the time of bringing said suit a citizen of the State of , and that both said plaintiff and defendant are actually interested in said controversy. 704 Cll. 50.] REMOVAL OF CIVIL SUITS, ETC. [§570 Your petitioner further shows to the court that the nature of said suit is as follows, to-wit: [^liere set out the nature of the suit, the piwpo.se for which it was brought, and the character of the relief prayed~\ . And your petitioner files herewith an affidavit in due form, whereby it is made to appear to this court that from prejudice and local influence your petitioner will not be able to obtain justice in the said state court, wherein said suit is now pending, nor in any other state court to which your petitioner may, under the laws of the State of Texas, have the right, on account of such prej\idice and local influence, to remove the same. Wherefore, petitioner prays that the said suit may be re- moved into this court, and that a writ of certiorai^i may issue from and out of this court directed to the said state court, or to the judge thereof, commanding it or him to forthwith certify to this court a full, true and complete copy of the record and proceedings in said suit. And as in duty bound will ever pray, etc. ^ j^ E. W. P., Attorney for Petitioner. The petition for the removal of a cause, on account of prejudice or local influence, must be filed before or at the term at which the cause should first be tried, and before the trial thereof.^ 1 Fisk V. Henarie, 142 U. S. Rep. 459. §570. Aflirtavit of prejudice, etc. United States of America, District of Texas, AT C. D., being duly sworn, on his oath says that he is the defendant (or one of the defendants) in the above entitled cause, which is now pending for trial in the District Court in and for the County of , in the State of Texas, and that from prejudice and local influence he will not be able to obtain justice in said state court, or in any other state 795 Ch. 50.] REMOVAL OF CIA'IL SUITS, ETC. [§571. court to which the said defendant may, under the laws of the State of Texas, have the right, on account of such pre- judice and local influence, to remove said cause. And affi- ant further says that the existence of said prejudice and local influence is shown by the following facts, to-wit : l_set out (he /acts tending to shoiv that 'prejudice and local in- Jluence exist against the defendant, and the extent^ . Sworn to, etc. p j^ §571. Jurisdiction of federal court attaches when a sufficient application for removal is made to a state court. It has been uniformly held by the Supreme Court of the United States that, if a state court wrongfully refuses to give up its jurisdiction on a petition for removal, and forces a party to trial, he loses none of his rights by re- mainino; and contesting the case on its merits. When a sufiicient cause for removal is made in the state court, the rightful jurisdiction of that court comes to an end, and no further proceedings can properly be had there, unless in some form restored. If after a case has been made the state court forces the petitioning party to trial and judg- ment, and the highest court of the state sustains the judg- ment, he is entitled to his writ of error to the court of the United States having jurisdiction, if he saves the question on the record. If the judgment is reversed, the case is sent back to the state court, with instructions to recognize the removal, and proceed no further. The petitioning party has also the right to remain in the state court under pro- test, and rely upon this form of remedy if he chooses, or he may ejiter- the record in the Circuit Court and require the adverse party to litigate with him there, even while the trial in the state court is going on. When the suit is docketed in the Circuit Court, the adverse party may move to remand. If the motion is decided against him, he may 796 Ch. OO.] REMOVAL OF CIVIL SUITS, ETC. [§072. save his point on the record, and after final judgment bring the case to the federal appellate court for review, if the amount inv^olved is sufficient for its jurisdiction.^ ^ Railroad Co. v. Kooutz, 104 U. S. 5. §•572. Effect of an order of a federal court refus- ing' to exercise jurisdiction in a cause transferred tliereto. A cause was removed from the Harris County District Court to the United States Circuit Court, at Galveston ; the Circuit Court dismissed the case for want of sufficient cause for removal. The dismissal was affirmed on appeal by the United States Supreme Court, and the affirmance was certi- fied to the Circuit Court by formal mandate filed therein^. A certified copy of the mandate Avas filed in the case in the State District Court, on September 1st, 1887, and, no one appearing, the plaintiff dismissed as to one defendant, and a judgment by default was rendered against the remaining defendants with a wa'it of inquiry. On October 11th, 1887^ a motion was made by the defendants to reinstate the case, and on the loth of October the motion was sustained, the de- fault was set aside, and the case dismissed for want of jur- isdiction. It was held, on appeal, that the copy of the mandate filed in the District Court was competent and sufficient evidence of the refusal of the Circuit Court to assume control of the cause; that no formal order by the Circuit Court, relinquishing jurisdiction after the dismissal, was necessary tq enable the District Court to resume its proceedings, and that the District Court should have 'Pro- ceeded with the cause as in other cases on the docket.^ 1 iSeeligsou v. Transportation Co., 70 T. 198. 797 Ch. 51. — Precedexts of Pleadings in the Circuit Court of the U^■1TED States. §573. Civil jurisdiction of the Circuit Courts of the United States. 574. Pleadings in civil cuiisies. 575. Allegation of facts conferring jurisdiction in actions between citizens of different states. 576. Petition in action at law by subjects of a foreign government residing in Texas. 577. Petition in action at law for infringing a patent. 578. Bin in equity to restrain the infringement of a patent. 579. Bill to restrain proceedings upon an accommodation bill of exchange, and to have the same delivered up. 580. Bill for the specific performance of an agreement to convey land. 581. Demurrer to a bill in equity. 582. Plea of a stated account. 583. Answer to a bill in equity. §573. Civil jurisdiction of the Circuit Courts of tlie United States. The Circuit Courts of the United States have original coofnizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, in the followinir cases : 1. Cases arisinoj under the constitution or laws, or treaties of the United States. 2. Cases in which the United States are plaintiffs or petitioners. 3. Cases in which there shall be a controversy betweeft citizens of dif- ferent states, in which the matter in dispute exceeds the sum or value aforesaid. 4. Cases in which there shall be a controversy between citizens of the same state claiming lands under grants of different states, or a controversy be- tween citizens of a state and foreign states, citizens or sub- jects in which the matter in dispute exceeds," exclusive of in- terest and costs, the sum or value aforesaid. 798 Ch. 51.] prviiczz-..^: cr rL::Ar:::c.:, zic. [§574. No civil suit shall be brought against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. The Circuit Court does not have cognizance of any suit, ex- cept upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder, if such instru- ment be payable to bearer and be not made by any corpora- tion, unless such suit might have been prosecuted in such court to recover the said contents if no assignment or trans- fer had been made.^ All national bankino^ associations es- tablished under the laws of the United States shall, for the purposes of all actions by or against them, real, personal or mixed, and all suits in equity, be deemed citizens of the states in which they are respectively located. This provi- sion does not affect the jurisdiction of the courts of the United States in cases commenced by the United States, or ^'.ases for winding up the affairs of any such bank.^ 1 Supp. to the Rev. Stat. U. S., p. 611. - 2 Supp. to the Rev. Stut. U. S., p. 614. §574. Pleadings in civil causes. The practice, pleadings, and forms and modes of proceed- ing in civil causes, other than equity causes, in the Circuit Courts of the United States, conform as near as may be to the practice, pleadings, and forms and modes of proceeding- existing at the time in like causes in the courts of record of the state within which such courts are held.^ This provision also applies to all special statutory proceedings of the state, which are in the nature of common law proceedings, as dis- tinguished from those of an equitable character, such as the action of trespass to try title, proceedings for partition of lands, foreclosure of a mortgage, and all statutory remedies Ch. 51.] PRECEDENTS OF PLEADINGS, ETC. [§§575,576. of ca like nature. ^ In equity cases the pleadings are gov- erned by the rules recognized by the English courts of chancery and as modified by the rules of the Supreme Court of the United States. 1 Kev. Stat. U. S. §914. 2 Sears v. Eastburn, 10 Howard, 187; Clark v. Smith, 13 Pet. 105. §575. Allegation of facts conferring: jurisdiction in actions between citizens of different states. Where an action is between citizens of different states, a general averment containing the facts necessary to confer jurisdiction is sufficient. The following caption and averment of jurisdiction may be used in a suit b}'' a national bank :. First National Bank of , Plaintiff, V. . Richard Eoe, Defendant. Western District of Texas, at , Texas. > To the Honorable the Judges of the Circuit Court of the United States in and for said District: The First National Bank of , hereinafter styled plaintiff, complaining of Eichard Roe, represents that plaint- iff is a banking corporation, duly organized and created un- der the laws of the United States, aild is a citizen of the State of , and has its domicile and place of business in the city and county of , in said state. That defendant is a citizen of Texas, and resides in the county of — — , in said state. § 576. Petition in action at law by subjects of a for- eign government residing in Texas. in the Circuit Court of the United States in and for the District of Texas, at , Texas, Term, 18—. A. & L., ) V. [Xo. . M., ET AL. ) To the Honorable the Judges of the Circuit Court of the United States in and for said District: 800 Ch. 51.] PRECEDENTS OF PLEADINGS, ETC. [§576. B. A. and J. L., hereinafter s^tyled plaintiffs, complain- ing of W. F. M. and J. F. M., hereinafter stjded defend- ants, respectfully represent : That the plaintiffs reside in comity, Texas, and are partners in the banking business, under the firm name and style of A. & L. That plaintiff's, B. A. & J. L., are both subjects and citizens of France. That the defendants reside in county, Texas, in the district of Texas, and at the times hereinafter men- tioned were partners in trade, doing business under the firm name and style of M. & Son. That heretofore, to-wit: on or about the Is.t day of Sep- tember, 18 — , the said defendants made their certain draft or order in writing, commonly called a check, bearing date the day and year last aforesaid, and then and there directed the said draft or order to plaintiffs, by the name, style and firm of A. & L., and thereby then and there requested plaintiffs, as aforesaid, to pay to the order of J. K. R., cashier, two thousand, one hundred and forty-one dollars and twenty cents ($2,141.20). And the said defendants then and there delivered said draft or order to the said J. K. R., to whose order the payment of the said sum of money therein specified was ordered to be made. That after the making of said draft or order, to-wit : on or about the same day, the said R. endorsed the said draft or order on the reverse side thereof for collection, and said sum of money specified in said draft or order was, on or about the 3d day of September, 18 — , paid by plaintiffs to the order of the said R. Plaintiffs further aver that at the time they paid said order or bill to the order of the said R., that the said M. & Son had no effects or money in plaintiffs' hands, ex- cept the sum of eight hundred and one dollars and thirty cents ($801.30) ; that the plaintiffs owed the said M. & Son nothing, and that the plaintiffs paid the said order or bill upon the credit of said M. & Son, and at their written re- quest. (51— Plead. Forms.) SOI Ch. 51.] TRECEDENTS OF PLEADINGS, ETC. [§576. That on the same day, to-\vit : on or about the 1st clay of September, 18 — , the said defendants, M. & Son, made their certain other draft or order in writing, common]}^ called a bill or check, bearing date the day and year last above mentioned, and then and there directed the said draft or order to plaintiffs, by the name and style of A. & L., and thereby then and there requested plaintiffs, as aforesaid, to pay to the order of W. H. E., president, the sum of fifteen hundred dollars ($1,500). And the said defendants then and there delivered said draft or order to the said W. H. E., to whose order the payment of the said sum of money therein specified Avas ordered to be made. That after the making of said draft or order, to-wit : on or about the same dav, the said E. endorsed the said draft or order on the reverse side thereof for collection, and said sum of money specified in said draft or order was, on or about the 4th day of September, 18 — , paid by plaintiffs to the order of the said W. H. E. Plaintiffs further aver that at the time they paid said order or bill to the order of said W. H. E., the said M. & Son had no effects or money in plaint- iffs' hands ; that they owed said M. & Son nothing, and that they paid the said order or bill upon the credit of said M. & Son, and at their written request. That on the same day, to-wit : on or about the first day of September, 18 — , the said defendants, M. & Son, made their certain other draft or order in writing, commonly called a check or bill, bearing date the day and year last aforesaid, and then and there directed the said draft or or- der to plaintiffs, b}^ the name, style and firm of A. & L., and thereby then and there requested plaintiffs to pay to the order of Nat'l Baidv of , one hundred and six dol- lars and nine cents ($10().09). And the said defendants then and there delivered said draft or order to the said Nat'l Bank of , to whose order the payment of the said sum of money therein specified was ordered to be made. That after the makino; of said draft or order, to-Avit : on or about the same day, thesaid Nat'lBank of , endorsed 802 Cb. 51.] PRECEDENTS OF PLEADINGS, ETC. [§576. the said draft or order on the reverse side thereof for col- lection, and said sum of money specified in said draft or order was, on or about the 5tb day of September, 18 — , paid b}' plaintiffs to the order of the said Nat'I Bank of . Plaintiffs further aver that at the time they paid said order or bill to the order of the said Nat'I Bank of , that the said M. & Son had no effects or money in plaintiffs' hands, and that they owed said M. & Son nothing, and that they paid said order or bill upon the credit of said M. & Son, and at their written request. Plaintiffs further represent that the said M. & Son agreed and promised to repay plaintiffs all of said several sums of money mentioned in said bills, checks or drafts, less the credit aforesaid, on or before the 1st day of October, 18 — , with interest at the rate of eight per cent, per annum from the several dates that plaintiffs paid said drafts or orders. That all of said checks or drafts were delivered to plaintiffs at the time they paid the same, and that they now hold them. That by reason of the premises the defendants became liable, and promised to pay plaintiffs the said several sums of money mentioned and specified in said checks or drafts, with interest on each of said sums of money at the rate of eight per cent, per annum from the date of said payments, as above stated ; that none of said money has been repaid the plaintiffs, except the sum of eight hundred and one dollars and thirty cents ($801.30), which was in their hands, and which they have applied as a credit on said drafts, or as a credit on the monevs advanced for defend- ants' account on their said drafts or orders, as aforesaid. That the balance of said debt is long since due, and the de- fendants, though often requested, have refused and still refuse to pay the same, or any part thereof, to plaintiffs' damage five thousand dollars ( $5,000). Wherefore, plaintiffs pray that the defendants be cited to answer this petition, and that they have judgment for their debt, interest, and costs of suit, and general relief. 803 Ch. 51.] PRECEDEXTS OF PLEADINGS, ETC. [§577, §577. Petition in action at law for infringing a patent. A. B. V. C. D. In the Circuit Court of the United States in and for the District of Texas, at Texas, Term, 18 — . To the HonorahJe the Judges of the Circuit Court of the United States in and for said Distinct: A. B., plaintiff, complaining of C. D., defendant, re- spectfully represents : That plaintiff is a citizen of the State of , and resides in the county of , in said state. That defendant is a citizen of Texas, and resides in the county of , in said state. (a.) That E. W., of the city of , State of , was the original and first inventor of a certain improvement in plows, fully described in the letters patent hereinafter mentioned, and which had not been known or used be- fore said invention, and which was not at the time of his application for a patent, as hereinafter mentioned, in public use, or on sale, with his consent or allowance. That said E. W., having prior to the date next herein- after mentioned assigned his right, title and interest in said improvement in plows to plaintiff, A. B., and being so as aforesaid the first inventor and discoverer of said im- provement, and being also a citizen of the United States, on , 18 — , upon due application therefor, letters patent of the United States for said invention, in due form of law, under the seal of the patent office of the United States, signed and countersigned by the proper officers of the United States, bearing date the day and year last aforesaid, were issued to plaintiff, whereby there was granted and secured to plaintiff, his heirs, administrators or assigns, or intended so to be, for the term of seventeen years from and after the date of said letters patent, the full and exclusive right and liberty of making, constructing, using, and vend- 804 Ch. 51.]' PRECEDENTS OF PLEADINGS, ETC. [§^77. ing to others to be used, the said invention and improve- ment, as set forth in said letters patent, which, or a certified copy of the same, are ready in court to be produced, and by virtue whereof the plaintiff became the sole owner of all the rights and privileges granted and secured, or in- tended to be granted and secured, in and by said letters patent, (b.) (c.) Plaintiff further alleges that by virtue of the prem- ises he became, and now is, the sole and exclusive owner of said letters patent, and the inventions and improvements described therein, and of all the rights and privileges granted and secured, or intended to be granted and secured, thereby. And that since he became the owner thereof, as aforesaid, he has invested and expended large sums of money, and has been to great trouble in and about said invention, and for the purpose of carrying on the business of manufacturing and selling said improvements in plows, and making the same profitable to himself and useful to the public; and that said invention has been, and is, of great benefit and advantage ; and that a large number of plows, embodying said improvements, were made according to said invention, and sold by plaintiff, and others deriving their right "Under him, to great advantage to the public, (d.) Plaintiff further alleges that heretofore, to-wit: on the day of , A. D. 18 — , and on the day of , A. D. 18 — , and on divers days, between said dates,' the de- fendant has without the license, allowance or permission, and against the will of plaintiff, in violation of his rights, and in infringement of the aforesaid letters patent, unlaw- fully and wrongfully made, constructed, used, and vended to others to be used, a large number of plows, to-wit : made according to, and employing and containing said in- vention, to the damage of plaintiff in the sum of dol- lars. Wherefore, plaintiff prays that the defendant be cited to answer this petition, and. that he have judgment for his damages as aforesaid, and for costs of suit; and general relief. 805 Ch. 51.] PRECEDENTS OF PLEADINGS, ETC. [§578. §")78. Bill to restrain the infringement of a patent. To the Honorable tlie Judges of the Circuit Court of the United States in and for the District of Texas, at . A. B., of , and a citizen of the State of , brings this, his bill of compljunt, against C. D., of , and a citizen of the State of , and thereupon your orator complains and says : [Here insert paragraph a to 5, in form §577.] And your orator further shows that said E. W. was the original and first inventor of a certain other improvement in plows, fully described in the letters patent hereinafter mentioned, and which had not been known or used before said invention, and which was not at the time of his appli- cation for a patent, as hereinafter mentioned, in public use, or on sale with his consent or allowance. And your orator, on information and belief, further shows unto your honors that said E. W., having prior to the date next hereinafter mentioned assigned his riijht, title and interest in said improvement in plows to B. A., aforesaid, and being so as aforesaid the first inventor and discoverer of said improvement, and being also a citizen of the United States, on July 11th, 1871, upon due application therefor, letters patent of the United States for said inven- tion, in due form of law, under the seal of the patent office of the United States, signed by the secretary of the inter- ior, and countersigned by the commissioner of patents of the United States, bearing date the day and year last afore- said, were issued to said A. B., Avhereby there was granted and secured to said A. B,, his heirs, administrators or assigns, or intended so to be, for the term of seventeen years from and after the date of said letters patent, the full and exclusive right and liberty of making, constructing, using, and vending to others to be used, the said invention and improvement, as set forth in said letters patent, which, or a certified copy of the same, are ready in court to be 806 Cll. 51.] PRECEDE^'TS OF PLEADINGS, ETC. [§578. produced, and by virtue whereof he, A. B., became the sole owner of all the riirhts and privileses granted and secured, or intended to be granted and secured, in and by said letters patent. [Here insert paragraph c to d, in form §577.] And your orator further shows unto your honors, on in- formation and belief, that said defendants have sold large quantities of said plows, and have a large quantit}^ on hand, which the}^ are offering for sale, and have made and real- ized large profits and advantages therefrom; but to what extent, and how. much exactly, your orator does not know, and pravs a discovery thereof. And your orator says that the use of the said invention by said defendants, and their preparation for and avowed determination to continue the same, and their other aforesaid unlawful acts, in disregard and defiance of the rights of your orator, have the effect to and do encourage and induce others to venture to in- fringe said patent, in disregard of your orator's rights. And your orator further shows unto your honors that he has caused notice to be given to said defendants of said infringements, and of the rights of your orator in the prem- ises, and requested them to desist and refrain therefrom ; but they have disregarded said notice, and have refused to desist from said infringements, and still continue to make and sell said plows. And forasmuch as your orator can have no adequate re- lief except in this court, to the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, according to their best and utmost knowledge, remembrance, informa- tion and belief, full, true, direct and perfect answers make to the premises, and to ail the several matters hereinbefore stated and charged, as fully and })articularly as if severally and separately interrogated as to each and every of said matters, and may be compelled to account for and pay to S07 Ch. 51.] PKECEDEXTS OF PLEADINGS, ETC. [§578. your orator the profits by them acquired, and the damages suffered by your orator from the aforesaid unhiwf ul acts. And your orator prays that said defendants, their serv- ants, agents, attorneys, and workmen, and each and every of them, may be restrained and enjoined provisionally and perpetually, by the order and injunction of this honorable court, from directly or indirectly making, constructing, using, vending, delivering, working, or putting into prac- tice, operation or use, or in anywise counterfeiting or im- itating, the said invention, or any part thereof, or any plows made in accordance therewith, or like or similar to those which the}'' may have heretofore made ; and that the said defendants may be decreed to pay the costs of this suit; and that your orator may have such further relief, or such other relief, as to this honorable court shall seem meet, and as* shall be agreeable to equity. May it please your honors to grant unto your orator the writ of injunction, as well provisional as perpetual, issuing out of and under the seal of this honorable court, com- manding, enjoining and restraining the said defendants, their servants, agents, employes, attorneys, and workmen, and each and every of them, as is hereinbefore in that be- half prayed. May it please your honors to grant unto your orator the writ of subpoena issuing out of and under the seal of this honorable court, directed to the said defendant, C. D., commanding him by a certain day, and under a certain pen- alty, to be and appear in this honorable court, then and there to answer the premises, and to stand to and abide such order and decree as may be made against him. And your orator will ever pray, etc. » -r> J. S., Solicitor. State of Texas, > ^ County of . 5 '^ On this day of , 18 — , before me personally ap- peared A. B., the above named complainant, who, being by 808 Ch. 51.] PRECEDENTS OF PLEADINGS, ETC. [§579. me first duly sworn, deposes and says that he has read the foregoing bill of complaint subscribed by him, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true. Witness my hand, etc. jj, Q^ §579. Bill to restrain proceedings upon an accom- modation bill of excliange, and to liave the same de- livered up. In the Circuit Court of the United States in and for the District of Texas, at , Term, 18 — . To the Judges of the Circuit Court of the United States for the District of Texas, at ; H. B., of , and a citizen of the State of , brings this bill of complaint against D. W. and J. H. W. of , and citizens of the State of Texas. And thereupon your orator complains and says, that previously to he had frequently accepted bills of exchange for the accommo- dation of Messrs. D. W. and J. H. W., then of, etc. And that some time in or about the said month of they applied to your orator to assist them with a loan of his acceptance for a sum of money, and they severally assured 3^our orator that if he would accept or indorse a certain bill of exchange for them, the said D. W. and J. H. W,, they could procure the same to be discounted, and that they, or one of them, would punctually provide your orator with the money to take up the same. And your orator, relying upon such promise, agreed to accept such bill of exchange to be drawn upon him by the said D. W., and J. H. W. And your orator further showeth that the said D, W. and I. H. W. accordingly drew upon your orator a certain bill of exchange for the sum of $5,000, dated the day of , and payable three months after date, which your orator thereupon accepted. And your orator further showeth unto your S09 Ch. 51.] TEECEDENTS OF PLEADINGS, ETC. [§579. honors that the said bill of exchange havinsf been delivered by your orator to the said D. W. and J. H. W., without any consideration whatsoever had or received by your orator for the same, the said D. W. and J. H. W. ought either to have provided your orator with the money to take up the same when due, as they had promised, or else have rede- livered the same to your orator to be canceled ; and your orator hoped that the said defendants would have pro- vided your orator with the money to take up the said bill of exchange when the same became due, or else would have redelivered the same or caused the same to have been rede- livered, to your orator to be canceled, and that no proceed- ings Avould have been had asrainst vour orator to recover the amount thereof, as in justice and equity ought to have been the case. But now, so it is, may it please your honors that the said D. W. and J. H. W., combining and confederatino- to and with J. J., of, etc., and T. O., of, etc., and with divers other persons, they, the said confederates, absolutel}" refuse to deliver, or cause or procure to be delivered up to your orator the said bill of exchange to be canceled, and instead thereof the said T. O. hath got into his possession the said bill, and hath lately commenced an action at law against your orator to recover the amount thereof, the said confederates or some of them at times giving out snd pre- tending that the said bill of exchange was made and given by your orator to the said D.W. and J. H. W. for a full, valuable consideration or considerations in money. Whereas, your orator expressly charges the contrary thereof to be the truth, and that your orator never had or received any good or valuable consideration or considerations for the said bill of exchange, and that the same was delivered by hnn to the said D. W. and J. H. W. for their accommoda- tion, without receiving any consideration or considerations for the same, and upon the firm reliance that they, or one of them, would supply your orator with the mone}'^ to take the said bill up when the same became due and payable; sio Cll. 51.] PRECEDENTS OF PLEADINGS, ETC. [§579. and so the said confederates will sometimes admit, but then the said confederate J. J. pretends that he discounted the said bill of exchange for full, valuable considerations in money or otherAvise at the time when the said bill was in- dorsed to him, and that when he paid or gave the full valuable consideration or considerations for the same, he had not notice that the said bill had been given by your orator in the manner and upon the express stipulations herein- before mentioned, or without a full, valuable or any consid- eration received by your orator for the same, and that therefore your orator ought to pay the amount thereof. And the said J, J. further pretends that he indorsed the said bill of exchange to the said T. O. for good and valu- able considerations before he, the said J. J., received any notice from your orator of the terms upon which the same had been obtained from you orator, and before your orator had requested him to deliver up the same. Whereas, your or- ator charges the contrary of all such pretenses to be true, and particularly that the said J. J. did not ever give pay or allow to the said D. W. and J. H. W., or either of them, the full value of any consideration whatever, for the said bill of exchange; and that the said J. J. had full notice, or had some reason to know, believe or suspect that the said bill had been given by your orator to the said D. W. and J. H. W. in the manner and upon the express stipulation hereinbefore mentioned, and without any valuable or other consideration having been received by your orator for the same. And your orator further charges that the said J. J. received the said bill from the said D. W. and J. II. W. to get the same discounted for them, and with an express undertaking on his part to deliver over the money ho ob- tained upon such bill to them, the said D. W. and J. H. W., but that he never did procure such bill to bo dis- counted, or if he did he applied the moneys he obtained upon the same to his own use, and never paid or delivered over any part thereof to the said D. W. and J. II. W., or 811 Cll. 51.] TKECEDEXTS OF PLEADINGS, ETC. [§579. either of them. And your orator further charges that the said J. J. hath received notice from your orator and the said D. W. and J. H. W. of the terms upon which the said bill had been obtained by the said D. W. and J. H. W., and had been required by your orator to deliver up the same to him before he, the said J. J., had indorsed the said bill of exchange to the said T. O., and as evidence thereof your orator expressly charges that the said J. J. had the said bill of exchange in his custody, possession or power, on the day of , last past; and that the said J. J. did, on the day of , last, offer the said bill of exchange for sale, together with other bills to various persons. And your orator further charges that at the time of said bill of exchange being indorsed or delivered to the said T. O., and of his paying or giving such consideration or considerations (if any was or were paid by him), he knew or had been informed, or had some reason to know, believe or suspect, that your orator, and the said D. "VV. and J. H. W., had never received the full or any ccuisid- eration for the said bill of exchange, and he well knew, or had been informed, that your orator had accepted the said bill of exchange for the accommodation of the said D. W. and J. H. W., without having received any consideration for the same. And your orator further charges, that the said T. O. is a trustee for the said bill of exchange for said confederate J. J., or for some other person or persons whose names he refuses to discover, and that he holds the same for the said confederate J. J., or for such person or persons without having given any consideration or consid- erations for the same, and that if he receives the amount of the said bill of exchange, or any part thereof, he is to deliver over or pay the same to the said J. J., or such otlier person or persons, and that he is indemnified by the said J. J., or such other person or persons, from all the costs attending the attempt to recover nipon the said bill of ex- chaUire on which he has brouijht his said action at law. S12 Cll. 51.] PRECEDENTS OF PLEADINGS, ETC. [§579. And, notwithstanding the said T. O. got the said 1)111 of exchange into his possession without giving any consider- ation for the same, yet he threatens and intends to proceed in his action at law, and, in case he should recover judg- ment, to take out execution against your orator from the amount thereof. And your orator further charges that the said several defendants, or some or one of them, now have or hath, or lately had, in their or one of their custody, pos- session, or power, some book or books of account, letters, documents or writings, from which the truth of the several matters and things aforesaid would appear. And so it would appear if the said defendants w^ould set forth a full, true and particular account of all such books of account, let- ters, documents and writings. All which actings, doings and pretenses of the said defendants are contrary to equity and good conscience, and tend to the manifest wrong, injury and oppression of your orator in the premises. In consid- eration w^hereof , and forasmuch as your orator is entirely remediless in the premises according to the strict rules of the common law, and can only have relief in a court of equity, where matters of this nature are properl}^ cognizabte and relievable. To the end, therefore, that the said de- fendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their sev- eral and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information and belief, full, true, direct and perfect answer make to such of the several interrogatories hereinafter numbered and set forth, as by the note here- under written they are respectively required to answer, that is to say : (1) Whether, etc. (2) Whether, etc.* And that the said defendant, T. O., may be decreed to deliver up, and the said D. AY. and J. H. W. and J. J. be decreed to procure, the said bill of exchange, to be deliv- 813 Ch. 51.] PRECEDENTS OF I'l.KADINGS, ETC. [§580. ered up to your orator to be canceled, as having been given by your orator and received by the said D. W. and J. H. W., and the said several defendants, without any con- sideration. And that the said defendants respectively may be restrained b}^ the injunction of this honorable court from proceeding in any action at law already commenced against your orator upon the said bill of exchange, and from commencing any other proceedings at law against your orator upon the said bill of exchange, and that they may also be'restrained from neaotiatino- indorsins; or de- livering over the said bill of exchange to any person or persons. And that your orator may have such further and other relief in the premises as to your honors shall seem meet, and the nature of this case may require. May it please your honors to grant unto your orator the most gracious writ of subpoena of the United States of America, to be directed to the said D. W. and J. H. W., and the rest of the confederates when discovered, thereby com- manding them, and every of them, at a certain day, and un- der a certain pain therein to be specified, personally to be and appear before your honors in this honorable court, and then and there to answer all and singular the premises, and to stand to, perform and abide such order and decree therein as your honors shall seem meet, and your orator shall ever pray.^ 1 See, post, §623. 2 Equity Draftaman, p. 39; Curtis' Equity Precedents, 19. § 580. Bill for the specific performance of an agree- ment to convey land. To the Honorahle the Judges of the Circuit Court of the United States tvithin and for the District of Texas, at , Texas, sitting in equity: A. B., a citizen of the State of , residing in the county of , in said state, brings this his bill against C. D., a citizen of the State of Texas, who resides in the 814 Cb, 51.] PRECEDENTS OF PLEADINGS, ETC. [§580. county of , in said state, and thereupon your orator complains and says: That your orator, being seized in fee simple of a certain tract of land situated in the county of , in said State of Texas, and hereinafter described, and being desirous of selling said premises, and the said CD. being minded to pur- chase the same, your orator and the said C. D., on or about the day of , a. d. — , entered into and signed a memorandum of agreement respecting the said sale and purchase, in the words or to the purport and effect follow- ing, to-wit: (stating the agreement verbatim), as by the ^aid memorandum of agreement, to which 3^our orator craves leave to refer, when produced, will appear. And your orator further showeth that the said C. D. paid to your orator the sum of dollars, part of the said purchase monev, at the time of siofninoj the said aerree- ment, and vour orator delivered an abstract of his title to the said premises to the said C. D., and your orator hath always been ready and willing to perform his part of said agreement, and on being paid the remainder of his said pur- chase money, with interest, to convey the said tract of land to said C. D. and his heirs, and to let him into possession and receipt of the rents thereof from the time in said agreement in that behalf mentioned ; and your orator hoped that the said CD. would have performed the said ajxreement on his part, as in justice and equity he ought to have done. But now, so it is, may it please your honors, that the said C D. alleges that he is, and always hath been, ready and willing to perform the said agreement on his part, in case your orator could have made, or can make, him a good and marketable title to the said land and premises; but that your orator is not able to make a good title thereto ; whereas your orator charges that he can make a good title to the said land and premises. To the end, therefore, that the said C D. may upon his oath true answer make to the matters aforesaid, and more particularly that he may an- 815 Ch. 51.] PRECEDENTS OF PLEADINGS. ETC. [§581. swer and set forth in manner aforesaid, whether, etc. [Interrogating to the stating and charging parts.] And that tlie said C. D. may be compelled, by the decree of this honorable court, specifically to perform the said agreement with your orator, and to pay to your orator the remainder of said purchase money, with interest for the same from the time the said purchase money ought to have been paid, your orator being willing, and hereby offering, specifically to perform said agreement on his part, and on being, paid the said remaining purchase money and interest, to execute a proper conveyance of said land and premises to the said C. D., and to let him into possession of the rents and profits thereof from the said day of . And that your orator may have such further or other relief in the premises as to your honors shall seem meet and this case may require. And may it please your honors to grant unto your orator the most gracious writ of subpoena of the United States of America, to be directed to the said C. D., commanding him, at a certain day and under a certain pain therein to be specified, personally to be and appear before j'our honors in this honorable court, and then and there to answer all and singular the premises, and to stand to, perform and abide such order and decree therein as to your honors shall seem agreeable to equity and good conscience, and your orator shall ever pray. § 581. DemiiiTcr to a bill in equity. Demurrer of C. D., defendant, to the bill of A. B., complainant. This defendant, by protestation, not confessing or ac- knowledging all or any of the matters and things in the said complainant's bill to be true, in such manner and form as therein set forth and alleged, doth demur thereto, and for cause of demurrer showeth : That as to so much and such part of the said bill as seeks that this defendant may 81G Ch. 51.] PRECEDENTS OF PLEADINGS, ETC. [§582. answer and set forth, whether, etc., and prays, etc., doth demur, and for cause of demurrer showeth, that the said complainant, by his said bill, as this defendant is ad- vised, endeavors to entitle himself to a sum of money due upon the bond therein stated to have been entered into by this defendant to the said complainant, and suggests for equity that the said bond hath been burnt, lost or de- stroyed, and the said complainant hath not, by affidavit, annexed to and filed with the said bill, made oath that the said bond is burnt, lost or destroyed. "Wherefore, and for divers other errors and imperfections, this defendant hum- bly demands the judgment of this honorable court, whether he shall be compelled to make any further or other answer to the said bill, or any of the matters and things therein contained, and prays to be hence dismissed, with his reasonable costs in this behalf sustained. When the demurrer is to part only, or to the relief, the prayer is as follows : Wherefore, and for divers other errors and imperfections appearing in the said bill, this defendant humbly prays the judgment of this honorable court, whether he shall be compelled to make any answer to such part of the said bill as so demurred unto as aforesaid, etc. § 582. Plea of a stated account. The plea of C. D., defendant, to the bill of complaint of A. B., complainant. The defendant, by protestation, not confessing or ac- knowledging all or any of the matters and things in the said complainant's bill of complaint mentioned and con- tained to be true, in such sort, manner and form, as to the same are therein set forth and alleged, as to so much and such part of the complainant's bill as seeks an account of and concerning the dealings and transactions alleged to have taken place between the said complainant and this de- fendant, at any time before the day of , in the (52— Plead. Forms.) 817 Ch. 51.] PRECEDENTS OF PLEADINGS, ETC [§583. year , this defendant, for plea thereto saith, that on the da}- of , which was previously to the said bill of complaint being filed, the said complainant and this de- fendant did make up, state, and settle an account in writ- ing, a counterpart whereof w^as then delivered to the s-aid complainant, of all sums of money which this defendant had, before that time, by the order and direction, and for the use of the said complainant received, and of all mat- ters and things thereunto relating, or at any time before the said da}^ of , being or depending between the said complainant and this defendant, and in respect whereof the said complainant's bill of complaint has been since filed ; and the said complainant, after a strict exam- ination of the said account, and every item and particular thereof, which this defendant avers, to the best of his know'ledge and belief, to be true and just, did approve and allow the same, and actuall}^ received from this defendant the sum of $ , the balance of the said account, which, by the said account appeared to be justly due to him from this defendant; and the said complainant thereupon, and on the dav of , a. d. , gave to this defend- ant a receipt or acquittance for the same, under his hand, in full of all demands, and which said receipt or acquit- tance, now in possession of this defendant, and ready to be produced to this honorable court, will appear. Therefore, this defendant doth plead the said release in bar to the said complainant's bill, and praj^s the judgment of this honor- able court whether he should be compelled to make any further answer to the said bill, and prays to be hence dis- missed with his reasonable costs and charges in that behalf most wroncrfnllv sustained.^ 1 Curtis' Eq. Free. 169. §583. Answer to a bill in oquitj. The answer of C. D., defendant, to the bill of complaint of A. B., complainant. S18 Ch. 51.] PRECEDENTS OF PLEADINGS, ETC. [§583. This defendant now and at all times hereafter saving and reserving unto himself all benefit and advantage of excep- tion which can or may be had or taken to the many errors, uncertainties and other imperfections in the said complain- ant's said bill of complaint contained, for answer thereunto, or unto so much and such parts thereof as this defendant is advised is or are material or necessary for him to make an- swer unto, this defendant answering says that, to the best of his knowledge, remembrance, information and belief this defendant, together with M. A. T. and S. T. S., the two other defendants to the said bill, having been, as they were advised, duly constituted and appointed trustees for the sale of the hereditaments and premises in the said bill mentioned, and believing that they had a good right and authority to sell the same, and that they could execute, or procure to be executed, a good and sufficient conveyance thereof in fee simple to a purchaser, and being desirous, therefore, of executing their said trust, a treaty was accord- ingly, in or about the month of July, 18 — , entered into be- tween the defendant's said co-trustees, or one of them, and the said plaintiff, and an agreement was afterwards con- cluded between them for the sale of the said hereditaments and premises to the said plaintiff, at or for the price or sum in the said bill mentioned ; and the said agreement was thereupon reduced into writing, and, defendant admits, signed by the said M. A. T., S. T. S. and the said plaint- iff, and was, as defendant believes, in the words and fig- ures, or to the purport and effect in the said bill mentioned, as far as the same is therein set forth; nevertheless de- fendant, for his greater certainty, craves leave to refer to the same, when produced to this court ; Saith that the said agreement so signed was sent to de- fendant for his approbation and signature, and defendant did accordingly approve of and sign the same, subject only to a few marginal notes thereon, by way of qualification on certain collateral points, as to costs, and the extent of the 819 CIl. 51.] PRECEDENTS OF PLEADINGS, ETC. [§583, covenants to be entered into on the part of defendant and his co-trustees, as by the said agreement, when produced, and to which defe-ndant for his greater certainty refers, when produced, will more fully appear ; Saith that, except as aforesaid, he did not personally act in such treaty of sale of tlie said premises to said plaintiff, such treaty having been carried on in the county of Y. by his co-trustees there, and defendant residing in , and not having interfered in the contract any further than by some previous correspondence with his co-trustees, and by testifying his approbation of and subsequently signing the contract, neither did defendant pretend or allege himself to be in the said month of July, or at any other time, seized of or otherwise well entitled for an estate of inheritance in fee simple to the manor and other hereditaments in the said bill mentioned, or that he and the said other defend- ants could show and make out a good, clear, marketable title to the said premises, or that they had good right and authority to sell the same, and could execute, or procure to- be executed, a good and sufficient conveyance of said hered- itaments free from all incumbrances, except as in the said bill mentioned, or otherwise, except as aforesaid; Saith that except as he is informed by the said bill, he is wholly unable to set forth, whether or not the said plaint- iff was, at the time in the said bill mentioned, anxious to purchase a residence and estate in that part of the country where the said manor and other hereditaments were situate, or whether or not he relied upon such alleged statements as are in the said bill mentioned to have been made by this de- fendant's said co-trustees; Denies that he ever made any such statements to the said plaintiff; Saith that he believes it to be true that two parts of the said agreemen»t hereinbefore mentioned were prepared, and that one of such parts was taken and kept by defendant and his co-trustees, and is now in their power, but whether or 820 Cll. 51.] PRECEDENTS OF TLEADINGS, ETC. [§583. not defendant signed both parts of the said agreement he does not recollect, and except as he is informed by the said bill, is wholly unable to set forth, as to. his belief or other- wise, whether the other part of said agreement was taken and kept by said plaintiff, or is now in his possession ; Saith he does not know, but has been informed and be- lieves that a full, true and correct abstract of the title of defendant and his co-trustees to the said manor and hered- itaments was delivered to plaintiff or his solicitor, within one month or thereabouts from the date of the said con- tract, and that such title has in fact been approved of by or on the part of the said plaintiff ; Saith that, except as aforesaid, and except that he has been informed and believes that in the first instance an ab- stract of the title to said estate, as deduced unto F. M. T., the owner was sent from L. to the solicitors at Y., em- ployed by the said defendants, M. A. T. and S. T. S., on the 7th day of July, 18 — , and that a second abstract, con- taining an account of the incumbrances on that estate, was sent from L. to the same solicitors on the 11th day of the same month of July in the same year, and that a third ab- stract of the title to the S. estate, being part of the trust hereditaments, was delivered to the said solicitors at Y., and were delivered by them to the said plaintiff or his solic- itor, he is unable to set forth, as to his belief or otherwise, whether or not on the 12th day of July last, or at any other time, a partial abstract only of the title-deeds relat- ing to parts of the said hereditaments comprised in the said agreement was delivered to the solicitors of the said plaint- iff, or how otherwise, or whether it was not on the 19th of the same month, and not before, that an abstract of other deeds relating to the same part of the said hereditaments, or any other parts, was delivered to the solicitor of the said plaintiff, except as aforesaid; Saith that he does not believe that any of the deeds ma- terial to the title to the said premises are omitted to be set forth in the same ; 821 Ch. 51.] PKECEDENTS OF PLEADINGS, ETC. [§583. Saith he has been informed and believes that said F. M. T., in his answer in the suit in the said bill mentioned, has endeavored to impugn the validity of a recovery suffered by him and his late father, of the said hereditaments and premises ; but defendant saith he verily believes that such recovery was duly and properly suffered, and that, except as aforesaid, the validity of the same, or of any other re- covery, or of the deed leading to the uses thereof, is nr-t disputed in the said suit; Saith he does not believe that there are any good or ten- able objections to the title to the said manor and other hereditaments comprised in the said agreement ; but, on the contrary, defendant believes that such title has been ap- proved of by or on the part of the said plaintiff, and that defendant and his said co-trustees were in fact at the time of entering into the said agreement, and are now seized or well entitled in equity for an estate of inheritance in fee simple of or to the manor and other hereditaments afore- said ; Saith he is wholly unable to set forth as to his belief or otherwise, except as he is informed by the said bill, whether or not at the time of entering into the said agree- ment hereinbefore mentioned, plaintiff was aware, or had been informed that such suit (as in the said bill is men- tioned) was depending, or that the validity of such re- covery as aforesaid was disputed in the manner herein- before mentioned, but defendant saith there being, as de- fendant believes, no well founded objection to the said re- covery, he submits and insists that if the said plaintiff was not informed thereof at such time as aforesaid ( but which defendant does not admit), yet the same ought not now to prevent the said contract from being completed ; Admits that the incumbrances upon the said hered- itaments and premises are numerous and great, but defend- ant hath been informed by his co-trustee, M. A. T., that 822 Cll. 51.] PRECEDENTS OF PLEADINGS, ETC. [§583. the plaintiff was, at the time of entering into the said agree- ment, fully apprised and aware of this circumstance, and of the embarrassed state of the trust property, and that it was sold for the benefit of the numerous incumbrancers thereon, but the amount thereof prior to the date of the conveyance to the trustees defendants upon trust to sell, was not so great, as defendant believes, as to exceed the amount of the purchase money agreed to be given by the said plaintiff ; Saith he hath been informed and believes that such of the said incumbrancers upon the said hereditaments and premises as are necessary parties to make a perfect con- vevance thereof to the said plaintiff are willing to join therein; Submits and insists that he and his co-trustees are able to procure a good and sufficient conveyance of the said premises to be executed to the said plaintiff, and that under such circumstances, and the said plaintiff having (as de- fendant believes), long since approved of the title to the said estates, he ought not to be released from his said con- tract, but ought to be compelled, by the decree of this court, to complete the same on his part; Saith plaintiff did not, according to the best of defend- ant's recollection and belief, make any applications or re- quests to the defendant, as in the said bill mentioned ; Denies that he has threatened to commence or prosecute any action at law against the said plaintiff for breach of the said agreement or otherwise; but defendant, never- theless, submits that the said plaintiff is bound to perform the same ; And this defendant denies all and all manner of unlawful combination and confederacy, wherewith he is by the said bill charged, without this, that there is any other matter, cause or thing in the said complainant's said bill of com- plaint contained, material or necessary for this defendant to make answer unto, and not herein and hereby well and 823 Ch. 51.] PRECEDENTS OF PLEADINGS, ETC. [§583. sufficiently answered, confessed, traversed and avoided or denied, is true to the knowledge or belief of this defend- ant; all W'hich matters and things this defendant is ready and willing to aver, maintain and prove, as this honorable court shall direct, and humbly prays to be hence dismissed, with his reasonable costs and charges in this behalf most wrongfully sustained,^ 1 Equity Draftsman, p. 581 ; Curtis' Equity Precedents, 198. 824 Ch. 52. — Rules of Pleading and Practice in Equity Cases. §584. Circuit Court always open for issuing process, etc. 585. Clerk's office open ou first Monday of each month for orders, etc. 586. Interlocutory orders made in vacation or in term time. 687. Motions, etc., when and how entered. 588. Motions grantable of course, when. 589. Notice of motions, when and how given. 590. Mesne process, when and how issued. 591. Final process, when and how issued. 592. Writ of assistance issued, when. 593. Orders enforced in favor of or against persons not parties. 594. Subpcena issued, when. 595. Requisites of a subpo3na. 596. Service of subpcena made, when and how. 597. Pluries subpcena issued, when. 598. Service of process, by whom made. 599. Suit docketed, when. 600. Appearance, when and how entered. 601. Bills taken pro confesso, when. 602. Decree pro confesso entered, Avhen and how. 603. Introductory part of bill. 604. Form of bill. 605. Cause of omission of proper parties must be shown. 606. Prayer for process. 607. Bill shall be signed by counsel. 608. Taxable costs of bill and answer. 609. Scandal and impertinence in bills may be expunged. 610. Exception to bill for scandal, etc., when and how made. 611. Amendment of bill before answer, when and how made. 612. Amendment of bill after answer, when and how made. 613. Amendment of bill filed, when. 614. Demurrer or plea filed, when and how. 615. Requisites of a demurrer or plea. 616. Demurrer or plea may be set down for argument. 617. Judgment upon demurrer or plea. 618. Costs allowed, when; amendment of bill allowed, when. 619. Demurrer or pica shall not be held bad, when. 620. Bill dismissed when plaintiff fails to reply, etc. 621. Requisites of answer. ^ 825 Ch. 52,] RULES OF PLEADING IN EUUITY. [§584. §G22. Defendant may be interrogated, when. 623. Interrogating part of bill, requisites of. 024. Note specifying interrogatories considered as part of bill. G25. Words preceding interrogatories. 626. Defendant may decline to answer, when. 627. Replication to answer, how made. 628. Answer to amended bill made, when. 629. Proceedings where necessary or proper parties cannot be made. 630. Proceedings where parties are numerous. 631. Persons beneficially interested need not be made parties, when. 632. Heir-at-li}W may be made a part}', when. 633. One or more persons jointly and severally liable may be made parties. 634. Objection for want of parties, how made. 635. Rights of absent parties saved, when. 636. Nominal party not required to appear, when. 637. Injunction, when and how granted. 638. Bill of revivor, when and how filed. 639. Supplemental bill, when and how filed. 640. Requisites of a bill of revivor or supplemental bill. 641. Answer may be verified, how. 642. Amendment of answer, when and how made. 643. Exceptions to answer filed, when. 644. Costs for separate answers allowed, when. 645. Exceptions to answer set down for a hearing, when. 646. When exceptions are ?.llowed, defendant shall answer, when. 647. Costs on exceptions adjudged, how. 648. Replication to answer filed, when. 649. Cross-bill for discovery answered, when. 650. Requisites of a bill by stockholders of a corporation. §584. Circuit Court always open for issuiii§r process, etc. The Circuit Courts, as courts of equity, shall be deemed always open for the purpose of filing bills, answers, and other pleadings; for issuing and returning mesne and final process and commissions; and for making and directing all interlocutory motions, orders, rides, and other proceedings, preparatory to hearing of all causes upon their merits. (Rule 1.) 826 Cb. 52.] RULES OF PLEADING IN EQUITY. [§§585-587. §585. Clerk's office open ou first Monday of each montli for orders, etc. The clerk's office shall be open, and the clerk shall be in attendance therein, on the first Monday of every month, for the purpose of receiving, entering, entertaining, and disposing of all motions, rules, orders, and other proceed- ings, which are grantable of course and applied for, or had by the parties or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed. (Rule 2.) §586. Interlocutory orders made in vacation or term time. Any judge of the Circuit Court, as well in vacation as in term, may, at chambers, or on the rule-days, at the clerk's office, make and direct all such interlocutory orders, rules, and other proceedings, preparatory to the hearing of all causes upon their merits, in the same manner and with the same effect as the Circuit Court could make and direct the same in term, reasonable notice of the application therefor being first given to the adverse party, or his solicitor, to appear and show cause to the contrary, at the next rule-day thereafter, unless some other time is assigned by the judge for the hearing. (Rule 3.) §587. Motions, etc., when and how entered. All motions, rules, orders, and other proceedings, made and directed at chambers, or on rule-days at the clerk's of- fice, whether special or of course, shall be entered by the clerk in an order-book, to be kept at the clerk's office, on the day when they are made and directed; which book shall be open at all office hours to the free inspection of the par ties in any suit in equity, and their solicitors. And, except in cases where personal or other notice is specially required or directed, such entry in the order-book shall be deemed sufficient notice to the parties and their solicitors, without 827 Ch. 52.] RULES OF PLEADING IN EQUITY. [§§588,589. further service thereof, of all orders, rules, acts, notices, and other proceedings entered in such order-book, touching an}' and all the matters in the suits to and in which they are parties and solicitors. And notice to the solicitors shall be deemed notice to the parties for whom they appear and whom they represent, in all cases where personal notice on the parties is not otherwise specially required. Where the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the Circuit Court may, by rule, abridge the time for notice of rules, orders, or other proceedings not requiring personal service on the parties, in their discretion. (Rule 4.) §588. Motions grantable of course, when. All motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and execute decrees; for filing bills, answers, pleas, demurrers, and other pleadings ; for making amendments to bills and answers; for taking bills pro confesso; for filing excep- tions; and for other proceedings in the clerk's office, which do not, by the rules hereinafter prescribed, require any al- lowance or order of the com't, or of any judge thereof, shall be deemed motions and applications grantable of course by the clerk of the court. But the same may be suspended, or altered, or rescinded, by any judge of the court, upon special cause shown. (Rule 5.) §589. Notice of motions, when and liow given. All motions for rules or orders and other proceedings, which are not grantable of course or without notice, shall, unless a different time be assigned by a judge of the court, be made on a rule-day, and entered in the order-book, and shall be heard at the rule-day next after that on which the motion is made. And if the adverse party, or his solicitor, shall not then appear, or shall not show good cause against the same, the motion may be heard by any judge of the 828 Ch. 52.] RULES OF PLEADING IX EQUITY. [§§590,591, court ex parte, and granted, as if not objected to or refused, in his discretion. (Rule 6.) §590. Mesne process, when and how issued. The process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill ; and, unless otherwise provided in these rules, or spe- cially ordered by the Circuit Court, a writ of attachment, and, if the defendant cannot be found, a writ of sequestra- tion, or a writ of assistance to enforce a delivery of posses- sion, as the case may require, shall be the proper process to issue for the purpose of compelling obedience to any inter- locutory or final order or decree of the court. (Rule 7.) §591. Final process, when and how^ issned. Final process to execute any decree ma}^ if the decree be solely for the payment of money, be by a writ of execution, in the form used in the Circuit Court in suits at common law in actions of assii^npsit. If the decree be for the per- formance of any specific act, as, for example, for the execu- tion of a conveyance of land, or the delivering up of deeds or other documents, the decree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound, without further service, to take notice ; and upon afiidavit of the plaintiff, filed in the clerk's ofiice, that the same has not been complied with w^ithin the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached there- on, he shall not be discharged, unless upon a full compli- ance with the decree and the payment of all costs, or upon a special order of the court, or of a judge thereof, upon motion and afiidavit, enlarging the time for the perform- ance thereof. If the delinquent party cannot be found, a writ of sequestration shall issue against his estate upon the return of non est inventus, to compel obedience to the de- cree. (Rule 8.) 829 Cb. 52,] RULES OF PLEADING IX EQUITY. [§§592-595. §592. Writ of assistance issued, Avlien. When any decree or order is for the deliver}'' or posses- sion, upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. (Rule 9.) §593. Orders enforced in favor of or against persons not parties. Everj^ person, not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, shall be enabled to enforce obedience to such order by the same process as if he were a party to the cause ; and every person, not being a party in any cause, against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such orders as if he were a party in the cause. (Rule 10. ) §594. Subpoina issued, Avlien. No process of subpoena shall issue from the clerk's office in any suit in equity until the bill is filed in the office. (Rule 11.) §595. Requisites of a subpoena. Whenever a bill is filed, the clerk shall issue the process of subpoena thereon, as of course, upon the applicati'on of the plaintiff, which shall be returnable into the clerk's of- fice the next rule-day, or the next rule-day but one, at the election of the plaintiff, occurring after twent}'^ days from the time of the issuing thereof. At the bottom of the sub- poena shall be placed a memorandum, that the defendant is to enter his appearance in the suit in the clerk's office on or before the day at which the writ is returnable ; other- wise the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpcrna may, at the election of the plaintiff, be sued out separately for each de- fendant, except in the case of husband and wife defendants, or a joint subpoena against all the defendants. (Rule 12. ) 830 Ch. 52.] RULES OF PLEADING IX EQUITY. [§§5i;G-G00. §596. Service of subpoena made, Avheii aiitl ln>w. The service of all subpa?uas shall be by delivery of a copy thereof by the officer serving the same to the defend- ant personally, or by leaving a copy thereof at the dwelling- house or usual place of abode of each defendant, with some adult person who is a member or resident in the family. (Rule 13.) §597. Plui'ies subpoena issued, when. Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to an- other subpoena, toties quoties, against such defendant, if he shall require it, until due service is made. (Rule 14.) § 598. Service of process, by whom made. The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed b}^ the court for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit thereof. (Rule 15. ) § 599. Suit docketed, when. Upon the return of the subpoena as served and executed upon any defendant, the clerk shall entei* the suit upon his docket as pending in. the court, and shall state the time of the entry. (Rule 16.) § 600. Appearance, when and how entered. The appeaiancc-day of the defendant shall be the rule- day to which the subpoena is made returnable, provided he has been served with the process twentv davs before that d.iy; otherwise his appearance-day shall be the next rule- day succeeding the rule-day when the process is returnable. The appearance of the defendant, either personally or by his solicitor, shall be entered in the order-book on the day thereof by the clerk. (Rule 17.) 831 Ch. 52.] RULES OF PLEADING IX EQUITY. [§§601,602. §601. Bills taken pro coiifosso, when. It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by a judge of the court, upon motion for that purpose, to file his plea, demurrer, or answer to the bill, in the clerk's oiEce, on the rule-day next succeeding that of entering his appearance. In default thereof, the plaintiff may, at bis election, enter an order (as of course) in the order-book, that the bill be t'dken 2)i'o co7ifesso ; and thereupon the cause shall be pro- ceeded in ex parte, and the matter of the bill may be de- creed by the court at any time after the expiration of thirty days from and after the entry of said order, if the same can be done without an answer, and isproper to be decreed; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer, and the defendant shall not, when arrested upon such process, be discharged therefrom, unless upon filing his answer, or otherwise compljing with such order as the court, or a judge thereof, may direct as to pleading to or fully answering the bill, within a period to be fixed by the court or judge, and undertaking to speed the cause. (Rule 18.) §602. Decree pro confesso enterctl, Avlicn and how. When the bill is taken ^?'o confesso, fhc court may proceed to a decree at any time after the expiration of thirty days from and after the entry of the order to take the bill 2:)ro confesso, and such decree rendered shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing tlie answer, upon cause shown upon motion and aflidavit of the defendant. And no such motion shall be granted, unless upon the payment of the cost of the plaintiff in the suit up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as 832 Ch. 52,] RULES OF PLEADING IN EQUITY. [§§603,604. the court shall direct, for the purpose of speeding the cause. (Rule 19.) §603. Introductory part of a bill. Every bill, in the introductory part thereof, shall contain the names, places of abode, and citizenship of all the par- ties, plaintiffs and defendants, by and against whom the bill is brought. The form, in substance, shall be as follows: "To the Judges of the Circuit Court of the United States for the District .of : A. B., of , and a citizen of the State of , brings this his bill against C. D. , of , aiwl a citizen of the State of , and E. F., of , and a citizen of the State of . And thereupon your orator complains and says that," etc. (Rule 20.) §604. Form of bill. The plaintiff, in his bill, shall be at liberty to omit, at his option, the part which is usually called the common confed- eracy clause of the bill, averring a confederacy between the defendants to injure or defraud the plaintiff ; also what is commonly called the charging part of the bill, setting forth the matters or excuses which the defendant is supposed to intend to set up by way of defense to the bill ; also what is commonly called the jurisdiction clause of the bill, that the acts complained of are contrary to equity, and that the de- fendant is without any remedy at law; and the bill shall not be demurrable therefor. And the plaintiff may, in the narrative or stating part of his bill, state and avoid, by counter-averments, at his option, any matter or thing which he supposes will be insisted upon by the defendant by Avay of defense or excuse to the case made by the plaintiff for relief. The prayer of the bill shall ask the special relief to which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief; and if an injunction, or a writ of ne exeat regno, or any other special order, pend- ing the suit, is required, it shall also be specially asked for. (Rule 21.) (53— Plead. Forms.) 833 Ch. 52.] RULES OF PLEADIXG IN EQUITY. [§§605-008. §605. Cause of omission of proper parties must be slio\vii. If any persons, other than those named as defendants in the bill, shall appear to be necessary or proper parties there- to, the bill shall aver the reason why they are not made par- ties, by showing them to be without the jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to the other parties. And as to persons who are without the jurisdiction and may properly be made parties, the bill may pray that process may issue to make them parties to the bill if they should come within the jurisdiction. (Rule 22.) §606. Prayer for process. The prayer for process of subpoena in the bill shall con- tain the names, of all the defendants named in the intro- ductory part of the bill, and if any of them are knoAvn to be infants under age, or otherwise under guardianship, shall state the fact, so that the court may take order there- on, as justice may require, upon the return of the process. If an injunction, or a writ of ne exeat 7^egno^ or any other special order, pending the suit, is asked for in the pra3''er for relief, that shall be sufficient, without repeating the same in the praj^er for process. (Eule 23.) §607. Bill shall be signed by counsel. Every bill shall contain the signature of counsel annexed to it, which shall be considered as an affirmation on his part that, upon the instructions given to lijni and the case laid before him, there is good ground for the suit, in the manner in which it is framed. (Rule 24.) §608. Taxable costs of bill and answer. In order to prevent unnecessary costs and expenses, and to promote brevity, succinctness, and directness in the alle- gations of bills and answers, the regular taxable costs for j^L*l/»V^»-K^ ^^ ^^.^^ V»W^» ^..^,, ^^^, ^..^ ^V-j_, 834 Cll. 52.] RULES OF PLEADING IN EQUITY. [§§(309,610. even' bill and answer shall in no case exceed the sum which is allowed in the state court of chancery in the district, if an}' there be ; but if there be none, th«n it shall not exceed the sum of three dollars for every bill or answer. (Rule 25. ) §609. Scandal and impertinence in bills may be ex- punged. Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unneces- sary recitals of deeds, documents, contracts, or other instru- ments, in hoic verba, or any other impertinent matter, or any scandalous matter not relevant to the suit. If it does, it may, on exceptions, be referred to a master, by any judge of the court, for impertinence or scandal; and if so found by him, the matter shall be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court, or a judge thereof, shall otherwise order. If the master shall report that the bill is not scandalous or impertinent, the plaintiff shall be entitled to all costs occasioned by the reference. (Rule 26. ) §610. Exception to bill for scandal, etc., when and liOAV made. No order shall be made by an}' judge for referring any bill, answer or pleading, or other matter of proceeding, de- 13ending before the court, for scandal or impertinence, un- less exceptions are taken in writing and signed by counsel, describing the particular passages which are considered to be scandalous or impertinent; nor unless the exceptions shall be filed on or before the next rule-day after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be considered as abandoned, unless the party obtaining the order shall, without any unnecessary delay, procure the master to examine and report for the same on or before the next succeeding rule-day, or the master shall certify that further time is necessary for him to complete the examina- tion. (Rule 27.) 835 CIl. 52,] RULES OF PLEADING IN EQUITY. [§§611,612- §611. Ainendiueiit of bill before ansvvei*, when and liovv made. The plaintiff shall .be at liberty, as a matter of course, and without payment of costs, to amend his bill, in any matters whatsoever, before any copy has been taken out of the clerk's office, and in any small matters afterwards, such as filing blanks, correcting errors of dates, misnomer of parties, misdescription of premises, clerical errors, and gen- erally in matters of form. But if he amend in a material, point (as he may do of course) after a copy has been sO' taken, before any answer, or plea, or demurrer to the bill, he shall pay to the defendant the costs occasioned thereby, and shall, without delay, furnish him a fair copy thereof, free of expense, with suitable references to the places where the same are to be inserted. And if the amendments are numerous, he shall furnish, in like manner, to the defend- ant, a copy of the whole bill as amended ; and if there be more than one defendant, a copy shall be furnished to each, defeaidant affected thereby. (Rule 28.) § 612. Amendment of bill after answer, when and how made. After an answer, or plea, or demurrer is put in, and be- fore replication, the plaintiff may, upon motion or petition,, without notice, obtain an order from any judge of the court to amend his bill on or before the next succeeding rule-da}^,, upon payment of costs, or without payment of costs, as the court, or a judge thereof, may in his discretion direct. But after replication filed, the plaintiff shall not be permitted to withdraw it and to amend his bill, except upon a special order of a. judge of the court, upon motion or petition,, after due notice to the other party, and upon proof by affidavit that the same is not made for the purpose of vex- ation or delay, or that the matter of the proposed amend- ment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the 836 Ch. 52.] RULES OF PLEADING IX EQUITY. [§§G13-G1G. plaintiff's submittiii"' to such other terms as may be iiii- posed by the judge for speeding the cause. (Rule 29. ) §613. Ameiidment of bill filed, when. If the phiintiff so obtaining any order to amend his bill after answer, or plea, or demurrer, or after replication, shall not file his amendments or amended bill, as the case may require, in the clerk's office, on or before the next suc- ceeding rule-dav, he shall be considered to have abandoned the same, and the cause shall proceed as if no application for any amendment had been made. (Rule 30.) §614. Deniui-rer or plea filed, when and how. No demurrer or plea shall be allowed to be filed to any bill, imless upon a certificate of counsel, that in his opinion it is well founded in point of law, and supported by the affidavit of the defendant, that it is not interposed for delay ; and, if a plea, that it is true in point of fact. ( Rule 31.) §615. Requisites of a demurrer or plea. The defendant may at any time before the bill is taken for confessed, or afterward with the leave of the court, demur or plead to the wdiole bill, or to part of it, and he may demur to part, plead to part, and answer as to the residue; but, in every case in which the bill specially charges fraud or combination, a plea to such part must be accompanied with an answer fortifying the plea, and ex- plicitly denying the fraud and combination, and the facts on which the charge is founded. (Rule 32.) § 616. Demurrer or plea may he set doMii for argu- ment. The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the fact stated in the plea be determined for the de- fendant, they shall avail him as far as in law and equity they ought to avail him. (Rule 33.) 837 Ch. 52.] ilLLES OF PLEADING IX EQUITY. [§§617-620. § 617. Judgment vipou demurrer or plea. If, upon the hearin<^, any demurrer or plea is overruled, the plaintiff shall be entitled to his costs in the cause up to that period, unless the court shall be satisfied that the de- fendant has good ground, in point of law or fact, to inter- pose the same, and it was not interposed vexatiously or for delay. And, upon the overruling of any plea or demurrer, the defendant shall be assigned to answer the bill, or so much thereof as is covered by the plea or demurrer, the next succeeding rule-day, or at such other period as, con- sistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done; in default whereof , the bill shall be taken against him^?'0 confesso, and the matter thereof proceeded in and decreed accordingly. (Rule 34.) §618. Costs allowed, when; amendment of bill al- lowed, Avlien. If, upon the hearing, any demurrer or plea shall be al- lowed, the defendant shall be entitled to his costs. But the court may, in its discretion, upon motion of the plaint- iff, allow him to amend his bill, upon such terms as it shall deem reasonable. (Rule 35.) § 619. Demurrer or plea shall not be held bad, wben. No demurrer or plea shall be held bad and overruled upon argument, only because such demurrer or plea shall not cover so much of the bill as it might by law have ex- tended to. (Rule 36. ) No demurrer or plea shall be held bad and overruled upon argument, only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea. (Rule 37.) §620. Bill dismissed when plaintiff fails to repljv etc. If the plaintiff shall not reply to any plea, or set down any plea or demurrer for argument on the rule-day when 838 Ch. 52.] RULES OF PLEADING IX EQUITY. [§§621-1)23. the Slime is filed, or on the next succeeding rule-da}', he shall be deemed to admit the truth and sufficiency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for that pur- pose. (Rule 38.) §621. Requisites of answer. The rule, that if a defendant submits to answer he shall answer fully to all the matters of the bill, shall no lonaer apply in cases where he might by plea protect himself from such answer and discovery. And the defendant shall be entitled in all cases by answer to insist tipbn all matters of defense (not being matters of abatement, or to the char- acter of the parties, or matters of form) in bar of or to the merits of the bill, of which he may be entitled to ayail him- self by a plea in bar; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover upon filing a plea in bar, and an answer in support of such plea, touching the matters set forth in the bill, to avoid or repel the bar or de- fense. Thus, for example, a bona-Jide purchaser, for a valuable consideration, without notice, ma}^ set up that de- fense by way of answer instead of plea, and shall be en- titled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be in any answer in support of such plea. (Rule 39.) §622. Defendant may be interrogated, Avhon. It shall not be necessary to interrogate a defendant spe- cially and particularly upon any statement in the bill, un- less the complainant desires to do so, to obtain a discovery. (Rule 40.) §623. Interrogating part of a bill, requisites of. The interrogatories contained in the interrogating part of the bill shall be divided as conveniently as may be from S39 Cb. 52.] RULES OF PLEADING IX EQUITY. [§§624,625. each other, and numbered consecutively 1, 2, 3, etc. ; and the interrogatories which each defendant is required to an- swer shall be specified in a note at the foot of the bill, in the form or to the effect following, that is to say: "The defendant (A. B.) is required to answer the interrogatories numbered respectively 1, 2, 3," etc.; and the office copy of the bill taken by each, defendant shall not contain any interrogatories except those which such defendant is so re- quired to answer, unless such defendant shall require to -be furnished with a copy of the whole bill. (Original Rule 41.) If the complai-nant, in his bill, shall waive an answer un- der oath, or shall only require an answer under oath with regard to certain specified interrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing on bill and answer only ; but may, nevertheless, be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause; but this shall not pre- vent a defendant from becoming a witness in his own be- half under section 3 of the Act of Congress of July 2d, 1864. (Amendment, December term, 1871.) §624. Note specifying- interrogatories considered as part of bill. The note at the foot of the bill, specifying the interroga- tories which each defendant is required to answer, shall be considered and treated as part of the bill, and the addition of any such note to the bill, or any alteration in or addition to such note, after the bill is filed, shall be considered and treated as an amendment of the bill. (Original rule 42.) §625. Words preceding" interrogatories. Instead of the Avords of the bill now in use. preceding the interrogating part thereof, and beginning with the words: "To the end, therefore," there shall hereafter be 840 Ch. 52.] RULES OF PLEADING IX EQUITY. [§§626-628. used words in the form or to the effect following: "To the end, therefore, that the said defendants may, if they can, show why 3^our orator should not have the relief hereby praA'ed, and may, upon their several and respective corporal oaths, and accordinsi: to the best and utmost of their several and respective knowledge, remembrance, information and belief, full, true, direct and perfect answers make to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written they are respectively required to answer; that is to say — "1. Whether, etc. "2. Whether, etc." (Kule 43.) §626. Defendant may decline to answer, when. A defendant shall be at liberty, by answer, to decline an- swering any interrogatory, or part of an interrogatory, from answering which he might have protected himself by demurrer; and he shall be at liberty so to decline, notwith- standing he shall answer other parts of the bill from which he might have protected himself by demurrer. (Bule 44.) §627. Replication to answer, how made. No special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without the payment of costs, as the court, or a judge thereof, may in his discretion direct. (Rule 45.) §628. Answer to amended bill made, when. In everv case where an amendment shall be made after answer filed, the defendant shall put in a new or supple- mental answer on or before the next succeeding rule-day after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court; and upon his default, the like proceedings mav be had as in cases of an omission to put in an answer. (Rule 46.) 841 Ch. 52.] EULES OF PLEADING IN EQUITY. [§§629-631. § 629. Proceeding's where iiecessai'y or proper parties cannot be made. In all cases where it shall appear to the court that per- sons, who might otherwise be deemed necessary or proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties be- fore the court, the court may, in their discretion, proceed in the cause w^ithout making such persons parties ; and in such cases the decree shall be without prejudice to the rights of the absent parties. (Rule 47.) § 630. Proceedings Avliere parties are nxuneroiis. Where the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive de- lays in the suit, be all brought before it, the court in its discretion may dispense with making all of them parties, and may proceed in the suit, having sufficient parties be- fore it to represent all the adverse interest of the plaintiffs and the defendants in the suit properly before it. But, in such cases, the decree shall be without prejudice to the rights and claims of all the absent parties. (Rule 48.) §631. Persons beneficially interested need not be made parties, Avlien. In all suits concerning real estate, which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall rep- resent the persons beneficially interested in the estate, or the proceeds, or the rents and profits, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate; and in such cases it shall not be necessary to make the persons ben- eficially interested in such real estates, or rents and profits, 842 Ch. 52.'] RULES OF PLEADING IX EQUITY. [§§632-634. parties to the suit ; but the court ma}', upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties. (Rule 49. ) § 632. Heir-at-law may be luade a party, when. In suits to execute the trusts of a will, it shall not be necessary to make the heir-at-law a party; but the plaint- iffs shall be at liberty to make the heir-at-law a part}^, where he desires to have the will established against him. (Rule 50.) § 633. One or more persons jointly and severally liable may be made parties. In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court, as parties to a suit concerning such demand, all the persons liable thereto ; but the plaintiff may proceed against one or more of the persons severally liable. (Rule 51.) § 634. Objection for want of parties, how^ made. Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only; and the purpose for which the same is so set down shall be notified by an entry, to be made in the clerk's order-book, in the form or to the effect following (that is to say); "Set down upon the defendant's objection for want of par- ties." And where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwith- standing an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the de- fendant's objection shall then be allowed, be entitled as of course to an order for liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bill. (Rule 52. ) i 843 Ch. 52.] EULES OF PLEADING IN EQUITY. [§§635-637. § 635. Kiglits of aljsent parties saved, when. If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having, by plea or answer, taken the objection, and therein specified by name or description of parties to whom the objection ap- plies, the court (if it shall think fit), shall be at liberty to make a decree saving the rights of the absent parties. (Rule 53.) § 636. Nominal party not required to appear, when. Where no account, payment, conveyance, or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the subpoena upon him, need not appear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his bill ; but he may appear and answer at his option ; and if he does not appear and answer, he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer, he shall be entitled to the costs of all the proceedings against him, unless the court shall other- wise direct. (Rule 54.) §637. Injunction, when and how granted. Whenever an injunction is asked for by the bill to stay proceedings at law, if the defendant do not enter his ap- pearance and plead, demur, or answer to the same within the time prescribed therefor by these rules, the plaintiff shall be entitled, as of course, upon motion, without notice, to such injunction. But special injunctions shall be grant- able only upon due notice to the other party by the court in term, or by a judge thereof in vacation, after a hearing, which may be ex parte^ if the adverse party does not appear at the time and place ordered. In every case where an in- junction — either the common injunction or a special injunc- tion — is awarded in vacation, it shall, unless previously 844 Ch, 52.] RULES OF PLEADING IN EQUITY. [§§r>38,639. dissolved bv the iiulae o-rantino^ the same, continue until the next term of the court, or until it is dissolved by some other order of the court. (Rule 55. ) § 638. Bill of revivoi', when and bow filed. Whenever a suit in equity shall become abated b}' the death of either party, or by any other event, the same may be revived by a bill of revivor, or a bill in the nature of a bill of revivor, as the circumstances of the case may re- quire, filed by the proper parties entitled to revive the same, which bill may be filed in the clerk's office at any time; and, upon suggestion of the facts, the proper pro- cess of subpoena shall, as of course, be issued by the clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause shall be shown at the next rule-day, which shall occur after fourteen days from the time of the service of the same process, the suit shall stand revived, as of course. (Eule 56.) §639. Svipplemental bill, wben and how filed. Whenever any suit in equity shall become defective from any event happening after the filing of the bill (as, for ex- ample, by change of interest in the parties), or for any other reason, a supplemental bill, or a bill in the nature of a supplemental bill, may be necessary to be filed in the cause, leave to file the same, may be granted by any judge of the court on any rule-day, upon proper cause shown and due notice to the other party. And if leave is granted to file such supplemental bill, the defendant shall denuir, plead, or answer thereto on the next succeeding rule-day after the supplemental bill is filed in the clerk's office, unless some other time shall be assigned by a judge of the court. (Kule 57.) 845 Ch. 52.] RULES OF PLEADING IN EQUITY. [§§G40-643. §640. Requisites of a bill of revivor or supplemental bill. It shall not be necessary in any bill of revivor or supple- mental bill to set forth any of the statements in the orioinal suit, unless the special circumstances of the case may re- quire it. (Rule 58.) §641. Answer may be verified, how. Every defendant may swear to his answer before any justice or judge of any court of the United States, or before any commissioner appointed by any Circuit Court, -to take testimony or depositions, or before any nuister in chancery appointed by any Circuit Court, or before any judge of any court of a state or territory, or before any notary public. (Eule 59.) §642. Anienclment of answer, when and how made. After an answer is put in, it may be amended, as of course, in any matter of form, or by filling up a blank, or correcting a date, or reference to a document, or other small matter, and be re-sworn, at any time before a replica- tion is put in, or the cause is set down for a hearing upon bill and answer. But after replication, or such settins; down for a hearing, it shall not be amended in any material mat- ters, as by adding new facts or defenses, or qualifying or altering the original statements, except by special leave of the court, or of a judge thereof, upon motion and cause shown, after due notice to the adverse party, supported, if required, by affidavit ; and in every tase where leave is so granted, the court or the judge granting the same may, in his discretion, require that the same be separately en- grossed, and added as a distinct amendment to the original answer, so asto be distinguishable therefrom. (Rule 60.) § 643. Exceptions to answer filed, when. After an answer is filed on any rule-day, the plaintiff shall be allowed until the next succeeding rule-day to file S4G Ch. 52.] RULES OF PLEADING IX EQUITY [§§644-646. in the clerk's office exceptions thereto for insufficiency, and no longer, unless a lonirer time shall be allowed for the purpose, upon cause shown to the court, or a judge thereof ; and, if no exception shall be filed thereto within that pe- riod, the answer shall be deemed and taken to be sufficient. (Kule61.) § 644. Costs for separate answers allowed, when. When the same solicitor is employed for two or more de- fendants, and separate answers shall be filed, or other pro- ceedings had, by two or more of the defendants separately, costs shall not be allowed for such separate answers, or other proceedings, unless a master, upon reference to him, shall certify that such separate answers and other proceed- ings were necessary or proper, and ought not to haye been joined together. (Rule 62.) § 645. Exceptions to answer set down for a hearing", when. Where exceptions shall be filed to the answer for insuffi- ciency, within the period prescribed by these rules, if the defendant shall not submit to the same and file an amended answer on the next succeeding rule-day, the plaintiff shall forthwith set them down for a hearing on the next succeed- ing rule-day thereafter, before a judge of the court, and shall enter, as of course, in the order-book, an order for that purpose; and if he shall not so set down the same for a hearing, the exceptions shall be deemed abandoned, and the answer shall be deemed sufficient; proyided, however, that the court, or any judge thereof, may, for good cause shown, eidarge the time for filing exceptions, or for an- swering the same, in his discretion, upon such terms as he may deem reasonable. (Rule 63.) §646. AVhen exceptions are allowed, defendant shall answer, when. If, at the hearing, the exceptions shall be allowed, the defendant shall be bound to put in a full and complete an- 847 Ch. 52 ] RULES OF PLEADING IN EQUITY. [§§647, G48. swer thereto on the next succeeding rule-day ; otherwise the phuntiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as con- fessed, or, at his election, he may have a writ of attach- ment to compel the defendant to make a better answer to the matter of the exceptions ; and the defendant, when he is in custody upon such writ, shall not be discharged there- from but by an order of the court, or of a judge thereof, upon his putting in such answer, and complying with such other terms as the court or judge may direct. (Rule 64.) § 647. Costs on exceptions afljuclged, how. If, upon argument, the plaintiff's exceptions to the an- swer shall be overruled, or the answer shall be adjudged insufficient, the prevailing party shall be entitled to all the costs occasioned thereby, unless otherwise directed by the court, or the judge thereof, at the hearing upon the ex- ceptions. (Rule 65.) § 648, Replication to answer filed, when. Whenever the answer of the defendant shall not be ex- cepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto on or be- fore the next succeeding rule-day thereafter; and in ixl'i. cases wdiere the general replication is filed, the cause shall be deemed, to all intents and purposes, at issue, Avithout any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to tile such replication within the prescribed period, the defendant shall be entitled to an order, as of course, for a dismissal of the suit; and the suit shall thereupon stand dismissed, unless the court, or a judge thereof, shall, upon motion for cause shown, allow a replication to be filed nunc -pro tunc, the plaintiff submit- ting to speed the cause, and to such other terms as may be directed. (Rule 'o'<).) 8-18 Ch. 52.] RULES OF PLEADING IX EQUITY. [§§649, 650. §649. Cross-bill for discovery Jinsweretl, when. "Where a defendant in equity files a cross-bill for dis- covery onl}^ against the plaintiff in the original bill, the de- fendant to the original bill shall first answer thereto before the original plaintiff shall be compellable to answer the cross-bill. The answer of the original plaintiff to such cross-bill may be read and used by the party filing the cross-bill at the hearing, in the same manner and under the same restrictions as the answer praying relief may now be read and used. (Rule 72.) § 650. Requisites of a bill by stockholders of a cor- poration. Every bill brought by one or more stockholders in a cor- poration against the corporation and other parties, founded on rights which may properly be asserted by the corpora- tion, must be verified by oath, and must contain an allega- tion that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such ac- tion as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and the causes of his failure to obtain such action. (Rule 94.) (54— Plead. Forms.) 849 INDEX. [THE REFERENCES ARE TO THE SECTIOITS.] A. ABATE ME ISrT—P?'ment; Ansioers; Bar; Equity Cases; JuriS' diction; Petition; Pleading; Pnnoval of Civil Cases). 859 DEFENSE.] INDEX. [EQUITABLE RELIEF. DEFEXSE— the answer may include several matters of, 414, 416. all, must be tiled at the same time, 419. denial of special matter of, not necessary, 478. special matter of, need not be denied, 544. DEMURRER— to a bill in equity, 581. or plea, to bill in equity tiled, when, how, 614. requisites of same, 615. or plea may be set down for argument, 616. judgment upon, 617. in equity not held bad, when, 619. DENIAL— plea of general, 247, 263. general and special, 448, 449. DEPOSIT— action to recover, on contract of sale, 178. DERIVATIVE TITLE— averment of, how made, 384. DESCRIPTIOX— descriptive allegations must be proven, 368. variance in, when, 369. DISCHARGE— in bankruptcy must be plead, 476. DISCHARGED— employ^, wrongfully, action, 16. DISCLAIMER— answer claiming part, as to balance, 267. DISCOUNT— matter of, may be plead, 465. discount defined, 466, 467. DISMISSED— bill in equity dismissed when plaintiff fails to reply, 620. DIVORCE— ^ciions for. to dissolve marriage because of non-age, 170. for divorce, prayer for injunction, etc, 171. because of adultery of husband, 172. DOG — action for injury by, 169. DRAIN — action for injuries in falling into, 166. E. ELEVATED KAILROAD— damages resulting from construction of, 139. EMBEZZLEMENT— action for publishing libel charging, 155. EMPLOYEE— action when, wrongfully discharged, 16. negligently injured by railroad, 160. ENGLAND— forms of action in common law courts of, 281 ENTERED— motions, etc., when and how entered, 587. appearance, when and how, 600. EQUITABLE INTEREST— parties having, may join as plaintiffs, 527. EQUITABLE RELIEF— ^cfioHS /or. for review of a judgment, '111. by administrator to set aside what judgment, 218. for injunction to restrain (Miforceraent of a, 219. by landlord to restrain waste, 220. for injunction to restrain diverting water-course, 221. for execution of a trust when trustee dead or has abandoned trust, 222. by creditor to have general assignment declared, 223. set aside allowance, and what. 224. for foreclosure ef mortgage, etc.. 225. Hen on land secured by deed of trust. 226. to recover a debt ;ind foreclose a mortgnge. 227. to foreclose a deed of trust when trustee is dead, 228. 860 EQl'ITABLE KEMEF.] INDEX. [EQUITY. EQUITABLE RELIEF— (contimiod). to redeeiii, by gruutee of equity of redemption, 229. to wiud up a partnership, 2:51. by administratrix of deceased partner, 232. for an account of partnership dealings after dissolution, 233. petition in intervention, 234. under plea of not guilty, 5:59. defendant asking, must plead specially, 540. EQUITABLE TITLE— will prevail over legal title, 541, 542. EQUITY — mode of proceeding in courts of, 287. rules of pleading in courts of, 321, 322. demurrer to bill in, 581. answer to a bill in, 583. EQUITY CA8ES — Bules of Pleading and Practice in. Circuit Court always open for issuing process, 584. clerk's office open for orders, etc., when, 585. interlocutory orders made in vacation or term time, 586. motions, etc.. when and how entered, 587. grantable of course, when. 5SS. notice of, when and how given, 58D. mesne process, when and how issued, 590. final process, same, 591. writ of assistance issued, when, 592. orders enforced for or ag.iinst persons not parties, 593. subpoena issued, when, 594. requisites of a subpoena, 595. service of subpoena, when and how made, 596. plnries subpoena issued, when, 597. service of process, by whom made, 598. suit docketed, when. 509. appearance, when and how entered, GOO. bills taken j5ro confesso, when. GUI. decree ^wo confesso entered, when and how, 601. introductory part of a bill, G03. form of a bill, 604. cause of omission of proper parties must be shown, 605. prayer for process. GOG. bill shall be signed by counsel, 607. taxable costs of bill and answer. GU8. scandal and impertinence in bills may be expunged, 609. exception to bill for scandal, etc., when and how made, 610. amendment of bills, when, bow made before answer, 611. after answer. G12. filed, when, 613. demurrer or plea tiled, when and liovv, 614. requisites of demurrer or plea, G15, / may be set down for argument, 616. judgment upon demurrer or plea, 617. costs allowed, when; amendment of bill allowed, when, 618. demuner or plea shall not be held bad, when, G19. bill dismissed when plaintiff fails to reply, etc., 620. requisites of answer, (;21. defendant may ])e interrogated, when, 622. interrogating pnrt of a l)ill, requisites of. G23. note specifying interrogatories considered as part of bill, 624. words preceding interrogatories, G2.">. defending may decline to answer, when, 626. replication )o answer, how made, 627. SGI EQUITY.] IXDEX, [EXECUTIOX. EQUITY CASES— (continued). answer to aniended bill made, when. 028. proceedings where necessary or proper parties cannot be made, 629. when parties are numerous. G30. what persons not made parties, Gol. heir-at-law may be made a party, when, G32. one or more persons jointly and severally liable may be made par- ties, G33. objection for want of parties, how made, 634. rights of absent jjarties saved, when. 635. nominal party not required to appear, when, 636. injunction, when and how granted, 637. bill of revivor, when, how tiled, 638. supplemental bill, same, 639. and a bill of revivor, requisites of, 640. answer may be veritied, how, 6-11. amendment of answer. 642. exceptions to answer filed, when, 643. costs for separate answers allowed, when, 644. exceptions to answer set down for hearing, 645. when exceptions are allowed deft-ndnnt shall answer, when, 646t costs on exceptions adjudged, how. 647. replication to answer tiled, when, 648. cross-bill for discovery answered, when, 649. requisites of a bill by stockholders of a corporation, 650. equitable defense uiider plea of not guilty, 539, 540. demurrer to a bill in equity, 581. plea of a stated account. 582. answer to a bill in equity, 583. ESTOPPEL — matter of, must be specially plead, 462. admissible under plea of not guilty, 537. EVIDENCE— (see Proof). certiorari to justice where judgment is not supported by the, 214. of what defenses admissible in plea of not guilty, 265. matters of, should not be plead, 359. allegations and jiroofs must correspond, 365. in rebuttal admissible without pleading it, 372. in rebuttal admissible under general denial, 450. EXCEPTIONS — (see Ansioers — Licluding Exceptions and Pleas). a genei'ul exception, 240. general and special, 263. and plea of limitation, 263«. to pleadings defined, 326. 32S. may be general or special, 329.] form of an, to pleading. 330. general, sufticient, when. 331. special, necessary, when, 332. pleadings construed how, on, 334. what objection to pleading is made by special, 352. the answer may be by, or plea. 417. to bill in equity, for scandal, etc., 610. to answer in ecpiity filed, when, 043. set down for hciiring, 644. costs on, adjudged, how, 647. EXECUTION — of written instrument must be denied, when, 454* plea of account stated and, of promissory note, 251. 862 . EXECUTOR.] INDEX. [FRAUD OR DECEIT. EXECUTOR — administrator or guardian may sue for land, 526. parties to aciiou by or against, or administrator, 198. EXEMPLARY DAMAGES— allegation of actual and, 408. claim for actual and, may be united. 338. 339. action for actual and, against railroad, 162. EXHIBIT — an, will supply omissions in a pleading, 367. EXTENUATION— or aggravation of damages must be stated, when, 374. need not be specially plead, 3G2. • F. FACT — mode of trial on an issue of, 285. of a public nature need not be pleaded, 358. necessarily implied, same, 359. more properly coming from the other side need not be plead, 364. affidavit must cover the material, issuable, 494. FACTOR — (see Indemnity) . action by, against principal for what, 102. FALSE IMPRISONMENT— action for, 148. FEDERAL COURTS— (see Circuit Court of the United States; Bemovai of Civil /Suits). FEES — count for, of attorney, IS. FILED— petition must be signed and, 412. all defenses must be, at the same time, 419. amendment of bill tiled, when, 613. FIRE — negligently kindled destroying timber, action for, 141. FIRE INSURANCE— (see Po/iC7'es of Insurance). FORECLOSURE — of mortgage by assignee, etc., 225. of lien on land secured by deed of trust, etc. . 226. of mortgage to secure payment of a debt. 227. of deedof trust, the trustee being dead, 228. parties to suit of, of mortgage, 3U9, FOREIGN CORPORATIONS— and insurance companies must show authority to sue, 4::)1. FOREIGN GOVERNMENT— petition by subjects of, residing in Texas, 576. FRAUD — action to set aside fraudulent deed, 184. action to annul fraudulent cojitract, 185. set aside deed obtained by, 186. parties to, may be joined. 308. or mistake must be specially plead, 456. FRAUD Oil DY.C'El'i:— Action for Damages on Account of. for deceit in exchange of horses. 83. atlirming and assigning what note, 84. a man as solvent, etc., 85. in representations as tr> credit, etc.. 86. for fraudulent purchase of goods, 87. representation of value of good will, 88. as to value of stock sold. 89. as to title to personalty sold. 90. packing of wool rendering it unmerchantable, 91. 863 GENERAL DENIAL.] INDEX. [INFORMATION. G. GENERAL DENIAL— plea of, 247. special and, effect of general denial. 448. 449. evidence in rebuttal admissible under, 450. GENERAL RELIEF — (see Averments in Actions for General Belief). GENERAL RULES— (see Pleading). GOOD FAITH — suggestion of possession in, 27G, 277. definition of, 278. GOOD WILL — fraudulent representation of value of, 88. GRANTEE — action against, to reform deed, 192. action to redeem by, of equity of redemption, 229. GRANTOR— action by Iieirs of deceased, to what, 182. action by heirs of, to reform deed, 192. GRANTS — land claimed under, from different states, 558. GUARDIAN — administrator or executor may sue for, 526. H. HATCHWAY — action for injuries in falling through, 167. HEIR — aclion bj% for specific personal property, 146. of deceased grantor, action to vacate deed, 182. action by, to reform deed to wrong land, 192. HIRE — count for, of personal property, 21. HORSES — action for deceit in exchange of, S3. HUSBAND — action for divorce because of adultery of, 172. may sue for wife's property, 298. 1. ILLEGAL — contract consideration must not be, 378. IMMATERIAL — or irrelevant matters should not be stated in plead- ings, 3r)6. variance in description, when, 3G9. IMPRISONMENT— action for false, 148. INCONTINENCE— (see Adultery) . action fur slander, where, charged, 151. INDEMNITY— ylcijons /or. by surety on bond, who paid it, etc., 113. for not indemnifying plaintiff, when, 114. surety in joint note, 115. paying h.'ilf of joint and several note, 116. by surety against principal for what debt, 117. by maker of accommodation note paid by him, 118. by indorser of note, hnving paid same, 119. on promise to pay debt of another, 120. against factor for goods sold, 121. for not rendering account of what goods, 122. accounting for goods consigned to be sold, 123. INDORSEMENT— of what petition, 525. INDUCEMENT— matter of, to be stated, when, 361. INFANCY— plea of, of defendant still a minor, 248. INFORMATION— (see Quo Warranto). 864 INFRINGEMENT.] INDEX. [JUDGMENT. INFRTNGEMEXT— petirion for, of patcut, 577. bill to restrtiln, suuie, 578. INJUNCTION — action for divorce and prayer for. 171. to restrain the enforcement of a judgment, 219. diverting a water-course, 221. reconveution permitted in suits by, 483. when, how granted, equity cases, 637. INJURIES — (see Personal Injuries Caused by Negligence; Willful and Malicious Injuries). INJURIES TO PROPERTY— ^c?iou /or. damages from water-pipe uuder ;i house, IBS. ill construction of elevated railroad, 139. from trespassing on land, 140. for kindling lire wbicli destroyed timber, 141. INN-KEEPER— action against, for loss of baggage, 136. for suffering horse to stray away, 137. INSURANCE — (see Policies of Insurance) . INSURANCE COMPANIES- and foreign cor[)orations must show authority to sue, 431. INTEREST— (see Promissory Notes) INTERLOCUTORY ORDER— petition lor remedial writ by, must be verified, 492. made in vacation or term time, 586. INTERPLEADER — (see Intervention and Interpleader — Pleas of). INTEIIROGATORIES— to defendant on equity bill, 622-628. INTERVENE — a party may, in a collusive suit, 314. INTERVENOR — party to a suit may reconvene against an, 484. INTERVENTION AND INTERPLEADER— P^eas of. plea of intervention, when allowed, 486. party interested in subject matter of collusive suit may intervene, 487. not permitted where no privity of contract, 488. application to intervene made, when, 489. judgment on dismissal of intervention, 490. interpleader allowed, when, 491. petition iu intervention, 234. IRRELEVANT— or immaterial matters should not be stated in plead- ings, 356. ISSUE— (see Pleadings). mode of trial on, of law, of fact, 284, 285. on pleadings, how made, 394. presented by the answer, how disposed of, 420. , J. JOINDER OF ACTIONS— (see PZeafZwgr;. JOINDER OF PARTIES— (see Parties; Trespass to Try Title, Plead- ings in) . JUDGMENT — reversed, money paid on, 75, 76. not supported J)y the evidence, certiorari to justice of the peace, 214. to reinstate a judgment, same, 215. action for review of, 217. equitable action by administrator to set aside, 218. injunction to restrain enforcement of a, 219. (55— Plead. Forms.) 865 JUDGMENT.] INDEX. [LIKX. JUDGMENT— (continued). ' pleu of former, ■2;")0. uvernients in action on a. 381. former, must be plead, 4()3. on dismissal of intervention. 400. purchaser Us pendens bound by the. .550. upon demurrer or plea in equity, (517. JUDGMENTS— ^c«/o«s on. of a court of record of this state, 124. of a judgment of justice of the peace, 125. on a foreign judgment, 12articular countj-. 424. JUSTICE OF THE PEACE— action on judgment of, 125. certiorari to a, 210. on what grounds, 211. 214. to reinstate a judgment, 215. L. LAND — (see Contracts Belating to Land; Conveyances of Real Estate; Pleading — 2. Parties to Suits; Specific Performance of Contract Be- lating to Land; Bemovul of Civil Suits). action for damages from trespassing on, 140. same, negligently kindling tire on, 141. trespass to try title brought to recover interest in, 523. executor, administrator or guardian may sue for, 526. bill for specific performance to convey, 5S0. LANDLORD- equitable action by, to restrain waste, 220. LAW — pleadings in a suit at, 2S3. mode of trial on an issue of, 2S4. matters of, need not be pleaded, when, 357. LEASE — (see Contracts Belating to Land; Parol Lease). action by surety on, 71. action for, of house for prostitution, 142. action to reform and enforce contract for, of land, 190. LEGAL TITLE— equitable will prevail over, 541, 542. LESSEE — action against, to restrain waste, 220. LEVY — action for wrongful, on real estate, 15G. LIABILITY— petition must show defendant's, 406. LIBEL— (see Slander). action for circulating a, l.>t. publishing, in newspaper. 155. plea affirming truth of matter, 262. LIEN — (see 31echanic's Lvni). action where note secured by. on real estate, 44. foreclosure of, on land secured by, what, 226. 866 XIFE INSUKAXCE.] INDEX. [MORTGAGE. LIFE IXSURAXCE— (see Policies of Insurance}. LIMITATION — (see Possession and Limitation) . revival of note by new promise, 26. exception and plea of, 263a. must be specially pleaded, when, 265, 457. defense of, must be specially plead, 543. LIMITATIOX AXD COSTS— rules as to, 468. LIS PEXDEX8 — maj' be plead in abatement of a suit, 458. purchaser, bound by the judgment, 550. LOCAL IXFLUEXCE — removal of cause on ground of, 569. M. MACHINERY— injuries caused by failure to furnish proper tools or, 164, 165, MALICIOUS PROSECUTION— action for, 149. MALPRACTICE— action against surgeon for, 167a. MANDAMUS — parties to proceeding by, 313. MARIXE IXSURAXCE— (see Policies of Insurance) . MARRIAGE— (see Divorce'). breech of promise of, 103, 104. MARSHAL — action against U. S., removable to federal court, when, 554. MECHAXIC'S LIEN — parties to suit to enforce, by sub-contractor, 311. MEMORANDUM— plea of title under written, and what, 273. MERITS — answer to, admission of possession, 266. MESNE PROCESS— when and how issued, 590. final process, same, 591. MINORITY— must be specially plead, 460. MISJOINDER — (see Answers, Including Exceptions and Pleas; Non- joinder) . of defendants, 237. or non-joinder of parties may be pleaded, 439. effect of, in actions on contract, 440, 442. of plaintiffs, effect in actions for tort, 441. of defendants, same, 443. or non-joinder, how plead, 444. MISNOMER— of plaintiff or defendant may be pleaded, 438. MISTAKE — or fraud must be specially plead, 456. may be corrected by amendment, 511. MONEY — loaned, action for, 10. paid to use of defendant, 11. MONEY AND PERSONAL PROPERTY HAD AND RECEIVED— Actions for. to recover money received when services not performed, 74. paid on judgment afterwards reversed, 75. realized from sale of i)roperty, same, 76. amount of note pledged as what, 77. for repayments of deposits, on what, 78. for not delivermg money as promised, 79. redelivering goods pawned, when, 80. returning note delivered for safe keeping, 81. redelivering bill of exchange, when, 82. MORTGAGE— foreclosure of, l)y assignee, etc., 225. given to secure a debt, 227. parties to suit to foreclose, 309. 867 MORTGAGEE.] IXDEX. [OYER. MORTGAGEE— refusinu- to accept payment of debt, action to redeem, 230. MORTGAGOR— action by, to redeem where mortgagee refuses, what, 230. MOTIONS— when and how entered, 587. grantable of coursje. when, 588. notice of, when and how given, 589. MUNICIPAL CORPORATION— legality of, brought in question by quo warranto^ 208. officers de facto, proper parties, 209. may sue or be .sued, 294. MUNICIPALITY— action against, for falling into drain, 166. N. NAMES— and residence of parties must be stated in a petition, 400. NEGLIGENCE — (see Personal Injuries Caused by Negligence). allegation of damages resulting from, 409. contril)utory, must be plead, when, 4G1. NEW MATTER — amendment alleging, made, when, 505. NEWSPAPER— action for publishing libel in, 155. NON EST FACTUM— plea of, 2G0. NON-JOINDER — (see Ansioers, Including Exceptions and Pleas; Mis- joinder). of parties plaintiff, 236. or misjoinder of parties may be pleaded, 439. effect of in actions on contract, 44U. 442. of plaintiff, effect in actions for tort, 441. of defendants, same, 443. or misjoinder, how plead, 444. NON-RESIDENT— removal of suit in which defendant is a, 552. on account of prejudice, same, 553. NOTES — (see Indemnity; Promissory Note). NOT GUILTY— plea of, 264, 265. answer by plea of, in trespass to try title, 536-539. NOTICE — action against vendor and subsequent purchaser with, 189, of amendment must be given, when, 508. of motions, when and how given, 589. 0. OBJECTION — what, to pleading is made by special exception, 352. OBLIGATION — beneliciary may sue on, for his benefit, 300. OFFICE — an, may be recovered by suit in the ordinary form, 207. OFFICER — allegation of damages against, 410. OFFICE 1!S DE FACTO— of municipal corporation proper parties, when, 209. OMISSIONS— an exhibit will supply, in a pleading, 367. in i)le:idiiig cured by verdict, when, 371. may be supplied by amendment, 510. ORDER— petition for remedial writ by interlocutory, must be verified, 492, interlocutory, made in vacation or term time, 586. enforced where persons not p;iiti(^s, u'.Y.\. OUSTER — allegations of, adverse entry and, how made, 200. OY'ER — of written instruments, 452. 808 PARENT.] IXDEX. [PERSOXAL PROPERTY. P. PARENT— action by, for labor of child, 14. PAROL LEASE— action for hindering tenant taking possession under, 175. PARTIES — (see Abatement; Amendment of P,eadinrjs; Ansivers, Including Exceptions and Pleas; Bar; Equity Cases; Intervention and Inter- pleader; Jurisdiction; Pleading; Beconvention; Bemoval of Civil Suits; Trespass to Try Title). to action by or against administrator or executor, 198. names of the, must be slated iu petition, 399. residence of, same, 400. misjoinder or non-joinder of, may be pleaded, 439. non-joinder or misjoinder of, how plead, 444. partnersliip of, must be specially denied, 453. may be changed by amendment, 512. having a joint, legal or equitable interest may join as plaintiffs, 527. claiming several and distinct tracts cannot join, 52S. suit not abated bv discontinuance of one of plaintiffs, 529. orders enforced for or against persons not, 593. cause of omission of proper, must be shown, 605. in equity cases, 629-635. PARTITION— action for. of real estate, 193. parties to suit for, of land, 306. PARTNERS — (see Accounts; Promissory Notes), must join in a suit, 296. PARTNERSHIP— action to wind up a, 231. by administratrix, 232, for an account of, after dissolution, 233. of parties must be specially denied, 453. PATENT — petition in action at law for infringing a, 577. bill to restrain infringement, 578. PAYMENT— must be plead, 464. PERJURY — action for slander where, charged, 152. PERSONAL ACTIONS— commenced by writ, 2S2. PERSONAL INJURIES CAUSED BY NEGLIGENCE— ^ciions for. for not delivering a telegram, 157. for not delivering same promptly, 158. against railroad for causing death of husband, 159. injuries to employ^, 160. for unsafe crossing of public road, 161. actual and exemplary damages, 162. against master failing to furnish proper tools machinery. 164. where plaintiff continues work under assurance that machinery is safe, 165. against uuinicipality for falling into drain, 166. for falling through hatchway, 167. action against surgeon for malpractice, 167i7. for injuries by vehicle driven by servant, 168. for injury by a dog, 169. PERSONAL PROPERTY— (see Conversion of Personal Property; Money and Personal Property) . count for hire of, 21. reconvention permitted in suits relating to, 481. 869 PETITIOX.] INDEX. [PLEADINGS. PETITION — (see Abatement-^ Accounts; Answer; Certiorari; Equitable Belief; Equity Cases; Pleadings; Trespass to Try Title). formal requisites of a, 1. commeucement of, 2. in intervention, 234. want of certainty in. 239. must show an interest in plaintiff, 383. definition, 395. requisites of a, 396. title and address, 397. the marginal venue, 398. the names of the parties must be stated, 399. the residence, same, 400. count or statement of cause of action, 401. must show plaintiff's right, 402, 403. performance of preliminary acts should be averred, 404. of condition precedent, same, 405. must show defendant's liability, 40G. ' damages, when must be specially alleged, 407. allegations of actual and exemplary, 408. resulting from negligence, how made, 409. . in an action against an officer, 410. prayer for relief, 411. must be signed and filed, 412. plea in abatement of, 437. for remedial writ by interlocutory order must be verified, 492. indorsement of what. 525. requisites of, and bond for removal of case, 557. for removal of case to federal court on ground of citizenship, 560-.1G2. for removal on ground of prejudice and local infiuence, 569. . by subjects of foreign government, 576. PHYSICIANS— (see Surgeons) . count for, account, 19. PLAINTIFFS— (see Abatement; Ansiver; Averments; Bar; Equity Cases; Jurisdiction; Petition; Pleading; liemoval of Civil Cases). PLEADINGS— (see ^6atn Issue. parties may except or reply at each stage of the proceeding, 326. of form in i)lcading. 327. exceptions to pleadings defined. 328. may be general or specitil, 329. form of an exception to i>l('ading. 330. general exception siifticient, when, 331. speci:il except inn necessary, when, 332. defects in pleailing sometiines iiidt'd by pleading over, 333. pleadings construed how, on exception, 334. 871 PLEADINGS.] INDEX. [PLEADINGS. PLEADINGS— (continued). 6. llules Which Tend to Secure Singleness or Unity in the Issue. a pleading should be single, 335. statement of same matter in different forms prohibited, 336. what causes may be joined, 337. * claim for actual and exemplary damages may be united, 338. separate and distinct claims for damages, same, 339. claims against several defendants having a like interest may be united, 340. 7. Hides to Secure Certainty in Pleadings. the elements of good pleading, 341. pleadings must be certain, 342. certainty in pleading detined. 343. certainty to a certain extent in i)articular defined, 344. degree of certainty required, 345. certainty requisite as to subject matter, 346. a general mode of pleading sometimes admissible, 347. matter of inducement or aggravation, how stated, 348. certainty requisite as to time, 349. as to place, 350. a pleading must not be argumentative, 351. an objection for want of certainty is made by special exception, 352. 8. Bitles to Secure Consistency of Pleadings. a pleading should be consistent, 353. an equivocal expression construed against the party using it, 354. inconsistent pleas admissible, 355. 9. Pules to Prevent Surplusage in Pleading. immaterial or irrelevant matter should not be stated, 356. matters of law need not be pleaded, when, 357. facts of a public nature need not be pleaded, 358. matters of evidence should not be plead, 359. facts necessarily implied need not be specially alleged, 360. matter of inducement to be stated, when, 361. aggravation or extenuation need not be specially plead, 362. facts more properly coming from the other side need not be plead, 363. facts alleged in pleading of adverse party need not be stated, 364. 10. Pules to Secure Conformity Betxocen the Pleadings and Evidence, allegations and proofs must correspond. 3U5. evidence admissible under a defective allegation, 366. an exhibit will supply omissions in pleading, 367. descriptive allegations must be proven, 3(1S. variance in matters of description, when immaterial, 369. matters of substance, material, 370. omissions, cured by verdict, when. 371. evidence in rebuttal admissible without jileading it, 372. allegation of damages, how made, 373. matters of allegation or extenuation of damages must be stated, Avhen, 374. 11. General Division of Pleadings. pleadings delined. 390. pleas, division of, 391. dilatory pleas, division of. 392. pleas in bar, division of, 393. an issue on pleadings, how made, 394. S72 POLICIES.] INDEX. [PROMISSORY NOTES. POLICIES OF INSURANCE— ^citons on. oil life insurance polic}', 105. on tire insurance policy, lOG. on tire insurance policy by mortgagee, 107. on an agreement to insure, lOS. on marine insurance for a total loss, 109. same, for average Joss by perils of sea, 110. averment of adjustment of loss, 110a. where goods lost by capture, 111. averments of losses by usual risks, 112. loss by the perils of the sea, 112a. capture by persons unknown, 1126. capture by enemies, 112c. loss by tire, ll2d. loss by barratry. 112e. goods damaged by a leak, 112/. POSSESSION— action for hindering tenant taking, under parol lease, 175. answer to merits, admission of, 26G. adverse, defined, 275. suggestion of, in good faith, 27G. POSSESSION AND LIMITATION— plea of three years', 269. as to part, not guilty as to residue, 270. plea of five years', 271. ten years', 272. ten years', with enclosure, 274. PRAYER— for relief in petition, 411. for process, GOG. PRECEDENTS OP PLEADINGS — (see Circuit Court of the United iStates, Precedents of Pleading in). PREJUDICE — removal of suit on account of, 553. removal of cause on ground of, 569. affidavit of, etc., 570. action by surety against, 70. PRIVITY OF CONTRACT— intervention not permitted where no, 48S. PROBATE— ceree agaiust maker, 30. paj-ee against maker, payable by installments, 37. for non-payment of installment, 38. for interest, principle not due, 39. count on joint and several, lost. 40. when plaoe of pa}-ment mentioned, -41. note given to wife when single, etc.. 4"2. • uf wife while sole, against husband and wife, 43. secured by lien on real estate, 44. indorsed for residue, 45. payable in cash notes, 46. whicli may be discharged in cash notes, 47. same in specilie articles. 48. payable in specific articles, 49. for specific articles, 50. for not returning, delivered for safe keeping, 81. for aJVirming and assigning wrongfully, 84. plea of account stated and execution of, 251. PROOF— (see Evidence). and allegations must correspond, 3G5. PROPERTY- (see I«j?e,Gl T. 63:), §§2(35,538. Adkins v. Watson, 12 T. 199. §§319, 3G0. Ahreus v. Giesecke, 9 T. -132. §§212, 213. Alexander v. Gilliam, 39 T. 227. §§1.J0, 383, 530. V. Holt, 59 T. 20.-), <<219. v. Maverick-, IS T. 179. §421. v. Miller, 18 T. 893, §523. Alford V. Cochran, 7 T. 485, §481. V. Habert, 74 T. 346, §217. V. Smith, 40 T. 77, §471. Allbrightv. Aldrich, 2T. 166. §473. Allen V. Peters, 77 T. 59, §196. V. Pierson. 60 T. 604,'§1S8. V. Bead, 66 T. 13. §§415, 528, 530. V. Stephanes, 18 T. 659. §§322, 521. Allison V. Shelling, 27T. 4o0. §177. Alstin V. Cundiff, 52 T. 453, §225. Alston V. Richardson, 51 T. 1. §§413, 457. Alsup V. .Jordan. 69 T. .301. §457. Altgelt V. Emilieuburg, 64 T. 150. §-149. Anderson v. Boyd. 64 T. 108. §381. v. Chandler, 18 T. 436, §293. V. Keimedv, 58 T. 616, §219. v. Powers.' 59 T. 213, §177. v. Sutherland, .59 T. 409, §346. Anding v. Perkins, 29 T. a48. §457. Andrews v. Andrews, 75 T. 609. §171. v. Beck, 23 T. 455, §144. (56— Plead. Forms.) 881 Andrews v. Ennis, 16 T. 45. §§399, 427, 438. V. Hoxie, 5 T. 171. §§333, 364. V. Key, 77 T. 35, §310. V. Parker, 48 T. 94. §523. V. Smithwick, 34 T.'544, §457. V. Spear, 48 T. 567, §430. Andrus v. Pettus, 36 T. 108, §444. Angler v. Coward, 79 T. 551, §523. Ann Berta Lodge v. Leverton, 42 Ansiey V. Baker, 14 T. 607, §403. Arbuckle Bros. Coffee Co. v. Wer- ner, 77 T. 43, §§1S4, 312. Armendaiz v. Stillman, 67 T. 458. §221. Armstrong v. Beau, 59 T. 492. §§497, 508. V. Lipscomb, 11 T. 649, §449. V. Xixon, 16 T. 610. §435, Arnold v. Jones, 26 T. 335, §128. Ashe V. Younjr, 68 T. 123, §460. Atcheson v. Scott, 51 T. 213, §357. Atchison v. Owen, 58 T. 610. §§521,525. V. Smith, 25 T. 228, §472. Auditorial Board v. Aries, 15 T. 72, §192. V. Hendrick, 20 T. 60, §492. Austin V. Emanuel, 74 T.621, §367. V. Jordan, 5 T. 130. §§442, 444. V. Walton, 68 T. 507," §357. Autrey v. Cannon, 11 T. 110. §§2.58, 405. Avey V. G., II. & S. A. Ry. Co., 81 T. 243. §1.59. V. Zander, 77 T. 207. §§23, 25, 495, 501. Ayres v. Cayce, 10 T. 99. §§516, 517. AYRES.] TABLE OF CASES CITED. [BLi:]\t Ayres v. Duprey. 27 T. 50:5. §§530, o40. B. Bahn v. Bahn, 62 T. 51S, §171. Bailey v. Hicks, 16 T. 222, §450. V. Ti:inimell, 27 T. 317, §314. Baiues v. Mensing, 75 T. 200. §§346, 362. Baird v. Eatcliff, 10 T. 81, §467. Baker v. Biowti, 55 T. 377, §221. V. Compton, 52 T. 252, §188. V. Dunning, 77 T. 28. §540. V. Smith, « T. 34'J, §407. V. T<)(l(i,0T. 273, §47. V. Wofford, 4 T. 122, §3186. Baldridge v. Cook, 27 T. 565. §§232, 492. Ballard v. Carter, 71 T. ioi, §310. V. Perry, 28 T. 347. §i5523. 535, 538. Ballew V. Casey, 60 T. 573, §370. Ball's Heirs v. Hill, 38 T. 237, §22. Bank v. Bank, 80 T. 648, §63. • V. Cresson, 75 T. 2!)S, §255. V. Flippen, 66 'J'. 610, §25. V. Lovenberg. 63 T. 506, §223. V. Rogers, 51 T. 606, §219. V. Simonton, 2 T. 531. §403. V. Stone, 49 T. 13, §106. V. Weems. 69 T. 489, §484. Barbae v. Holder, 24 T. 225. §§25, 494. V. Stinnett, 60 T. 167. §§195, 522. Barber v. Brown, 54 T. 99, §411. Barclay v. Cameron, 25 T. 232. §430. Barnard v. Moseley, 28 T. 543. §357. Barnetle v. Hicks, 6 T. 354, §148. Barrett v. Barrett, 31 T. 3J4, §533. Barrow v. Philleo, 14 T. 345. §§3.50, 454. Barry v. Screwmen's Association, 67 T. 250. §§252, 346,352. 3.53, 354, 414. 451. Barth v. Green, 78 T. 678, §265. B:irtlettv. Cocke, 15 T. 471, §523. Bason v. Hughart, 2 T. 476. §§120, 377, 405. Bassett v. Proetzel, 53 T. 569, §477. Bnstrop v. Hoarn, 70 T. 563. §207. Bateman v. Ramsey, 74 T. 589. §486. Bates V. Bacon, 66 T. 348, §.o38. V. The Rei)iiblic, 2 T. 61 (i, §470. Baylor v. Craig, 69 T. 330, §223. Be:il V. Alexander, 6 T. 531. §§357, 373, 376, 395, 513. V. Smith, 14 T. 305. §§124,357,381. Bean v. Marx, 63 T. 298, §4S2. Bear Bros. v. Maix, 63 T. 298, §156. Beck V. Beck, 63 T. 34, §171. V. Tarrant, 61 T. 402, §70. Becker v. Street Ry. Co., SO T. 475, §517. Beckharn v. Hunter, 37 T. 551. §§473, 481. Bedwell v. Thompson, 25 T. Sup. 245, §449. Behani V. Gbio, 75 T. 87, §516. Behee v. Railway, 71 T. 424, §155. Belcher v. Wilson, 31 T. 139, §406. Bell V. Bovd, 76 T. 133, §70. — V. Sclnvnrz, 37 T. 572, §177. V. Van/mult, 54 T. 150, §399. Bellamy v. McCarthy, 75 T. 293. §176. Belo V. Wren, 63 T. 686, §155. BerU. §§411,471. — V. Magette, 25 T. 245, §§15G, 355, 414, 415, 41S, 451, 409, 474, 4s0, 481. Dunham v. Chatham, 21 T. 231. §462. Dunlap V. Southerlin, 03 T. 38. §§293, 399. Dunn V. Choate, 4 T. 14," §144. Dunnibaum v. Schram, 59 T. 281. §§25. 495. Durrett v. Crosby, 28 T. 087. §492. Durst V. Swift, 11 T. 273, §31 8e. Dutj^ V. Graham, 12 T. 434, §538. Dwyer v. Bassett, 03 T. 274. §§241, 422. V. Brenham, 05 T. 520, *;357. V. Kalteyer, 08 T. 554, §143. E. Eames v. Ry. Co., (i3 T. 060. §§159, 160. Earle v. Marx. SO T. 39, §293. East Dallas v. The State, 73 T. 370. §§205, 207. Easterling v. Blythe, 7 T. 210. §§403, 519, 523. Eastham v. Roundtvee, 50 T. 110. §222. Eastman v. Eastman, 75 T. 473. §171. Ebell V. Bursinger, 70 T..120. §§223, 302. Eberling v. Deutscher Vereln, 72 T. 339, §§177, 188. Eccles V. Daniels, 16 T. 136, §§219, 232. 492. V. Hill, 13 T. 65, §§234, 486. Echols V. McKie, 00 T. 41. §§260, 537. Edgar v. Galveston Citv Co., 40 T. 421, §350. Edniundson v. Yates, 24 T. 373. §399. Edringfon v. Allsbrooks,21 T-'l^^O. §^219, 232, 492. V. Xewland, 57 T. 027. ^§225, .^23. Edwards v. Barwisc, 09T. 84, §.545. V. Dickson, (iOT. 0!3, §402. V. Ilalhert, 64 T. 067. 4js<217, 421. V. Smith, 71 T. 156, §i}199, 346. Egery V. Power, 5 T. 501, §§479, 485. Elam V. Donald. 58 T. 310, §74. V. Parkhili, 00 T. 581, §278. Elevator Company v. Mitchell, 78 T. 04, §394. Ellett V. Powers, ST. 113, §422. Elliott V. Blanc, 54 T. 210. §523. V. Booth, 44 T. ISO, §477. — V. Mitcholl. 28 T. 105. §509. V. , 47 T. 445, §523. v.W. U. T. Co.,75T. IS. §158. Ellis v. Rhone, 17 T. 131, §193. Emancipation Cases, 31 T. 504. §358. Emmons v. Oldham, 12 T. IS, §444. English V. Helms, 4 T. 228. §§357, 376. Epperson v. Jones, 65 T. 425, §433. Erskine v. Wilson, 20 T. 77. i^§200.449, 454. v. , 27 T. lis. §508. Espey V. Heidenheimer, 58 T. 662. §494. Estes V. Browning, 11 T. 237, §223. Etter V. Dignowittv, 77 T. 212. §§199,534. Evans v. Foster, 79 T. 48, §275. v. Lawson, 04 T. 199. §25. V. Mills, 16 T. 190, §3i8(7. V. 0:iklev,2T. 182. §§403. 406. V. Oppermann, 70T. 293, §105. V. Tucker, 59 T. 219. §^25, 352, 494, 501. V. Welborn,' 74 T. 530, §222. Evansich v. G., C. & S. F. Ry., 57 T. 120, §s<159, 400. Ewing v. Cohen, 03 T. 4S3, §492. V. Duncan, 81 T. 230, §343. v. The State, 81 T. 172, §209. Express Printing Co. v. Copeland, 04 T. 354. §§155, 855, 414. 415, 418, 451. Ezell v! Dodson. OU T. 331 . §§147, 157,.432. F. Fagan v. Boyd Ice Machine Co., 05 T. 324, ^301 . v. McWiiirter, 71 T. 507. §§347, 372. Faison v. Hill. 27 T.42S, §211. Farenholt V. Perrv, 29 T. 310, §176. Farmer v. Strit(\ 09 T. 501, 4;2U9. Fnrr v. Wright, 27 T. 90, §14. Farrar v. BeiMiinii, (i3 T. 175, §241. Faubion v. Rogers, 00 T. -472. §§314, 4S6. 887 FxVULK.] TABLE OF CASES CITED. [GEE. Faulk V. Faulk, 23 T. G53, §36. Fears v. Albea, G9 T. 437, §225. Feiblemau v. Edmonds, U'J T. 334. §§427, 550, 5UG. V.Packard, 109 U.S. 421, §554. Ferguson v. Culton, S T. 2b3, §337. V.Wood, 23 T. 177, §5425, 454. Fielding- v. Du Bose, 63 T. G31 , §462. Fievel v. Ziiber, 67 T. 275, §225. Finch v. Edmonson, 9 T.5U4, §3 IS^f. Fisher v. Abney, 69 T. 410, §304. V. Bowser, 41 T. 222, §177. V. Phelps, 21 T. 551, §58. V. "Wood, 65 T. 199, §542. Fisk V. Henarie, 142U. S. 459 §569. — V. Miller, 13 T. 224, §504. V. Norvel, 9 T. 533, §§2, 403. Fitch V. Boyer, 51 T. 3:!6, §:)42. Fitzhuo-h V. Custer, 4 T. 391, §322. Fhiuag^m v. Pierson, 42 T. 1, §477. V. Womack, 54 T 45, §147. Flanikeu v.Neal, 07 T. 629, §1S0. Flatan v. The State, 50 T. 93, §202. Fleming V. Davis, 37 T. 173, §221. V. Nail, 1 T. 240, §40. V. Seeligson, 57 T. 524. §§234, 314, 486, 4SS. Floyd V. Borland, 33 T. 777, §310. V. Patterson, 72 T. 202. §§97, S45. 353, 455. V. Kice, 28 T. 341, §509. V. Rust, 58 T. 503, §471. V. Turner, 23 T. 292, §§220, 492. Focke V. Hardeman, 67 T. 173. §§399, 495. Forbes v. Davis, 18 T. 208, §500. v. Moore, 32 T. 195, §346. Ford V. Williams, 6T. 311. §§212, 213. Forsord v. Golson, 77 T. 600. §§275, 520. Fort V. Fitts, 66 T. 593, §§2, 340. Fortson v. Alford, 02 T. 576, §217. V. Caldwell, 17 T. 627. §§261,455. Fortune v. Kerr, 25 T. Sup. 309. §406. Fort Worth Pub. Co. v. Ilitson, 80 T. 217, §516. Foster V. Champlin. 29 T. 22, §375. V. Powers, 04 T. 247, §310. V. Smith, 66 T. GSO. §3S1, 497, 517. Fowler v. Davenport, 21 T. 634. §§252, 3.53, 354, 355, 414,415,418, 449, 451. V. Simpson. 79 T. 611, §523. V. State, 08 T. 30, §§202, 204. Fox V. Willis, 60 T. 373, §486. Francis v. Hall, 13 T. 189. §403. Frank v. Kaioler, 30 T. 3U5, §512. Franks v. Chapman, 00 T. 46, §216. Frazier V. Todd, 4 T. 401. §§3,52, 406. V. Woodward, 61 T. 449, §411. Freeman v. Hawkins, 77 T. 49S. §293. V. Kuechler, 45 T. 592, §31 S(/. Freiberg v. Magale, 70 T. 1 16, §225. French v. Grenet, 57 T. 273. §§74, 278. Friedlander V. Cornell, 45 T. 585. §53. Frosch V. Schlumpf. 2 T. 422, §427. Frosh V.Galveston. 73 T. 401, §404. V. Holmes, 8 T. 29, §518. V. Swett, 2 T. 485. §§329, 331, 334, 342, 352, 509. Frost v! Wolf, 77 T. 455, 5523. Fulghani v. Chevallier, 10 T. .518. §§219,232. Fullerton v. Doyle, 18 T. 3. §§432, 433. Fulton V. Black, 21 T. 424, §517. Furlow V. JNliller, 30 T. 29, §508. G. Gaal V. Townsend, 77 T. 464, §313. Gaines v. Nat'l Exchange Bank, 64 T. IS, §184. V. Salmon, 16 T. 311. §§261, 360, 4G4, 474, 496, 499. Gaither v. Hanrick, 09 T. 92. §§278, 530. Galbreath v. Atkinson, 15 T. 21. §308. Galveston v. Gorham, 49 T. 279. §75. V. Nobles, 56 T. 575, §446. — - V. Posnain.«ky, 02T. IIS, §162. Gammage v. Alexander. 14 T. 414. . §370. Garner v. Burleson, 2() T. 348, §25. V. Easkcr, 71 T. 431, §.546. V. Stubbleiieki, 5 T. 552, §450. Garrett v. Gaines. 6 T. 446, §314. V.IMuller,37 T. 589, §§2! 6,453. Garrison v. Crowell, 67 T. 026. §170. Gaskins v. Peebles, 44 T. 300. §§232, 492. Gathright v. Wheat, 70 t. 740. §§394, 413. Gavle V. Ennis. 1 T. 1S4;"§3.-.G. Gee V. Saunders, 06 T. 333, §455. 888 GEORGE.] TABLE OF CASES CITED. [HALL. George v. Dean. 47 T. S4, §219. V. Tbuums, IG T. 7-4, §195. V. Vuugbau, 55 T. 129. §§32!), 331, 3SG. Gibbs V. Belcher, 30 T. 79. §tj -21 8,441. Gibson v. MuUican, 58 T. 430, §34(3. Giddiugs v. Steele, 28 T. 732. §§2,317,406. Glldart v. Grumbles, 22 T. 15, §400. Gilder v. Mclntyre, 29 T. 89. §40(i. Gilleuvvaters v. Scott, 62 T. 670. §421. Gillie V. Wofford, 26 T. 76. §§333, 371. Gillis V. Rosenheimer, 64 T. 243. §457. Gillmore V. Duiipon, 35 T. 435, §517. Girardin v. Dean, 49 T. 243. §§124.301. Givens v. Blocker, 23 T. 033. §213. Glass V. Smith, 66 T. 548, §219. Glasscock v. Hamilton. 62 T. 143. §§70, 113, 115, 225, 442,444. V. Shell, 57 T. 215. §§103, 157, 373, 407. Glaze V. Watson, 55 T. 5(i3. §310. Goddard v. lus. Co.. 67 T. 69. §106. Goff V. Jones, 70 T. 572, §§177, 188. Goldbaum v. Blum, 7!) T. 638, §105. Goldfrank v. Young. 64 T. 432, §225. Goldman v. Blum, 58 T. 630. §36. Goldwashing& Water Co. v.Keyes, 96 U. S.199. §561. Gonzales v. Chartier, 63 T. 36. §§120. 177, 225, 319, 506. Gonzales College v. McHugh, 21 T. 256, §93. Goodbar v. Bank. 78 T. 461. §§156, 234, 486. Goode V. Jasper, 71 T. 48. §542. Goss V. McClaren, 17 T. 107, §217. Gouhenant v. Brisbane, 18 T. 20. §394. Grabenheimer v. Blum, 63 T. 369. §25. Graham v. Gautier, 21 T. Ill, §168. V. McCartv, 69 T. 323. ■i;§242, 415. 426, 495. V. Roder, 5 T. 141, §422. Grande v. Herrera, 15 T. 533, §2, Grant v. Bledsoe, 20 T. 456. §§124. 357. V. Burleson, 38 T. 214, §47. V. Whittlesey, 42 T. 320. §§9, 380. Grassmeyer v. Beeson. IS T. 753. §530. Graves v. Draue, 66 T. 658. §j;332. 376, 399. V. Hall, 27 T. 148, §§233, 486. Gray v. Osborne, 24 T. ir)7. §ij352, 402. V. Steedman, 63 T. 95. §§25, 495, 509. Greathouse v. Greathouse, 60 T. 597, on, 37 T. 558. §22. Griffin v. Chubb, 7 T. (03, i;386. Griffith V. Garv, 31 T. 163. §357. Grigsby v. Peak. 68 T. 235, 4;293. Grimes v. Hagood, 19 T. 246. §§333, 364. V. Hobson, 46 T. 416. §§322, 521. Groce v. Herndou, 2 T. 410, §356. Groesbeck v. Campbell, 38 T. 36. §217. Grooms v. Rust, 27 T. 231. §144. Grothaus v. Witte, 72 T. 124, §464. Grounds v. Sloan, 73 T. 662. §§26, 454. Guerin v. Patterson, 55 T. 124, §22. Guess V. Lubbock, 5 T. 535. §449. Gu.'st V. Rhine, 16 T. 519. §411. Guilford v. Love, 49 T. 715, !j,526. Guimond v. Nast. 44 T. 1 14, §399. Gullett V. O'Connor, 54 T. 408. §§.534, 542. Gunst v. Pelham, 74 T. 586. §§188, 494. Gu liter V. Fox. .51 T. 388, §526. Guthrie v. Guthrie, 17 T. 543, §471. H. ,§136. 889 Iladley v. Upshaw. 27 T. 547. §1! Haile v. Oliver, .52 T. 443, §549. Haines v. Haines, 62 T. 216, §171. Hale v. Baker, 60T. 217, §§310,523. V. Hale, 47 T. 336. §171. V. McComas, 59 T. 486. §§219, 232,. 492, 483. Haley v. Greenwood, 28 T. 680. §427. v. Villeneuve, 11 T. 617. §213. Hall v. Dotson, 55 T. 520. §44. V.Hall, 11 T. 526, §§471, 472. HALL.] TABLE OF CASES CITED. [HILL. Hall V. Hodge, 2 T. 323. §§471, 474, 475. V. Jackson, 3 T. 309. §§365, 411. V. Lavton, 10 T. 55, §411. V. O'Malley, 49 T. 70, §148. V. rearniaii, 20 T. KiS. §356. V. York, 22 T. 641, §§377, 504. Hamblen v. Knight, 60 T. 36. §§219, 492, Hamburg v. Wood, 66 T.'lGS. §§347,369,464. Hamilton v. Van Hook, 26 T. 302. §§469, 473. Hannay v. Thompson, 14 T. 144. S225. Hammond v. Connelly, 63 T.'62. §547. Hammonds v. Belcher, 10 T. 271. §483. Hampshire v. Floyd, 39 T. 103. §§260, 454. Hanchett v. Gray, 7 T. 549, §473. Hancock v. Henderson, 45 T. 479. §477. V. Tram Lumber Co., 65 T. 225, §530. Hanrick v. Alexander, 51 T. 494. §54. V. Hanrick, 54 T. 101. §430. V. ,61 T. 596; Id. 63 T. 61S, §430. Hardesty v. Fleming, 57 T. 395. §219. Hardison v. Hooker, 25 T. 91, §377. Hardy v. De Leon, 5 T. 211. §S223. 429, 504. Hare v. Hare, 10 T. 355, §171. Harn v. Phelps, 65 T. 592. §§180,217. V. Smith, 79 T. 310, §§180, 195. Harper v. Nichol, 13 T. 160. §400. Harrell v. Hill, 15 T. 270, §422. Harris v. Campbell, 68 T. 22. §§36,311. V. Catlin, 53 T. 1, §275. V. Finberg, 46 T. 80. §§1.56, 225, 482. V. Shackelford. 6 T. 133, §549. V. Speuce, 70 T. 620. §§411, 497. V. Williams, 44 T. 124. §§9, 44, 406, 4.33. Harrison v. Ilgncr, 74 T. ^6. §449. V. Oborlliier, 40 T. 385, §216. V. Sbeebiirn. 36 T. 73. §3.58. Hartv. ]ilinn,76T. 113. §§156,223. V. Eppstein, 71 T. 7.')2, §225. Hart V. Kanady, 33 T. 720, §375. Hartley v. Frosli, 6 T. 208, §432. Hatcher v. Pelbam, 31 T. 201.. §98. Hatchet't v. Conner, 30 T. 111. §§411,444. Haymond v. Haymond, 74 T. 414. §423. Haynes v. Stovall, 23 T. 625, §406. Haynie v. Baylor, 18 T. 498, §128. Hays V. Barrera, 26 T. 78. §§345, 430. V. Bonner, 14 T. 631. §§330. 331, 456. V. H., G. N. E. E. Co., 46 T. 272, §507. v.'Eailway, 70 T. 602, §369. V. Samuels, 55 T. 560. §§369. 379. V. T. & P. E. E. Co., 62 T. 397, §§519, 523. Headley v. Obenchain, 33 T. 682. §509. Heard v. Lockett, 20 T. 162, §512. Heath v. Fraley. 50 T. 20!), §438. V. Layue, 62 T. 686, §421. Hedgepeth v. Eobertson, i8 T. 858. §140. Heflin v. Burns, 70 T. 347. §497. Heidenheimer v. Ellis, 67 T. 426, §4. V. Schlett, 63 T. 39-1. §389. V. Thomas, 63 T. 287. §433. Heilbroner v. Douglass, 45 T.402. §98. V. Hancock, 33 T. 714, §370. Heiligmau v. Eose, 81 T. 222. §§157, 407. Hemming v. Zimmerschitte, 4 T. 159. §§225, 412. Henderson v. Ayres, 23 T. 96, §124. V. Cabell, 83 T. 541. §554. V. Gilliam. 12 T. 71, §§469,473. V. Glass, 16 T. 559, §§375, 376. V. Morrill, 12 T. 1, §219. V. Moss, 82 T. 69. §421. Hendrick v. Cannon. 2T. 2,59, §219. Ilendrlx v. Niinn, 46 T. 141, §319. Hermann v. Eaynolds, 52 T. 391. §•"'41. Ilerndon v. Ennis, IS T. 410, §454. V. Kuykendall. 5S T. 341 . §421 . Herrington v. Williams. 31 T. 4-18. §§520, 523. Herron v. DeBard, 24 T. ISl, §450. >S T. 602. §492. Hewitt V. Thomas, 46 T. 234, §.508. Hibbert v. Avlott. 52 T. 530. §188. Hill V. Faison, 27 T. 428. §211. V. Frost, 59 T. 25, §120. 890 HILL.] TABLE OF CASES CITED. [Ill WIN. Hill V. George, 5 T. 87, §§333. ::(U. V. Kimball, 7(3 T. 2iU, §147. V. Newman, 67 T. 2G5. §§2J5, 439, 441. V. Osborne, 60 T. 3!)0, §380. V. Spear, 4S T. 583, §278. Hillebraudt v. Booth, 7 'V. 499. §§3.J3, 418. Hilliard v. AVilsou, 65 T. 286. §§149, 242. V. , 76 T. ISO, §156. Hillibrand v. McMahan,59 T. 450. §310. Hillman v. Baumbacb, 21 T. 203. §519. Hillyard v. Crabtree, 11 T. 264. §§93, 405. Hinzie v. Kempner, 82 T. 617. §§314,421. Hipp V. Huchett, 4 T. 20, §411. Hitson V. Forrest, 12 T. 320, §386. Hogan V. Kelliim, 13 T. 396, §411. Hoggland v. Cothren, 25 T. 345. §388. Holliman v. Rogers, 6 T. 91. §§115, 116, 440, 464, 471,472,474, 475, 509. Hollingswortb v. Holshousen, 17 T. 41, §450. Hollis V. Border, 10 T. 360, §405. V. Cbapinan, 36 T. 1, §93. V. Dasbiell, 52 T. 187, §542. Holloway v. Blum, 60 T. 625. §§261, 314, 31Sd, 424. V. Holloway, 30 T. 164. §§42. 411. V. Mellhenny, 77 T. 657. §225. V. Memphis & El Paso K. R. Co., 23 T. 465, §§399, 403. Holman v. Criswell, 13 T. 38. §§377, 380. V. , 15 T. 394, §380. Holstein v. Gardner, 16 T. 114. §§420, 446. Hooks V. Lewis, IG T. .551, §§212, 213. Hooper v. Hall, 30 T. 1.^)4, §530. V. , 35 T. 82. §538. , Hope V. Alley, 9 T. 394. §§157,161, 213, 408. Hopkins v. Nichols. 22 T. 206, §25. V. Wright, 17 T. 30. §§326, 332, 413, 457, 512,514,516, 517. Horan v. Frank, .51 T. 401, §311. v.Wahreuberger,9T.313,§241. Horm V. Shambliu,57 T. 243, §319. Horton v. Crawford, 10 T. 3s2. ^ij457, 540. V. Reynolds, 8 T. 2S4, §4.^)6. V.Wheeler, 17 T. 52, §§442,444. Houghf V. Hammond, 36 T. 657. §532. House V. Collins, 42 T. 486, §427. V. Stone, 64 T. 677, §278. Houston V. Sneid, 15 T. 307, §278. Howard v. Britton, 71 T. 287. §§415 446. V. Johnson, 69 T. 655. §§2, 198, 533. Howard Oil Co. v. Davis, 76 T. 631, §162. Howth V. Franklin, 20 T. 798, §136. Hubbard v. Lord, 59 T. 384, §149. Hubby V. Caniplin, 22 T. 582, §411. V. Stokes, 22 T. 217, §92. Hudson V. Mill & Elevator Co., 79 T. 401, §§223, 302. ' v. Wheeler, 34 T. 356. §§329, 332, 413, 457. V. Wilkinson. 45 T. 444, §225. Huff V. Webb, 64 T. 284, §199. Hughes V. Lane, 6 T. 289. §§383, 405, 457. V. , 25 T. 356, §543. V. Prewitt, 5 T. 264, $464. V. Roper, 42 T. 116, §293. Huilker v. Huilker, 64 T. !» §171. Hunnicutt v. The State, 75 T. 233. §206. Hunton v. Nichols, 55 T. 217, §274. Hurst V. Milliuger, 73 T. 188, §347. Hurt V.Blackburn, 20 T. 601, §418. V. Cooper, 63 T. 362, §509. V. Horton, 12 T. 285, §§2, 403. Hutchins v. Bacon, 46 T. 414. §§196, 218, 411, .530. v. Wade, 20 T. 7, §§503, 507. Hutchinson v. Owen, 20 T. 287. §508. V. Underwood, 27 T. 255, §433. I. [See End of I for Insurance Cases.] Iglehart v. Moore, 21 T. .501, §491. Ikard v. Thompson, 81 T. 285, §9. Inge V. Benson, 15 T. 316, §213. Insall V. Robson, 16 T. 128," §56. Irrigation Co. v. Vivian, 74 T. 170. §221. Irvin v. Bevil, 80 T. 332, §§199, 332. v. Ellis, 76 T. 164, §486. Irwin v. Cook, 24 T. 244. §§157, IGl, 408. 891 INSURANCE.] TABLE OF CASES CITED. [KENNEDY. lusuranee Conipauy V. Brower, 38 T. 230. JJ435. V. Camp, U5 T. 521, §iOG. V. , 71 T. 50;}. §106. V. Clancy, 71 T. 5. ^106. 'v. Clarke, 79 T. 23, §106. V. Coffee, 61 T. 287. §106. V. Davidge, 51 T. 24-4. §s<2. lO.o, loiJ, 375. 377, 399. V. Dyche.<, 56 T. 565. 4>106. V. Eiule, 65 T. 118, ijlOG. V. G., C. & S. F. Ry. Co., 63 T. 475, §106. V. Goode, 71 T. 90, §457. V. Goidou, 68 T. 144, U06. V. Griffln, 59 T. 509, §462. V. Hazlewood, 75 T. 338, §105. V. Hull, 132 U. S. 61, §560. V. Ice Co., 04 T. 578, §449. V. Lacroix, 45. T. 170, §§106, 457. V. Mattingly, 77 T. 162, §106. V. Parham, SOT. 518. §105. V. Ray, 50 T. 511. §§105, 464. V. Reymershoffer's Sons, 56 T. 234. §109. V. Seeligson, 59 T. 3. §§2, 399, 427, 438. V. William.?. 79 T. 633. §105. V. Willis & Bro., 70 T. 12, §106. J. Jackson.v. Alexander, 8 T. 109. §§296, 453. V. Allen, 132 U. S. 27, §560. V. Harbv, 65 T. 710, §223. V.Hill, 39 T. 493, §,533. V. Marshall, 6 T. 324, §405. V. Murray, 77 T. 644, §§113, 116. James v. Fulcrod, 5 T. 512. §§319, 360. V. Jacques. 26 T. 320, §310. Jaueman v. Franklin, 67 T. 411. §523. J.anes v. Reynolds, 2 T. 2.50, §293. Jemison v. Ilalbert, 47 T. 180. §523. Jennings v. Case, 17 T. 673, §464. V. Moss, 4 T. 452. §§352, 406, 497, 503. Johns V. Hardin, 81 T. 37. §§124. 180, 345. V. Johns, 44 T. 40, §171. V. Northcutt, 49 T. 444, §.504. Johnson v. Brvan, 62 T. 623. §§278, 521, 523. V. Byler, 38 T. 606. §^-'i65, 537,539. §74. Johnson v. Caldwell. 38 T. • V. Davis, 7 T. 173, §§322,444. V. Flint, 75 T. 379, §265. V. Granger, 51 T. 42, §496. V. Heidenheinier, 65 T. 263. §§2;i4. 314, 340, 4S7, 516. V. Lane, 12 T. 179, §213. V. Long, 27 T. 21, §450. V. Robinson, 68 T. 399. §223. V. Schumacher, 72 T. 334, §196. V. Skipworth,59 T. 473,§3]8i V. Tlmmous, 50 T. 521, §542. Johnston v. Stratton, 36 T. 90. §318i. Joiner v. Perkins, 59 T. 300. §§25, 352, 494. Jones V. Andrews, 62 T. 652. §266. V. V. V. V. V. V. 72T. 5, §§195, 199. Black, 1 T. 527, j509. George, 56 T. 149. §518. , 61 T. 345, §92! Goff, 63 T. 248, §188. Ilolliday, 11 T. 414. §§375. 376, 377. Jefferson, 66 T. 576, §2. Jones, 60 T. 451. §§171, 225,342, 394, 423. Laney, 2 T. 342, §357. V. Ritter, 32 T. 717. §56. Joplin V. Turner, 32 T. 2S1. §§357, 538. Jordan v. David. 20 T. 712, §483. V. Robson, 27 T. 612. §§260, 454. V. V. V. Kampman v. K. Williams, 70 T. 568. §§31, 51, 55, 63. Kauffm.an v. Shellworth, 64 T. 179. §538. V. Wooters. 79 T. 205, §403. Kavanaugh v. Brown, 1 T. 481 . §406. Keener v. Duff, 66 T. 181, §427. Keithley v. Seydell, 60 T. 78. §§-10, 442. Kelley v. Whitmore, 41 T. 647. ^ §§219.432.492. V. Kellv, 12 T. 4.^)2. §§150,454. Kellogg V. Muller, 6S T.']'82, §307. Kempner v. Heidenheimer, 65 T. 587, §§179,389. V. Rosenthal, 81 T. 12, §222. Kennard v. llcrlock, 20T. 48. §449. V. Mabry, 78 T. 151, §219. Kennedy v. Baker, .59 T. 150, §457. y. Morrison, 31 T. 207, §494. 892 KEOWXE.] TABLE OF CASES CITED. [LINNEY. Keowne v. Love, 65 T. 152, §27. Keys V. H. & G. N. R. R. Co., 50 T. 1G9. §§541, 54-2. V. xMiisoii, 44 T. 140, §§275, 546. Kiinmaile v. H. & T. C. Ry. Co., 7G T. G8G, §§411, 423. King V. Brown, SO T. 276. §§310, 538. V. Elson, 30 T. 246, '§.^38. V. Goodson, 42 T. 152. §§514, 516. V. Ireland, 68 T. 682, §517. Kinuey v. J>ee, 10 T. 155, §§510, 517. V. MeCleod, 9 T. 78, §193. V. V insou, 32 T. 125. §§523.538. Kirbe v. Proviui, 78 T. 353. §296. Kirby v. Estill, 75 T. 485, §1S0. Kittrell v. Blum, 77 T.'33G, §223. Kitclien v. Crawford, 13 T. 516. §217. Kuowles V. Torbitt, 53 T. 557. §346. Koenigheini v. Miles, 67 T. 113. §§265, 2()7. 26S. 275, 546. Kolb V. Ba'ukhead, 18 T. 228. §§140, 383,388. Koschwitz V. Healj% 36 T. 666. §§512,516. Kottwitz V. Bagby, 16 T. GoG, §335. Kulihnaii v. Baker, 50 T. 630, 457. Kuhn V. Young, 78 T. 344. §§155,262. Kutch V. Holley, 77 T. 220, §44. L. La Belle Wagon Works v. Tidball, 59 T. 292, §223. Labadie v. Dean, 47 T. 90, §301. La Confiance Conipagnie d'Assur- ance v. Hull, 132 U. S. 61, §560. Lacy V. Rollins, 74 T. 5G6, §182. V. Williams, S T. 182, §403. Lambert v. Weir, 27 T. 359, §274. Lambeth v. Turner, 1 T. 367. §§329,331. Laud Co. V. Wood, 71 T. 460. §§.531, 535. Land & Cattle Co. v. Board, 80 T. 4^9, §219. V Lander v. Rouusaville, 12 T. 195. §§275, 337. Lanes v. Squyres. 45 T. 3s3. §§36, 2.53, 512, 519. Lange v. Caruthers, 70 T. 718. §§26, 394. 405. Langhani v. Tbomason, 5 T- 127. §§445, 458. Langton v. Marshall. 59T. 296, §278. Lanier v. Foust. 81 T. 186. §188. Laiiius V. Shubei-, 77 T. -24. §455. Laredo v. Russell, 56 T. 398, §411. Latham v. Flour Mills, G8 T. 127. §444. Lea V. Hernandez, 10 T. 139, §383. Leach v. Wilson Co., G2 T. 331. §404. League v. Davis, 53 T. 14, §177. Lee V. Boutwell, 44 T. 151. §§67, 513. V. Hamilton, 12 T. 413. §§453, 499. .500, 518. V. Kin^sburv, 13 T. G8. §124. V. Stowe. 5f T. 444, §120. V. Turner, 71 T. 264. §§2, 42, 138, 196, 293, 297, 298, 406, 441. V. Wilmerdiug.57 T. 444, §177. Legg V. McNeill, 2 T. 428. §§314, 486. Le Gierse v. Kellum, 66 f . 242. §§301,441. Legion of Honor v. Larmour, 81 t. 71, §423. Lehmberg v. Biberstein, 51 T. 457. §423. Leigh V. Linthecum, 30 T. 100. §§2G, 394. Leland v. Eckert, 81 T. 22G, §196. Lemmon v. Box. 20 T. 329, §120. V. Hanley, 28 T. 219. §§411, 414, 418. 455. Leona I. ^M. & C. Co. v. Roberts, 62 T. 615. §352. Lessing v. Cunningham, 55 T. 233. §177. V. Griuiland. 74 T. 239. §225. Letney v. Marshall, 79 T. 513.' §421. Levy V. McDowell, 45 T. 220, §453. Lewiu V. Houston, 8 T. 94. §§450. 455, 505. Lewis V. Alexander. 51 T.578, §360. V. Davitlsoii, 39 T. 6G0, §513. V. Dennis, 54 T. 487, §§411 , 510. V. G., H. & S. A. Ry. Co., 73 T. 504, §§1.59, 3(;3. V. Lowcry, 31 T. 663, §454. V. San Antonio. 26 T. 3)6. §217. V. Stewart. 62 T. 352, §§25," 494. I.ewy V. Fischl, 65 T. 311. §§156, 482. Lindheim v. Muschamp. 72 T. 33. §§242, 318e. Lindsay v. Jaffray. 55 T. 622. 357, 371, 402. Mann v. Falcon, 25 T. 271. §§411, 538. V. Mathews, 82 T. 98. i^olO. V. Wallis. 7.") T. ON, §219. Manning v. Amy, 140 U. S. 137. §556. V. Hunt. 36 T. 118, §415. Manwarriug v. Kouns, 35 T. 172. §477. Marley V. McAnellv. 17 T. 6.58, §464. Marsan v. French, 61 T. 173. §142. Marshall v. Alley. 25 T. 342. §494. V. Bailey, 27 T. 680. §§342, 352. y. Heard, 59 T. 200. )^173. y. Holmes. 141 U. S. 589, §565. Martel y. Herusheim, 9 T. 294. V. Somers, 26 T. 558. §435. §§512. 517. Mtirtin v. Parker, 26 T. 253, §513. V. liobinson, 67 T. 368. ' §§2. 403,421. V. Tucker. .59 T. 249, §23. Marx y. Abramson, 53 T. 264. §§495,501. Masterson y. Ashcom, 54 T. 324. §§427. 483. y. Cundiff. 58 T. 472, §3&;l. V. Goodlett, 46 T. 402. §473. y. Little, 75 T. 682, §177. Matlock y. Glover, 63 T. 231, §335. Matos.-y y. Frosh, 9 T. 010, §449. :siaverick y. Floras. 71 T. 110. §357. May y. Ferrill. 22 T. 340, §495. y. Pollard, 28 T. 077. §§379, 454, 496. V. Slade, 24 T. 205. §^138, 332. 441. y. Taylor. 27 T. 125, §§450, 464. Mayer y. Rarasev, 46 T. 371. §§J02, 537. Mayes v. Jones, 62 T. 365, §-l03. V. Manning, 73 T. 43. , §389. y. Moss, 05 T. 179. §278. y. Tavlor, 14 T. 538, §491. y. Yturria, 69 T. 549. §225. Millican y. Millican. 15 T. 460, §404. y. , 24 T. 420, §182. Milliken v. Callahan Co., 09 T. 205. <;§143, 225. y. City Council, 54 T. 388. §207. 895 MILLIKEX.] TABLE OF CASES CITED. [NIX. Milliken v. Smoot, 64 T. 171. §§42, 143, 411. V. , 71 T. 75D. §§143, 298, 445, 516. Mills V. Alexander, 21 T. 1G2. §§268, 545. V. Herndon, 60 T. 3.53, §421. V. Swearingen. (i? T. 269, §486. V. Traylor, 30 T. 7. §310. Mims V. Mitchell, 1 T. -J 43. §§359. 342,509. V. Eofel, 73 T. 300, §520. Mitchell V. Clay, S T. 443. §§26, 376, 394, 405. V. Dewitt, 25 T. Sup. ISO. §§70, 116. V. Mitchell, 80 T. 101. §§196, 433. V. Rucker. 22 T. 66, §255. V. Sheppard, 13 T. 484. §§322. 411. V. Smale. 140 U. S. 406, §558. V. Ziniinennaii, 4 T. 75, §456. Moehrin^ v. Hall, 60 T. 2-10. §§161, 373. Moffatt V. Svdnor, 13 T. U2S, §42. Moke V. Fellman, 17 T. 367. §§499, 505. Monks V. McGrady, 71 T. 134. §§381,463. Monroe v. Watson, 17 T. 625. §1.56. Montgomery v. Cilrlton, 56 T."^433. S§346, 460, 533. V. Gunther, 81 T. 320, §275. Moody V. Bi-nge. 28 T. 545. §§22, 352, 3.57. 371, 406. V. Holcomb, 26 T. 718. §520, 531. V. Smoot, 78 T. 119, §340. Moore v. Andorson, 30 T. 230. ^v<1.57, ](;i,3()2. 407, 408. V. Giesecke, 76 T. 543. ii§18S, 190. V. Gupst, S T. 117, §411. V. llazelwood. 67 T. 624. §4.56. V. rr<>ll.iinan8.2:)T.Sui>.sr,§5]. V. Minnrva. 17 T. 20. §86. V. Moore, 73 T. 387. §.507. V. Moss, 2 T. 400. §4(Ki. V. Rice, 51 '1'. 289. §436. Morales v. Fisk. 66 T. 189. §516. Moreland v. Atchison, 34 T. 351. §<;32!l. 509. V. Barnhnrt. 44 T. 283. §.5H8. Morgan v. .Tohnson. 1 .5 T. 568, §494. Morris v. Edwardr„62 T. 205, §217. V. Kasling, 79 T. 141. §§369, 411, 516. Morris v. Leona, 67 T. 303. §203. Morrison v. Beau, 15 T. 267, §225. V. Insurance Co., 69 T. 353. §§319,327. V. Walker, 22 T. 18, §§.508, 516. Morrow v. Morgan, 48 T. 301. §§225. 309, 310, .538. Mortgage Co. v. Norton, 71 T. 683, §462. Moseby v. Burrow, 52 T. 396, §2. Moser v. Hnssey, 67 T. 456, §532. Miillins V.Thompson, .51 T.7.'§105. Munsou V. Hallowell, 26 T. 475. §457. Munzenheimer v. Cloak and Suit Co.. 79 T. 318. §§25,352,494,501. Murchison v. White, 54 T-. 78. §§219,421,422, 542. Murphv V. Grain. 12 T. 297, §92. V. Garrett, 48 T. 249, §464. V. Stell, 43 T. 123, §360. Murray v. G., C. & S. F. Ey. Co., 73 T. 2, §§1.59,461. Murrell v. Wright, 78 T. 519. §§194, 199. Mussina v. Go]dthwaite.34 T.125. §§234, 314. V. Moore, 13 T. 7, §217. Mvnntt V. Hudson, 66 T.- 66, §143. Myndersv. Ralston, 6ST. 498, §534. N. Xeil V. Shackelford, 45 T. 119, §377. Neill V. Keese,5 T. 23, §.540. V. Newton, 24 T. 202, §362. V. Owen, 3 T. 145, §318/ V. Tnrvin, 9 T. 256, §333. Nelson v. Bagbv, 25 T. Sup. 305. §356. Nenney v. Schluter, 62 T. 327. §§234, 314, 4N6, 487. Newby v. Gunn, 74 T. 4.">5, §148. Newsonv.<;hrisnian,9T. 113, §216. Newton v. Newton, 77 T. 508, §455. Ney V. Muniine, 00 T. 208. §§196, 530. Neve V. Hawkins. 65 T.'liOO. §200. Neyland v. Neyland, 19 T. 423. §§4. 251, 379. V. , 70 T. 24, §455. Nil)lelt V. Slielton. 28 '|\ 548, §411. Nichols V. Nichols, 79 T. 332, §275. Nickerson v. Nickerson, ('5 'I". 281. §§147. 432. Nimino v. Davis, 7 T. 26, §3,57. Nix V. Dukes, 58 T. 96. §§234,312,486. 896 -/. XOBLE.] TABLE OF CASES CITED, [PETICOLAS. Noble V. Mej'ers, 76 T. 2S0. i^i5306, 486. Nobles V. Cattle Co., 69 't. 434. §§268. 545. Nogees v. Nogees, 7 T. 5:i8, §171. Xoriuau V. Wheeler, 13 T. 316. §357. North V. Swing, 24 T. 194. §§219,481. Norvell v. Garthwaite, 25 T. 583. §§427, 438. Noyes v. Brown, 75 T. 458, §314. Nye V. Gribble, 70 T. 458. §§519, 531. V. Hawkins, 65 T. 600, §195. 0. Obert V. Landa, 59 T. 475, §497. O'Brien v. Dunn, 5 T. 570, §213. V. Gillelaud, 79 T. 602, §440. V. Hilburn, 9 T. 297, §432. O'Connell v. Duke, 29 T. 299, §176. O'Conner v. Towns, 1 T. 107, §509. Odle V. Frost, 59 T. 684, §219. Odom V. Carter, 36 T. 282, §25G. Oldham v. Erhart, IS T. 147- §§445, 458, 481, 483. V. Sparks, 28 T. 425, §214. Oliphant v. Markham, 79 T. 543. §§97, 455. Oliver v. Chapman, 15 T. 400. §§356, 359. Ortiz Y. De Benavides, 61 T. 60. §§346, 430, 457. Osborn v. Osborn, 62 T. 495, §193. O'Shea v. Twobjg, 9 T. 336, §315. Oury V. Saunders. 77 T. 278.' §222. Overton v. Blum, .50 T. 417, §217. V. Conner, 50 T. 113, §251. Owen V. Tankersley, 12T.411, §411. P. Pacific! Express Co. v. Darnell, 62 T. 639, §§132, 3Si). Page V. Arnim, 29 T. 53, §§399, 462. V. Findlev. 5 T. 391. §§332. 404. Palmer v. Wilks, 17 T. 105, §38(1. l*arish v. Alston, 65 T. VM. §457. Parker v. Bains, 59 T. 15. §274. V. Beavers, 19 T. 410. §§319,411. V. Coop. GOT. 114, §222. V. Kail way, 71 T. 132. §§140, 383. V. Spencer, 61 T. 155. §§124, 497. (57— Plead. Forms.) 897 Parks V. Dial, 56 T. 261. §§138,469. V. O'Connor, 70 T. 377, §389. Parr v. Nolen. 26 T. 798, §§22, 352, 357, 371, 40^. Parrish v. Jaukson, (j9 T.614, §278. Parrott v. Underwood, 10 T. 4S. §§471, 474. Parsons v. Frost, 25 T. Sup. 129, §454. V. Keys, 43 T. 557, §460. Patrick v. Roach, 21 T. 251. Id. 27 T. 579, §188. Patten v. Belo, 79 T. 41, §155. Patton V. Gregory, 21 T. .513. §§406, 523. V. Rucker, 29 T. 411, §450. Paul V. Perez, 7 T. 345, §305. V. AVillis, 69 T. 261, §§2, 421. Payne v. Benham, 16 T. 364, §458. V. Bentley, 21 T. 452. §§442, 444. • V. Francis, 37 T. 75, §168. Peabody v. Buentillo, 18 T. 313. §213. Pearl v. Puckett, 8 T. 303, §213. Pearre v. Hawkins, 62 T. 434. §25. Pearson v. Cox, 71 T. 246, §433. V. Flanagan, 52 T. 266, §546. Peck V. Hensley, 20 T. 673, §180. Pegram v. Owens, 64 T. 475, §318A. Peiser v. Cushman,13T. 390,' §482. Pelham v. Murrny, 64 T. 477, §421. . v. State, 30 T. 422, §375. Pendleton v. Colville, 49 T. 526. §508. Pennington v. Schwartz, 70 T. 211. §§332, 513, Pennsylvania Co. In ?-e, 137 U. S. 611, §553. Pepper V. Smith, 54 T. 115, §.523. Perdev/v. Stead bam, ST. 277. §213. Perego v. White, 77 T. 196, §540. Perez v. Everett, 73 T. 431. §i;240, 354. V. Raband, 76 T. 19']', §173. Perkins v. Hume, 10 T. 50, §381. Perrill v. Kaufman, 72 T. 214. §494. Perry v. IIerl)i it, 8 T. 4, §§342,' 509. V. Lovett, 24 T. 3:.9, §214. V. Kohde, 20 T. 729, §213. V. Stephens, 77 T. 24(1, §242. i'ersons v. Frost, 25 T. Sui^- 129. §^153, 496. Peters v. Clements, 46T'.'i 15, §538. -, — v. Crittenden, 8 T. 131, §516. Peterson v. Fowler, 73 T. 524, §193. Peticolas v. Carpenter, 53 T. 27. §310. PETTY.] TABLE OF CASES CITED. [RICH. Petty V. Cleveland, 2 T. 404. §509. V. Lang, 81 T. 238, §497. ' Phelps V. Brackett, 24 T. 236. i^§4.")U. 454, 4G3. Philleo V. Sanford, 17 T. 227. §128. Phillio V. Blythe. 14 T. 345. §;;jSe. Piiilipowski V. Spencer, G3 T. G04. §§381. 4U3. Phillips V. Parr, 19 T. 91, ^213. V. Pulillo, 18 T. 5 IS, §-180.503. Pierce v. Weaver, 65 T. 44. §222. V. Wrighr,, 33 T. 631. §455. Pilcher v. Kirk, 60 T. 162. §§529, 530. Pinkard v. Pinkard,14T.'356, §171. Pishav/ay v. Runnels, 71 T. 352. §§381,463. Pitman v. Henrv, 50 T. 357. §§310. 533. Pitts V. Ennis, 1 T. 604, §.509. , Plummer v. Power, 29 T. 7, §217. Poao- V. Rowe, 16 T. 590, §21(3. Ponton V. Bellows, 22 T. 6S1, §340. Pool V. Pickett,8T. ]22.§§424, 516. V. Sanft.rd, 52 T. 621. §§234, 311, 314.486.488. Pope V. Graham, 44 T. 196. §9. Porcheler v. Bronson, 50 T. 555. §§124, 357. Porter v. Burkett, 65 T. 383. §16. V. Miller, 76 T. 593. §274". Portier v. Fernandez, 35 T. 534. §482. Powell v. Davis, 19 T. 380. §278. Powers v. Caldwell, 25 T. 352. §§261, 365. 49G. Prather v. Wilkens, ^(is T. 187, §534. Pratt v. Godwin, 61 T. 331, §225. Preston v. Breedlove, 45 T. 47. §*}309. 310. V. Carter Bros., 80 T. 388. §§223, 302. Pressley v. Holmes, 33 T. 478, §530. Presslev's Heirs v. Robinson, 57 T. 4.53. §§193, 293. Prewitt V. Farris, 5 T. 371. §§329, 333, 334. Price V. Knights of Honor, 68 T. 361, §105. V. Wiley, 19 T. 142. §§436, 512, 517. Pridgen v. McLean, 12 T. 420. §§511, 512. .517. Primrose v. Roden, 14 T. 1, §494. Prince v. Thompson, 21 T. 480. . §454. Pryor v. Moore, 8 T. 2.50. §§329. 330. Puckett V. White, 22 T. 559. §492. Pullen V. Baker, 41 T, 419. §§219, 232, 492. Punchard v. Taylor, 23 T. 424, §482. Puriuton v. Davis, 66 T. 455. §§219, 521. Pntman v. Wheeler, 65 T. 522. §§406, 438. Pyrou V. Gander. 25 T. Sup. 159. §367. Quinn v. Logan, G7 T. 601, §368. R. [See End of R for Raiiroad Cases.] Rabb V. Rogers, 67 T. 335. §§293, 427, 497, .503, 508, 512. Ragsdale v. Gohlke, 36 T. 286. §§265, 537. Rains v. Herring, 68 T. 468. §§143, 307. V. McMills, 14 T. 614, §382. • V. Simpson, 50 T. 495, §492. V. Wheeler, 76 T. 390, §200. Raleigh v. Cook, 60 T. 438. §§242, 424, 515. Randall v. Biirtis, 57 T. 362, §357. v. Collins, 52 T. 435; Id. 58 T. 231, §427. Rankut v. Clow, 16 T. 9, §496. Ransom v. Brown, 63 T. 188, §310. Rattigau v. Holloway, 69 T. 468. §§241,422. Ratto V. Levy, 63 T. 278, §217. Rav v. Parsons, 14 T. 370, §216. V. Youno-, 13 T. 550, §§67, 177. Raymond v. Holmes, 1 1 T. 54, §424. — - V. Mann, 45 T. 301, §,53. Read v. Allen. 56 T, 176, (^§196,530. V. Levy. 30 T. 738, §375. lied V. Johnson, 53 T. 284. §§75, 219. Reed v. Samuels, 22 T. 114, §482. Refugio V. Byrne. 25 T. 193, §545. Rcid V. Alleii, 18 T. 241. . §§504, 505. V. Boyd, 13 T. 241, §381. V. Re id, 11 T. .591, §454. V. Samuels, 22 T. 114. §!J156, 483. Rhode V. Alley, 27 T. 443, §456. V. Lafayette Lodge. 15 T. 446. §l(i6. Rhodes v. Gibbs. 39 T. 432, §44. v. Whitehead, 27 T. 304, §221. Rich V. Ferguson, 45 T. 396, §176. 898 RICHARDSON.] TABLE OF CASES CITED. [RAILWAY CO, Richardson v. Hutchins, 08 T. 81. V. Pruitt, 3 T. 223, §§32G, 413. V. Wells, 3 T. 223, §31 S/. Ricker v. Shoemaker, 81 T. 22. §147. Ricks V. Pinsou, 21 T. 507, §411. Rider v. Duval, 28 T. 622. §§35G. 403. Riddle v. McKinney. 67"t. 29. §§474, 481, 4S2. Riggs V. Hanrick. 59 T. 570, §394. Riley v. Ruukle, 29 T. 92, §213. Rindge v. Oliphint, 62 T. 682. §523. Riple.v V. Withee, 27 T. 14, §457. Rippetoe v. Dwyer, 65 T. 707, §234. V. , 49 t, 498, §§265, 539. Risien v. Brown, 73 T. 135, §221. Ritter v. Hamilton, 4 T. 325, §504. Rivers v. Foote, 11 T. 662. §§268, 394, 545. V. Washington, 34 T. 267. §§332, 413, 457. Roan V. Raymond, 15 T. 78, §424. Roberson v. Tonu, 76 T. 535, §300. Roberts v. Short, 1 T. 373, §46. v. Yarboro, 41 T. 449, §144. Robertson v. Coates, 65 T. 37. §§309, 310. V. Cole, 12 T. 356, §170. V. Ephraini, 18 T. 118. §420. V. Guerin, 50 T. 317, §455. V. Teal, 9 T. 344, §358 Robinson v. Black. 56 T. 2i5, §310. v. Brinsou, 20 T. 43S. §§2G0, 449, 454. V. Davenport, 40 T. 333. §§188,329,509. v. Varnell, 16 t. 382, §466. Robson v. Watts, 11 T. 76S', §464. Roche V. Lovell, 74 T. 191. §199. Rodrigues v. Trevino, 54 T. 198. §§234. 486, 488. Rodriguez v. Haynes, 76 T. 225. §225. V. Lee. 26 T. 32, §265. Roehl V. Plea.sants, 31 T. 45. §456. Rogers v. Bradford, 56 T. 630. §438. V. Kennard, 54 T. 30, §§2,406. V. McLaren, 53 T. 423. §346. Roosevelt v. Davis, 49 T.463, §199. Ross v. Armstrong, 25 T. Sup! 35 1. §190. v. Breeding, 13 T. 16. §§352, 406. V. Fitch, .58 T. 148, §§151,387. Rossv. Kornriimpf.64T. 390, §510. V. Smith, 19 T. 171, §22. " Rosser v. Satterwhite, 61 T. 166. §527. Roundtree v. Stone, 81 T. 299. §§293, 403. V. Thomas, 32 T. 25^8, §43. Routh V. Caron, 64 T. 289, §92. Rowell V. Telegraph Co., 75 T. 36, §158. Rowland v. Murphy, 66 T. 534. §§138,441. Rowlett V. Lane, 43 T. 274, §405. Roy V. Clark. 75 T. 28. §ls8. Ru'cker v. Dailey, 66 T. 284. §§457, 524. Rudd V. Johnson, 60 T. 91, §293. Rutiier v.Womack, 30 T. 340, §225. Runge V.Franklin, 72 T. 585, §155. Runnels v. Swan, 20 T. 822, §426. Rush V. Bishop, 60 T. 177. §§64. 316, 318fZ, 424. Rusk v. Burke, 57 T. 341, §46;). Russell V. Nail, 79 T. 664, '§319. y. Oliver, 78 T. 11, §196. V. Railway Company, 68 T. 646, §§2, 198, 415,526. Rutherford v. Stamper, 60 T. 447. §§421, 542. Ryan v. Goldfrank, 58 T. 356. §314. 234, 486, 488, 509. V. M., K. & T. Ry. Co., 65 T. 13, §128. • V. State, 32 T. 280, §357. Ryburn v. Moore, 72 T. 85, §148. Railway Company Adams, 49 T. 748, §128. Aiken, 71 T. 374, §102. Alli.«on, 59 T. I!i3. §128. Baird, 75 T. 256. §128. Bayliss, 62 T. 570", i?225. Benitos, 59 T. 326. §523. Berrv, 67T. 238. §159. Best, 66 T. 116, §159. Bochm. 57 T. 152. §162. Boozer, 70 T. 530. §1.59. Box, 81 'J'. 670. §§161, 162. Brett, 61 T. 4S3, §427. Brin, 77 T. 174, §102. Brinker, 08 T. 5()2. §§144, 373. Broiisard, 69 T. 617, §319. Burke, 55 T. 323, §2. Burnett, 61 T. 638. §§42,157,236. Caillourte. 79 T. 341, §293. Cnrltoti. 60 T. 397, §100. China Mfg. Co., 79 T. 26. §128. 899 KAILV'A- CO. J \: i3LE OF CASES CITED. [RAILWAY CO. Rah way Company — continued. V. Coc^e, 64 T. 153, sjJ-JT. V. Cockrill, 72 T. (313. §242. V. Ccmmissiouer, 3(i T. 382, §402. V. Cornwall. 70 T. Gil, §§12S, 131. V. Cowser, 57 T. 293. §159. V. C;enshaw, 71 T. 340, §162. V. Crowder. 61 T. 262. §§140,460. V. , 63 T. 502, §§460, 461. V. , 70T. 223, §140. V. , 76T. 499. §§141,460. V. C.iberson. 68 T. 664, §441. V. Curry, 64 T. 85. §§161,373. 388. 389. V. D£Ughtry, 138 U. S. 298. §§556, 564. V. DeUihuntv, 53 T. 212, §159. V. Dowe, 70 T. 1, §219. V. Dwver, 75 T. 572, §134. V. Eckford, 71 T. 274. §128. V. Edwards, 78 T. 307, §346. V. Evans, 78 T. 369, §§349, 369. V. Fagan, 72 T. 127, §128. V. Ferris, 26 T. 5SS. §523. V. Freeman, 57 T. 156, §434. . V. Gage, 63 T. 568, §§2, 427. V. Gallaher, 79 T. 685, §357. V. Garlington, 66 T. 103, §106. V. Gentry, 69 T. 625, §36. V. Goldberg. 68 T. 685. §497. V. Gordon, 72 T. 44, §§151, 389. V. Graves, 50 T. 181, §§242, 424. V. Greenlee. 70 T. 553. §159. V. Griffin, 76 T. 441. §381. V. Hadnot, 67 T. 503, §386. V. Hall, 64 T. 615, §§106. 512. V. Hampton, 64 T. 427, §159. V.Harris, 67 T. 166. §128. V. -. 73 T. 375. §300. V. Harrison. 72 T. 479, §369. V. — , 73 T. 103. §§559, 563, 564, 568. V. Harry, 63 T. 256, §134. V. H.'ln'i, 64 T. 147. §§42, 298. V. Helsley, 62 T. 593, §389. V. Hennessey. 75 T. 155, §141. V. Henninir,'52 T. 466, §.504. V. H.Mvitt,"67 T. 473, §§159, 460. V. Hill. 63 T. 381, §92. V. Hoirsett, 67 T. 685, §389. V. Ilollidav, 65T. 512, §389. V. Hook, 60 T. 403. §162. V. Home, 69 T. 643. §3S9. V. Huffman. 83 T. 286. §507. V. Hurley, 74 T. .593, §§374, 389. V. Irvine, 64 T. .529, §5; 15!), 510, 517. V. Jiickson, 62 T. 209, §128. V. Jarrell, 60 T. 267, §523. Railway Company — continued. V. Joachlmi, 58 T. 4.".6. §§92, 389. V. Johnson, 65 T. 389, §389. V. , 71 T. 619, §389. V. , 72 T. 96, §162. V. , 76 T. 421, §124. V. Jones, 75 T. 151, §162. V. Knapp, 51 T. 592, §§138,439,441. V. Kooniz, 104 U. S. 5, §571. V. Kutac, 72 T. 643, §441. v. Le Gierse, 51 T. 189. §§157,161,408. V. Lee, 70 T. 496, §§100, 162. V. , 71 T. 538, §128. V. Lester, 75 T. 56, §162. V. Levy, .59 T. 542, §§158, 362. V. McAllister, 59 T. 349. §561. V. McClain, 80 T. 85, §159. v. McCormick, 71 T. 660, §441. V. McGowan, 73 T. 355, §517. v. McGown, 65 T. 640, §159. v. McMaunevvitz, 70 T. 73, §147. V. Mangum, 68 T. 342. §§242, 318d. V. Medaris, 64 T. 92. §298. V. Montier. 61 T. 122,' §332. V. Moody, 71 T. 614. §§124, 128, 357. V. Morris, 68 T. 59. §§128, 245, 332, 427. v. Murphy, 46 T. 363. §§159, 363, 461. V. Nixon, 52 T. 19. §162; V. Nolan, 53 T. 139, §§218, 434. v. Ormoud. 64 T. 485. §§159, 162. V. Pape. 73 T. 501, §§349. 513, 515. V. Parker, ,50 T. 345, §§159, 461. V. Pearce, 75 T. 281, §301. V. Pfeuffer, 5() T. m. §§441, 528. V. Pomeroy. 67 T. 499.' §359. V. Pool, 70T. 713, §§319, 389. V. Prather, 75 T. 53. §197. V. Ragsdale, 67 T. 24. §§138.332,441. V. Randall. 50 T. 260, §159. V. Randolph, 24 T. 317, §492. V. Redeker, 67 T. 181. §§159, 363. V. Richards, 59 T. 373, "§159. V. , 68 T. 375. §441. v. Richmond. 73 T. .568. §§151,387. V. Rushing 69 T. 306, §159. V. Scott, 72 T. 78, §120. V. , 75 T. 84. §516. V. Settegast, 79 T. 256. §177. V. Sh.nfer, 54 T. 641, §359. V. Shepherd, 21 T. 274. §§399, 427. V. Shiclev, 45 T. 30. §190. V. Simpson, 60 T. 103, §162. V. Simcock, 81 T. 503, §161. 900 RAILWAY CO.] TABLE OF CASES CITED. [SHERWOOD. Railway Company— continued. V. Smith, 59 T. 408, ^^159. V. , 81 T. 479. §1.").5. V. Spicker, 61 T. 427. §§159, 461. V. Tait, 63 T. 22 ;, §389. /. Tisdale, 74 T. 8. §454. V. Tiawiek, 68 T. 314. §457. V. Underwood, 67 T. 589, §128. V. Wallace, 74 T. 581, §389. V. Watson, 72 T. 631, §§461, 512. V. Wells, 81 T. 685, §164. V. Wheat, 68 T. 133, §530. V. Whipsker. 77 T. 14, §§487, 491. V. Whitaker, 68 T. 630. §§2GS. 309, 310, 645. V. White. 57 T. 129. §159. V. Whitley, 77 T. 126. §§415, 418, 423, 424, 451. V. Williams, 77 T. 121, §V2S. V. Wilson, 60 T. 142, §162. V, , 69 T. 739, SI 58, V. Witte, 68 T. 295, §349. V, Witten, 74 T. 202, §162. V. Wright, 62 T. 515. §162. V. York, 74 T. 370, §162. V. Young, 60 T. 2()J , §§92, 389. S. Sabriego v. Wb'.te, 30 T. 577, §430. Salinas v. Wri-^bt, 11 T. 572. §-':?i9, 376, 394, 405, 537. Salmons v. Downs, 55 T. 243, §44. Sample v. J^rwin, 45 T. 567. §§310. 538. San Antorio v. Strumberg, 70 T. 366, §220. Sanders v. Bridges, 67 T. 93, §469. V. Devereus, 25 T. Sup. 12. §§2, 406. San ratricio v. Mathis, 58 T. 242. §195. > — V. MoClane, 58 T. 242, §522. ^y-'-som V. Mercer, 68 T. 488, §492. =>app V. Sapp, 71 T. 34S, §171. Sartainv.Hamilton.12T. 219,§27S. Sasser v. Davis. 27 'J". 656. §332. Satterwhite v. Rosser, 61 T. 166. §527. Saufley v. Jackson, 16 T. 579. §182. Saunders v. Flaniken, 77 T. 662. §180. V. Wilson, 19 T. 194; Id. 19 T. 201, §278. Scalf V. Thompkins, 61 T. 476. §§480, 481 . Scarborough v. Alcorn, 74 T. 358. §§225, 265. Scberff v. Mo. Pac. Ry. Co., 81 T.- 471, ^124. Schleicher V. Markward. 61 T. 99. §§124, 217, 381. Schlenning v. Duffy, 37 T. 527. §217. Schiuter V. Louden, 78 T. 103. §§196,523. Schmeltz v. Garey. 49 T. 49, §538. Schmick v. Noel, 72 T. 3, §307. bchmidtke v. Miller, 71 T. 103. §§293, 403, 441. I Schneider v. Ferguson, 77 T. 572. ( §346. , Scboufield v. Turner, 75 T. 324. §105. Schrimpf v. McArdle, 13 T. 368. §494. V. Settegast, 35 T. 323, §430. Schwartz v. Evans, 75 T. 198, §322. Scoby V. Sweatt, 28 T. 714. §§462, 510. Scott V. Alford, 53 T. 82, §184. V. McDauiel, 67 T. 315, §223. V. Rhea, 5 T. 258, §382. Scrauton v. Tilley, 16 T. 183, §92. Searcy v. Hunter, 81 T. 644, §460. Sears v. Eastburn, 10 Howard, 187. §574. Seawell v. Lowery. 16 T. 47, §494. beeligson v. Lewis, 65 T. 215, §455. v. Transportation Co.. 70 T. 198, §572. Seguin v. Maverick, 24 T. 526, §217. Seligson v. Collins, 64 T. 314, §219. v. Hobby, 51 T. 149. §§23, 352, 501. Sellman v. Hardin, 58 T. 86, §546. V. Lee, 55 T. 319. §278. Sens V. Trentune, 54 T. 218, §311. Sessums v. Henry, 38 T. 37, §496. Settegast v. Schrimpf, 35 T. 323. §430. Sevier v. Teal, 16 T. 371, §403. Seymour v. Hill, 67 T. 385. §§219,483. Shannon v. Taylor, 16 T. 423. §§332,525. Sheffield v. Sheffield, 3 T."79, §171. Shelby v. Burtes, is T. 644. §293. V. Perrin, 18 T. 515, «}§2, 304. Sheldon v. Martin. 65 T. 409. §469. v. San Antonio, 25 T. Sup. 177. §211. Shepard v. Cummiugs, 44 T. 502. §§200, 520. Sherwood v. Douthit, 6 T. 224. §422. 901 SHIEI.DS.] TABLE OF CASES CITED. [STATE. Shields v. Iluut, 45 T. 424. §§2G5, 2(J8, 542, 545. V. Morrow, 51 T. 393, §311. Shiner v. Abbej'. 77 T. 1 . ?§370, 376. Ship Channel Co. v. Bu ly, 45 T. 6, §293. Shipman v. Alien, 29 T. 17. §§442,444. V. Fulcrod, 42 T. 248. §§365, 368. Shoe Company v. Ferrell, 68 T. 638, §223. Shook V. Peters, 59 T. 393, §147. Short V. Aberuathy, 42 T. 94. §§46, 47. V. Price, 17 T. 397, §455. Shreck- v. Shreck, 32 T. 578. §171. Sidbury v. Ware, 65 T. 252, §550. Sideck v. Duran, 67 T. 256, §537. Siese v. Malsch, 54 T. 355, §43. Silberberg v. Pearson, 75 T. 287. §310. Silliman v. Gamraage. 55 T. 365. §§309, 310. 538. Simmons Hardware Co. v. Kauf- man, 77 T. 131, §239. Simpson v. Foster, 46 T. 618. §§2.415. V. McLemore, 8 T. 458, §524. Sims V. Redding, 20 T. 386. §§232, 509. Sinclair v. Dalien, 73 T. 73. §§1.55, 506. Slator V. Neal, 64 T. 222, §433. Smalley v. Taylor, 33 T. 668. §•§234, 486. V. Trammell, 11 T. 10. §§471,472. Smith V. Allen, 28 T. 497,' §§48(), 487, 489. V. Bailey, 66 T. .^53. §433. V. Chatham, 14 T. 322. §382. V. Clopton,4T. 109. §§223,411. V. Deweese, 41 T. 59.5. §219. V. Dickey, 74 T. 61. §65. V. DoiiK, 3 T. 215, §§223. 322. V. Falwpli, 21 T. 466. §546, 47. V. Flv, 24 T. 345. §§26, 332, 413, 457. V. Garza, 15 T. 1.50. §274. V. Lee, 82 T. 124. §421. V. IVIcGaughey, 13 T. 404. §§513, .517. V. Montgomery. 3 T. 199, §r2(». V. Mosely,74T.(i:n. S§294,'512. V. Montes, 11 T. 24, §520. V. Sherwood, 2 T. 460. §§240, 4?3. 902 Smith V. Shinn, 58 T. 1, §369. ■ ■ V. Stevens, 81 T. 461, §467. V. State, 32 T. 594, §155. ■ V. Sublett, 28T. 163. §§355.414,415, 418,451. - — V. Traders' Nat. Bank, 74 T. 457, §29. V. Wingate, 61 T. 54. §§436, 517. Smotridge v. Lovell, 35 T. 58, §9. Smyth V. Caswell. 65 T. 379, §517. Sneed v. Moodie,24 T. 159. §§352, 406. Snider v. Methvin, 60 T. 487. §§531, 535. Snoddy v. Cage, 5 T. 106. §334. Snow V. Hawpe, 22 T. 168," §217. So Relle v. W. U. T. Co., 55 T. 308. §158. Sorrel v. Clayton, 42 T. 188, §9. Sossaman v. Powell, 21 T. 664. §523. Sowers v. Peterson, 59 T. 216! §§196. .")30. Spann v. Cochran, 63 T.' 240, §120. Speake v. Prewitt, 6 T. 252. §§2, 236, 296, 440, 453, 517, 518. Specht V. Collins. 81 T. 213, §188. Spence v. McGowau, 53 T. 30. §§195, 522. Spencer v. McCarty, 46 T. 213. §§367, 516. V. Rosenthall, 58 T. 4. §§219, 314. 486. Splawn V. Chew, 60 T. 532. §105. Spofferd v. Bennett, 55 T. 2it3. §§269, 520. Sprague v. Haines, 68 T. 215, §177. Spring V. Eisenach, 51 T. 432. §§477, 538. Stachely v. Pierce, 28 T. 328. §§36.157, 236, 440. Stansbury v. Nichols, 30 T. 145. §§9, 333. Stansell v. Fleming, 81 T. 294. §§234.314, 486. Stark V. Alford, 49 T. 260. §92. V. Burr. 56 T. 130, §193. V. Whitman, 58 T. 375. §§242, 424. State V. Cooke. 54 T. 482. §202. V. De Gress, 53 T. 3.s7, §203. V. , 72 T. 242, §207. V. Delesdenior, 7 T. 76. §294. V. Dunsoii, 71 T. 65, §208. V. Eidsou, 76 T. 302. '§208. V. Fiuiners' Loan and Trust Co., 81 T. 530, §486. — V. Giddens, 21 T. 783, §346. STATE.] TABLE OF CASES CITED. [TIIOMPSOX. State V. Goodnight, 70 T. 6S2, §24. V. GoowiurtJiJ T. 55, §208. V. Jordan, 12 T. 205, J^358. V. Maunius:, 14 T. 402, §399. V. Owens. 63T. 2G1, §s^203,207. V. Snvder. GO T. 687, §§294, 322. V. Williams, 8 T. 3S4. §§329. 334. Steen v. The State. 27 T. 86, §'399. Stegall V. Huff, 54 T. 193. §§278, 546. Stein V. Freiberg, 64 T. 273. §§219, 483. Steinbeck v. Stone, 53 T. 382. §316. Stephens v. Mathews' Heirs, 69 T. 341, §188. v.'Motl, 81 T. 115. §199. V. , 82 T. 81. §519. Stephenson v. Bassett, 51 T. 544. §§342, 411. Sterrett v. Houston. 14T. 153, §473. Stevens v. Bank, 62 T. 499, §442. V. Gainesville National Bank, 62 T. 499, §40. V. Wolf, 77 T. 215, §§156. 307. Stewart v. Anderson, 70 T. 588. §§.502, 508. v. Gordon, 65 T. 344. S?§303. 365. V. Kemp, 54 T. 251, §§278,531. V. State, 42 T. 242, §490. Stiles V. Hill, 62 T. 429. §§223, 307. Still V. Focke, 68 T. 715, §223. Stitzle V. Evans, 74 T. 596, §188. Stockton v. State, 25 T. 772, §399. Stoker v. Bailey, 62 T. 299. §222. Stone V. Darnell, 25 T. Sup. 430. §§74, 470. V. Day. C9 T. 13, §§304. 232. V. Ellis. 69 T. 325. §293. Stratton v. Johnston, 3(5 T. 90, §56. Stroud v. Springtield, 28 T. 649. §266. Stuart v. W. U. T. Co., 66 T. 5s2. §§158, 362. Sublett v. McKinuev, 19 T. 438. §§64. 70. 115. 116. Suegs v. Ins. Co. ,71 T. 579. §4.57. Suiplien v. Norris. 44 T. 204," §274. Sutherland v. De Leon, 1 T. 250. §422. Sutton V. Page, 4 T. 142, .388. Sweetzer v. Clatlin, 82 'I'. 513, §516. Swenson v. Walker, 3 T. 93. §§329, 3.32. Sydnor v. Ilurd, 8 T. 98, §376. V. Totman, 6 T. 189. §§25, 495. T. [For Telegraph Cases see End of T.] Taney v. Edwards, 27 T. 224. §§218,434,441. Tapp v. Corey. 64 T. 594, §.-,42. Tarkingtonv. Broussard, 51 T. 550. §501. Tarlton v. Daily, 55 T. 92, §261. Taul v. Epperson. 38 T. 492, §116. Taylor v. Bland, 60 T. 29. §§249, 457. v. Gillean, 23 T. 508, §491. V. Hall, 20 T. 211. §§242, 416, 424, 449. V. Harris. 21 T. 438, §381. v.Merrill,64T. 494. §^369,455. V. Murphv. 50 T. 291. §43. ■ V. Taylor, 18 T. 574, §171. Teal V.Terrell, 48 T. 491. §§381. 463. 524, 530. Teas V. McDonald, 13 T. 349. §§308, 503. Telfener v. Dillard, 70 T. 139. §§512. 519, 530. Templeman v. Gresham, 01 T. 50. §310. Terrell v. Crane, 55 T. Sl,§§2.'430. Tevis V. Armstrong, 71 T. 59, §200. Texas Banking & ins. Co. v. Hut- chins, 53 T. 61, §§106. 402. Texas Elevator Co. v. Mitchell, 78 T. 64, §§371, 372, 478, 517. Texas Land Co. v. Turman, 53 T. 623. §§232. 492. 521. Thatcher v. Mills, 11 T. 092. §§418.449, 472. Thigpen v. Mundine. 24 T. 282. iJ§352, 371.402. Thomas v. Browder, 33 T. 783. §353. V. Chapman. 62 T. 193, §293. V. Hammond, 47 T. 42. §§120. 177,319. V. Hill. 3 T. 270, §485. V. Qiiarles, 64 T. 491, §.540. V. Young. 5 T. 253. §474. Thompson v. Branch, 35 T. 21. §404. V. Cartwright, 1 T. 87, §472. V. Comstock, 59 T. 318. .§§74, 277, 278. V. Cra gg, 24 T. 582, §293. V. Griflin, 69 T. 139. §463. V. Houston, 31 'l\ 610. §357. V. . I ones, 77 T. 626, §4,57. V. Munger, 15 T. 523, §351. V. Payne, 21 T. 625, §55. 903 THO.Ml'.-UX.] TABLE OF CASES CITED. [WACO LODGE. Thompson V. Swearengin, 48 T. 555. §r.l2. SSJ25, 312, 520. V. Thompson, 12 T. 329, §319 Thomson v. Locke, 00 T. 383. §§-^^ Thouvenin v. Helzle,3 T. 57, §394 V. Lea, 20 T. 014. §§120, 177,517. V. Eodrio^ues. 24 '1'. 4GS, §422. Thurber v. Coiinei-s.;")? T. 96, §523. TMball V. Eifhoff. Oli T. 58. §422. Tillman v. Fletcher, 78 T. 073. §§143,352. Timminsv. Bonner,58T. 554, §340. Tiiisley v. Ryon, 9 T. 405, §404. Tltiis V. -Johnson. 50 T. 224, §.531. Tolbei-t V. McBride.75 T. 95, §377. Tolle V. Correth, 31 T. 302, §221. Tom V. Savres 04 T. 339. §523. Tompkins v. Toland, 46 T. 584. §§340, 482. Torrence v. Shedd, 144 U. S.,527. §562. Tousey v. Butler, 9 T. 525. §^39!), .503, 511. Towner v. Sayre, 4 T. 28, §450. Townsend v. Smith. 20 T. 405, §381. Trammell v. Swan, 25 'l\ 473. §^403, 415, .505. V. Trammel, 20 T. 40G, §400. Trawick v. Martin Brown Co., 79 T. 460, §§156, 389. • Treadway v. Eastburn, 57 T. 209. §219. Trevino v. Stillman, 48 T. 501. §483. Trimble v. Miller, 24 T. 214. §§406, 4.33. Trueheart v. McMichael, 46 T. 222. §.530. Tryon v. Butler, 9 T. 553. §§399. 503, 511,512. Tucker V. Anderson, 27 T. 276. §§317, 424. V. Hamlin, 60 T. 171 , §389. Tufts V. Lawrence, 77 T. 526, §68. Ttilane v. McKee, 10 T. 339, §411. Tumlinson v. York, 20T.(;94,' §455. Turner V. Brooks, G T. 205, §3.56. V. Brown, 7 T. 489, §§511, 517. V. Douglass, 77 T. 619. §223. V. Fprguson, 58 T. 6. §537. V. Moore. 81 T. 206, §275. Tutt V. Thornton, 57 T. 35. §§64, 70. Tyler v. Davis, 61 T. 674, §523. Tynberg v. Rohen, 07 T. 220. §§296, 446, 463. Telegraph Company V. Andrews, 78 T. 305, §158. V. Bioesche, 72 T. 654, §158. V. Brown, 71 T. 723, §158. V. Cooper, 71 T. 507. §§42, 157,236,298,389. V. Edsall, 63 T. 668, §158. V. Feegles, 75 T. 537, §158. V. liearne, 77 T. S3, §1.58. V. Jones, 81 T. 271, §158. V. Kirkpatiiek. 70 T. 217, §158. V. Moore, 71 T. 66, §158. V. Morris, 77 T. 173, §158. V. Neill,.57T. 28:i. §158. V. Richardson, 79 T. 649, §158. V. Rosentreter. SO T. 400, §158. V. Sheffield, 71 T. 570, §1.58. V. Simpson, 73 T. 422, §i:')8. V. Smith, 76 T. 2.i3. §346. V. Young 77 T. 245, §158. U. Udell V. Peak. 70 T. 547, §274. Ufford V. Wells, 52 T. 012. §310. Uiiger V. Anderson, 37 T. 5.")0, §115. Usher v. Skidraore, 28 T. 010.' §§511,517. V. Van Alstyne v. Bertrand, 15 T. 177. §359. Vance v. Lindsey, 60 T. 286, §482. Vandever v. Freeman, 20 T. 333. §423. Van Norman v.Wheeler, 13 T. 316. §§370, 379, 405. Van Sickle v. Catlett, 75 T. 404. §§140, 196. Van Valkenburg v. Ruby, 68 T. 139, §549. Vardeman v. Edwards, 21 T. 737. §217. V. Lawson. 17 T. 10, §3.57. Veal V. Fortson, 57 T. 482, §182. Veck V. Holt, 71 T. 715. §§332, 346, 347. Vela V. Gnerra, 75 T. 595, §298. Veramendi v. llutchings, 48 T. .531, §293. Viser v. Rice, 33 T. 139, §523. Voorhies v. Mayor, 70 T. 331, §492. W. Waco Lodge v. 634, §2. 904 Wheeler, 59 T. 'A^vOE."" TABLE OF CASES CITED. [WILLIAMS. Wade V. Converse, IS T. 234. §332. V. De Witt, 20 T. 398, §92. Wriddellv. Williams. 37 T. 351. §340. Waicott V. Hendricks, 6 T. 406. §§156, 479, 482. Waldroff v. Scott, 46 T. 1, §311. Walker v. Abercrouibie, 61 T. 71. §§2. 403, 406. V. Emerson, 20 T. 706. §§524, 539. V. Howard, 34 T. 478, §523. V. Read, 59 T. 187. §534. V. Tarrant, 20 T. 16. §492. Wallace v. Bogel,62 T. 636. §411. V. Burden, 17 T. 467, §357. V. Finberg, 46 T. 35. §389, 482. V. Freeman, 25 T. Sup. 91 , §120. V. Hunt, 22 T. 647. §§329, 331 , 332, 342, 352, 376, 399. Waller v. Huff, 9 T. 530, §381. Walling V. Hannig, 73 T. 580. §§9, 44, 304. V. Williams, 4 T. 427. §§420,499, 511, 517, 518. Wallis V. Schneider, 79 T. 479, §184. V. Walker, 73 T. 9, §155. Walters v. Prestidge, 30 T. 65. §517. Ward V. Billups, 76 T. 466. §219. V. Lattimer, 2 T. 245, §46. • V. McKenzie. 33 T. 297, §340. v.McRimmoud,12T. 314,§212. V. tttuart, 62 T. 333. §188. V. Sutor, 70 T. 34:5, §149. V. Williams, 45 1\ 618, §351. Wardrup v. Jones, 23 T. 489, §2. Ware v. Bennett, IS T. 794, §467. Warner V. Bailey, 7 T. 517. . §S329, 331 . 334, 342, 352. 400, 509. Warren v. Smith, 24 T. 484. §§120, 405. V. Smith, 44 T. 245, §§9. 44.433. Wartelsky v. Schafer, 77 T. 501. §§156,411. Washington v. First Nat'l Bank, 64 T. §§4, 369. V. Schulz, 63 T. 32. §§219. 234, 492. Water- Works v. Kennedy, 70 T. 233, §§2, 109, 138, 402. Watkins v. Davis. 61 T. 414, §219. V. Willis, 58 T. 521, §51."^ Watrous v. McGrew, 16 T. 506. §§357, 530. Watson V. Baker. 67T. 48. §§242. 446. V. Flanagan. 14 T. 354, §466. V. Hewitt. 45 T. 472, §§265, 537. V. Loop, 12 T. 11, §§218, 434, 441. Watt V. White, 46 T. 33s. §.5.76. AVatterman v. iSilberberg, 67 T. 100, §223. Watts V. Harding, 3 T. 386, §475. AVeatherford v. Van Alstyne, 22 T. 22, §508. < Weatherred v. Mays, 1 T. 472. §§471. 475. Weaver v. Nugent, 72 T. 272, §357. Webb V. Maxan, 11 T. 678. §§309, 310. Webster V. Mann, 52 T. 416. §§310, 523. V. Willis, 56 T. 468, §2. Weems v. Masterson.SOT. 45, §421. V. Sheriff BrazoriaUounty, 48 T. 481, §§399,438. Wegner v. Biering, 65 T. 506, §378. Weinstein v. Bank, 69 T. 38, §462. Weinsteine v. Harrison, 66 T. 546. ' §§173,332,441. Weis V. Devlin, 67 T. 507, §93. Welden v. Texas Continental Meat Co., 65 T. 487, §§415, 416, 418. Wells V. Fairbanks, 5 T. 522. §§329, 331.359. 509. Westmoreland v. Carson, 76 T. 619, §§179, 184.312. Wheeler v. Bovd, 69 T. 293. §176. v. Moodv, 9 T. 372. §358. V. Wheeler, 65 T. 573, §365. Whitaker v. Record, 25 T. Sup. 382. §380. White V. Downs, 40 T. 225. §44. V. Jones, 67 T. 638, §318i. V. Leavitt, 20 T. 703, §§442. 444. V. Sabariego. 23 T. 243, §430. Whitehead v. Foley, 28 T. 10, §497. V. Herron.15T.127. §§511.512. Whitlock V. Castro, 22 T. 108, §351. Whitman v. Willis. 51 T. 421. §§219, 304, 314, 486. Whittenberg v. Lloyd, 49 T. 633. §495. Whitworth v. Alston, 65 T. 528. §369. Wiebusch v. Taylor, 64 T. 53.' §§369, 517. Wiederanders v. State, 64 T. 133. §430. Wiley V. Traiwick, 14 T. 662. §482. Willard v. Conduit, lOT. 213. §411. Williams v. Amis. 30 T. 37. §47. V. Bailes, 9 T. 61. §§261. 496. V. Barnett, .52 T. 130. §540. V. Barnwell, 78 T. 326. §§293, 399. 905 ■WILLIAMS.] TABLE OF CASES CITED. [ZIMPLEMAN. Williams v. Davi?, 5G T. 250, §199. V. Durst, 25 T. 667. §§70, 115, 116. V. Edwards, 15 T. 41. §§375, 376. . V. Glass. 16 T. 559, §377. V. Haynes, 77 T. 263, §219. v.Huling,43T.113,§§511, 517. V. McNeil, 5 T. 381, §376. V. Nolan, 58 T. 708, ^217. V. Kailway, 60 T. 206, §141. V. Randon, 10 T. 74. §§330, 499. 516, 517. V. Robinson, 63 T. 576, §340. V. State, 69 T. 36S, §207. V. Warnell, 28 T. 610. §§240, 32!i, 331, 333, 352. V. Warren, 82 T. 319, §293. V. Williams, 67 T. 198, §171. Williamson v. Laae, 52 T. 335, §207. V. Simpson, 16 T, 433, §358. Willis V. Gordon, 22 T. 241. ii§219, 483. V. Lyman, 22 T. 268, §25. v.'Lowrv, 66 T. 540, §389. V. McNatt, 75 T. 69. §156.. V. Mooring, 63 T. 340. §§23, 25, 352, 494, 501. V. Morris, 66 T. 629, §519. V. Morrison, 44 T. 27, §444. V. Railroad Co. , 61 T. 432, §441. V. Stroud, 67 T. 516, §381. Wills Point Bank v. Bates, 76 T. 329, §§25. 301 , 340. Wilson V. Adams, 15 T. 323. §§242,318e, 350,424, 426,449,494, 495. V. Bridgeman, 24 T. 615, §317. V. Catch ings, 41 T. 587, §315. V. Palmer, 18 T. 592, §§140, 383. ■ V. Simpson, 68 T. 306. §455. Wimbush v. Holt. 26 T. 673, §356. Winnie v. Grayson, 3 T. 429, §219. Winut V. I. & G. N. R. R. Co., 74 T. 32, §150. Witt V. Kaufman, 25 T. Sup. 384. §§219, 483. Wittbecker v, Walters, 69 T. 470. §.539. Woessner v. Crank, 67 T. 3S9, §299. Wofford V. :McKenna, 23 T. 36, §274. V. Ungcr, 55 T. 480, §406. Wolf V. Butler, 81 T. 86. §§•234, 314, 486. Wolfe V. Lacy, 30 T. 349, §128. Wood V. Evans, 43 T. 175, §§2, 346. V. Galveston, 76 T. 12(;. <;404. V. Loughmiller, 48 T. 203," §310. Wood V. McMeans, 23 T. 481, §54. V. Welder, 42 T. 396, §199. Woods V. Huffman, 64 T. 98, §513. Woodson V. Collins, 56 T. 168, §222. Wooldridge v. Hathaway, 45 T. 380, §516. Wooten V. Dunlap, 20 T. 183. §§193, 399. Wooters v. Hollingsworth, 58 T. 371, §§44, 310. V. Railway Co. , 54 T. 294, §334. Wortham v. Boyd, 66 T. 410. §§310, 445, 513, 550. Wright V. Blackwood, 57 T. 644. §§9, 433. V. Davenport, 44 T. 164, §92. V. Dohertv. 50 T. 34, §§265, 539. V. Dunn, 73 T. 293, §196. V. Hays, 10 T. 130, §§432, ^33. V. , 34 T. 253, §177. V. Hawkins, 28 T. 452, §357. V. Heffuer, 57 T. 518, §261. V. Ragland, 18 T. 289. §§25, 194. V. Reed, 37 T. 265, §318e. V. Thompson, 14 T. 558, §523. V. Treadwell, 14 T. 255. §§470. 471. V. Wooters, 46 T. 380. §538. V. Wright, 3 T. 168, §§171, 319. V. , 6 T. 3, §394. Wyatt V. Foster, 79 T. 413. §486. Wybrants V.Nichols, 3 T. 4.58, §491, Y. Yale* V. Ward, 30 T. IS, §351. Yancey v. Norris, 27 T. 40, §365. Yoev. Montgomery, 68 T. 338, §520. York V. State, 73 t. 651, §423. Young V. Benthuysen, 30 T. 762. §51. V. Kuhn, 71 T. 645. §§155, 3.55. 414, 415, 451. V. Lewis, 9 T. 73. §411. V. Parker, 132 U. S. 267, §553. V. Young, 61 T. 191, §171. Yturri v. McLeod, 26 T. 84, §217. Z. Zacharie v. Bryan, 2 T. 274, §329. V. Waldrom, 56 T. 117, §526. Zeliff V. Jennings, 61 T. 458. §§9, 149, 151. Zimpleman v. Robb, 53 T. 274. §433. 906 MY^R*iS Y^. 26. 29. 30. Also all other and H. Edited Evidence. Edited by Simon Greenleaf Croswell, editor of the lasteditionof Creen- leaf on Exidence. ^ Also, Estoppel, edited by Mr. Myer. 7t50*pages. Fraud ; Govet^finent. topics failing under F, (i by Mr. Myer. 940 pages. ■ Instirance. Edited by Melville ^L Big- elow, Es(i., author of a celebrated work on that subject. 876 pages. fTadfjments, with all other topics in J and also under I, except Insurance. Edited by Mr. Myer. 860 pages. Land and Land Titles. Edited by Leonard A. 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O c " o C/) O O CQ o (/) » 3 +-- P o 3 ■->- W '/) ID to w O 0} W) T. -a "S. a- I/) 1-1 . — I u- 3 O +-' • 1/1 O - C o o t^ o +j > r! W)° • 00 (V D CI. S S o ^ ■^.^ C +-I >■ o CO ir~, tC r OO (O o O '/) li-N r3 o< ri -i vd o <** Xi d T CO ->-> o — t-n rt c s-i o ??0 =^" O On C . O C o S o S c« ;>^ 3 1) T3 OJ E XJ «* 00 o ^ aj . •a — .ir — +J -l I/) ^ '■-^ o. _ o o -^ c «s t: o 3 '^ = .f-i c^ nl 5 J _ c « S r- i- 3.g^ CO C c S< « c _ 01 c o £S j:: -a >» t- 03 cS •3 oj '-' CO c '^^^'•^ • >■-'-' CQ jj c o 3 S 15 ij ~ .- CO > « S c -C •— 1) +-' X nr C < T3 jn '/) ^ ^ 2 G ^S O oo H ^ vO o >. ^ OQ 00 V) v*^' ^ JH rt m •7^ c« _4J D f— • n o 00 ::2 m 1^ M o w o o > •X. 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