Volume 100 — Texas Reports

Question certified from the Court of Civil Appeals for the Fourth District, in an appeal from Dallas County. Huber and others sued and recovered judgment against the railway company and the defendant appealed.

Certificate of dissent from the Court of Civil Appeals for the Third District, in an appeal from Bastrop County. Parrott sued the railway company and recovered judgment. Defendant appealed and the majority opinion reversed and remanded the cause, with a dissenting opinion by Justice Key; whereupon the question was certified to the Supreme Court.

Palmo sued Slayden & Company and had judgment which, on defendant’s appeal was reversed and remanded. Appellee procured writ of error on the ground of conflicting decisions.

The Grayson County Bank brought suit and had recovery against the railway company and the judgment was affirmed on appeal by defendant, who thereupon obtained writ of error from the Supreme Court.

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from McLennan County.</p> <p>Edwards sued the railway company and had judgment. Defendant appealed and on affirmance obtained writ of error.</p>

<p>Question certified from the Court of Civil Appeals for the Third District, in an appeal from Hamilton County.</p>

<p>Original application to the Supreme Court, by Edwards, for writ of mandamus against the Land Commissioner.</p>

<p>1. —Question of Fact—Assuming Fact from Evidence.</p> <p>A youth of nineteen, city raised and working at a trade, who got the conductor of a freight train to carry him from Galveston to Houston in a freight car for fifty cents, and who testified that he did not know what the rules of the road were, but thought he had a right to ride on a freight train, adding that he wanted to go as cheaply as he could, and would have preferred to go on a passenger train, if for the same money, showed that he knew the conductor had no authority to let him ride; and the trial court could so assume, and treat the case as one of collusion between him and the conductor. (Pp. 29, 30.)</p> <p>2. —Hiding on Freight Train—Collusion with Conductor—Putting Off Train in Motion.</p> <p>Where plaintiff, suing for injuries received by being compelled by the conductor to get off a freight car while in motion, was riding thereon by collusion with the conductor, whom he had paid less than passenger fare for the privilege, knowing that he was wronging the company thereby, such collusion was a bar to his recovery; the conductor ceased to represent the company in such transaction, and it was not liable for his wrong. (Pp. 30, 31.)</p>

Riggins, who had sued the city for salary as mayor, applied to the Supreme Court for a writ of error on the affirmance, on his appeal, of a judgment for defendant.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Wichita County.</p> <p>Avis sued the railway company and had judgment. Défendant appealed and on affirmance obtained writ of error.</p>

Cade sued the railway company and recovered judgment. Defendant appealed, and on affirmance applied for a writ of error.

<p>1. —Partnership—Sharing Profits.</p> <p>One who puts his credit and money into an enterprise against the skill and service of others, in the performance of contracts • by the others with a third party, with the agreement that he is to receive a certain part of the profits as compensation, becomes a partner, and is liable for debts incurred by them in the undertaking. (P. 43.)</p> <p>2. —Same—Pacts Stated.</p> <p>D. & Co., having a contract with a city for paving and sewerage construction necessitating the advance of $27,000 and the execution of a large bond by a surety company, M., by agreement with them, advanced the money needed and secured the surety company in making the bond; he was to be compensated by a share in the profits, and D. & Co. were to give their time and skill to the prosecution of the work and receive a share in the profits. Held, that H., by such contract, became a partner with D. & Co. in the enterprise, and liable for debts incurred by them therein. (Pp. 39-44.)</p> <p>3. —Same—Case Distinguished,</p> <p>Buzard v. First Nat. Bank of Greenville, 67 Texas, 83, distinguished as being a case where profits were taken as compensation for services as agent. (P. 44.)</p>

<p>Fraudulent Representation—Measure of Damages. •</p> <p>On an exchange of property, the measure of damages for fraudulent representations inducing the contract (as to the existence of a gusher or flowing well of water thereon) was not the difference between the value of the property received by the defrauded party and its value if the representation had been true, but the difference between the value of the property received and that given in exchange. (Pp. 46-48.)</p>

<p>1. —Cases Distinguished.</p> <p>The present case distinguished from and held not to overrule Galveston, H. & S. A. Ry. Co. v. Warnken 35 S. W. Rep., 72, as being each reversals because of a preponderance of evidence against the verdict on the question of fact whether delay in the transportation of cattle was shown to be excusable, and the facts in the two cases being distinguishable. (Pp. 49, 50.)</p> <p>2. —Jurisdiction of Supreme Court—Overruling Cases.</p> <p>The ruling in a former case can not be considered overruled by a later one merely because the latter, in its decision as to whether a given charge was misleading, is inconsistent with some general statement of a proposition of law laid down in the former with reference to the special and distinguishable facts before it. (P. 50.)</p> <p>3. —Cases Harmonized.</p> <p>The ruling of the Appellate Court in the present case on the question of reasonableness of delay in a shipment of cattle held to be in harmony with the principles announced in Texas & P. Ry. Co. v. Smissen, 73 S. W. Rep., 42. (P. 50.)</p> <p>4. —Jurisdiction of Supreme Court—Mandamus.</p> <p>Though the testimony and the circumstances under which delay in the transportation of cattle occurred were undisputed, the question whether such delay was justified, where reasonable minds might differ as to the inference, was one of fact, and the Appellate Court could not be required by mandamus to certify it to the Supreme Court as one on which their ruling was in conflict with previous decisions. (Pp. 50, 51.)</p>

Delta County sued Blackburn and others and appealed from a judgment for defendants. The judgment was affirmed and appellant obtained writ of error.

<p>1. —Homestead—Mortgage—Vendor’s Lien—Subrogation.</p> <p>A loan company took a trust deed, which was held invalid because upon the grantor’s homestead, but by agreement with the borrower it had paid part of the loan secured in discharging valid vendor’s liens held by others against the property. To the extent that the loan was thus applied it was entitled to subrogation to the rights of the lienholders. (Pp. 61, 62.)</p> <p>2. —Same—Limitation.</p> <p>The debts for purchase money paid off and discharged by the loan company were merged in the new note given it for the loan; but equity preserved the vendor’s liens for its benefit; and its remedy thereon was not lost by the fact that the purchase-money notes which it discharged were barred by limitation at the time it sought subrogation and enforcement of the liens. (Pp. 62, 63.)</p> <p>3. —Lien—Subrogation—Burden of Proof.</p> <p>Where defendants, asking affirmatively the cancellation of a trust deed upon their homestead, admitted the validity of certain liens discharged in part consideration thereof, and to which the creditor was entitled to be subrogated, it devolved upon them to show that they had paid the sums advanced by the creditor to extinguish such liens. (P. 63.)</p>

<p>1. —Contributory Negligence—Persons on Railway Track.</p> <p>Evidence considered and held not so conclusive of the fact that the injured person was lying down on, instead of walking upon the track, as to authorize the Supreme Court to disturb a recovery by plaintiff based on the latter hypothesis. (Pp. 67, 68.)</p> <p>2. —Contributory Negligence — Walking on Railway Track — Unnecessary Danger.</p> <p>One walking along a railway track, though not a trespasser, should, it seems, be treated as guilty of contributory negligence if he voluntarily cho.oses the dangerous path upon the track itself when there is a safe one by the side of it; but the evidence here considered is held not" conclusive that there was such alternative of a path out of reach of a passing train.. (P. 68.)</p> <p>3. —Evidence—Impeachment of Witness—Material Issue.</p> <p>Under the rule that a witness may be contradicted as to relevant facts brought out on cross-examination, but not on collateral and irrelevant issues, the question whether he had communicated to others the facts testified to may become relevant and present an issue upon which he may be contradicted, or otherwise, according as the circumstances make his silence of probative value, or insignificant. (Pp. 71, 72.)</p> <p>4. —Same.</p> <p>The evidence presented the issue whether one who was found dead on the railway track in Port Worth in the morning was killed while lying down intoxicated. There was testimony that, on the night before, he came to a hotel drunk, engaged a room, but left and did not return to occupy it. The only witness claiming to have seen him afterwards on that night was a clerk in another hotel, who testified that he occupied a room there that night, without registering, and left, sober, early in the morning. On cross-examination, this witness said that he had told the circumstances to only one other "pers0I1> also a clerk in the hotel. Held, that it was competent, by way of impeachment, to prove (1) witness’ knowledge of newspaper publications at the time of the death, showing that it was suspected to be from foul play; (2) that witness had heard and believed that the person to whom he claimed to have disclosed the fact was dead when witness testified; (3) and, by the testimony of such person, who had been erroneously reported dead, that the witness had not made to him such statement as he testified that he had. (Pp. 68-73.)</p> <p>5. —Cross-examination—Hearsay as Affecting Conduct.</p> <p>When the fact that the witness had not communicated to others his knowledge of matters to which he testifies may become material to his credibility because of circumstances calling upon him to make disclosure, he may be cross-examined as to mere rumor or newspaper reports coming to his knowledge and making it probable that he would have spoken at the time if he had possessed the information to which he testified. The issue is not as to the truth of the facts reported, but the effect of their communication on the witness’ conduct. (P. 70.)</p>

<p>1. —Chattel Mortgage—Future Crops.</p> <p>A mortgage upon the crop to be raised by the mortgagor on the premises he then rented, and upon all succeeding crops to be raised by him anywhere till the debt was paid, was invalid as to the crop raised by him two years later upon other premises in the same county, not till then rented by him. (Pp. 75-77.)</p> <p>2. —Same—After-acquired Property.</p> <p>A mortgage is valid only upon property in actual or potential existence at the time of its execution; and as to property to be thereafter acquired by the mortgagor, the parties must have acted in anticipation of the acquisition-by the mortgagor of the very property upon which the lien is asserted and intended that it should be subject thereto. (P. 76.)</p>

<p>1. —School Land—Classification—Presumption from Official Acts,</p> <p>The action of the Land Commissioner in awarding school land to one applying to purchase it, as dry grazing land, raised a presumption that it was so classified at the time of the application; and this was not overthrown by the subsequent act of the Commissioner in cancelling this sale and selling to another on the ground that it was classified and appraised as dry agricultural land. (Pp. 80, 81.)</p> <p>2. —Same.</p> <p>The statutes confer no express authority on the Land Commissioner to cancel a sale of public land on the ground that it was illegally granted; if illegal the sale presented no obstacle to its resale to another purchaser; but this, being a proceeding to which the first purchaser was not a party, did not affect his rights nor shift the burden of proof as to the validity of the first sale in a controversy between him and the second purchaser; the latter must still prove that the first purchase was not in accordance with the classification and appraisement then made in order to defeat it. (Pp. 81, 82.)</p> <p>3. —Land Office—Record—Identification—Evidence.</p> <p>It being the duty of the Land Commissioner to keep his records open for the inspection of the public, it will be presumed that a record pointed out by him, to one making a copy thereof, as the classification of lands in a certain county, was what he declared it to be. (P. 82.)</p> <p>4. —Same—Examined Copy.</p> <p>The records of the Land Office may be proven by an examined copy made and testified to by any competent witness. (P. 82.)</p> <p>5. —School Land—Classification—Land Office Certificate.</p> <p>On the issue as to the classification of a section of school land in G. County, awarded to a purchaser in 1900, a certified copy of the list of sold and unsold school lands in that county, with their classification and appraisement, made and transmitted by the Land Commissioner to the county clerk in May, 1901, in obedience to the requirements of the Act of April 18 of that year (Laws 1901, p. 292), was admissible in evidence. (Pp. 82, 83.)</p> <p>6. —Same—Statute—Executive Construction.</p> <p>The Act of April 18, 1901 (Laws 1901, p. 292), is susceptible of the construction that the Land Commissioner should properly include in the list of school lands, with their appraisement and classification, to be certified by him to the county clerk under that Act, land sold, as well as those unsold; and if the construction be in doubt, that given to the Act by the Land Commissioner, in including in his list lands previously sold, should be followed. (P. 83.)</p> <p>7. —Evidence—School Land—Classification and Appraisement.</p> <p>On the issue whether school land, purchased by plaintiff as “dry grazing,” was so classified and appraised when awarded to him, a certified list of the school lands in that county, showing it to be so classified and appraised, sent to the county clerk by the Land Commissioner after plaintiff’s purchase, in compliance with a statute, was admissible as a circumstance to support plaintiff’s claim. (Pp. 83, 84.)</p> <p>8. —Evidence—School Land—Cancellation of Sale.</p> <p>The act of the Land Commissioner in cancelling a sale of school land on the ground that it was illegally made could not affect the rights of the purchaser, and was not admissible in evidence against him. (P. 84.)</p> <p>9. —Evidence—School Land—Classification—Certificate.</p> <p>.A certificate of the Land Commissioner as to the classification of certain school land as being the record in use in his office “from about 1897 to about 1902” was admissible in evidence; the power conferred on him to give certificate as to the contents of the record includes the power to point out by description the record from which the copy was taken. (Pp. 84, 85.)</p> <p>10. —Same—Knowledge or Conclusion of Commissioner.</p> <p>While the Land Commissioner’s certificate as to his conclusion from the records or matters within his personal knowledge is not evidence, his certificate that the records show certain facts will be presumed to be from the records themselves, and not to embody conclusions or matters known from other sources. (P; 85.)</p>

<p>1. —District Clerk—County—Population—Primary Election—Mandamus.</p> <p>Under article 5, section 20, of the Constitution, and article 1096, Revised Statutes, Panola County, which had over 20,000 population by the last federal census, but cast only 1,575 votes in the last election for Governor, was entitled •to elect both a district clerk and a county clerk, and candidates for the former office could maintain mandamus against the election officers to require their names to be placed on the official ballot for the primary election. (Pp. 88-91.)</p> <p>2. —Same.</p> <p>The Constitution (art. 5, see. 20) having provided that one officer fill the position of county clerk and district clerk only in counties of less than 8,000 inhabitants, without mentioning how the population should be determined, it is implied that it should be fixed by some official enumeration; and it is to be presumed that the enumeration contemplated was that of the United States census, which was made the test in determining whether the county should elect a col— lector of taxes (Const., art. 8, sec. 16) and in apportioning representatives (Cqnst., art. 3, sec. 26.) (P. 90.)</p> <p>3. —Same—Legislative Power.</p> <p>The right of a county of more than 8,000 inhabitants (presumably as shown by the United States census) to elect a district clerk, being fixed by the Constitution, could not be taken away by the Legislature. It is also the opinion of Chief Justice Gaines that the test prescribed by article 1096, Revised Statutes, for determining the population (five times the number of votes cast for Governor in the last preceding election), is too arbitrary and inadequate, under the circumstances surrounding elections in this state, to be held a proper exercise of the power to determine the population, to whom this right was given by the Constitution, if it should be held to be within the power of the Legislature to prescribe the method of such determination. (Pp. 91, 92.)</p>

Agnes Belt and' others sued Zane Cetti and others and appealed from a judgment for defendants. On affirmance they obtained writ of error.

Greathouse, executor of a deceased stockholder in the Wise County Coal Company, sued Martin, its treasurer and manager, and others, seeking, among other things, to recover, for the benefit of the company and its stockholders, the money appropriated by Martin as salary. It was claimed that the order allowing the salary was void because procured in his own interest, by defendant and other directors who were mere “dummies” under his control, and that the amount was unreasonable.

<p>Error to the Court of Civil Appeals for the Fourth District in an appeal from El Paso County.</p> <p>Frazer sued Patterson & Wallace and recovered judgment. Defendants appealed and on affirmance obtained writ of error.</p>

<p>Original application by John W. Stephens, Comptroller, to the Supreme Court, for writ of habeas corpus.</p>

King sued Brown and others and recovered judgment. Brown appealed and the judgment against him was reversed and rendered in his favor. King thereupon procured writ of error.

<p>1.—Charge—Knowledge and Intention.</p> <p>An instruction permitting the jury to hold defendant liable for trespass by his cattle only in the event he knew and intended, in driving them where he did, that they should break down plaintiff’s fence and enter, was not objectionable, in requiring both knowledge and intention, where either would suffice; he was presumed to have known a result which he intended, and to have intended one which he Knew would follow, and the two represent substantially the same state of mind as either. (P. 116.)</p> <p>2. —Special Issue—Failure to Request Submission.</p> <p>An instruction limiting plaintiff's right to recover to one of two distinct acts of trespass alleged by him, the case being submitted on special issues, was not reversible for withdrawing the omitted issue, unless the complaining party made request in writing for its submission, as required by the statute in such cases. (Rev. Stats., art. 1331, amendment of 1897.) The statute requires such request in cases so submitted, though the withdrawal of the issue by the charge would be affirmative error, and not mere omission, but for the statute. (Pp. 116, 117.)</p> <p>3. —Request for Submission.</p> <p>The requested instructions submitting both grounds of recovery relied on by plaintiff, and calling for a general verdict thereon, will not be treated as a request for a submission of one of the grounds which the court, in sending the ease to the jury on special issues, withdrew from their consideration. (P. 117.)</p>

Error from the Court of Civil Appeals for the Second District, in an appeal from Tarrant County. Welch sued the Missouri, Kansas & Texas Railway Company and the Missouri, Kansas & Texas Railway Company of Texas. The first company had judgment in its favor. Plaintiff recovered against the latter company, and it appealed. On affirmance appellant obtained writ of error.

<p>Question certified from the Court of Civil Appeals for the Fourth District, in an appeal from Waller County.</p>

<p>1. —Close of Term—Solar or Standard Time.</p> <p>Where the term of the District Court terminated by law on Saturday its close was fixed at midnight of that day, according to solar time, and not by the conventional “standard” time of the place. (Pp. 130, 131.)</p> <p>2. —Mandamus—V er diet—J udgment.</p> <p>Mandamus Avill lie to require a district judge to render a judgment upon a verdict regularly returned into his court Avhen entry thereof has been erroneously refused on the ground that the verdict Avas ineffective because returned after the expiration of the term. Distinguishing Hume v. Schintz, 90 Texas, 72. (P. 131.)</p>

Original proceeding in the Supreme Court for writ of mandamus. Mays and Hardy with another were candidates at the primary election of the Democratic party, for the nomination for Representative in Congress from the Sixth Congressional District of Texas. The district convention decided Hardy to be the nominee and this result was certified by the chairman of the convention.

<p>1. —Death—Negligence—Intentional Act.</p> <p>Under the statutes making railroad companies liable for death caused by the “negligence or carelessness of their servants” (Rev. Stats., art. 3017) an action may be maintained where the act was intentionally done but the mischievous consequences were unintended. (P. 142.)</p> <p>2. —Master and Servant—Master’s Business.</p> <p>When the servant turns aside, for however short a time, from the prosecution of the master’s work, to engage in an affair wholly his own, he ceases to act for the master, and the responsibility for that which he does in pursuing his own business or pleasure is upon him alone. (Pp. 142-345.)</p> <p>3. —Same—Case Stated.</p> <p>An engine dispatcher, having charge of the engines and machinery in a railway roundhouse, and handling a hose conveying a blast of compressed air, provided to work certain machinery, but which, as an experiment, he was using instead of a water hose to extinguish fire in an engine, turned the air blast in sport, and without intending injury, upon the person of an engine wiper, his subordinate in the roundhouse, inflicting injuries which caused his death. Held, that in such act lie was not engaged in the employer’s service, and that the railway company was not liable. (Pp. 140-150.)</p> <p>4. —Same—Cases -Distinguished.</p> <p>The present case, of a servant using the machinery of Jthe master under his control for his own sport, and not to promote the master’s service, distinguished from acts done in the performance of 'the servant’s duty to the master, but merely accompanied by a motive of malice or of sport in the servant, sucli as frightening animals by locomotive whistles; also from those of neglect of the servant in the control of dangerous agencies intrusted by the master to his care, which are distinguished from his employment of such agencies wholly for his own purposes. (Pp. 145-150.)</p>

<p>School Land—Lease—Purchase—Preference Right.</p> <p>A lessee of school land, having the preference right to purchase same during the continuance of the lease, notified the Land Commissioner of his desire to do so, and, the land having been appraised for that purpose, sent, in his application, in compliance with the law, but enclosed in an envelope indorsed as an application to buy land which was to come on the market on the expiration of the lease. The Commissioner accordingly did not open the application till that date, and then awarded the land to a higher bidder. Held, that the lessee’s preference right to purchase must be exercised before the lease expired, and his sending in an application, so indorsed, was not an exercise of that right, since the Commissioner was not authorized to open and act on it until the date named, (Pp. 151, 152.)</p>

The State sued the defendant railroad companies to recover taxes and penalties and had judgment for the taxes only. Defendants appealed and judgment was reversed and rendered in their favor. The State thereupon obtained writ of error.

, The Texas & Pacific Railway Company sued Stephens and others to enjoin the collection of a tax, and appealed from a judgment for defendants. The Court of Civil Appeals reversed, and rendered judgment for appellant, and appellees obtained writ of error. The questions involving the validity of the tax law here assailed were passed on in State v. Galveston, H. & S. A. Ry. Co., ante, p. 153, and State v. Texas & P. Ry.

<p>1. —Foreign Law—Contract to Give Notice of Claim for Damages.</p> <p>A contract by a railway employe in Oklahoma that he would give notice within thirty days from receiving any injury of his claim for damages, and that failure so to do would bar any suit for their recovery, whether considered as putting an end to liability or as preventing its accrual, affected the right of recovery, and not merely the remedy, and was not'invalidated by the Texas statute avoiding such contracts (Rev. Stats., art. 3379) when suit was brought in Texas. (Pp. 187-190.)</p> <p>2. —Same—Legislative Power.</p> <p>The statutes of a state have no extraterritorial operation; and article 3379, Revised Statutes, can not be presumed to have been intended to apply to contracts made and to be performed in another State. (P. 189.)</p> <p>3. —Same—Comity.</p> <p>It is only by comity that our courts enforce a cause of action arising in and between citizens of another state; and though the Legislature might forbid the extension of such comity to the enforcement of certain foreign contracts, it had no power to make void a valid foreign contract, nor to enable our courts to render judgment for plaintiff on a cause of action as accruing in Oklahoma when not actionable by the laws of that Territory. 0 (P. 189.)</p> <p>4. —Contract—Reasonableness.</p> <p>The unreasonableness of a contract to give notice of a claim for damages was not involved in a ruling which excluded the contract from the evidence because invalidated by the statute of the State; such issue was one to be determined by proof after its admission. (P. 190.)</p> <p>5. —Contract—Place of Performance.</p> <p>The right of a servant to recover for personal injuries received in Oklahoma, under a contract of employment made and performed there, is governed, as to the effect of his failure to give notice of his claim, as agreed in his contract, by the laws of Oklahoma, though the contract was to give notice at the general office of the company, at Topeka, Kansas. (P. 190.)</p>

<p>1. —Carrier of Animals—Notice of Claim for Damages.</p> <p>A contract for transportation of cattle requiring the shipper to give notice within a named time of any claim for damages for “loss or injury to his stock during,” etc., does not apply to a claim for loss by fall in the market incurred by delay in transportation. (Pp. 191, 192.)</p> <p>2. —Assignment of Error—Refusal of New Trial.</p> <p>An assignment of error in refusing a motion for new trial, because the verdict was unsupported by the evidence, does not raise the question whether plaintiff was precluded from recovering the damages allowed by his failure to give notice thereof, as required by contract, where there was evidence of damages not within the operation of the provision for notice sufficient to . support a recovery. (P. 191.)</p>

Bigham Brothers sued the Port Arthur Channel and Dock Company, and appealed from a judgment in favor of defendant on demurrer. Upon affirmance they obtained writ of error.

<p>1. —Railway—Servant—Disobedience of Rule.</p> <p>Plaintiff, a locomotive engineer, was injured in- a collision caused by running his train into a preceding one standing on the main track at a station; the rules required him to keep ten minutes behind preceding trains; the evidence was in conflict as to whether, when the collision occurred, the first train was more than ten minutes behind its time for leaving the station, and also as to whether, under the rules, it was the duty of its crew to put out a flagman and torpedoes against following trains before the ten minutes expired. Held, that defendant was entitled to have given a requested charge that, if it was not their duty to do so, and the collision occurred less than ten minutes after their leaving time, plaintiff could not recover. (Pp. 206, 207.)</p> <p>2. —Same—Charge on Weight of Evidence.</p> <p>An instruction that a locomotive engineer could not recover from his employer for injuries received in a collision, caused by his violation of a rule requiring him to keep ten minutes behind the leaving time of a preceding train in arriving at a station, was not improper as a charge on the weight of evidence. (P. 207.)</p> <p>3. —Charge—Rule—Engineer Approaching Station.</p> <p>In an action by an engineer injured by running into another train occupying the track at a station, defendant was entitled to a requested charge precluding recovery if plaintiff failed to keep a proper lookout in running into a station, and such failure was negligence, without the qualification that plaintiff knew, or, by ordinary care, would nave known, that a train was standing there. (P. 207.)</p>

<p>Certificate of dissent from the Court of Civil Appeals for the Third District, in an appeal from Williamson County.</p>

<p>Question certified from the Court of Civil Appeals for the First District, in an appeal from Fayette County.</p>

<p>Questions certified from the Court of Civil Appeals for the Third District, in an appeal from McLennan County.</p>

Rogers sued Moore to vacate a sale of his property to defendant for taxes. Judgment went for defendant, and was affirmed on appeal. Rogers then obtained writ of error.

■ Parks sued, the San Antonio Traction Company and recovered. Defendant appealed and secured a reversal. Parks obtained writ of error from the Supreme Court on the ground that the decision conflicted with its previous ruling.

<p>Cotton—Future Delivery—Illegal Contract.</p> <p>Where the pleadings of plaintiff and defendant showed that the contract on which recovery was sought was a purchase, in July, by plaintiff, through and in the name of defendants, cotton brokers, and members of the New Orleans Cotton Exchange, of contracts for the sale of cotton in December in such Cotton Exchange, though plaintiffs alleged that they could and would have furnished the cotton for actual delivery if called upon, yet the whole transaction was in the name of the brokers, and the names of the purchasers unknown to the sellers, and no money furnished to make the purchase, nor date fixed for concluding it, but only margins put in the brokers’ hands to secure against loss, with power in them to close out the contract on the margin becoming insufficient, the transaction appeared on its face to be an illegal contract (Penal Code, art. 377; Floyd v. Patterson, 72 Texas, 202), and neither party could recover upon such contract. (Pp. 229-232.)</p>

<p>Question certified from the Court of Civil Appeals for the Second District, in an appeal from Parker County.</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Hunt County.</p> <p>Johnson sued the railway company and recovered judgment. Defendant appealed and on affirmance obtained writ of error.</p>

Tuttle & Harrell sued Moody & Son and had judgment for a small amount from which they prosecuted error. The judgment being affirmed by the Court of Civil Appeals, they obtained writ of error from' the Supreme Court.

<p>Damages—Remote Result—Railway Passenger—Failure to Stop.</p> <p>The negligence of a railway in failing to stop on signal at a flag station, where plaintiff lived and desired to take passage, was not the proximate cause of damages received by him from exposure in driving, by night and in a storm, to an adjoining town, where he kept a store, in order that it might be opened for business in the morning. (Pp. 242-245.)</p>

<p>Error to the Court of Civil Appeals for the First District, on error from Harris County.</p> <p>Moerlein, as independent executor, sued Heyer for recovery of land and had judgment. Defendant prosecuted error to the Court of Civil Appeals, where the judgment was reversed and rendered in favor of plaintiff in error. Defendant in error, plaintiff in the trial court, then obtained writ of error from the Supreme Court.</p>

The action was commenced by Cora Malone against S. M. Nixon, and on defendant’s death continued against his executrix Maud Q. Nixon and his heirs. The action was for damages for killing Robert W. Malone, the husband of Cora Malone. Plaintiffs had judgment and defendant appealed.

Smith sued the railway company for damages on account of personal injury and recovered judgment. Defendant appealed and on affirmance obtained writ of error.

<p>Questions certified from the Court of .Civil Appeals for the Fifth District, in an appeal from Harrison County.</p>

<p>School Land—Opening Bids—Legal Holiday—Sunday.</p> <p>Bids were invited for the purchase of school land to come on the market on Friday; the law required all to be considered which were filed prior to the time fixed for opening the bids, which was, by the law, ten o’clock on the following day (Laws 1905, p. 161) ; Saturday, the day following, fell on a legal holiday, and the bids were not opened till Monday morning. Held, that the land was properly awarded to one who bid highest, but whose bid was received prior to ten o’clock on Monday morning, which, being the first day for conducting department business, was the day following that on which the lands came on the market, within the meaning of the statute. (Pp. 274, 275.)</p>

<p>School land—Sale hy Purchaser.</p> <p>Under the Act of April 15, 1905 (Laws 1905, p. 159), a purchaser of school lands on condition of settlement could not sell same until proof of his compliance with the condition was filed with the Land Commissioner; and, though he made due settlement, and mailed to the Commissioner the requisite proof, which was not received, the award of the land to him was properly canceled. (Pp. 275-277.)</p>

<p>School Land—Sale—Death of Purchaser—Settlement.</p> <p>The provision in article 42181, Revised Statutes, giving the heirs or legal representatives, on the death of a purchaser of school land, the right to carry out his contract and acquire title, absolved from residence thereon, was not repealed by the Act of 1905 in regard to such sales (Laws, 29th Leg., ch. 103, p. 159), and the devisee and independent executor of a' purchaser who had died before making settlement, and within the time allowed therefor by the law, could complete the payments and acquire title without settlement. (Pp. 278, 279.)</p>

The State sued the railway company to recover taxes and penalties, and had judgment for both. Defendant appealed, and the judgment was reversed and rendered for appellant, following the previous rulings of the same court in Galveston, H. & S. A. Ry. Co. v. State, ante, p. 153. Appellee then obtained writ of error.

<p>1. —Jurisdiction—Amount in Controversy—Accruing Interest.</p> <p>The fact that the amount of damages alleged is increased, after suit is instituted, by the accrual of interest claimed as an element of the damages, to a sum beyond the jurisdiction of the court, will not deprive it of the power to render judgment for an amount not exceeding its jurisdiction. (Pp. 285, 286.) •</p> <p>2. —Same—Case Stated.</p> <p>An amended petition in an action in the County Court for damages to cattle in shipment, alleged to be $940.40, with interest from the date of injury, which sum, including interest, exceeded $1,000 when the amendment was filed, but did not do so at the date of filing the pleading which it amended, did not show an amount in controversy beyond the jurisdiction of the court. For that purpose the amount was determined by the sum recoverable, on the claim alleged, when the suit was brought. (Pp. 285, 286.)</p> <p>3.—Same—Case Distinguished.</p> <p>Gulf, W. T. & P. R. R. Co. v. Fromme, 98 Texas, 459, distinguished, applying a different rule to determine the amount in controversy as affecting the right of appeal from that in issue as determining the jurisdiction of the trial court. (P. 286.)</p>

<p>Original petition to the Supreme Court for writ of mandamus to the Commissioner of the General Land Office.</p>

<p>Original petition to the Supreme Court for writ of mandamus against the Commissioner of the General Land Office.</p>

Land sold to relator Davis on condition of settlement, was declared forfeitured by the Land Commissioner for abandonment and thereafter sold to Heal. Mandamus to compel Davis’ reinstatement was sought by an original proceeding in the Supreme Court, which denied the fact of abandonment, and on this the respondents took issue.

<p>1. —Bailway—Injunction—Ticket Scalpers.</p> <p>A railway may maintain injunction against dealing in tickets issued for special occasions at reduced rates and marked not transferable; such sale is an actionable wrong as an interference tending to bring about a breach of contract by the original purchaser and a fraud on the company by the transferee. (Pp. 299, 300.)</p> <p>2. —Same—Tickets to be Issued in Future.</p> <p>Such injunction may cover the sale of tickets to be issued in the future as well as those in force at the time of the judgment, the remedy after issuance being inadequate; but it should be limited to tickets which the carrier has already determined on selling and placed on the sale, as presenting thé only case in which threatened injury is imminent. (Pp. 300-303.)</p> <p>3. —Bailway—Excursion Bates—Anti-trust Law.</p> <p>No law of the State or the United States makes it unlawful for a railway company to issue excursion tickets at reduced rates, for special occasions or gatherings, though done in pursuance of agreement with associations or citizens interested in promoting such gatherings. (P. 303.)</p> <p>4. —Enjoining Persons not Parties—Certified Question.</p> <p>The rights of persons not parties to the action can not be determined by the judgment; the Supreme Court will not, upon certified question, pass on the validity of an injunction as applied to persons having notice but not made parties, it being unnecessary to a decision upon the rights of the parties appealing. (P. 304.)</p>

<p>Questions certified from the Court of Civil Appeals for the Fifth District, in an appeal from Johnson County.</p>

<p>. Original petition to the Supreme Court for mandamus against the Commissioner of the General Land Office.</p>

<p>1.—Minor—Divorce—Domicile.</p> <p>Upon the divorce of the parents in Texas without disposing of the right to the custody of the minor child, the father removing with the child to Louisiana and the mother to Tennessee, the domicile of the child followed that of the father, and it was not emancipated from the father’s control by an agreement by him to return the child to the mother at her request. (P. 315.)</p> <p>3.—Same—Judgment—Change of Status.</p> <p>The effect of a judgment of a Texas court upon habeas corpus proceedings, awarding the custody of the child, which had been brought temporarily within the State, to -the mother for a period of years, was to take the child from the family and custody of the father and place it in that of the mother; this was a change of the domestic status of the child for such time. (P. 315.)</p> <p>3.—Same—Jurisdiction.</p> <p>The child being in the lawful custody of the father, and its domicile with him in Louisiana, a District Court of Texas did not acquire jurisdiction of the child, by reason of its temporary presence in Texas, and had no authority to adjudge a change of relation between the father and the child. There being no unlawful restraint of the child, the question of the relative rights of the parents belonged to the jurisdiction of the father’s domicile. (P. 315.)</p>

<p>1.—School Land—Sale—Settlement—Affidavit.</p> <p>Section 4 of the Act of 1905, regulating sales of school land (Acts 29th Leg., p. 162) in requiring settlement within ninety days and affidavit that the applicant has settled on the land within thirty days thereafter, allows only ninety, not one hundred and twenty days, within which to make the settlement required, (Pp. 316, 317.)</p> <p>2.—Same—Excusing Delay in Settlement.</p> <p>The right to purchase school land as an actual settler, under section 4 of the Act of 1905, is acquired only by settlement within the time prescribed, and this can not be supplied by settlement later with proof of circumstances excusing the delay. (P. 317.)</p>

<p>Original application by Roach to the Supreme Court for writ of mandamus against Terrell, as Commissioner of the General Land Office.</p>

<p>Error to the Court of Civil Appeals for the Third District, on writ of error from Travis County.</p>

Ben C. Jones & Co. sued the Gammel-Statesman Publishing Company, and appealed from a judgment recovering only a part of the demand sued for. On affirmance, both parties obtained writs of error..

Webster sued Clarke, and had judgment, from which defendant appealed, and the judgment was reversed and rendered for appellee. Plaintiff (appellee) then obtained writ of error.

<p>The rule that in the absence of a statement of facts it will be presumed that „ every fact essential to the correctness of the judgment was proved does not apply to cases where the judge has found separately the facts and his conclusions of law thereon; an appellant who has properly excepted may have the correctness of the latter tested by the facts stated as their basis. (Pp. 340, 341.)</p> <p>2. —Same.</p> <p>It may not be necessary, in order to sustain the judgment, that there be "a finding of every fact necessary to support it, but when the judge affirmatively states facts, and bases his conclusions upon them, it can not be presumed that other facts which would support his judgment were proven. (P. 341.)</p> <p>3. —Unrecorded Deed—Innocent Purchaser—Burden of Proof.</p> <p>Under the Registration Act of 1840, and later statutes, providing that unrecorded deeds should not “be good against a purchaser for valuable consideration not having notice thereof” (Hart. Dig., arts. 2765, 2767), one claiming under the subsequent deed has the burden of proving payment of consideration and lack of notice; but one purchasing in 1838 was protected against a previous unrecorded deed from his grantor by the Act of 1836 (Hart. Dig., art. 2757), which provides that no such deed “shall take effect as regards the interest and rights of third parties;” under this act the burden of proving notice or want of consideration was on the party claiming under the unrecorded deed (Crosby v. Houston, 1 Texas, 238, followed, and later decisions distinguished. (Pp. 341-343.)</p> <p>4. —Same—Statutes Construed.</p> <p>Section 40 of the Act of 1836 (Hart. Dig., art. 2757) regulates the recording, not only of deeds executed before its passage, and required to be proven by section 37 (Hart. Dig., art. 2754), but of deeds generally, including those thereafter to be executed and to be proven under sections 35 and 38 (Hart. Dig., arts. 2752, 2755). (Pp. 343, 344.)</p> <p>5. —Same.</p> <p>Section 37 of the Act of 1836 (Hart. Dig., art. 2754) applied only to deeds previously executed, and the provision giving the holders twelve months from the following April to have them proven up and recorded did not apply to deeds executed after the passage of the act. (P. 344.)</p>

The bank sued Dreeben and the Henderson Mercantile Company and recovered judgment, which was affirmed on defendant’s appeal. The mercantile company then obtained writ of error.

<p>1. —Statement of Facts—Stenographer’s Report.</p> <p>When neither appellant nor appellee demands and pays for a transcript of the stenographer’s notes, the provision of section 5 (Acts 27th Leg., p. 32), that no other record of the testimony shall be sent up, does not apply, and it was error for the trial judge to refuse to make out a statement of facts in accordance with articles 1379, 1380, Revised Statutes, where appellant had made out from memory and tendered a statement to which appellee had refused to agree. (Pp. 252, 253.)</p> <p>2. —Same—Use of Stenographer’s Notes by Court.</p> <p>The trial judge had a right to use the stenographer’s notes to assist him in making a statement of facts, though appellant had refused to pay for the transcribing of same to be used as a statement. (P. 253.)</p> <p>3.—Same—Remedy—Mandamus.</p> <p>The remedy of an appellant, when the trial- judge refuses to make out a statement of facts, is by mandamus from the Appellate Court to require him to do so, and not by assigning such refusal as error on appeal. (Pp. 252, 253.)</p>

<p>1. —Master and Servant—Assumed Risk—Known Perils.</p> <p>The servant assumes the risk of injury from the known and customary manner of working by his fellow laborers, though that method of work be negligent. '(P. 358.)</p> <p>2. —Same.</p> <p>Where a railway section hand sued for injuries by the negligence of the other section hands engaged with him in putting a handcar on the track, in pushing the car upon him with unnecessary speed and violence, and there was evidence that the work was done in the usual manner, with which he was familiar, defendant was entitled to a requested charge that plaintiff assumed the risk if the car was moved in the usual manner and he was familiar therewith. (Pp. 354-358.)</p>

<p>1. —Certified Question.</p> <p>A certified question whether error avbs committed in giving a charge calling for a verdict for defendant in case his employe Avas injured through violating his instructions, and was guilty of negligence thereby, does not present the question Avhether the act should not be held an assumption of the risk by the employe, Avhether held negligence or not. (Pp. 360, 361.)</p> <p>2. —Same—Master and Servant—Charge.</p> <p>A servant employed to gauge oil in the tanks of an oil company, and AA'arned not to go upon the tanks unaccompanied because of danger from poisonous fumes of the oil, having disregarded the warning and met death in consequence, an instruction that in such case his act would prevent recovery for his death, if it was what an ordinarily prudent person would not have done, was not affirmatively erroneous. The question whether he assumed the risk, without regard to the question of negligence in his act, did not arise on error assigned to the giving such charge. (Pp. 359-361.)</p>

Moore and Luckett obtained writ of error from a judgment reversing and rendering, on Rogers appeal, a judgment in a proceeding by him to set aside a tax sale.

<p>Question certified from the Court of Civil Appeals for the First District in an appeal from Galveston County.</p>

<p>1.—Notice—Attorney—Proceedings in Bankruptcy.</p> <p>Attorneys of a bankrupt, to whom the assignee had conveyed property as purchasers at sale by such assignee, were not chargeable' with notice of, nor was their title affected by a report subsequently filed by the assignee showing that the property was sold to another, to whom also he had made deed; the assignee having the right to sell without order of sale or confirmation, his report had no other effect than other oral declarations of a grantor in disparagement of the title, made after his conveyance. (Pp. 372-374.)</p> <p>2.—Attorney—Purchasing at Bankrupt Sale.</p> <p>The purchase of property from an assignee in bankruptcy by an attorney of the bankrupt is not a nullity, being voidable only, even where under process controlled by the attorney (Douglas v. Blount, 95 Texas, 369). Query, whether voidable where the process is not so controlled, as in this case. (Pp. 374, 375.)</p>

<p>Reward—Capture of Fugitive from Justice.</p> <p>One seeking to recover from a sheriff the reward offered by him for the recapture of a criminal who had escaped from his custody must show that he acted with knowledge of the offer in effecting the recapture; the basis of such liability is contract, and to constitute this an offer must have been acted on. (J?p. 376-378.)</p>

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Travis County.</p> <p>The railway company brought the suit against Shannon and others constituting the State Tax Board to restrain proceedings for taxing its property. Judgment was for defendants and was affirmed on appeal by plaintiff, which then obtained writ of error.</p>

Original application to the Supreme Court for writ of mandamus against the Commissioner of the General Land Office, Mabel Tillman, the adverse claimant of the land in controversy, being made corespondent.

Brown and others sued Edelstein to recover community property of their mother who was alleged to be his wife. Plaintiffs had judgment and defendant appealed. On affirmance he obtained writ of error. A previous recovery by plaintiffs was reversed on appeal. 80 S. W. Rep., 1027.

Motion by the Lufkin Land and Lumber Company for leave to file in the Supreme Court a petition for mandamus against the Commissioner of the General Land Office.

<p>Conflicting Rulings—Certifying Question—Mandamus.</p> <p>Finding no conflict between the rulings of the Court of Civil Appeals in Arnett v. Texas & P. Ry. Co. and those in Missouri, K. & T. Ry. Co. v. Sprowles (92 S. W. Rep., 40) ; Pacific Express Co. v. Redman (60 S. W. Rep., 677), and Houston & T. C. Ry. Co. v. Williams (31 S. W. Rep., 566), the Supreme Court refuse leave to the appellee in the first-named ease to file a petition for mandamus requiring the court to send up such case for review upon certificate. (P. 408.)</p>

Original applicatipn to the Supreme Court for writ of mandamus against Terrell, as Commissioner of the General Land Office, Susan A. and T. F. Swan, adverse claimants of the land in controversy, being made corespondents.

<p>Original application to the Supreme Court for writ of mandamus against the Commissioner of the General Land Office.</p>

<p>Receiver—Foreign Corporation—Deposit with Treasurer—Mandamus.</p> <p>The receiver of an insolvent foreign corporation which had deposited money and securities with the State Treasurer, as required hy chapter 94, Acts of Twenty-fifth Legislature, is entitled, where the court has adjudicated the rights of all parties in the fund, to have a warrant drawn by the Comptroller, in his favor, for such deposit, and may enforce such right by mandamus from the Supreme Court; and this though an appeal may he pending by one of the litigants involving questions of priority in the distribution of the fund. (Stephens, ex parte, ante, p. 177.) (Pp. 412, 413.)</p>

<p>1.—Continuance—Amendment—New Cause of Action.</p> <p>Where a new cause of action is set up by amendment, defendant’s application for continuance for evidence to meet such new action is to be treated as a first application, though he may have previously had a continuance of the suit as originally brought. (Pp. 415, 416.)</p> <p>Í2.—Same—Suit for Personal Injuries—Resulting Death.</p> <p>A husband, suing for personal injuries to his wife by negligence, after the case, had been once continued by defendant, amended, alleging her death as a result of the injuries, and suing for damages therefor to himself and their children. Held, that the amendment presented a new cause of action; that defendant’s application for continuance to procure evidence to meet it, if complying with the law, was a first application, and not in the discretion of the court; that this was not affected by the fact that the original petition had alleged that death would probably result from the injuries. (Pp. 415, 416.)</p>

<p>' Mandamus—Certifying Question.</p> <p>Mandamus to require the Court of Civil Appeals to certify question on the ground of conflict of decisions is denied because no conflict is shown. Texas & P. Ry. Co. v. Conner, ante, 407, followed.</p>

<p>1. —Practice in Supreme Court—Reference for Findings of Pact.</p> <p>The authority of the Supreme Court to direct a further finding of fact by the Court of Civil Appeals is limited to requiring such finding upon issues raised by assignment in both the Appellate and the Supreme Courts. (P. 418.)</p> <p>2. —Jurisdiction of Supreme Court—Dissent—Abstract Question.</p> <p>The right of the Supreme Court to take jurisdiction by writ of error over a case reversed and remanded, on the ground of dissent in the Appellate Court, does not extend to cases of dissent upon abstract questions of law; and when the facts are not so found as to show the nature of the evidence (declarations of a testator) about the admissibility of which the difference of opinion arose, the question as presented in the Supreme Court is an abstract one, which it can not determine. (Pp. 417, 418.)</p>

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Dallas County.</p> <p>Ferguson and others sued Elliott and others for injunction, and had judgment making same perpetual. Defendants appealed, and the judgment was affirmed, whereupon they obtained writ of error.</p>

<p>1. —Constitutional Law—Penalty—Fourteenth Amendment.</p> <p>The Act of April 17, 1905, requiring railway companies, under the penalties and within the times therein prescribed, to erect water closets at all stations, is so oppressive and arbitrary, and practically impossible to comply with, as to violate the fourteenth amendment to the Constitution of the United States, though the law was duly enacted and proceedings under it were regular. (Pp. 423, 425.)</p> <p>2. —Statute—Effect—Notice.</p> <p>A statute is not effective, as notice of its provisions to those to be affected, until the date when by law it takes effect. (P. 425.)</p>

Suit was brought by the State against 'the railway company for penalties, which were recovered. Defendant appealed, and, on affirmance, obtained writ of error.

The state sued defendants in trespass to try title, and recovered judgment. They appealed, and, on affirmance, obtained writ of error.

<p>Constitutional law—Statute—Case Followed.</p> <p>The ruling in Missouri, K. & T. Ry. Co. of Texas v. State, ante, followed, and held to control this case.</p>

Each of the above cases was upon writ of error to the Court of Civil Appeals for the Third District, on appeal from Travis County. In each case the State sued in trespass to try title, in the District Court of Travis County, and recovered judgment. In each the defendants appealed, and, on affirmance, obtained writ of error; and in each the following opinion was filed:

<p>1. —Assignment of Error—Charge.</p> <p>An assignment of error copying the entire charge, and alleging it to be erroneous, without pointing out the specific error complained of, does not require consideration. (P. 436.)</p> <p>2. —Contract with Decedent.</p> <p>Evidence, in a suit against executors, in which neither party could testify to the transaction, considered, and held sufficient to submit to the jury the question whether decedent had accepted the services of plaintiff in negotiating a sale of bank stock for a commission. (P. 436.)</p> <p>3. —Evidence—Agency—Self-serving Declaration.</p> <p>Where plaintiff claimed commissions for negotiating for B. a sale of his bank stock to IÍ., testimony of a third party that B. sent word to K. by him that he would not deal through a middleman was a self-serving declaration of B., and not admissible to show that B. considered plaintiff the agent, not of himself, but of K. (P. 436.)</p> <p>4. —Agency—Evidence.</p> <p>In an action by M. -for commissions for negotiating a sale of bank stock for B. to K., evidence by K. that M. notified him that he and B. would come to IC.’s office for the purpose of making the trade, which they afterwards did, though not evidence that M. was acting as agent for B., was admissible to prove another part of M.’s case, that is, that his efforts procured the sale. (Pp. 436, 437.)</p>

<p>Railway—Penalties—Case Followed.</p> <p>The rulings in Missouri, K. & T. Ry. Co. of Texas v.- State, ante, p. 420, followed, and held to control this case.</p>

<p>1. —Municipal Government—Change of System—Succession to Property Rights.</p> <p>Upon a change of the Spanish system of municipal government, substituting a county and town government for the municipality of Victoria which embraced one and parts of several other counties, the succession to the rights held by the old municipality, in property held for public purposes, as public squares in the town, was for the legislative power to determine. (P. 451.)</p> <p>2. —Same—Public Square—City or County.</p> <p>Reviewing the colonization laws of Ooahuila and Texas, and the subsequent legislation of the Republic of Texas affecting the title and right of control of the public square laid off in the municipality of Victoria, in 1827, “for the municipal buildings or town halls,” held, that the Act of December 10, 1841 (2 Gam. Laws, 687), placed the title to such square in the town of Victoria for the use and benefit of its citizens, and that such act was within the power of Congress. (Pp. 448-451.)</p> <p>3. —Same—Municipality—Legislative Control.</p> <p>Municipalities, whether counties or towns, are auxiliaries of the State, and may be divided, consolidated, etc., at the legislative discretion, and the common property and common burdens apportioned as seems equitable. (P. 451.)</p> <p>4. —City Square—Dedication for Courthouse.</p> <p>Under the Acts of February 5, 1840 (2 Gam. Laws, 452), and of December 10, 1841 (2 Gam. Laws, 687), the city of Victoria was authorized to appropriate the public property in its charge to the erection of a courthouse, etc., for the county, and this authorized it to devote a portion of one of its public squares to a location for the county courthouse, etc. (Pp. 451, 452.)</p> <p>5. —Same—Courthouse—Dedication of Public Square by City.</p> <p>Such appropriation of public ground for county buildings exhausted the power of dedication to the county conferred by the legislative authority, and extended only to the ground actually occupied by the buildings, and such additional space as was reasonably necessary for the purposes for which the buildings were erected, determined by the conditions existing when the act was passed and the buildings erected. (P. 452.)</p> <p>6. —Same—Limitation.</p> <p>Such dual and permissive occupation of the premises by the county would not, it seems, support claim of limitation in its favor as to the entire square. (P. 452.)</p>

<p>Question certified from the Court of Civil Appeals for the Third District, on error from Williamson County.</p>

<p>Question certified from the Court of Civil Appeals for the Third District, in an appeal from Milam County,</p> <p>The case, on a previous appeal, is reported in 97 Texas, 526; and in the Court of Civil Appeals in 75 S. W. Rep., 827; 82 S. W. Rep., 153, 193, 661.</p>

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Tarrant County.</p> <p>The San Jacinto Oil Company and its receiver appealed from a judgment recovered by certain interveners in the receivership proceedings and on affirmance obtained writ of error.</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Harrison County.</p> <p>Coleman brought suit for mandamus against the mayor and aider-men of Marshall and had judgment awarding the writ. Defendants appealed, and on affirmance obtained writ of error.</p>

<p>1. —Appeal Bond—Corporate Name.</p> <p>An appeal bond made payable to the “Grayson County National Bank defendant in said cause,” sufficiently identified the obligee, though it omitted the words <:of Sherman” which constituted a part of the corporate name. (P. 474.)</p> <p>2. —Appeal Bond—Omission of Parties.</p> <p>Defendants who had no interest in the property involved in the litigation and as to whom the judgment was that plaintiffs take nothing and defendants recover costs, were not necessary parties to an appeal by plaintiffs from a judgment in which other defendants recovered the property from them. (P. 474.)</p> <p>3. —Appeal Bond—Sureties—Affirmance on Certificate.</p> <p>Sureties upon plaintiffs’ replevy bond who did not unite with plaintiff in giving notice of appeal did not become parties thereto by uniting with plaintiff in executing the appeal bond; and it was error to affirm the case as to them on certificate. (Pp. 474, 475.)</p> <p>4. —Same—Writ of Error.</p> <p>Sureties on plaintiffs’ replevy bond who had not joined in an appeal by plaintiffs, were entitled to bring up the judgment against them on writ of error, though, on the appeal, judgment had been rendered affirming the recovery on certificate, for failure to file transcript in time, both as to the plaintiffs and such sureties. (P. 475.)</p> <p>5. —Transcript—Refusal of Leave to Pile—Writ of Error—Mandamus.</p> <p>The refusal by the Court of Civil Appeals of leave to file transcript is not a final judgment from which writ of error will lie to the Supreme Court; if erroneous the only -remedy is mandamus from the Supreme Court to require such filing; and such relief will be granted. (P. 475.)</p>

<p>Question certified from the Court of Civil Appeals for the First District, in an appeal from Galveston County.</p>

<p>Question certified from the Court of Civil Appeals for the First District, in an appeal from Brazos County.</p>

<p>1.—Animals Running at Large—Petition for Election—Boundaries.</p> <p>A petition for a local election to determine whether certain domestic animals shall be permitted to run at large must describe the locality in which the election is to be held and which is to be affected by its result by giving the boundaries thereof (Acts 26th Leg., p. 220), and a description of it as Justice Precinct No. 1 is not in compliance with the law. (Pp. 485, 486.)</p> <p>3.—Same—Proclamation of Result.</p> <p>The proclamation of the county judge declaring the result of an election to be the adoption of the law against stock running at large does not put such law into effect where the election was held upon a petition failing to properly describe the boundaries of the territory to be affected by it. (Pp. 485-487.)</p> <p>3.—Railway—Fencing—Killing Stock.</p> <p>A railway fence which has been burned and no.longer excludes stock is no fence within the meaning of the statute. (Rev. Stats., art. 4528.) The company then becomes liable for killing stock entering its right of way through such gap, irrespective of negligence, and this liability is not affected by an election in the territory in question to adopt the law prohibiting stock from running at large, where held upon a petition failing to describe the boundaries to which the law is to be applied; and evidence of such election and the proclamation attempting to put the law in force as adopted thereby should be excluded. (Pp. 486, 487.)</p>

Stone and others brought suit to enjoin the enforcement of an execution taken out by Lacy on a judgment against them for city taxes, which he had paid off to protect his mortgage on property incumbered by the tax lien and. judgment. Lacy reconvened and had judgment for the amount paid in discharging the tax lien. Plaintiffs appealed, and on affirmance obtained writ of error.

Murphy sued the railway company and judgment for defendant was affirmed on his appeal, whereupon he obtained writ of error.

<p>Questions certified from the Court of Civil Appeals for the Second District, in an appeal from Tarrant County.</p>

<p>Questiohs certified from the Court of Civil Appeals for the First District,' in an appeal from Busk County.</p>

<p>1.—Agent—Undisclosed Principal.</p> <p>Where the agent buys property in his own name, the principal, whose money purchased it, being undisclosed, it immediately becomes the property of the principal, not of the agent; the intention of the agent to defraud the principal in the transaction does not’ change the effect. (Pp. 509, 510.),</p> <p>2.—Same—Innocent Purchaser.</p> <p>E. purchased cattle for K., an undisclosed principal, with whose money he paid for them, handling them, with other .cattle of K.’s and his own; he put his own brand on the calves. Held, that the legal title to the cattle and their increase was in K., the principal, and prevailed over the lien of a mortgage given by K., upon all the cattle in his own brand, to L. who had no knowledge óf K.’s ownership. (Pp. 507-510.)</p>

Long, who had sued Green and others for penalties, and been denied a recove^, appealed, and, on affirmance, obtained writ of error.

Wright & Vaughan sued Hughes in trespass to try title, and recovered. Defendant appealed, and on affirmance obtained writ of error.

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Liberty County.</p> <p>Stevens appealed from an order appointing Cameron administrator of an estate, and, on affirmance, obtained writ of error.</p>

<p>Supreme Court—Jurisdiction.</p> <p>The Supreme Court has no jurisdiction, by writ of error, over the judgment of a district judge in chambers, upon habeas corpus, concerning the custody of a minor, on its affirmance by the Court of Civil Appeals. (Pp. 518, 519.)</p>

Mrs. Beppond sued the insurance company and obtained judgment. On appeal by defendant it was reversed, and rendered in its favor, and thereupon she obtained writ of error.

Allen sued the railway company and had judgment. Defendant appealed, and the case was reversed, denying his right to recover penalties, but remanding for a trial on other issues. Allen then obtained writ of error.

<p>1. —Statutory Construction—Unconstitutionality.</p> <p>When an Act of the Legislature admits, of two constructions, one of which makes it valid and the other makes it invalid, the former should prevail. (P. 531.)</p> <p>2. —Same—Carriers—Connecting Lines—Service of Process.</p> <p>The provisions in sections 2 and 3 of the Act of March 13, 1905, with reference to service of citation on agents of carriers, though relating generally, by their language, to foreign corporations, are to be held applicable only to cases of carriers undertaking through transportation over two or more lines, such as are mentioned in section 1 of such Act, and relate to a subject embraced in the caption thereof. (Pp. 531, 532.)</p>

<p>Question certified from the Court of Civil Appeals for the Third District, in an appeal from Comal County.</p>

<p>Appeal—Defendants Not Joining—Reversal.</p> <p>In a suit of trespass to try title, involving the location of boundaries of surveys owned by plaintiffs, two of the defendants appealed from a judgment fixing the boundaries of plaintiffs’ land and recovering, in their favor, land, , claimed by appellants within such boundaries. They made appeal bond both to plaintiffs and to 'two codefendants who did not appeal, one of whom had judgment against plaintiff but plaintiff had judgment against the other. Held, that such proceedings brought all the parties before the Appellate Court, in such way as to give jurisdiction to render any judgment proper to relief to which appellants might be entitled, including reversal of the judgments in favor of or against the two parties not appealing if such relief required disturbing the boundaries fixed for them by the judgment in the trial court. (P. 539.)</p>

Ixlopf sued the telegraph company, and appealed from a judgment for defendant. On its affirmance he obtained writ of error.

Suit by Mrs. Campbell, joined by her husband, against the Watkins Land Mortgage Company. Plaintiffs had judgment, which was affirmed on appeal by defendant, who thereupon obtained writ of error.

<p>Sheriff—Deputy—Arrest—Official Capacity.</p> <p>Facts presented in certified question considered and held to disclose no evidence that a deputy sheriff who shot plaintiff while he was attempting to escape a search for concealed weapons was acting under warrant, or in an attempt to arrest for felony, or for a breach of peace committed in presence of the officer, or otherwise performing such official act as would render the sheriff liable for his wrong. King v. Brown, 100 Texas, 109, distinguished. (P. 548.)</p>

Original proceeding in the Supreme Court for mandamus against Terrell, as Commissioner of the General Land Office, to require reinstatement of the applicant as purchaser of a tract of school land, McDonald, the adverse claimant, being made corespondent.

<p>1. —Conflict of Laws—Will.</p> <p>The principle that the law of testator’s domicile governs the disposition by will of personal property does not apply where it is manifest that the testator had in mind the law of another jurisdiction, in which the property was situated. (P. 553.)</p> <p>2. —Same—Trust.</p> <p>The will of testatrix domiciled in Illinois bequeathed to her married daughter personal property located in Texas and managed by her agent there, who was named as executor, with provision that he should hold the property as trustee, paying the devisee the interest only during the lifetime of her husband. The estate was administered by the executor, and under the laws of Illinois the devisee would have been entitled to have the administration and trust closed and to receive the body of the property, though her husband still lived. Held that the testatrix should be presumed to have intended the application of the laws of Texas to the construction and effect of her will, whereby the trust still continued. (Pp. 552-555.)</p> <p>3—Will—Trust.</p> <p>Neither the policy nor the statute laws of Texas prevented such disposition of her property by a testatrix as would leave same in control of a trustee, directed to pay only the income thereof to the devisee so long as the husband of such devisee lived, and such trust will be enforced by the courts, though the executor, who was made such trustee, had otherwise fully administered and held the estate ready for distribution. (Pp. 555, 556.)</p>

<p>1_—Removal of Causes—Co-Defendants.</p> <p>Where a federal corporation seeks to. remove to the Federal Court a suit against it and a resident defendant not entitled to remove, it is necessary," if the petition alleges facts showing its codefendant to be jointly liable with it, to allege, not only that such codefendant was fraudulently joined in the suit in order to prevent a removal, but the facts from which such conclusion of the pleader may be inferred. Eastin & Knox v. Texas & P. Ry. Co., 99 Texas, 654, and Texas & P. Ry. Co. v. Huber, 100 Texas, 1, followed. (Pp. 559, 560.)</p> <p>2. —Carrier—Routing Shipment.</p> <p>A carrier routing a shipment over lines selected by itself, contrary to the express directions of the shipper, becomes, as in case of deviation from the' route contracted for, responsible for any loss or damage in the transit, though occurring on the line and by the negligence of another company. (P. 561.)</p> <p>3. —Carrier—Liability Between Connecting Lines,</p> <p>A railway which, by routing a shipment contrary to the shipper’s direction, has become liable to him for injuries thereto by negligence of a connecting line selected by it, may still recover over against such connecting carrier the amount recovered against it for the default of the other. (P. 562.) ,</p> <p>4. —Principal and Agent—Joint Liability.</p> <p>For mere negligence of the agent the principal alone is liable, but for the agent’s misfeasance recovery may be had against both. (P. 561.)</p> <p>5. —Same—Routing Shipment.</p> <p>A railway agent who, having choice of routes to the destination over connections, compelled the shipper, after his cattle were loaded on the train, to accept, over the latter’s direction and protest, a contract routing them over the longer and less desirable route, is jointly liable with his principal for the damages sustained by reason of such longer haul and by the negligence in transportation of the connections selected by him. (P. 561.)</p>

Mrs. McMillan sued the railway company for the death of her husband and recovered a judgment. Defendant appealed, and on affirmance obtained writ of error.

Kelly sued Searcy, guardian, and recovered judgment. Defendant appealed and judgment ivas reversed and rendered in his favor. Kelly thereupon obtained writ of error.

<p>Question certified from the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County.</p>

Boyle sued the express company and had judgment which was affirmed on appeal by defendant, who thereupon obtained writ of error.

<p>Original application to the Supreme Court by Glasgow for mandamus to require Terrell, as Commissioner of the General Land Office, to accept his • application to purchase school land, ICokernot, as an adverse claimant, being made corespondent.</p>

<p>Original proceeding in the Supreme Court, by Schell, for writ of mandamus against Terrell, as Commissioner of the General Land Office, making A. J. Walcott, who was adversely interested, a corespondent.</p>

Patterson sued Knapp and others and judgment went for defendants. Plaintiff appealed, and, on affirmance, obtained writ of error.

<p>Application for writs of error to the Court of Civil Appeals for the Fourth District in appeals from the County Court of Bexar County.</p> <p>Tobin and Beck each sued the city of San Antonio and recovered judgment. Defendant appealed, and, on affirmance, made application for writ of error on the ground that the ruling involved the validity of a section of the city charter, under which plaintiffs claimed, but which petitioner alleged to be invalid.</p>

Question certified from the Court of Civil Appeals for the First District, in an appeal from Orange County. Rector was plaintiff in Justice Court in a suit against the Mill Company and Bolin. He appealed successively from adverse judgments of the Justice and of the County Court, and, on affirmance in the Court of Civil Appeals, because of a dissenting opinion, the point of dissent was certified to the Supreme Court.

Guthrie appealer! from the decision of the District Court upon issues arising between himself and his codefendants, Joclmsch, Davison & Co., in a suit brought against them by Lyon & Son. The judgment being reversed and the cause remanded, Joclmsch, Davison & Co. obtained writ of error on the ground that the ruling practically settled the case.

Original proceeding by Slaughter, in the Supreme Court, for mandamus against Terrell, Commissioner of the General Land Office, to compel the reinstatement of relator as a purchaser of school land after declaration of forfeiture. C. J. Adair, an adverse claimant, was made corespondent.

Sanborn brought suit to recover land, appealed from a judgment for defendants, and on its affirmance obtained writ of error.

Morris sued the railway company and recovered judgment. It was affirmed on appeal by defendant, who thereupon obtained writ of error.

Quinn sued the railway company and recovered judgment. It was affirmed on appeal by defendant, who thereupon obtained writ of error.

Cabiness sued Arch and B. McDonald and had judgment against the former, who appealed, and on affirmance obtained writ of error.

<p>1.—Jurisdiction—County and District Courts—Custody of Minor—Constitution.</p> <p>The Constitution confers upon the District Courts the original jurisdiction over the custody of minors exercised generally by courts of equity (Const., art. 5, see. 8) ; and upon the County Courts no control over minors or their estates save as wards of guardians appointed by them. (Pp. 621-623.)</p> <p>2. —Same—Statute—Rescuing Minor from Custody.</p> <p>The control over the custody of children attempted to be conferred on the County Court by articles 3502a, 3502b, Revised Statutes, is not authorized by the Constitution, which places it in the District Courts. (P. 623.)</p> <p>3. —County Court—Appeal—Order in Chambers.</p> <p>The right of appeal from the County Courts to Courts of Civil Appeals, extends only to final judgments of the County Court, and not to an order of the judge in chambers and not at a term of such court (Rev. Stats., art. 1383). (P. 623.)</p> <p>4. —Same—Called Term.</p> <p>Except as to probate business, the County Court can not sit in vacation. Its terms are to be fixed by the Legislature or the Commissioner’s Court (Const., art. 5, sec. 29), and no “called terms” or “special terms” are authorized by the Constitution. An order made by the county judge, in proceedings by habeas corpus under articles 3502a, 3502b, Revised Statutes, concerning the custody of a minor, not at a term of court so fixed, but purporting to be at a called term, is not a judgment of the court, but an order of the judge in vacation. (P. 623.)</p>

<p>Question certified from the Court of Civil Appeals for the Third District, in an appeal from the County Court of Llano County.</p>

Original application, in the Supreme Court, for writ of mandamus to require the Commissioner of the General Land Office to accept relator as a purchaser of school land, his offer having been refused because the land was under lease. Mrs. A. G. Curtis, W. It. Curtis, and R. T. Reid, the lessees, were made corespondents.

<p>1. —Practice in the Supreme Court—Cross Assignments of Error.</p> <p>Where an appellee files cross assignments of error in the Court of Civil Appeals, and upon affirmance of the judgment by that court the appellant alone applies for and obtains a writ of error from the Supreme Court, appellee’s cross assignments of error can not be considered by the Supreme Court, as that court can only consider matters specified and embraced in some form in a petition for writ of error. (P. 638.)</p> <p>2. —Judginent—Parties.</p> <p>In an action to enjoin the collection of State taxes in which the Attorney-General, Comptroller and other State officers are defendants, and in which action the defendants, among other things, pray that the State recover the taxes enjoined, it was error for the trial court to render judgment in favor of said defendants for said taxes since they had no right of action for the same; and it was error for the Court of Civil Appeals to reform said judgment and decree a recovery by the State since the State was not a party to the suit. • (P. 638.)</p> <p>3. —Occupation Taxes—Statute Construed.</p> <p>The taxes imposed by sections 9, 11, 12 and 13 of chapter 148 of the Acts of the Twenty-ninth Legislature are occupation taxes and not ad valorem taxes. The fact that the amount of the tax is to be determined, in prescribed methods, from the value, extent or magnitude of the business done, does not affect the character of the tax. (P. 639.)</p> <p>4. —Same—Taxation.</p> <p>The same article of the Constitution (section 9, article 8); which limits the rate of ad valorem tax, confers the power on the Legislature to impose taxes on occupations, and this without limitation as to the amount or manner jn which it shall be ascertained, hence the tax in question, being an occupation tax, can not be in violation of said article as being excessive, nor can said Act be unconstitutional on the ground that it is a mere evasion of said article. (Pp. 639, 640.)</p> <p>5. —Occupations—Classification.</p> <p>The Constitution confers the power upon the Legislature to classify the subjects of occupation taxes, and only requires that the taxes shall be equal and uniform upon the same class. The considerations upon which the classifications are based are primarily within the discretion of the Legislature— merchants, for instance, may be divided and subdivided into many different classes. And the courts can only interfere when it is made clearly to appear that an attempted classification has no reasonable basis in the nature of the businesses classified, and that the law operates unequally upon subjects between which there is no real difference to justify a separate treatment. (Pp. 640, 641.)</p> <p>6. —Same—Occupation Tax.</p> <p>It is within the power of the Legislature to impose different occupation taxes upon different wholesale businesses, and there is nothing in the Act of the Twenty-ninth Legislature (chapter 148) which, on its face, indicates that the occupation tax imposed upon the “wholesale business of oil” is an arbitrary, unreasonable or unreal classification. (P. 641.)</p> <p>7. —Double Taxation—Presumption Against.</p> <p>When the same person carries on several different businesses each may be taxed; and when the Legislature has defined and taxed one business it is not to be presumed that it intended to again tax the same business under another name, nor that it intended to tax, as a distinct business, that which is a mere incident of a business which has already been defined and taxed as a whole. (Pp. 641, 642.)</p> <p>8. —Definition of Wholesale.</p> <p>The accurate and popular meaning of the word wholesale is “a sale of goods by the piece or large quantity, as distinguished from retail.” (Pp. 642, 643.)</p> <p>9. —Caption of Act—Construction.</p> <p>Although the caption of the Act of the Twenty-ninth Legislature (chapter 148) levies a tax upon the “business of wholesale dealers in coal oil,” in view of the provisions of section 9 of said Act, which levies the tax upon those engaged in “the wholesale business of oil,” etc., it is evident that the Legislature did not mean to limit the tax to the business only of buying to sell again, as that of a dealer is sometimes defined, but to the business when conducted by wholesale without regard to the manner by which the oil is acquired. But one who acquires, possesses, handles and sells oil may properly be said to deal in oil, whether he has bought it to sell again or not. (P. 643.)</p> <p>10. —Occupation Tax—Interstate Commerce.</p> <p>When an occupation is caz'ried on wholly within the State the fact that some of the product is sold and delivered beyond the State does not make an occupation tax obnoxious to the commerce clause of the Constitution of the „ United States. (P. 644.)</p> <p>11. —Pipe Line—Occupation Tax.</p> <p>The business of transportation by pipe line for other persons for hire or profit is distinguishable from that of the ownership and use of pipe lines by the owners thereof for the transpoz-tation exclusively of their own products and as an incident of their business, and' the first alone may be taxed without violation of the Constitution. (P. 645.)</p> <p>12. —Occupation Tax—Amount.</p> <p>Where, only as a method or basis of arriving at the amount of tax to be charged upon the occupation of trazzsporting oil for hire, a pipe line company is required to include, in its reports of the amount of oil transported, the amount of its own oil, as well as of that transported for others, the law is not unconstitutional as imposing a tax upon such companies which is not imposed upon others for transporting their own oil. (Pp. 645, 646.)</p> <p>13. “—Same—Discrimination.</p> <p>A statute which imposes an occupation tax only on pipe line companies transporting oil, and not on other pipe line coznpanies, can not be said to make an unconstitutional discrimination, in the absence of evidence that all pipe line companies in this State are not so engaged. (P. 646.)</p> <p>14. —Same—Classification.</p> <p>It is within the power of the Legislature to divide and subdivide pipe line companies into different classes and to iznpose different occupation taxes, provided the classification is not arbitrary and capricious. (P. 646.)</p> <p>15. —Emergency Clause—Effect.</p> <p>An Act imposing a tax to be paid quarterly and fixing the date of the beginning of the first quarter, was delayed in its passage^ until after the date named, held, in view of the evident intention of the Legislatuz'e and the fact that the bill was passed with the emei-gency clause, the Act took effect from its passage, and those upon whom the tax was imposed were liable for the fraction of a quarter between the date of the passage of the bill and the end of the first quarter named. (Pp. 646, 647.)</p>

<p>I. —“Kennedy Bill.”</p> <p>Under the provisions of the Act known as the “Kennedy” bill, it was proper for the trial court to include the value of refined products of crude oil which the defendant company had on hand undisposed of during the periods for which the tax was to be ascertained, for the purpose of arriving at the total amount upon which the occupation tax was to be estimated. (P. 649.)</p>