Volume 101 — Texas Reports

<p>Motion in the Supreme Court' to require the Clerk thereof to issue mandate.</p>

<p>Negligence—Proximate Result—Escape of Infected Cattle—Quarantine.</p> <p>A railway company negligently permitting the escape from its feeding pens into an adjoining pasture of cattle it was transporting from a point south of the quarantine line could only be held liable to the owner of the pasture for such damages as were the natural result of its negligence,—such as ought to have been contemplated as the result of the escape; and in the absence of proof that the cattle were infected and communicated infection to the pasture, damage caused to the owner by the action of the officers of the State in placing the pasture under quarantine because of such escape of the cattle into it, which prevented the owner from shipping his own cattle to market therefrom, was not a result of the negligent act for which the company could be held liable.</p>

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

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

Nona Mills Company brought trespass to try title against L. P. Wright and others and recovered judgment. On defendants’ appeal the judgment was reversed and rendered in their favor and the company obtained writ of error.

Fairbanks, Morse & Co. sued Smith and appealed from a judgment for defendant, which was reversed and rendered in their favor. Smith thereupon obtained writ of error.

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

<p>Jury Trial—Letters of Administration.</p> <p>The right to trial by jury secured by article 5, section 10, of the Constitution extends to a contest in the Distiet Court over the right to be granted letters of administration upon the estate of a decedent. (P. 33.)</p>

<p>Damages—Carrier—Delay—Conflicting Decisions—Cases Distinguished.</p> <p>Refusing a writ of mandamus to require the Court of Civil Appeals to certify the question of the correctness of their ruling on the damages recoverable for delay and rough handling of a shipment of cattle to market, sought on the ground of its conflict with other decisions, the court distinguish the ruling herein, Ft. Worth & D. C. Ry. Co. v. Richards, 105 S. W. Rep., 236, from that in Gulf, C. & S. F. Ry. Co. v. Ware, 9 Texas Ct. Rep., 194, and hold them not in .conflict. (Pp. 34, 35.)</p>

<p>1. —Jurisdiction of Supreme Court—Mandamus—Constitution.</p> <p>It seems that the Legislature is empowered by section 3, article 5, of the Constitution to confer original jurisdiction to issue writ of mandamus against an officer of the State government upon the Supreme Court only, and not upon the judges thereof in vacation. (P. 38.)</p> <p>2. —Removal from Office—Temporary Suspension—Constitution.</p> <p>The restriction on the right of the district judge to remove a county officer to a cause set forth in writing and upon the finding of its .truth by a jury (Const., art. 5, sec. 24) and the fixing of the term of office and provision for filling vacancies by the Commissioner’s Court (Const., art. 5, secs. 15, 28) do not preclude the Legislature from authorizing the district judge, by article 2550, Revised Statutes, to suspend temporarily an officer for whose removal a petition has been presented to him, and appoint, for the time being, another to discharge the duties of the office. (Pp. 38-41.)</p> <p>3.—Same.</p> <p>Temporary suspension from office pending investigation distinguished from removal, and the right of the court to authorize it summarily and before trial upon the facts sustained as an incident to the power to remove upon hearing and finding of the facts by a jury. Poe v. State, 72 Texas 625, approved.</p> <p>(Pp. 39, 40.)</p> <p>4.—Same—Due Process of law.</p> <p>The property right in a public office is qualified by all preexisting valid laws which provide for its suspension or termination, and suspension without notice, pending the hearing of removal proceedings so provided for, does not deprive the incumbent of his property without due process of law. (P. 41.)</p>

Motion by Eewnom for leave to file in the Supreme Court a petition for writ of mandamus against the judges of the Court of Civil Appeals for the Fourth District.

<p>. Original application to the Supreme Court for writ of mandamus against the judges of the Court of Civil Appeals for the Sixth District.</p>

Original application to the Supreme Court by Oldham, for writ of mandamus requiring the Commissioner of the General Land Office to accept his application for the purchase of certain school lands. Lee Dool and others, adverse claimants were made co-respondents, and the answers of respondents presented an issue of fact as to the rights of the parties.

<p>1. —Justice Court—New Trial—Motion—Notice.</p> <p>A judgment of a justice of the peace is within the control of the court during the term at which it'was rendered, and an order setting it aside, though made without motion in writing or notice to the party recovering the judgment, was not void. Aycoek v. Williams, 18 Texas, 392, distinguished. (P. 47.)</p> <p>2. —Continuance—Jurisdiction.</p> <p>An order continuing a case till the next term of court does not deprive the court of its jurisdiction over the parties for the term at which it was made, and its subsequent action in setting aside such continuance and trying the case without notice to a party, though erroneous, did not render its judgment void. (Pp. 47, 48.)</p> <p>3. —Same—Notice—Reconvention.</p> <p>After order of continuance, the setting aside same and giving judgment, for defendant on a claim in reconvention, not available as an offset to that of plaintiff, was not void if plaintiff had notice of such plea in reconvention, and . an allegation that the case was tried in his absence and without his knowledge was not sufficient to show absence of such notice. (P. 48.)</p>

<p>1.—City—Charter—rStreet Paving—Assessment of Benefits—Judgment—Appeal.</p> <p>A special city charter giving the council power over the paving of streets provided for assessing the benefits therefrom to abutting property owners “by a commission of three citizens to he appointed in the same manner as in the condemnation of the right of way for railroads,” and governed by “the procedure and practice established by law in such condemnation cases.” Held that the provision of the law for rendering judgment in condemnation proceedings was not applicable to nor adapted to govern such proceedings; that the proceedings were not judicial proceedings in the County Court and the decision did not become a judgment of that court; that appeal did not lie from it to the Court of Civil Appeals; and the Supreme Court had no jurisdiction to answer a question certified on such appeal. (Pp. 54, 55.)</p> <p>2.—Same.</p> <p>It was within the discretion of the Legislature to select the instrumentalities by which the assessment of benefits to owners of abutting property by municipal improvements shall be made. The selection of the county judge therefor did not make the proceeding a judicial one nor the award one by his court. (Pp. 54, 55.)</p>

<p>1. —Inheritance—Bastards.</p> <p>An illegitimate sister can inherit from an illegitimate brother, both being of the same deceased mother, under article 1700, Revised Statutes. (Pp. 57-60.)</p> <p>2. —Same—Statutory Construction.</p> <p>The effect of the construction given by the courts of Virginia to the statute of that State as to the right of inheritance by illegitimate children (Garland v. Harrison, 8 Leigh, 368) and of the construction of the same statute by t}ie Supreme Court of the United States (Stevenson’s Heirs v. Sullivant, 5 Wheaton, 207) considered with reference to the effect of the subsequent adoption and later amendment of the language of such Virginia Act in Texas (Act of Congress of Texas, Jan. 18, 1840; Act of Leg.; March 18, 1848; Rev. Stats., art. 1700). (Pp. 58, 59.)</p>

<p>Practice on Appeal—Jurisdiction—Transcript—Certificate.</p> <p>The jurisdiction of the Court of Civil Appeals does not depend on the character of the certificate of the clerk to the transcript. If not certified or if tho certificate be defective, upon- motion seasonably made the court might dismiss the case; but such motion filed after the Appellate Court had rendered its judgment comes too late. (P. 63.)</p>

The San Antonio Loan & Trust Co. sued Lonergan & Co. and the American Surety Co. and Bapp intervened. Plaintiff had judgment against both defendants and intervener took nothing. Defendants and intervener appealed. The judgment of plaintiff against both defendants and intervener was ’ affirmed. Intervener had a reversal of the judgment denying him a recovery against Lonergan & Co. and judgment rendered in his favor.

<p>1. —Custody of Minor—Jurisdiction.</p> <p>A girl five years old, tbe mother being dead, was committed by the father living in New Mexico, to the care of an aunt residing in Texas. On habeas corpus, brought by the father to recover custody of the child, the District Court had' authority, by virtue of the child’s domicile within its jurisdiction, to determine whether the interest of such infant demanded that it he retained in its present custody or surrendered to the father, and this whether the delivery to the aunt was made by him as a permanent arrangement, or subject to his right to reclaim the custody. Lanning v. Gregory, 100 Texas, 310, distinguished. (P. 85.)</p> <p>2. —Judgment—Findings—Presumption.</p> <p>In the absence of findings of fact by the trial court it will be presumed that his finding upon a question- affecting the jurisdiction and upon which the evidence was conflicting was such as to support the judgment rendered. (P. 85.)</p> <p>3.—Custody of Infant—Habeas Corpus.</p> <p>The writ of habeas corpus from the District Court is a proper proceeding to determine whether or not the person exercising restraint over an infant is doing so illegally; and upon this issue it is proper for the court to inquire and determine whether the interest of the infant demands that it be continued in respondents custody -or placed in another’s. (P. 85.)</p>

<p>1. —Execution Sale—Title of Plaintiff in Execution.</p> <p>A purchaser at execution sale, though taking as a rule, only the interest of the defendant in execution in the. property, will in some instances acquire the interest of the plaintiff as well as of the defendant, as where the plaintiff held the legal title to secure an indebtedness for enforcement of which the .suit was brought. (Pp. 92-94.)</p> <p>2. —Same—Vendor and Vendee—Superior Legal Title.</p> <p>The vendor of land, who had retained in himself the legal title by reserving in his conveyance an express lien to secure several purchase money notes, sued the vendee upon one of such notes,‘obtained personal judgment, without decree of foreclosure, thereon, and levied on and sold the land so conveyed. Held, that his superior legal title passed thereby to the purchaser at such execution sale, and those holding under the latter could recover the land in trespass to try title against those holding under deeds from the vendee recorded before the institution of suit on the purchase money note, to which they were not made parties. (Pp. 89-94.)</p> <p>3. —Same—Cases Distinguished, etc.</p> <p>Vieno v. Gibson, 85 Texas, 432, followed Fisher v. Foote, 25 Texas Supp., 311; Myers v. Paxton, 23 S. W. Rep., 284; Summers v. Hancock, 23 Texas, 150, distinguished. (Pp. 92-94.)</p>

The Safe Company sued to recover property sold and delivered to the Trust Company and not paid for. Defendants had judgment, which was affirmed on appeal by plaintiff, who thereupon obtained writ of error.

Tucker sued the city, and on his appeal from a judgment for ¡defendant it was reversed and the cause remanded. The city obtained writ of error on the ground that the rulings settled the case.

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p> <p>Annie Wade and others sued the Casualty Company and had judgment. Defendant appealed and on affirmance obtained writ of error.</p>

<p>A parol condition of defeasance can not be engrafted on an unconditional conveyance, to the prejudice of purchasers from or attaching creditors of the grantee. (Pp. 113, 114.)</p> <p>Error to the Court of Civil Appeals, Fifth District, in an appeal from Bed Biver County.</p> <p>The appellants, Paris Grocer Co. et al., on affirmance of the judgment below by the Court of Civil Appeals, obtained writ of error.</p>

Brooks and wife sued Sanger Bros, to cancel a conveyance of and purported lien on their homestead. They had judgment which, on appeal by defendants, was reversed and rendered in favor of appellants. Appellees then obtained writ of error.

<p>Descent and Distribution—Equitable Title—Conflict oí Laws.</p> <p>The widow and administratrix of a resident of Georgia, who was also, there being no direct descendants, his sole heir under the laws of that State, paid off a note of decedent given for the purchase price of land in Texas for which he had bond for title from the payee, who, on payment conveyed the land to her. Held that she took the title in trust for the estate and that the land, being in Texas, was governed by the laws of descent and distribution of that State, by which one half passed to her and one half to his collateral kindred. (Pp. 120-121.)</p>

<p>Question certified from the Court of 1 Civil Appeals for the First District, in an appeal from Colorado County.</p>

Mrs. Noble sued the Oil Company and recovered judgment which ■ was affirmed on defendant’s appeal. Appellant thereupon obtained writ of error. The case on certified questions is reported in 100 - Texas, 358. ;

Calvert sued the Insurance Company and recovered judgment which was affirmed on defendant’s appeal. The appellant then obtained writ of error. Two previous judgments in plaintiff’s favor had been reversed on appeal. Security Mut. Life Ins. Co. v. Calvert, 75 S. W. Rep., 912; Security Mut. Life Ins. Co. v. Calvert, 39 Texas Civ. App., 382.

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from El Paso County.</p> <p>Eoth sued the railway company and had judgment. It was affirmed on appeal by defendant, who thereupon obtained: a writ of error.</p> <p>The opinion of the Court of Civil Appeals, which is specifically approved except upon one point involved, was as follows:</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Johnson County.</p> <p>Griggs sued the railway company and recovered judgment. It was affirmed on appeal by defendant, who thereupon obtained writ of error.</p>

Huber sued Jungbecker and wife to foreclose a lien on real property and recovered judgment. It was affirmed on defendants’ appeal and they obtained writ of error.

<p>Original. proceeding by writ of habeas corpus from the Supreme Court, procured by relator Dupree against the Sheriff of Brown County.</p>

Original proceeding in the Supreme Court on petition Of Rawls for mandamus requiring the Land Commissioner to cancel an award of school land to the corespondent Bogel and award same to petitioner on his bid therefor.

<p>Original proceeding by writ of habeas corpus from the Supreme Court procured by relator Byrd against the sheriff of Brown County.</p>

Powers sued the railway company and recovered judgment. Defendant appealed; and obtained writ of error on the judgment being affirmed.

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

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

<p>Jurisdiction of Supreme Court—School Land—Lease.</p> <p>The Commission of the General Land Office having cancelled an award to relator as purchaser of certain school land because the same was held under lease to another, and the correctness of that ruling depending on whether an interlineation making a change in the terms of a preceding lease was made before or after its execution, the right of relator to mandamus to compel the Commissioner to reinstate him depended on a question of fact which the Supreme Court had no jurisdiction to determine and therefore dismissed his petition. (P. 169.)</p>

<p>1. —Railway—Sale—Incorporation by Purchaser—Conveyance—Married Woman.</p> <p>The property and franchises of an insolvent railway company were placed in the hands of a receiver and by him sold under article 4549, Revised Statutes ; the nominal purchaser bought for a married woman who paid for it with her separate means; and at her instance a new company was incorporated under the powers given by article 4549, 4550, Revised Statutes, for the purpose of acquiring the property and rights so sold and held. This suit involved the title to the property, which was claimed by the purchasing married woman, as against the new company, on the ground that her interest, so acquired, being one in real estate, could only be conveyed by her de°d and separate acknowledgment, her husband joining, and did not pass to it through conveyance made by the nominal purchaser. Held, that, by the terms of the statute, the new corporation, by its creation, acquired title to the property, irrespective of any conveyance to it and by virtue of the fact that the purchaser had created the corporation to take and hold such property. (Pp. 178-185.)</p> <p>2. —Same.</p> <p>The purchaser of the property and franchises under article 4549, Revised Statutes, becomes the beneficial owner, his position analogous to that of a holder of the stock of the original corporation, discharged of its previous debts, but remaining charged with its duties to the public; the reincorporation by such owner and his associates is all that the statute requires to evidence the investiture of the new company with title to the property of the old; and it acquires this' as its successor, and not purchaser, the statute contemplating no other purchase or conveyance than is effected by the organization of the new company, in which the owners are entitled, as- stockholders., to interests corresponding to their preexisting interests. (Pp. 181-185.)</p> <p>3. —Same.</p> <p>The power of a married woman to become the purchaser of corporate rights at such sale can only exist if she is held to take them with the powers and duties which are inseparable from them, to be owned, used and passed from one to another in accordance with the laws that regulate them. (Pp. 185-187.)</p>

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

<p>1.—Garnishment—Non-Resident—Jurisdiction.</p> <p>One served as garnishee in proceedings in a county not that of his res’dcnce does not, by filing an answer denying liability, submit himself to the jurisdiction of that court nor authorize it to proceed to the trial of issues raised by the filing of an affidavit controverting his answer. The practice in such case (Rev. Stats., art. 248) should be by filing copies of the proceedings in the proper court of the county of garnishee’s residence, serving him with notice, and trying the issue there (Rev. Stats., arts. 245-251) and the garnishee was not bound, to take notice of or defend the irregular proceedings elsewhere, ' (Pp. 192, 193.)</p> <p>2. —Same—Cases Limited.</p> <p>Wood M. & R. Mach. Co. v. Edwards, 29 S. W. Rep., 418; Gray Ranch Co. v. Pemberton, 57 S. W. Rep., 71; Gerhard Hdw. Co. v. Texas Cotton Press Co., 26 S. W. Rep., 168, distinguished, and limited to cases where the garnishee’s answer admits liability. (P. 192.)</p> <p>3. —Garnishment—Jurisdiction—Judgment—Remedy.</p> <p>The non-resident garnishee against whom, on affidavit controverting his answer, judgment has been taken without his knowledge, in the court issuing the process, instead of proceeding in the county of his residence, -is not confined to his remedy by appeal or writ of error, which would be inadequate in the absence of exceptions and statement of facts, and especially so where the judgment recited that he had appeared and submitted his case to trial. He could bring action to set the judgment aside. (P. 193.)</p>

<p>1. —Constitutional law—Rights of Citizens—liquor Dealer.</p> <p>The statute regulating the sale of intoxicating liquors (Act of April 18, 1907, Laws, 30th Leg. p. 258) in confining the right to a license to citizens of the State resident for two years in the county in which it is sought, is not violative of the rights of citizens guarantied by the Constitution of the United States by article IV, section 2 or article XIV, section 1. (Pp. 196, 197.)</p> <p>2. —Same—Police Power of State.</p> <p>The regulation of the sale of intoxicating liquors is within the police power of the State; and though a restriction upon a non-resident which is not imposed upon a resident-of the State would be unlawful where no reason can be assigned for the discrimination, a residence in the county may be considered necessary to render the licensee subject to answer prosecutions for violation of the law and of the conditions of the bond required to be given by liquor dealers, and also to establish there the character of “a law-abiding, tax-paying citizen of the State,” which the applicant is required to show and which the residents or property owners of the block where his business is to be conducted are given a right to contest before he is entitled to license. (P. 196.)</p>

Action by Surety Company to set aside a judgment against it as garnishee obtained■ by Hockwald.' Plaintiff had judgment below, and obtained writ of error on a ruling reversing this recovery upon appeal by defendant. ■

<p>Garnishment—Non-Resident—Jurisdiction—Case Followed.</p> <p>The rulings in American Surety Co. v. Bernstein, ante, p. 189, followed and held to control the disposition of this case.</p>

: Anson sued the railway company in the District Court, where he had judgment which was affirmed on appeal by defendant who thereupon obtained writ of error.

Buch sued the railway company and recovered judgment, which was affirmed on defendant’s appeal. The company thereupon obtained writ of error.

<p>Jurisdiction, of Court of Civil Appeals—Rendering Judgment.</p> <p>The power given the Court of Civil Appeals, on reversal, to render such judgment as the court below should have rendered (Rev. Stats, árt. 1027)', means such as it should have rendered upon the evidence presented and admitted; it cannot, on holding evidence to have been improperly excluded render judgment thereon such as the lower court might have done if it had been admitted and treated as undisputed. (Pp. 204, 205.)</p>

Original application by Thorne to the Supreme Court for writ of mandamus requiring the district judge to vacate peremptory mandamus issued by him in vacation, commanding the county judge of Leon County to make publication of the result of a local option election.

<p>Error to the Court of Civil Appeals for the Fourth District in an Appeal from El Paso County.</p>

Original petition to the Supreme Court for writ of mandamus against Terrell as Commissioner of the General Land Office. The questions presented and argued turned on the validity of the location upon Mustang Island of the certificates under which Delator claimed patent.

<p>Original proceeding in the Supreme Court, hy Patton, to obtain writ of mandamus against the Commissioner of the General Land Office.</p>

<p>School Land—Purchase by Assignee of Lease.</p> <p>The proviso. in the amendment by the Act of May 16, 1907, of section 5 of the Act of April 15, 1905, (Laws, 30th Leg. p. 491; Laws, 29th Leg. p. 163) permitting one holding under an assignment of a lease duly acknowledged to exercise the right to purchase given him. by the former Act before its amendment, embraced only such persons as held by assignment made and acknowledged before the amendment went into effect. (Pp. 224-226.)</p>

Caroline Haines and others obtained writ of error upon the affirmance, on their appeal, of a judgment recovered against them by West and others.

^Error .to the Court of Civil Appeals for the Second District, in án appeal from Tarrant County. ■ -Colvin sued Blanchard for specific performance or damages. Defendant had judgment. Plaintiffs appealed, and on affirmance obtained writ of error.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Tarrant County.</p> <p>True and others sued the telegraph company and had judgment. It was affirmed on appeal by defendant, who then obtained writ of error.</p>

Dallas County sued Taber and Wilson' to recover c'ounty school land sold by it to Taber.. Defendant had judgment which, on appeal by plaintiff was reversed and rendered in its favor. Taber and Wilson thereupon obtained writ of error.

Original proceeding in the Supreme Court on writ of habeas corpus obtained by Testard against John W. Tobin, Sheriff of Bexar County, by whom he was held in custody on a commitment for contempt from the District Court.

<p>Case Followed.</p> <p>Rulings in Ex Parte Testard, ante, followed and held conclusive of this case. (P. 225.)</p>

<p>1. —Railways—Negligence—Crossing Signals—Persons Not Using Highway.</p> <p>The omission of the signals required by statute on approach of a train to a highway crossing can be treated as negligence in law only in cases of those using such highway'; as to those on the track at other points the question of negligence in such omission is one of fact. (Pp. 256-260.)</p> <p>2. —Same—Cases Discussed.</p> <p>International & G. N. Ry. Co. v. Gray, 65 Texas, 32; Missouri, K. & T. Ry. Co. v. Thomas, 87 Texas, 282; and Texas & P. Ry. Co. v. Shoemaker, 9S Texas, 455, approved and followed. Houston & T. C. Ry. Co. v. O’Donnell, 90 S. W. Rep., 886, 99 Texas, 637; Murphy v. Galveston, H. & N. Ry. Co., 100 Texas, 490; St. Louis S. W. Ry. Co. v. Matthews, 34 Texas Civ. App., 302; Houston & T. O. Ry. Co. v. Nixon, 52 Texas, 19, distinguished. St. Louis S. W. Ry. Co. v. ICilman, 39 Texas Civ. App., 107, and reasoning in Missouri K. & T. Ry. Co. v. Taff, 74 S. W. Rep., 89, disapproved, and refusal of writ of error in last named case explained. (Pp. 257-259.)</p>

<p>Delegating Personal Trust—Peremptory Charge—Question of Pact.</p> <p>Though there could he no recovery by plaintiff for performance as assignee of a contract which conferred a personal trust from defendant on the assignor, it was error to give a peremptory charge to find for defendant where plaintiff also claimed the right to recover for the value of services rendered by him at the instance of plaintiff or his agent, and had evidence tending to support it. '(Pp. 260, 261.)</p>

<p>1. —Partnership—Dismissal—Judgment.</p> <p>A judgment against one of two partners individually and against the partnership was void as to the partnership as well as to the partner not recovered against where, the latter having appeared and denied either partnership or individual liability, the case was thereupon dismissed as to him and proceeded to judgment with only the other alleged partner as a defendant. (Glasscock v. Price, 92 Texas, 271, and Frank v. Tatum, 87 Texas, 204, followed; and Scalfi & Co', v. State, 31 Texas Civ. App., 671, distinguished. (P. 266.)</p> <p>2. —Set Off—Judgment—Assignment—Partnership Credit and Individual Debt.</p> <p>A judgment against a person in his individual capacity can be set off against a judgment in favor of a partnership of which he is a member only in the exercise of equitable powers and in accordance with the principles of equity, and these would not permit such set off in disregard of the rights of a third party who acquired an interest in the judgment in favor of the partnership before the accruing of the cause of action against the individual partner which it was sought to use as a set off against such judgment. (P. 267.)</p> <p>3. —Judgment—Assignment—Offset.</p> <p>The assignee of a judgment takes such interest as the assignor had, and subject to such defenses, legal and equitable, as existed against it in the hands of the assignor. (Pp. 267, 268.)</p> <p>4. —Same.</p> <p>The interest acquired in a judgment in favor of a partnership by an. assignment of the rights of one of the partners therein was subject to offset by a judgment in favor of the defendant against the partner making such assignment, though taken by the assignee without notice of such offset. (P. 268.)</p> <p>5. —Judgment—Partnership—Assignment of Partner’s Interest.</p> <p>The interest of a partner in a judgment in favor of the firm was only in his share of what was left after payment of the partnership debts, and the claim of an assignee of such partner’s interest was subject to that of the other partner for money advanced- to reduce the debt to judgment, which constituted an obligation from the firm to such partner. (P. 268.)</p> <p>ON BE HEARING.</p> <p>6.—Set Off—Judgments—Partnership.</p> <p>The right to set off against a judgment in favor of a partnership á judgment in favor of the defendant against an individual partner "is subject to the claims of partnership creditors against such judgment as a partnership asset, and cannot be enforced against the interest in such partnership judgment acquired by attorneys as compensation for recovering it. (Pp. 268, 269.)</p>

<p>1. —Certifying Question—Conflicting Cases.</p> <p>The conflict of decisions on which the Courts of Civil Appeals are required to Certify a question to the Supreme Court (Act of May 9, 1899, Laws 26th Leg. p. 170) is of their ruling with the decision of another Court of Civil Appeals, not with that of the Supreme Court; and of the latter class are cases in which the Court of Civil Appeals liad merely followed the ruling of the Supreme Court to which it had certified the question. (P. 270.)</p> <p>2. —Bailway Fences—Cases Distinguished.</p> <p>The ruling of the Court of Civil Appeals in this case distinguished from that in Missouri, K. & T. By. Co. v. Hanacek, 23 Texas Civ. App., 394, and in Houston & T. C. By. Co. v. Hollingsworth, 29 Texas Civ. App., 306, and Texas & P. By. Co. v. Huffman, 71 S. W. Bep., 779. (Pp. 270, 271.)</p>

<p>1. —Guardian—Resulting Trust.</p> <p>A guardian, selling property of which one half belonged to herself and half to her wards, recovered judgment against the purchaser for the price, levied on a tract of his land, and purchased it at the execution sale, crediting the bid on her judgment. Held that she took the title to a half interest in the' land so acquired in trust for her wards. (Pp. 275, 276.)</p> <p>2. —Same—Probate Court—Settlement of Guardian’s Accounts.</p> <p>The approval of an annual report of a guardian, in which she charged herself with the purchase price of her ward’s half interest in property sold by her and received credit for its expenditure in their behalf, could not affect the claim of the. wards to an equitable interest in land to which she acquired title by "use of .a. judgment for such purchase price partly belonging to the wards. They could maintain suit for their interest in the land without proceeding to set aside the order in probate. (P. 276.)</p> <p>3. —Same—Jurisdiction of County Court.</p> <p>The action of the County Court in approving a guardian’s accounts could • not affect the right of the wards to land the court having no jurisdiction to divest them of title. (P. 276.)</p>

<p>1. —Construction—Trust Deed—Intention.</p> <p>It is a cardinal rule in the construction of deeds that the intention of the donor must govern, and that in arriving at that intention every part of the instrument is to be considered. See trust deed construed to show an intent to provide a support for the beneficiaries for life, which is held to control the effect of a particular clause terminating the trust on the death of the last trustee and providing for distribution of the corpus of the trust estate to lineal descendants of beneficiaries. (Pp. 282-285.)</p> <p>2. —Lineal Descendant—Issue.</p> <p>Lineal “descendant” technically signifies the issue of a deceased ancestor; while there could be no “descendant” of a living person, “issue” includes children of one living; but, popularly, “descendant” is sometimes used, in the sense of “issue,” to designate children of living persons. (Pp. 283, 284.)</p> <p>3. —Trust deed Construed.</p> <p>A grantor conveyed property to four trustees, the trust to survive "to the limit of the life of the last” for the benefit of the widow and the four children of his deceased brother, with directions as to the application of the revenue in various contingencies. It was provided that, “when the particular estate hereby and above created in said trustees should expire by the death of the last one, the ‘lineal descendants’ of the four children named should be entitled to take the property per stirpes. On the death of the last trustee there survived the brother’s widow, and three of his children with their issue, and the descendants of the remaining beneficiary, who had died. Held: (1) That the words “lineal descendants,” in the clause devolving the title to the property upon them on death of the trustees, were used by the grantor in their technical signification, meaning issue of deceased beneficiaries; (2) That the provision in question did not apply where the widow and other beneficiaries survived all the trustees; (3) that the trust was not terminated by the death of the last trustee under such circumstances; (4) That the court could appoint a trustee to carry it out during the life of the beneficiaries, according to the apparent intent of the grantor that they should be provided for during life; (5) That neither the habendum clause of the deed, which was to the trustees for life, nor a provision that the last surviving trustee should provide by will for the distribution of the corpus of the trust estate on his death were controlling or required the deed to be otherwise construed. (Pp. 278-285.)</p> <p>4.—Res Adjudicate.</p> <p>_ A judgment in a former suit, appointing a substitute on the resignation of one of the trustees of certain property, that the trust should terminate on the death of the last of the original trustees named in the deed did not appear to be an adjudication that such was the proper construction of the deed of trust in the absence of evidence showing that the pleadings called for judicial construction of the effect of the trust deed in respect to such matter. (P. 285.)</p>

Owens sued Cage & Crow and others and had judgment. Defendants appealed and obtained a reversal and remand, upon which appellee procured writ of error.

Callie Calvin sued the railway and recovered judgment, which was affirmed on appeal by defendant, who then obtained writ of error.

<p>1. —Guardian—New Bond—Settlement—Discharge of Sureties.</p> <p>A guardian who had misappropriated funds of the estate borrowed money' to replace the full amount, which he deposited in a solvent bank, taking a certificate of deposit thereof as guardian which, with other securities, he placed in the hands of sureties who executed with him a new bond; thereupon by order of the County Court this was accepted in lieu of the former bond and the first sureties discharged from liability. Held that the deposit became the property of the ward’s estate, and complete restitution having been made, the former bond was satisfied and the sureties upon it released by the order; nor could this result be affected by any purpose on the part of the guardian to get possession of the fund and again misapply it. (P. 300.)</p> <p>2. —Guardian—New Bond—Judgment—Collateral Attack.</p> <p>In a collateral attack a judgment of the Probate Court approving a new bond for a reduced amount given by a guardian and discharging the sureties upon the former bond, though such order appeared, on the face of the record, to be made on the application of the guardian upon grounds not authorizing such action by the court, the conclusive presumption will be that evidence was introduced showing the existence of facts which authorized the action, as that the previous bond was found, even if erroneously, to be insufficient or defective, or that the sureties thereon petitioned, though orally, to be released. (Pp. 300-303.)</p>

Application to the Supreme Court by Cameron, for writ of man- . damus against the Commissioner of the General Land Office. G. FT. Bogel, an adverse claimant of the land in controversy, was made a 6o- • respondent.

<p>1.—Evidence—Transactions with Decedent—Depositions.</p> <p>Defendant in a suit against her by. the heirs of her deceased husband could not testify as to transactions between herself and decedent, though her deposition relating thereto had been taken ex parte by the plaintiffs and afterwards suppressed on their motion on account of lier misconduct in testifying. If, by the act of taking 1 — deposition they should be held to have called her as a witness and made her testimony competent, it would not have this effect where their right to take it as the statute prescribed was defeated by her own conduct and the deposition quashed for that reason. (Pp. 308, 309.)</p>

Morrill, who had intervened in the receivership proceedings, appealed from a judgment of the District Court denying him right to participate in. the distribution by the receiver of the deposit with the State treasurer; and on affirmance obtained writ of error.

Motion in the Supreme Court for leave to file a petition for writ of mandamus requiring the judges of the Court of Civil Appeals for the Second District to certify a question on the ground of conflict in rulings.

District, in an. appeal from. Dallas County. The city sued Slaughter to recover taxes and foreclose lien therefor on a., city lot, and recovered judgment. Slaughter prosecuted error and obtained a writ of error from the Supreme Court on a judgment reforming and affirming the judgment of the trial court.

• The action was brought by Ferguson and fourteen others, residents in the neighborhood of a proposed cemetery, to enjoin the defendants from establishing same. Upon findings on special issues submitted, plaintiffs obtained judgment for a perpetual injuncton, and on its affirmance on appeal by defendants the latter procured writ of error.

Motion in the Supreme Court for leave to file a petition by McCormick for writ of mandamus requiring the Court of Civil Appeals to certify a question on the ground of conflict in decisions.

Poindexter sued the receivers and had judgment. He obtained a writ of error from a judgment on their appeal reversing same and rendering it in their favor.

<p>Application by Ford to the Supreme' Court for writ of mandamus against the Commissioner of the General Land Office.</p>

Burns sued the railway company and had judgment, from which defendant appealed, and obtained writ of error on its affirmance.

<p>School Land—Abandonment—Cancellation and Reappraisement.</p> <p>An applicant under the law of 1907 (Act of May 16, 1907, Laws, 30th 'Leg. p. 492) to purchase school land subject to sale without actual settlement and which has been abandoned by a previous purchaser, in order to entitle him to mandamus requiring the acceptance of his offer is required (section 6b) to show that the Commissioner had cancelled such former sale and had reappraised and offered it for sale to the highest bidder. (Pp. 330, 331.)</p>

<p>School Land—Purchase—Settlement—Abandonment—Forfeiture.</p> <p>Under the Act of April 4, 1895, forfeiture of a purchase of school land for failure of the purchaser to reside thereon as required must be effected by a declaration of such forfeiture by the Commissioner of the General Land Office entered on the records of his office, before the land becomes open to purchase by another applicant. (Ep. 332, 333.)</p>

Question certified from the Court of Civil Appeals for the Third District, in an appeal from Lee County. The State recovered penalties against the railway company for violation of the Act of April 17, 1905, in failing to keep the water closet at its passenger station in proper sanitary condition and properly lighted.

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

<p>1. -—Master and Servant—Railroad—Fellow Servant.</p> <p>A private corporation operating sugar mills, refineries etc., and owning tracks upon its premises connecting with public railway lines and upon which, by a hired locomotive, cars were transferred to and from such railways and moved as its business required, was “operating a railroad” in so doing, within the terms of article 4560ea, of the Revised Statutes, and was liable) under such statute for injury to one of its servants by the negligence of a fellow servant in such operation of cars. (P. 340.)</p> <p>2. —Same—Cases Approved.</p> <p>The operation of a railroad need not be in the business of a public carrier in order to come within the fellow servants act of 1897 (Rev. Stats., arts. 4560f, 4560ea). A private corporation using ears and tracks in its own business comes under its terms. Lodwick Lumber Co. v. Taylor, 87 S. W. Rep., 358 and Lodwick Lumber Co. v. Mounce, 102 S. W. Rep., 152, approved. (P. 341.)</p>

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

<p>1.—Injunction—Appeal from Interlocutory Order.</p> <p>No appeal lies from an order refusing to dissolve an injunction, on motion; an appeal from the interlocutory order granting it must be pursued by filing the transcript not later than fifteen days after the entry of record of the order. (Rev. Stats, art. 2989 as amended by Acts, 30th Leg., p. 206.) (Pp. 356, 357.)</p> <p>2.—Same—Entry of Record.</p> <p>The only statutory provision as to what shall be done with an order granting injunction made in vacation is that the petition and order shall be filed thereupon with the clerk of the proper court, (Rev. Stats,, art. 2995) and this filing constitutes the “entry of record” determining the date from which the time for prosecuting appeal is to be reckoned! (Sec. 2, Act of April 16, 1907). (P, 357.)</p> <p>3.—Same—Amendment—Continuing Injunction.</p> <p>The entry of an order, on denying a motion to dissolve a temporary injunction continuing it in force, was unnecessary; and, though made on an amended petition, will not be considered as the granting of a new interlocutory order for injunction in the absence of a showing that the amendment was necessary to sustain it- (P. 357.)</p>

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Fayette County.</p> <p>Freytag sued Bosenauer to foreclose a mortgage on land and made Matula, as executor, a defendant, who- claimed, for the estate of Kolar, deceased, an engine attached to machinery on the premises.</p>

George Allen sued Sallie Allen and others for recovery of land. Defendants had judgment which was affirmed in part on appeal by plaintiff, who thereupon obtained writ of error.

Wittnebert sued the railway company for personal injuries and obtained judgment, which was affirmed on defendant’s appeal. Appellant thereupon obtained writ of error.

<p>1. —Insurance Company—Taxation—Gross Receipts.</p> <p>The tax required to be paid by a fire insurance company in order to ob-' tain a permit to do business in Texas (Act of April 18, 1905, Laws, 29th Leg., p. 374) is based on the entire gross receipts of the company from business in the State during the preceding year, without deducting therefrom the amounts paid to other companies for reinsuring risks so taken, nor those returned to policy holders on account of the cancellation of their policies. (Pp. 378-382.)</p> <p>2. —Same—Cases Distinguished.</p> <p>German Alliance Ins. Co. v. Vancleave, 191 111., 410', and State ex rel. v. Fleming, 97 N. W. Rep., 1063, distinguished as involving the taxation of premiums as property, while the Texas statute imposes an occupation tax on the privilege of doing business. (P. 378.)</p> <p>3. —Same—Gross Amount of Premiums Defined.</p> <p>“Gross amount” means “whole, entire, total without deduction,” and is not ambiguous or in need of interpretation. (P. 380.)</p> <p>ON MOTION FOB BEHEABING.</p> <p>4. —Statutory Construction.</p> <p>The construction of the term “gross amount” in the Act of April 18, 1905, is not affected by the previous law (Rev. Stats., art. 3084) as to the reports of their receipts by insurance companies, which allowed deduction of the sum paid for re-insurance. The latest expression of the legislative will must prevail, and the executive construction of the former law was of little weight since the language of the later statute was plain and unambiguous. (Pp. 381, 382.)</p>

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

Williams and others sued to enjoin sale under a trust deed securing a note to Taylor on land claimed by plaintiffs. The injunction was made perpetual in the trial court; and this was affirmed on appeal by Taylor, who then obtained writ of error.

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

Hunt County. Criswell sued the railway company for personal injuries to his wife, a passenger disembarking from its train. Plaintiff had judgment. Defendant appealed, and on affirmance obtained writ of error.

<p>1. —Written Contract—Parol Evidence—Indentifying Property—Latent Ambiguity.</p> <p>Though parol evidence is not admissible to show that property described in a written contract was njot intended to be embraced, yet in case an ambiguity is disclosed in applying the description to certain property, it may be admitted to show that the parties di- not intend to include it under the description. (P. 409.)</p> <p>2. —Same—All Property Owned—Case Stated.</p> <p>The owner of some tank cars made a contract for their sale, placing them in the hands of a trustee for use, and providing that on failure of the purchaser to pay the price by a day named the cars and the profits of their use shall be returned to the seller. The cars being thus held, the owner made a mortgage to a third party of certain specified property, and also of “all other property . . . now owned” by him. Under foreclosure and sale of the mortgaged property as a whole, a purchaser obtained possession of the cars as passing thereby, and was sued by the owner for conversion, for which he was liable if the cars were not embraced in the property mortgaged. Held that the contract of conditional sale amounted to little more than an1 option for purchase (the buyer never made payment) and the cars were legally still owned by the seller when he executed the mortgage; but that the condition of the title was such as to create question as to whether the mortgagor meant to include them under the description of property owned by him; and parol evidence that they were not intended to pass> and being first specifically included in the mortgage, were purposely struck out should have been admitted. (Pp. 407, 408.)</p> <p>3. —Damages—Conversion—Mortgagor.</p> <p>Questions suggested as to the measure of damages recoverable by a mortgagor for conversion and use of the property prior to the time when by his default in payment the mortgagee became, entitled to possession. (P. 410.)</p> <p>4. —Bailment.</p> <p>The claim of the true owner of property can not be resisted by a bailee on the ground that he acquired his possession from another. He can protect himself by a bill of interpleader. (P. 410.)</p> <p>5. —Conversion—Purchaser Under Foreclosure.</p> <p>One purchasing at foreclosure sale and transferring the right so acquired to another does not thereby become liable for conversion of property taken possession of by his assignee under color of such right but not in fact passing by the mortgage and sale. (Pp. 410, 411.)</p>

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Bowie County.</p> <p>Boyd sued the railway company and recovered judgment. Defendant appealed and secured a reversal and rendition of judgment in its favor. Boyd then obtained writ of error.</p>

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

<p>The opinion of the Court of Civil Appeals and the dissenting opinion of Mr. Justice Speer are here given.</p>

an appeal from McLennan County. The Glass Co. sued the Antiexplo Co. and others, its stockholders, and appealed from a judgment hy which it recovered against the company only. This being affirmed appellant obtained writ of error. Appellees Sanger and Edwards were purchasers of the stock offered for sale hy the company, hujdng at less than the face value. McClintock subscribed for and received stock, giving his note, which was still unpaid.

The Texas & N. 0. Ey. Co. appealed from a judgment recovered by Mrs. Scarborough, and on its affirmance obtained writ of error.

H. H. and L. D. Cobb sued Johnson for recovery of real property. Defendant had judgment for specific performance of a parol sale of the property under which he held possession. Plaintiffs appealed, and on affirmance of the judgment obtained writ of error.

<p>Original application by the insurance company to the Supreme Court for writ of mandamus against Love as Commissioner of Insurance and Banking.</p>

<p>1.—Life Insurance—Warranty—Medical Examination.</p> <p>Where the benefit certificate issued by an insurance company made the medical examination and application of insured a part of the contract and the insured thereby in writing warranted the truth of the answers given to the examiner and declared that the answers as written were as given by applicant to the examiner, and the written answer to a material question was in fact untrue, there could be no recovery, though the answers were made in good faith and were not as written down by the examiner, (P, 455.)</p> <p>2.—Same—Pregnancy of Insured.</p> <p>The representation warranted to he true by the insured, that she was not pregnant at the time of making the application, being shown to be untrue by her giving birth five months later to a living and well developed child, a peremptory instruction to find for defendant in a suit to recover the insurance upon her death should have been given. (Pp. 452-456.)</p>

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

<p>Error to the Court of Civil Appeals for the Fifth District in an appeal from Grayson County.</p> <p>The railway company appealed from a judgment recovered against it hy Wise, and on affirmance obtained writ of error.</p>

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

• Wooldridge & Son sued the railway. A judgment for plaintiffs was affirmed on appeal by defendant who then obtained writ oi error.

The Gypsum Company sued Shields and appealed from a judgment for defendant, and on its affirmance obtained writ of error.

Currie sued the railway company for personal injuries. Defendant had judgment which was affirmed on appeal by plaintiff, who thereupon obtained writ of error.

<p>Original application to the Supreme Court by W. F. Buckley and B. G. O’Neal, for mandamus against the Commissioner of the General Land Office.</p>

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Comanche County.</p> <p>Briscoe and others sued Creamer and others and recovered judgment. Defendants appealed- and' on affirmance obtained a writ of error.</p>

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Milam County.</p> <p>For the previous history of this case see Habours v. McCord, .36 Texas Civil Appeals, 504; 75 S. W. Rep., 827; 82 S. W. Rep., 153, 193, 661; McCord v. ISTabours, 97 Texas, 271; ISTabours v. McCord, 97 Texas, 527; ISTabours v. McCord, 100 Texas, 456; ISTabours v. McCord, 103 S. W. Rep., 469.</p>

Mrs. Worthington brought suit against Parks and wife and recovered. Defendants appealed and on affirmance obtained writ of error.

Finn sued the railway and recovered judgment. Defendant appealed and on affirmance obtained writ of error. The opinion on appeal is reported in 107 S. W., 94.

, Kiersevs sued the railway company and recovered judgment. Defendant appealed, and on affirmance obtained writ of error..

<p>1. —Damages—Impairment of Earning Capacity.</p> <p>Evidence in case of injuries to the person considered and held sufficient io support a submission to the jury of the issue as to impairment of earning capacity as an element of damages recoverable. (Pp. 516-521.)</p> <p>2. —Same.</p> <p>The question of the sufficiency of evidence to authorize the submission of the element of damage from impairment of capacity to earn money is one to be decided on the facts of each case and the practicability of proving the loss sustained with some degree of exactness, where there is some evidence of such impairment but evidence to show the amount is lacking or indefinite. (P. 521.)</p> <p>3.—Damages—Injury to the Person—Pleading—Charge.</p> <p>An instruction directing the jury to award plaintiff a fair compensation for physical and mental suffering from an injury caused by defendant’s negligence, was not erroneous in failing to exclude consideration of suffering proven but not alleged, in the absence of a request for a charge so limiting the recovery, where the charge given did not affirmatively require consideration of matters not pleaded. (Pp. 522, 523.)</p>

Riggs, as plaintiff, recovered judgment against the railway company, which appealed and on affirmance obtained writ of error.

The State of Texas appealed from a judgment for defendants on demurrer, in a suit brought by it to prohibit them from doing business as a corporation, and on an affirmance obtained a writ of error.

<p>Original application by the Insurance Company for mandamus from the Supreme Court against the Commissioner of Insurance.</p>

Writs of error to the Court of Civil Appeals for the Third District in five several appeals from Travis County. The defendants • in error each brought suit against Davidson. Attorney-General and John W. Stephens, Comptroller, ■ and John W. Robbins, Treasurer of the State, to enjoin the collection of a tax, and appealed from a judgment in favor of defendants. The judgments having been reversed and rendered in favor of appellants, the ■appellees obtained writ of error.

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p> <p>Kothwell sued Mrs-. Kampmann for personal injuries caused by defects in her sidewalk while undergoing construction. Defendant made the contractors, Fitzgerald and Basille defendants to a plea to recover over against them. Judgment went for plaintiff against defendant and in favor of the contractors on defendant’s plea against them, Mrs. Kampmann appealed, and on affirmance obtained writ of error.</p>

County. In an action by Harpold against Moss and others, the trial court directed the finding of a verdict for the latter. Harpold appealed, and on affirmance obtained a writ of error.

. Error to the Court of Civil Appeals for the Third District, in an appeal from Bowie County. Hynson sued the railway company and appealed from a judgment rendered for defendant in accordance with the peremptory instruction of the trial court.. The judgment being reversed and the cause remanded, the defendant obtained writ of error on ground of its conflict with the rulings in the same case on a previous appeal. Hynson v. St. Louis S. W. Ry. Co., 86 S. W. Rep., 928.

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

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

<p>1. —Statutory Construction—Retroactive law.</p> <p>Statutes "will not "be held to have a retroactive or an ex post facto effect unless their language compels. (Pp. 571, 572.)</p> <p>2. —Same—Railways—Free Pass—Contract with Express Company.</p> <p>The Act of March 26, 1907, Laws, 30th Leg., p. 93 (Anti-free Pass Lbav) does not apply to' nor attempt to invalidate acts to be done upon valuable consideration in the carrying out of mutual and dependent contracts between railway and express companies made before its passage, though involving transportation of persons, property and messages of the express company upon passes or evidences of right to transportation to 'be thereafter issued without other consideration than that arising from such previous contract. (Pp. 569-572.)</p> <p>3. —Same.</p> <p>Transportation for a valuable consideration under a previous contract was not done “free of charge” within the meaning of the Act of March 26, 1907; nor did it involve the giving of a “free” pass or frank; nor the selling, after the passage of the law, of “transportation for any greater or less rate than is charged to all persons under the same conditions;1' nor any other transaction thereby prohibited. The acts, though done after the passage of the law, were on good consideration and in the execution of a contract valid when made, the carrying out of which was not made unlawful by the terms of the statute. (Pp. 508, 572.)</p>

Original application by McFall, by his father as next friend, for writ of mandamus against the State Board of Education. Relator, being of scholastic age was expelled from the public school by the trustees. He appealed from the decision, and it was reversed by the county superintendent.

<p>School land—Residence—Forfeiture—Repeal.</p> <p>The requirement of the Act of April 15, 1905, (Laws, 29th Leg. p. 163) that the original purchaser of a home tract should' reside upon it for three consecutive years “except where otherwise provided,” and repealing all laws in conflict, was not necessarily in conflict with the provision in article 4218 1 of the Revised Statutes that the absence of the purchaser for not more than six months in one year to earn money with which to pay for the land should not work a forfeiture, and did not repeal it. (Pp. 575, 576.)</p>

<p>Public Land—Islands—Location and Patent.</p> <p>Reviewing the legislation of the Republic and State of Texas with refer-' ence to the disposition of its islands, it is held that they were not subject to the location of land certificates, but set apart to be specifically dealt with, and the right given by the Special Act of March 30, 1889, granting a land certificate to W. A. A. Wallace and authorizing its location upon any of the vacant public lands of the State “either within or without the several reservations heretofore created by law” did not legalize the location of same upon an island belonging to the State. (Pp. 578-582.)</p>

Mrs. Overton sued the railway company and recovered judgment. Defendant appealed and on affirmance obtained writ of error.

<p>1. —Jurisdiction of District Court—Decision Settling Case.</p> <p>The reversal and remand of a case on appeal, for error in excluding a deed, practically settles the case and gives the Supreme Court jurisdiction on writ of. error, where the admission of the deed would necessarily result in a judgment for the appellant. (Pp. 589, 590.)</p> <p>2. —Record—Correction in Trial Court.</p> <p>The trial court had power, after the filing of transcript on appeal, to correct its record by striking out a statement of facts and hill of exceptions which had been altered after signing. (P. 590.)</p> <p>3. —Same—Bill of Exceptions.</p> <p>After the trial court had struck from the record a hill of exceptions because of alterations made therein after it was allowed, the Appellate Court could not consider it, rejecting only the alterations; the order striking it out was conclusive unless appealed from, at least where the proceedings on the motion did not show what part of the hill had been altered. (Pp. 590, 591.)</p>

Mrs. Ellis sued Brooks and others and recovered judgment. Defendants appealed and the judgment was reversed and cause remanded, whereupon writ of error was obtained on the ground that the ruling practically settled the case.

Mrs. Dee sued the Brotherhood of Railway Trainmen and recovered a judgment. It was affirmed on appeal by defendant, who then obtained writ of error.

Aline Howell and others sued the International & Great Northern Railroad Company and recovered judgment. Defendant appealed and on affirmance obtained writ of error.

<p>1. —Husband and Wife—Divorce—Alimony—Contempt.</p> <p>A husband who refuses to comply with an order of court requiring him to pay attorney’s fees and a monthly allowance for the support of his wife and minor children during the pendency of her suit against him for divorce, may be imprisoned for contempt until he complies with the order. (Pp. 611.)</p> <p>2. —Same—Debt—Imprisonment.</p> <p>The allowance by the court of alimony for the wife’s support and her attorney’s fees, to be paid by the husband pending her suit for divorce, is not a debt which she can enforce by civil proceeding; and his commitment for contempt in refusing to pay such allowance is not imprisonment for debt, such as is prohibited by the Constitution. (Pp. 611, 612.)</p> <p>3. —Same—Cases Distinguished.</p> <p>Ex Parte Gerrish, 42 Texas Crim. Rep., 114; Ex Parte Ellis, 37 Texas Crim. Rep., 539; Lott v. Kaiser, 61 Texas, 665; discussed and distinguished, (Pp. 610, 611.)</p>

<p>School Land—Exchange of Lands by Purchasers.</p> <p>One who had purchased four sections of school land from the State exchanged deeds with a purchaser of other school lands, e-'ch conveying to the other one section, filing their deeds and seeking to substitute their obligations as purchasers thereof respectively in the .General Land Office. Held, that if by such transaction he became a purchaser from the State of the tract so conveyed to him in exchange, this would not, under the provisions of sections 6d and Oe of Act of May 16, 1907, Laws, 30th Leg. p. 490, constitute him a purchaser from the State of more than the complement of four sections which the law permitted him to purchase, since by the same transaction and under the same construction he ceased to be and his vendee became the purchaser from the State of the section which he conveyed in exchange. The action cf the Land Commissioner in cancelling the title to the section so conveyed to him and reselling it to another, as being in excess of the amount he was entitled to purchase, was unauthorized; and mandamus would lie to compel his acceptance as purchaser. (Pp. 613-616.)</p>

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

<p>1. —Election—Local Option—Change of Precinct Boundaries.</p> <p>The validity of an election adopting prohibition of the sale of intoxicating liquors within the limits of a justice’s precinct was not affected by an order of the Commissioner’s Court, made after the election had been duly ordered before it was held, taking the territory embraced in a driving park out of such justice’s precinct and attaching it to another. (Pp. 624, 625.)</p> <p>2. —Same.</p> <p>The adoption of the local option prohibitory liquor law in a justice’s precinct put the law in force throughout the limits of such precinct as established when the election therefor was ordered, though a part of the territory embraced had been taken out of such precinct and attached to another by order of the Commissioner’s Court between the time of ordering and that of holding the election. The right of the voters to have submission of the issue as to then existing boundaries was conferred by the Constitution. (Pp. 624, 625.)</p>