Volume 102 — Texas Reports

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Hunt County.</p> <p>Pitts sued the city of Greenville for injuries to the person and recovered judgment. Defendant appealed, and on affir aance obtained a writ of error.</p>

<p>1. —Independent School District—Taxation—Municipal Corporation—Constitutional Law.</p> <p>The limitation of the right of taxation by independent school districts which are not incorporated cities or towns to 20 cents on the hundred dollars (Const, art. 7, sec. 3) applies to the Baird Independent School District, created by Special Act of the 30th Legislature (Special Laws, 1907, p. 79) which embraced the territory of the city of Baird, covering about 960 acres of land and 44,000 acres, mostly pasture and ranch land, not included in such city limits. The fact that such Act conferred on the school district which it created the powers and duties of a town or village incorporated under the general laws of the State for school purposes only, did not make it a municipal corporation such as was contemplated by the Constitution in exempting incorporated cities or towns constituting independent school districts from the limitation of the right of taxation imposed on other districts. (Pp. 7-10.)</p> <p>2. —Same—Legislative and Executive Construction.</p> <p>Neither the Legislature nor the officers of the State have power, by the construction given it, to annul a plain provision of the Constitution. (Pp. 9, 10.)</p> <p>Olí MOTIOIÍ FOB BEHEABIIÍG.</p> <p>3. —Same—School District Bonds.</p> <p>The issue of bonds by an independent school district based on a levy of taxes to provide therefor in excess of the amount which they had lawful authority to impose is illegal and may be restrained by injunction. (P. II.)</p>

<p>1. —Constitutional Law.</p> <p>Where a power is expressly given by the Constitution and the means by which or the manner in which it is to be exercised is prescribed, such means or manner is exclusive of all others. (P. 16.)</p> <p>2. —Same—School Districts.</p> <p>The power given to the Legislature by the Constitution (art. 7, sec. 3, Amendment of 1883) to provide by general or special law “for the formation of school districts within all or any of the counties of this State” with power for local taxation for school purposes, did not authorize the creation of an independent school district embracing territory lying partly within one county and partly within another. (Pp. 16-18.)</p> <p>3. —Same—Case Distinguished.</p> <p>State v. Brownson, 94 Texas, 436, distinguished and limited, (Pp. 15, 16.)</p> <p>4. —Corporate Existence—Collateral Attack Upon.</p> <p>The rule precluding collateral attack upon the existence of ile facto corporations is limited to such as might legally exist and to cases where the law under which they might exist is a constitutional one. (P. 18.)</p> <p>5. —School Bonds—Unlawful Issuance—Injunction.</p> <p>The attempt to issue bonds by the trustees of an alleged independent school district created by an Unconstitutional law, and having no power to issue bonds or levy special taxes', may be enjoined by a property holder asking protection against the imposition of such burden. (P. 19.)</p> <p>6. —Independent School District—Taxation.</p> <p>The rule in Snyder v. Baird Independent School District denying the constitutional right of such districts, not incorporated cities or towns, to levy taxes exceeding 20 cents on the 100 dollars for school purposes followed. (P. 19.)</p> <p>7.—Constitution—Legislative Power—Independent School District.</p> <p>The words “within all or any of the counties of this State” describing the power granted to the Legislature to provide for the formation of independent school districts with special power of taxation (Const, art. 7, sec. 3, Amendment 1883) are used with reference to the power to provide for such districts by general or special law, the former "within all counties of the State, the latter within any county. (P. 15.)</p>

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

Original application by Halbert to the Supreme Court for mandamus requiring Terrell, as Land Commissioner, to recognize his rights as an' applicant to purchase school lands. H. L. ICokernot, an adverse claimant of one of the tracts involved, was made corespondent.

<p>1. —Negligence—Statute—Contributory Negligence.</p> <p>Contributory negligence of plaintiff is equally a defense to an action for injury by defendant’s negligence whether the latter, being a violation of a statute or city ordinance, is negligence in itself, or, not resting on statute, consists in the omission of the due care required by the common law. (Pp. 34, 35.)</p> <p>2. —Negligence—City Ordinance—Injury to Trespasser.</p> <p>The negligence of defendant must be a default in some obligation to the person injured, whether it consists in the omission of a statutory duty or one required by common law. Violation of an ordinance requiring insulation of electric wires did not make the electric company failing to observe it liable to one who was a mere trespasser upon the premises where he came in contact with them. (Pp. 35, 36.)</p> <p>3. —Same—Electric Wire.</p> <p>A boy of twelve years, trespassing upon the roof of a building, to which he gained access by a stair and trap door, was killed by coming in contact with a guy wire which had become charged with electricity through the neglect of a light and power company to comply with penal ordinances of the city respecting the insulation of their wires. Held that there could be no recovery for Ms death. (P. 33.)</p>

The Manufacturing Co. sued the city of Cleburne on its promissory notes and, obtaining judgment for less than it claimed, prosecuted an appeal resulting in affirmance of judgment. Appellant then obtained writ of error.

Simmang, having a judgment against Geise in the District Court, sued out garnishment against the insurance company. The latter admitted liability to Geise, who made himself a party and defended on the ground that the property burned was exempt. Simmang had judgment, which was reversed on appeal by Geise. Appellee then obtained writ of error.

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

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

<p>1. —Statutory Construction—Attachment.</p> <p>The rule that in the construction of statutes the singular and plural number shall each include the other (Rev. Stats., art. 3268) applied to the law governing attachments. (P. 49.)</p> <p>2. —Attachment—Affidavit—Injury to Defendants.</p> <p>An affidavit for attachment against several defendants which states that the writ “is not sued out for the purpose of injuring or harassing the defendants” is a sufficient compliance with the statute requiring same, without adding the words “or either of them.” (P. 49.)</p>

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

The City of Dallas sued Martinez and others to recover a strip of land alleged to be a public street. Plaintiff had judgment, and defendants prosecuted error and on affirmance of the judgment obtained writ of error from the Supreme Court. The opinions of both the Court of Civil Appeals and the Supreme Court are here published.

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

Woods sued Flanary and wife for the recovery of land claimed under sale and execution. Wade intervened claiming title to a half interest in the land under the same sale, and appealed from a judgment denying him a recovery of the land. The appellate court reversed this and rendered judgment in favor of Wade for a half interest in the land. Flanary and wife thereupon obtained a writ of error.

<p>.Error to tbe Court of Civil Appeals for the Fourth District in an appeal from Bexar County</p> <p>Ida Landry sued the telegraph company and recovered "judgment. Defendant appealed, and on affirmance obtained writ of error.</p>

Vallejo, by his next friend, sued the railway company and obtained judgment. It was affirmed on appeal by the defendant who thereupon obtained writ of error.

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

District in an appeal from Dimmit County. Taylor and wife sued Dunn for the recovery of land. Tackaberry, Dunn's vendee, intervened. Plaintiffs recovered and the judgment was affirmed on appeal by defendant and intervener, who thereupon obtained writ of error.

Thompson sued the railway company and- others for damages. He recovered only against the company, which appealed, and on affirmance obtained writ of error.

Herring sued the railway company and appealed from a judgment for defendant. On reversal and remand appellee obtained a writ of error on the ground of conflict in decisions.

The Western Grocer Co. brought suit against Caffarelli Bros, and appealed from a judgment for defendant. This was reversed and rendered for appellants and appellees obtained writ of error.

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

<p>1.—Vendor and Purchaser—Express Lien—Legal Title.</p> <p>The superior legal title reserved to the vendor of land by his retaining an express lien for the payment of the purchase money remains in him after his transfer of the purchase money note to another, in trust for the benefit of such holder of' the note, and on his death passes, in like trust, to his heirs; on their conveyance of same to the holder of the note he may recover the land from the vendee and those claiming under him, though the purchase money note is barred by limitation. (Pp. 122, 123.)</p> <p>Z —Same—Cases Distinguished.</p> <p>Bledsoe v. Fitts, 47 Texas Civ. App., 578. Distinguished as not in conflict with ruling in this case. (P. 122.)</p>

2. —Practice on Appeal—Findings of Fact. Error to the Court of Civil Appeals for the Second District, in an appeal from Cooke County. Eeasor and others sued Autry and others for the recovery of land and had judgment therefor. Defendants appealed and on affirmance obtained writ of error.

<p>1. —Charge.</p> <p>Requested instructions are properly refused when the point involved is covered by those given. (Pp. 130, 131.)</p> <p>2. —Master and Servant—Risks Assumed.</p> <p>A requested instruction on the subject of assumed risks in case of a servant having his hand caught in machinery which he was operating was properly refused when it relieved from liability in case the risk to which it referred was assumed, while the case involved other grounds of liability also. (P. 131.)</p>

<p>1. —Vendor’s lien—Express lien—Mortgage.</p> <p>The reservation of an express lien for the purchase money in a sale of property is equivalent in its effect to a mortgage thereon and renders the contract executory. (P. 135.)</p> <p>2. —Same—Sale of Real and Personal Property—Foreclosure.</p> <p>Where lots with a livery stable and the horses, buggies, and property con- ' nected with the livery business were sold for a lump sum, secured by notes for which the vendor retained an express lien, the mortgage created thereby attached to the lots for the entire purchase price, and it was not necessary for the holder of the notes upon foreclosure to show what part of the purchase money secured was for the lots alone. (Pp. 133-135.)</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Hunt County.</p> <p>J. M. Lindly obtained writ of error on the affirmance, on his appeal, of an adverse judgment in a suit brought by him against Harlin Lindly and others.</p>

Hunter and others sued Eastham .and others to recover land. Judgment for plaintiffs was affirmed on appeal by defendants, who thereupon obtained writ of error.

<p>Error to the Court of Civil Appeals for tne Fourth District, in an appeal from Bexar County.</p> <p>The Construction Co. sued the Telegraph-Cable Co. and recovered judgment. It was affirmed on appeal by defendant, who thereupon obtained writ of error.</p>

<p>Railways—Constitutional law—Title of Act—Full Train Crews.</p> <p>The statute making it unlawful for railway companies to run trains without full crews under the title of “An Act to protect the lives and property of the traveling public and the employees of the railroads in the State of Texas” (Act of March 25, 1907, Laws 30th Leg. p. 92) covers a subject not expressed in such title, which is so general as to give no intimation of the particular subject of the Act, and is therefore invalid under article 3, section 35, of the Constitution. (Pp. 155-157.)</p>

<p>1. —Peace Officer—Private Watchman—Liability of Employer.</p> <p>A deputy appointed by the sheriff at request of and paid by a railway company to preserve order and protect property on its premises, and having no order from either except to enforce the law, but who had habitually, during two years of such employment, expelled trespassers from the premises, finding some tramps in an empty car, undertook, without arresting them, to put them off the premises, in doing which, meeting another person whom he took to be one of their party and to be attempting an attack on him, he fired, wounding unintentionally one of the men he was conducting off the premises. Held that tlie facts supported a recovery against the railway company for the injury on tlie ground that the deputy sheriff was acting, not officially, but as it's servant. (Pp. 159-161.)</p> <p>2. —Same.</p> <p>The fact that the party inflicting the injury was a deputy sheriff did not establish that he was acting officially in putting trespassers off property; nor was the fact that he rendered, for compensation paid by the owner, the services of a private watchman in keeping trespassers off property conclusive that his act was that of a servant.. Its nature was a question of fact dependent on the circumstances, which were here sufficient to support a finding that the act of ejecting trespassers was not an official one but .that of a private watchman. (Pp. 161, 162.)</p> <p>3. —Master and Servant—Scope of Employment—Charge.</p> <p>When a deputy sheriff, held to be performing the services of private watchman for a railway company by whom he was paid and from whose premises he was putting off trespassers, unintentionally wounded one of them in shooting at a third party whom he believed about to attack him, a requested instruction relieving the company from liability if his act in shooting was unconnected with 'the act of ejecting the trespassers was properly refused as ignoring the liability for negligent and reckless injury to the trespasser while taking control of him for the purpose of putting him off the premises. (P. 162.)</p>

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

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

<p>1. —Limitation—Adverse Possession.</p> <p>To constitute adverse possession it must be taken and held with the intention to claim the land so occupied. (P. 183.)</p> <p>2. —Same—Inclosure by Mistake of Boundary.</p> <p>Where an owner, in enclosing his land, extended his fence, by mistake as to the boundary line, so as to include a portion of an adjoining tract which he had no intention of claiming, no adverse possession thereof was acquired beyond the limits of his enclosure. (Pp. 182-184.)</p> <p>3. —Same—Registered Deed.</p> <p>A land owner, finding that he had extended his enclosure by mistake so as to include in the land fenced and cultivated by him a strip varying from 1% to 18 varas in width and covering about an acre and a half of the land of an adjoining proprietor, obtained and placed on record a deed to such adjoining tract from a third party, not shown to have any title, for the purpose of claiming limitation to the boundaries in such deed by virtue of his possession of the . strip enclosed. Held, that the extent of his adverse possession was not changed by the recorded deed and was restricted to the limits of his enclosure. (Pp. 182-184.)</p> <p>4. —Administrator’s Sale—Collateral Attack.</p> <p>Where it appears that the County Court had jurisdiction to grant letters of administration and order the sale of land its orders were not subject to collateral attack. (P. 185.)</p> <p>5. —Administrator’s Sale—Innocent Purchaser—Unrecorded Deed—Notice by Record.</p> <p>A purchaser from the heirs of one residing and dying in another State was not charged by the record with notice of sale under administration proceedings in Texas, in a county other than that in which the land was situated, when the administrator’s deed was not recorded. (P. 185.)</p> <p>6. —Unrecorded Deed—Innocent Purchaser—Payment of Consideration—Evidence.</p> <p>Evidence considered and held sufficient to support a finding, based on circumstances of recited payment, long claim under the deed, absence of adverse claim, and death of the parties to the transaction, that a purchaser of land was to be protected against an unrecorded, deed as one buying in good faith without notice and paying a valuable consideration. (Pp. 185, 186.)</p>

Simpson and others sued Oats and others, for the recovery of land,, and prosecuted error from a judgment for defendants, on affirmance of which they obtained writ of error from the- Supreme Court:

McNeill and others sued Millican and others and recovered. Defendants appealed, and on affirmance obtained writ of error.

Corn sued the railway company for the value of stock killed.by a train, and recovered judgment. It was affirmed on appeal by defendant, who then obtained writ of error.

<p>Administrator—Interest in Land—Deed—Estoppel—Limitation.</p> <p>The rulings in Millican v. McNeill, ante p. 189, followed and held to control the disposition of this case. (P. 196.)</p>

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Hale County.</p> <p>Wilkin sued Owens & Bros, and appealed from a judgment for defendant, which being affirmed he obtained writ of error.</p>

Deutschmann sued Bussell, Simmons, and the Irrigation Co., andr had judgment against the latter, which appealed, resulting in a modification and affirmance of the judgment. The Irrigation Co. thereupon obtained writ of error. The judgment was ordered reversed and the cause remanded on November 27, 1907, in an opinion of the court pronounced by Mr. Chief Justice Gaines.

Second District, in an appeal from Eastland County. , ■ ■ Webb sued the railway company and recovered judgment which was affirmed on defendant’s appeal. The company then obtained writ of error.

The suit was broughf^by H. D. Kampmann, his executrix, Elizabeth D. Kampmann, subsequently becoming a party, against McCormick and others. A recovery by plaintiff was affirmed on appeal by defendants, who thereupon obtained writ of error.

<p>1.—Anti-Trust Law—Interstate Commerce.</p> <p>A contract between a citizen of New York and a citizen of Texas for sale of a certain article only to the latter in the city where he did business was not, prohibited by the Act of March 31, 1903 (Anti-trust Act, Laws, 28th Leg. p. 119). The Act could not be held to apply to interstate commerce, since such construction would render it unconstitutional (Const. U. S., art. I, sec. 19). (Pp. 221, 222.)</p> <p>2. —Damages—loss of Future Profits.</p> <p>Damages were not recoverable for the loss of future profits by failure to perform a contract to furnish advertising matter, the profits depending upon future uncertain conditions and the evidence furnishing no data from which the loss could be determined. (P. 222.)</p> <p>3. —Jurisdiction of Supreme Court—Constitutional Question.</p> <p>The Supreme Court may grant writ of error in a case reversed and remanded on appeal where it involves the validity of a statute by reason of its conflict with the Constitution of the United States, (P. 222.)</p>

Timón sued the railway company and had judgment, which was affirmed on appeal by defendant. Appellant then obtained writ of error.

<p>1. —Master and Servant—Telephone Pole—Duty of Inspection.</p> <p>The servant of a telephone company was injured by the fall of a pole which he had climbed in order to cut the wires as directed. The fall was caused by decay of the pole beneath the ground, there being nothing in its appearance to indicate the defect. It had been erected six years, and such poles usually lasted ten to fifteen years. Held, that nothing was disclosed which made it the duty of the company to inspect for the discovery of such defect, and in the absence of other proof of negligence a recovery by plaintiff was unwarranted. (Pp. 225-227.)</p> <p>2. —Same.</p> <p>Question suggested whether under the circumstances here presented the duty of inspection of a telephone pole to ascertain its safety did not devolve upon the servant whose duty called upon him to climb upon it. (P. 227.)</p>

<p>1. —Unrecorded Deed—Innocent Purchaser—Burden of Proof.</p> <p>The burden of proof is upon one claiming as against a prior unrecorded conveyance from his grantor to show that he was an innocent purchaser for value. (P. 231.)</p> <p>2. —Same—Registration Statutes.</p> <p>The Act of Feb. 5, 1840 (Laws of Republic, 4th Congress, p. 153) which , made void unrecorded deeds only as against those subsequently purchasing for a valuable consideration and without otice, was not restricted in its operation to conveyances thereafter made, but applied as well to an unrecorded deed executed in 1835, which under the previous law (Act of Dec. 20, 1836; Laws of Republic, 1st Congress, p. 148) was ineffective as to all rights of third parties, (Pp. 231-233.)</p> <p>3. —Same—Cases Distinguished.</p> <p>Crosby v. Huston, 1 Texas, 206; Kimball v. "Houston Oil Co., 100 Texas, 836; Watson v. Chalk, 11 Texas, 89; Guilbeau v. Mays, 15 Texas, 410; Parks v. Willard, 1 Texas, 350; Watkins v. Edwards, 23 Texas, 443; Hawley v. Bullock, 29 Texas, 216; Beaty v. Whitaker, 23 Texas, 528; Mitchell v. Puckett, 23 Texas, 573; Martin v. Parker, 26 Texas, 262; discussed, distinguished and explained, (Pp, 231-233.)</p> <p>4. —Unrecorded Deed—Innocent Purchaser—Payment of Value—Evidence-Recitals Against Interest in Deed by Deceased.</p> <p>As against claimants under a deed unrecorded at the time the grantor afterwards conveyed to another, the recital in the junior conveyance of payment of purchase money is not admissible to prove that fact on the ground that it is a declaration against his interest by one deceased. Having parted with his title, the grantor had no adverse interest to be affected by the recital. (Pp. 233, 235.)</p> <p>5. —Same—Proof by Circumstantial Evidence.</p> <p>The ruling here made is limited to the question certified, the admissibility as a declaration against interest of the recital by a deceased grantor of payment by a junior grantee; the question of its admissibility, in connection with other proof, to show payment by circumstantial evidence is not involved. (Pp. 233, 234.)</p>

<p>1.—Charge—Causal Connection.</p> <p>An instruction permitting recovery if injury was caused by defendant’s negligence, to deceased for whose death the action was brought, ignoring the causal connection between the injury and the death, though erroneous, was not ground for reversal where, by other parts of the charge, the necessity for such causal connection was clearly required. (Pp. 237, 238.)</p> <p>2. —Requested Charge.</p> <p>Requested instructions were properly refused, though correct, where the matters embraced were sufficiently covered by the charge given. (P. 438.)</p> <p>3. —Injuries by Death—Mental Suffering—Charge.</p> <p>The damages recoverable for injuries resulting in death are limited to compensation for the pecuniary loss suffered by the plaintiffs and it was error to refuse a requested instruction excluding from consideration their mental suffering, sorrow, or distress of mind. (Pp. 238, 239.)</p> <p>4. —Injuries by Death—Damages—Medical Treatment.</p> <p>A husband could recover as damages for personal injuries to his wife the expenses incurred for medical treatment of such injuries, though death resulted; and he may have recovery therefor in a suit by himself and daughter for the damages resulting to them by the wife’s death, at least where no exception "was interposed to a petition seeking recovery on both grounds. (Pp; 239, 240.)</p> <p>5. —Argumentative Charge.</p> <p>An instruction correct in law may be properly refused when it is argumentative. (P. 240.)</p> <p>6. —Medical Expert—Cross-Examination—Medical Authorities.</p> <p>A witness testifying as a medical expert may be cross-examined as to his knowledge of and agreement with passages in standard medical works treating of the subject in issue; and it is not improper, even fair to the witness, to give the name of the author from whom the extracts about which he is questioned are quoted. (Pp. 240, 241.)</p> <p>7. —Evidence—Her rsay.</p> <p>On the question whether death was caused from injuries received on a railway, or from a tumor for which deceased had just before undergone a surgical operation, testimony by a witness that the hospital surgeon said she would not recover from the tumor was mere hearsay. (P. 241.)</p>

Roth sued the Travelers’ Protective Assn, and had judgment against it. On defendant’s appeal it was reversed and remanded, and appellee obtained writ of error on the ground that the rulings ■ settled the ease.

<p>1. —Evidence—Memory—Habit.</p> <p>A witness should be allowed to state that he did a certain act (rang the bell of a locomotive engine) though he does so, not from recollection of the particular circumstances, but from reliance on his habit of'■doing so. (P. 253.)</p> <p>2. —Ordinary Care—Infant.</p> <p>On the issue of contributory negligence of a child ten years old, ordinary care was properly defined as that “which a person of his age and condition would have used under similar circumstances.” (P. 253.)</p> <p>3. —Continuance—Witness Disappointing in His Testimony.</p> <p>An application to withdraw an announcement -of readiness for trial in order to apply for a continuance, based on the fact that a witness would not testify as counsel had been informed that he would, should be made on discovery of that fact, and not after waiting for the opponent to develop his case. (Pp. 253, 254.)</p> <p>4. —Newly Discovered Evidence—Knowledge—Affidavit of Witness.</p> <p>A motion for new trial on the ground of .newly discovered evidence .was properly overruled where a claim agent of the moving party, present and testifying on the trial, was shown by counter affidavit to , have interviewed the witness before the trial and his discovery of the materiality of the testimony was not negatived, and where the new .witness, who refused to give an affidavit, "was accessible and "was not placed on the stand in support of the motion. (P. 254.) ■ ■</p>

Waggoner sued Tinney and prosecuted error from a judgment for defendant. On its affirmance he obtained writ of error from the Supreme Court.

Waggoner sued and' recovered against the railway company, and defendant, the judgment being affirmed on its appeal, obtained writ of error.

Byrd sued the' railway company, and á judgment in' his favor was affirmed on appeal by defendant, who then obtained writ of error.

<p>1. —Railway—Lookout for Persons on Track—Charge.</p> <p>To impose on the servants of a railway operating its trains the duty to keep a lookout for persons walking on the track to avoid injuring them, the facts must he such as would cause an ordinarily prudent person, under similar conditions, to expect to find people at that place at that time. The use of the track as a path for pedestrians during night time by a few persons, without evidence that any officer or agent of the company had knowledge of it, was not sufficient to create such duty in operating trains at night, though there was proof of more extensive use for such purpose by day. See instruction on this point held improperly refused. (Pp. 271-274.)</p> <p>2. —Trespasser—Walking on Track.</p> <p>One using a railway track in walking from one station to another at night and injured while crossing a long bridge by being struck by a train without being seen by those operating it, was a trespasser, guilty of contributory negligence as matter of law, and was not entitled to recover for his injuries. (Pp. 273, 274.)'</p>

<p>1. —Certified Question.</p> <p>In certifying to the Supreme Court .a question (not on the ground of conflict or dissent, in which ease the record is or may be sent up) the Court of Civil Appeals should state the facts showing that the. precise question certified has arisen, and how i£ arises. But the certificate here showing that the judges, though not having decided the question, disagree upon it, and the record being sent up, the court, to avoid delay, determine the question. (Pp. 275, 276.)</p> <p>2. —limitation—Color of Title—Conflicting Sales of School land.</p> <p>Where school land awarded to an applicant to purchase is afterwards awarded to a subsequent applicant, the latter sale is void and insufficient to constitute color of title supporting limitation of three years against the former title if the prior purchase was valid and in good standing; the commissioner had, in such case, no power to sell to another. (Pp. 276, 277.)</p> <p>3. —Case Followed, etc.</p> <p>Clark v. Smith, 59 Texas, 275, followed; the ruling announced herein limited. (P. 277.)</p>

Original petition to the Supreme Court by the Trinity Life & Annuity Society, a corporation created under the laws of Texas, seeking mandamus against Thos. B. Love, Commissioner of Banking and Insurance.

<p>1. —Will—Devise—Title in Fee Simple.</p> <p>A will devising real estate to certain descendants transfers to them an estate in fee simple where no less estate is limited by express words or by construction or operation of law (Rev. Stats., art. 627). (P. 286.)</p> <p>2. —Same—Rule in Shelley’s Case—Restraints on Alienation.</p> <p>Where real property was given to devisees, without words qualifying the estate transferred, by one clause of a will, and a subsequent clause provided that they should not sell it and at their death it should revert to their heirs, under the rule in Shelley’s Case, which prevails in Texas, the devises took an estate in fee simple, and not merely a life estate, and the attempted restraint. on their alienation was void, whether as affecting their life interest or the remainder in fee. (Pp. 281-287.)</p>

Seth Testard and Will Strittmatter obtained writ of habeas corpus, alleging that they were unlawfully deprived of their liberty by the sheriff of Bexar County.

Hall brought suit to enjoin Miller, the tax collector, from enforcing the collection of certain taxes. He appealed from a judgment for defendant, and on its affirmance obtained writ of error.

<p>Appeal Bond—Joint Defendants—New Bond.</p> <p>Three defendants uniting in an appeal from justice court which was dismissed because the bond was defective, it was error to refuse permission to two of them to maintain their appeal by filing a new bond payable to appellee; it was good without being made payable also to their co-defendant, who did not join but was not adversely interested. Slayton v. Horsey, 97 Texas, 341, followed. (P. 299.)</p>

<p>1. —Limitation—Action for Debt—Damages by Fraud.</p> <p>In section 4 of article 3354, Revised Statutes, fixing a period of limitation of two years for “all actions for debt where the indebtedness is not evidenced by contract in writing,” the word “debt” is not limited to causes falling within the technical scope of the action in debt at common law. Actions for unliquidated damages are included, and it is not necessary that the suit be on a contract. An action for damages for fraud and deceit in the sale of land was within the section and was barred in two years. (Pp. 301-303.)</p> <p>2. —Same—Cases Distinguished.</p> <p>Robinson v. Varnell, 16 Texas, 382, followed. Dlount v. Sleeker, 13 Texas Civ. App., 227; Cooper v. Lee, 75 Texas, 121; McCord v. Nabours, 100 Texas, 456, distinguished. (Pp. 302, 303.)</p>

<p>Mandamus—Conflict of Decisions—Carriers of Passengers.</p> <p>The rulings of the Court of Civil Appeals herein as to instructions on the duty of a railroad company to use “the utmost care” for the safety and protection of their passengers are held so far in conflict with the decision in Ft. Worth & D. C. Ry. Co. v. Rogers, 24 Texas Civ. App., 383, as to justify the issuance of the writ of mandamus requiring the appellate court to certify the. question to the Supreme Court. (R. 304.)</p>

<p>1. —Statutory Construction—May Equivalent to Must.</p> <p>“May” will be held to mean the same as “must” where third persons or the public have an interest in the performance of an official act authorized by language merely permissive. (P. 305.)</p> <p>2. —Appeal—Filing Transcript—Waiver of Time.</p> <p>In a statute requiring transcripts to be filed in the appellate court within 90 days from the perfecting of appeal, a proviso enacted “that for good cause the court may permit the transcript to be thereafter filed.” Held that an agreement by counsel for appellee waiving the time and consenting that it be filed later was good cause, and the court, on motion, should permit the filing. (Pp. 304, 306.)</p>

<p>1. —Statement of Facts—Original and Copy—Waiver.</p> <p>The appellate court should not refuse to consider a statement of facts prepared in accordance with the Act of May 25, 1907 (Laws, 30th Leg. p. 510, secs. 4, 5) because the original is not sent up, but is copied in the transcript, where no objection to this procedure is made by appellee before submission.' (P. 307.)</p> <p>2. —Practice in Supreme Court.</p> <p>Though error on appeal in the refusal to consider appellant’s statement of facts, assigned by an application for writ of error upon affirmance is well taken, the Supreme Court may refuse the application where it finds the case correctly disposed of by the appellate court on a question of law which the consideration of the statement of facts would not affect.' (P. 307.)</p>

<p>Application for writ of error to the Court of Civil Appeals for the Sixth District, in an appeal from Coleman County.</p>

<p>1,—Limitation—Husband and Wife—Adverse Possession.</p> <p>A claim to land as wife of the one holding title was not adverse to such owner and could not be the basis of limitation against him though the marriage was illegal. (P,- 312.)</p> <p>2. —Homestead—Administraron—Illegitimate Child.</p> <p>The statute providing for setting aside the homestead, in administration for the “benefit of the widow and minor children and unmarried daughters remaining with the family of deceased,” protects legitimate children only; it cannot be invoked in favor of an illegitimate widowed daughter remaining with the family. (Pp. 312, 313.)</p> <p>3. —De Pacto Wife—Acquisition of Property.</p> <p>One unlawfully married to a man to whom real property was conveyed may establish an interest therein by showing that their common earnings or property went to pay for it; her rights would not be those of a wife; nor other than those of another similarly contributing to its purchase; nor would any contribution by her service or gains to the improvement of the land or enhancement of their common property after the land was paid for and title acquired create in her any interest therein. (Pp. 313, 314.)</p>

<p>1. —Statement of Facts—Stenographer’s Report.</p> <p>Where the original statement of facts prepared by the stenographer under the Act of May 25, 1907 (Laws, 30th Leg. p. 510, secs, 4, 5) has not been sent up on appeal within the time required, it was proper to consider it if brought in at such time as not to delay the disposition of the case, and a motion to effect this is in time if filed before the submission. (Pp. 316, 317.)</p> <p>2. —Same—Excuse for Delay.</p> <p>If the mere failure of the clerk to perform his duty to send up the original, he copying it instead in the transcript, did not excuse the delay of appellants in presenting a proper record, sufficient excuse is found in the .fact that the statute introduced a new and unfamiliar rule of procedure. (P. 317.)</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Harris County.</p> <p>Interventions by the insurance companies in the action, of the city against the water company were dismissed and the judgment was affirmed on their appeal. Appellants thereupon obtained writ of error.</p>

<p>Application for writ of error to the Court "of Civil Appeals for the Second District, in an appeal from Eastland County. " :</p>

Clark and others sued Brown and others and defendants recovered judgment. Plaintiffs appealed, and, on the judgment being reversed and rendered for appellants, appellees obtained writ of error.

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Hill County.</p> <p>. Ault sued the county, appealed from a judgment for defendant, and obtained writ of error on its affirmance.</p>

<p>1. —Railroad Commission—Attacking Freight Rates of.</p> <p>Under articles 4565, 4566, Revised Statutes, a railway company dissatisfied with the rates, etc., fixed by the Railroad Commission may attack .any number or all of the rates prescribed, and it is not nécessary, in order to show the unreasonableness of one rate attacked to prove that the operation of 'the road under all the prescribed rates will not produce just compensation for the services. (Pp. 351—353.)</p> <p>ON REHEARING.</p> <p>2. —Same—Reasonableness of Rates.</p> <p>It is not necessary, under articles 4565, 4566, Revised Statutes, to show that the freight rate attacked was confiscatory. Except as to the conclusive nature of the proof required, the question of its reasonableness will be determined as in any other class of suits. (P. 353.)</p> <p>3. —Same—Pleading.</p> <p>Though public carriers must, of necessity, carry many. unimportant things at rates which would not compensate them for the service, a petition in an action attacking freight rates on an, important article of commerce, such..as lumber, which shows .that the rate fixed by the Railroad Commission does 'ndt yield sufficient revenue to pay for the cost of transporting it, hot including interest on investment, taxes, and other expenses, discloses facts making the rate unreasonable. (Pp. 341-354.) - ¡</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Hunt County.</p> <p>Ellison sued Thomas and others, and recovered against Thomas, who appealed and on affirmance obtained writ of error.</p>

Original application to the Supreme Court for writ of mandamus requiring the Commissioner of the General Land Office to accept petitioner’s application for the purchase of land.

Millie Wall and others sued the railway company and had judgment, which was affirmed on defendant’s appeal. The appellant then obtained writ of error.

Alten and wife sued the Plow Company and obtained judgment. Defendant appealed, and on affirmance obtained writ of error.

<p>1. —Negligence—Master and Servant—Defective Machinery—Sufficiency of Evidence.</p> <p>Evidence considered, in case of an engineer killed by explosion of fire box of engine, and held not to warrant a reversal by the Supreme Court of a recovery by plaintiffs on the ground that there was an entire absence of evidence that the explosion was due to defects in the fire box negligently permitted by defendant to exist, rather than by the negligence of deceased in permitting the water in the engine to get too low, which was the theory of the defense. (Pp. 372-374.)</p> <p>2. —New Trial—Newly Discovered Evidence.</p> <p>New trial by reason of newly discovered evidence may be refused where it relates to an issue controverted on the trial and the fact sought to be established could have been shown by witnesses testifying, if they had been questioned in regard thereto. (P. 374.)</p> <p>3. —Same—Contradictory Statements.</p> <p>Newly discovered evidence of previous declarations of an important adverse witness that he knew nothing about the case was not important as ground for new trial; witnesses frequently do not know the relevancy or importance of facts within their knowledge. (P. 374.)</p> <p>4. —Damages by Death—Pleading.</p> <p>Allegations of the character and relations of deceased to plaintiff, his wife and children, and of loss of his “services and earnings” with general allegation of damage by his death, held to support a submission of the issue of their damages by loss of his assistance to the wife and care and nurture of the children, as well as loss of earnings. (Pp. 374, 375.)</p> <p>5. —Negligence—Contributory Negligence—Burden of Proof—Charge.</p> <p>An engineer being killed by explosion of the fire box of a locomotive, through defects therein as claimed by plaintiffs, through his permitting the water to get too low as claimed by defendant, the latter being also pleaded as contributory negligence of deceased, an instruction that the burden of proving contributory negligence was on defendant was not error in the absence of requested instructions developing the rule stated. The burden was on plaintiff to show that the defects caused the explosion, and this a showing of his negligence tended to disprove; explosion caused by defects being shown, his contributory -negligence might still defeat recovery; as to the latter issue only the burden was on defendant. (P. 375.)</p>

Freeman sued the St. Paul’s Sanitarium and others to obtain the construction of a will under which he held property. He had a favorable judgment which was affirmed on appeal. Appellees then obtain writ of error.

Suit by Enedina Gutierrez against the railway company. Plaintiff recovered judgment and defendant prosecuted writ of error. The Court of Civil Appeals, reversed and remanded, with a dissenting opinion. Appellee procured writ of error from the Supreme Court.

The suit was brought by J. Alfred Veatch and others, heirs of John A. Veatch and his wife, both deceased, for the recovery of land.

<p>Married Woman—Contract—Improvement of Separate Property.</p> <p>A married woman is not liable on a contract by which she and her hus- . band borrowed and promised to pay money to place improvements on her sepa-' rate property, the money having been applied by the husband to other, pur- ,. poses and the improvements not made. Such' contract was not for “expense;, incurred” by her “for the . benefit of her separate property” within the .meaning of article 2970, Revised Statutes. (P. 388.) . . - -</p>

Original petition by Whitis for mandamus to compel the award to him as purchaser of a tract of land by the Land Commissioner, Blauser, the adverse claimant, being made co-respondent.

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p> <p>Kalteyer and others sued Mitchell and others. Defendants had judgment. It was affirmed on appeal by plaintiffs, who then obtained writ of error.</p>

The railway company brought suit to enjoin the enforcement by the Railroad Commission of an order requiring it to erect and maintain a depot, etc. The Commission appealed from a judgment for plaintiff, and on its affirmance obtained writ of error.

<p>1. —Jury—Undisputed Evidence.</p> <p>The jury have no right to arbitrarily reject the evidence of an unimpeached witness in the absence of any discrediting circumstance; and where the evidence establishes a defense to a moral certainty it is error to submit the issue to them as a doubtful one. The judge should direct a verdict for defendant. (P. 402.)</p> <p>2. —Same—Benefit Insurance—Suicide.</p> <p>In a suit upon a benefit insurance certificate, void by its terms in case of self-destruction by insured “sane or insane,” the evidence is considered and held to clearly establish the fact that insured voluntarily shot himself, to preclude the submission to the jury of the issue as to whether his act was intentional, to justify a peremptory instruction to find for defendant, and to require the Supreme Court to reverse and render for defendant a judgment of recovery in favor of the beneficiary, supported by a finding of the jury that the act was not intentional, which the trial and appellate courts had refused to set aside. (Pp. 399-402.)</p>

<p>1. —Fellow Servants—Operating Car.</p> <p>• Section hands unloading steel rails from a push car, which they propelled by pushing to the proper point for unloading, were not, in removing a rail from the car, “engaged in the work of operating” the car, within the mear ing of the Act of June 18, 1897 (Laws, 25th Leg. Special Session, p. 14). There could be no recovery by one for the negligence of the others in letting a rail drop on his foot, the fault being that of a fellow servant. (Pp. 403, 404.)</p> <p>2. —Cases Distinguished, etc.</p> <p>Texas & P. Ey. Co. v. Webb, 31 Texas Civ. App., 498; questioned (if not held overruled). St. Louis S. W. Ey. Co. v. Thornton, 103 S. W., 437,- distinguished. Gulf, C. & S. F. Ey. Co. v. Howard, 97 Texas, 518, 519 and Gulf) C. & S. F.'Ey. Co. v. Johnson, 103 S. W., 447, approved. (Pp. 403, 404.)</p>

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

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

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Williamson County.</p> <p>The State brought suit against Brady, County Attorney, to recover various sums of money upon the ground that defendant, who had represented plaintiff in suits prosecuted to final judgment for violations of the Anti-Trust Law of 1899 after the passage and taking effect of the Anti-Trust Law of 1903, had retained as his fee or commission 25 percent of each of the judgments obtained and collected by him, instead of the commission allowed him by article ' 297 of the Bevised Statutes of 1895. It was claimed that the Anti-Trust Law of 1903 repealed the provision of the Anti-Trust Law of 1899, giving District and County Attorneys 25 percent of the penalties recovered by them for the State. Defendant had judgment, from which plaintiff appealed and on its affirmance obtained writ of error.</p>

<p>Error to the Court of Civil Appeals for the Sixth District, in an appeal from Johnson County.</p> <p>Biggins sued the railway company and appealed from a judgment for defendant. On its "affirmance he obtained writ of 'error. ' '</p>

<p>1. —Intoxicating Liquors—Prohibition—Lo cal Option Election—Order of Commissioners Court.</p> <p>The Commissi-ners Court has no power to set aside for irregularities therein an election to determine the question of prohibition under the local option law, its duty being simply to count the votes and declare the result. (P. 424.)</p> <p>2. —Same—Order of Commissioners Court.</p> <p>An order of the Commissioners Court on their canvass of the votes at an election for prohibition under the Local Option Law, declaring the same void and ineffective because of irregularities in the ballots and returns, but, in case such declaration was ineffective because of lack of power or jurisdiction in the court, declaring the result to be against prohibition, was such a declaration of the result as authorized the District Court to entertain a proceeding to contest the election. ■ (P. 424.)</p> <p>3. —Local Option Election—Commissioners Precinct—Prohibition Existing in Part of Precinct.</p> <p>The Commissioners Court had authority to order an election on prohibition under the Local Option Law in a commissioner’s precinct, though it embraced two justices precincts in one of which prohibition had already been adopted and was in force. (Pp. 424-427.)</p> <p>4. —Same—Effect of Election.</p> <p>The effect of the adoption of prohibition in a county, or subdivision thereof, was to put the prohibition in force within the entire limits in which the election was held, until set aside by a subsequent election within the same entire limits. No subsequent election within a subdivision embracing a part only of such territory could terminate probihition as to such part, though the result were against prohibition in such included subdivision; and the previous adoption of prohibition in a subdivision embracing a part only of the territory included in such later election, as well as the right to subsequently adopt it, remains unaffected by the vote against prohibition in the larger subdivision including it. (Pp. 427-429.)</p> <p>5. —Election—Ballots.</p> <p>The furnishing of official ballots, and their use by many voters, which read “for local option” and “against local option,” instead of - for or against prohibition, was such an irregularity as authorized the holding that the election was void, on contest thereof, and ordering a new election as provided by article 3397, Revised Statutes. (P. 424.)</p> <p>6.—Same.</p> <p>Ballots reading “for local option” and “against local option” could not be counted in determining the result of an election on prohibition under the. Local Option Law. (P. 424.)</p>

Errór to the Court of Civil Appeals for the Second District, in an appeal from Deaf Smith County. Evants & Hagler sued Ferguson and Fuqua and appealed from a judgment for defendants, on affirmance of which they obtained writ of error.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Swisher County.</p> <p>Hagler sued Ferguson and appealed from a judgment for defendant, on affirmance of which he obtained writ of error.</p>

DeG-roff and wife sued the railway company for injunction, for which they had judgment. Defendant, appealed, and on. affirmance obtained writ of error.

Williams sued Barnes for the recovery of land, and appealed from a judgment for defendant. On its reversal and rendition for appellant, Barnes obtained writ of error.

Original application to the Supreme Court by Martha M. Potter and others for writ of mandamus against the Commissioner of the General Land Office, W. L. Foxworth, an adverse claimant of the land, being made co-respondent.

Speer & Goodnight sued Sykes for the possession of land and recovered. Defendant appealed and secured a reversal. Appellees obtained writ of error on the ground that the judgment settled the case.

<p>1. —Intoxicating Liquors—Constitution—Legislative Power—Preventive Measures.</p> <p>Article 16, section 20, of the Constitution, in providing for prohibition of sales of intoxicating liquors under the Local Option Law has committed to the Legislature the enactment of laws for enforcing such prohibition; it has not limited their power to the punishment of the unlawful sale; they may adopt such preventive measures also as are not forbidden by the Constitution. (Pp. 459-461).</p> <p>2. —Same—Search Warrant—Probable Cause—Affidavit of Belief.</p> <p>The question of the validity of the law requiring a search warrant for intoxicating liquors, etc., kept for unlawful sale to issue on the affidavit of mere belief by a credible person, the Constitution requiring that probable cause for such issuance be shown' under oath, discussed and the authorities reviewed. (Act of April 5, 1907, Laws, 30th Leg., p. 157; Const., art. 1, sec. 9.) (Pp. 463-466).</p> <p>3. —Search Warrant—Other Places.</p> <p>The law authorizing, under a search warrant issued on affidavit describing only the place to be searched, the search also of “any place” where the “affiant” has good reason to believe any such person has placed or secreted any such liquor, thus leaving the places to be searched under the warrant to the determination of the person who had made the complaint, and requiring the seizure of all liquors- whether kept for unlawful sale or not, is in violation .of the constitutional requirements forbidding a warrant to search a place not described in it and requiring a description “as near as may be” of the article to be searched for (Const., art. I, sec. 10). (Pp. 466, 470.)</p> <p>4. —Unconstitutional Law—Separating Valid Parts of Act,</p> <p>The unconstitutional features of the law providing for search of places for discovery of intoxicating liquors are so blended with its valid provisions as to be inseparable and to invalidate the whole act so far as relates to search of places. (P. 467).</p> <p>5. —Search and Seizure—Valuation of Property.</p> <p>The law for search and seizure of intoxicating liquors is invalid in that it makes the value placed on the property by the officer seizing it conclusive of the amount of the claimant’s liability, conferring a judicial power on that officer, who is also interested in the amount of the forfeiture. (Pp. 470, 471.)</p> <p>6. —Bond—Common Law.</p> <p>The replevin bond given by one whose property is taken under the law for search and seizure of intoxicating liquors can not be sustained as a common law obligation, being not voluntary, but extorted by the taking of his property under an invalid law. (P. 471).</p>

Mrs. Hutcheson, joined by her husband, sued the railway company for injury to her property. Judgment went for defendant and was affirmed on appeal. Appellant, the plaintiff below, then obtained writ of error.

McCoy sued the telephone company and recovered judgment. Defendant appealed, and on affirmance of same obtained writ of error.

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

<p>Deed—Heirs—Community Property.</p> <p>Heirs of real estate which was community property of their deceased parents appointed, by power of attorney, one agent to recover for them all lands in Texas to which they were entitled as heirs of the father, authorized him to sell and convey all lands in Texas in which they had any interest, and in consideration of the services to be performed conveyed to him “an undivided half interest in and to all of said lands.” Held that the “said lands” in the last clause referred to the land last before mentioned, that is, to all the lands in Texas in which they had any interest; that it included the interest inherited from the mother as well as from the father, and conveyed one half interest in the entire community estate inherited. (Pp. 482-484).</p>

Bowman and Coit sued Stevens and Saigling. Both defendants had judgment. Plaintiffs appealed, and on affirmance obtained writ of error.

Application by Emil Hoencke to the Supreme Court for writ of error to the Court of Civil Appeals of the First District in an appeal from Liberty County. Hoencke sued Lomax and appealed from a judgment for defendant. On its affirmance he applied for writ of error, which was refused in a written opinion stating the grounds of the ruling.

Original application to the Supreme Court by Giraud for writ of mandamus against the Commissioner of the General Land Office. J. R. Lambert, an adverse claimant of the land, was made corespondent. The land in question was situated upon Mustang Island and had been surveyed and offered for sale by the Land Commissioner under the Act of April 24, 1907. Giraud had made application to purchase a single tract of one acre at $26.

Original application to the Supreme Court by Pence and another for writ of mandamus against the Commissioner of the General Land Office. Jesse S. Cross, an adverse claimant of the land in controversy, was made co-respondent.

Cleveland & Sons sued Smith and others in trespass to try title. On trial before the court, judgment was for defendants. Plaintiffs appealed, and on affirmance obtained writ of error. The case, filed in 1905, stood at the term preceding trial upon the nonjury docket, which, by order of the court, was set for trial on the first week of the succeeding term, for which week no jury was summoned.

<p>1. —Sale—False Representation of Title—Conclusion from Facts.</p> <p>Although a statement by a vendor of land that he had, and could convey good title, embodied a conclusion drawn from the facts relative to the title, it was, in effect, a representation that the facts which would constitute a good title to the land existed. (Pp. 495.)</p> <p>2. —Same—Reliance on Representation'—Charge.</p> <p>An instruction that the purchaser must have relied solely upon the vendor’s false representation of title is making the purchase was properly refused, It was sufficient that he relied upon the representation, and would not have purchased if the representations had not been made. (P. 495.)</p> <p>3. —Same—Knowledge of Falsity by Vendor.</p> <p>The fact that the vendor believed that he had a good title to the land, when he sold it, so representing, was unimportant if the vendee believed the representations to be true, relied upon them, and made the purchase upon the faith of • them. (P. 495.)</p> <p>4. —Same—Duty to Investigate.</p> <p>A vendee induced to enter into the contract by fraudulent misrepresentations as to his title by the vendor was under no duty to investigate the truth or falsity of the statements and representations made to him. (Pp. 495, 496.)</p>

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

<p>1. —Master and Servant—Assumed Risk—Statutory Rule.</p> <p>By the Act of April 24, 1905 (Laws 29th Leg., p. 386), a servant having knowledge of a defect in the appliances furnished him by the master does not assume the risk arising therefrom where a person of ordinary care would have continued in the service with knowledge of the defect and danger. Charge held not erroneous under this rule; requested charge held properly refused, because ignoring it. (Pp. 503-505).</p> <p>2. —Same—Comparative Care of Master and Servant.</p> <p>The fact that a servant of ordinary care would have continued to use the appliance with knowledge of the defect and danger is not conclusive that' the master was guilty of no negligence in so maintaining it. Ordinary care only is demanded of either; but what constitutes such care varies according to the situation of the parties, and may require more diligence of the master than of the servant. (P. 505.)</p>

<p>1.—Practice in Supreme Court—Assignment of Error.</p> <p>An assignment in the Supreme Court of error in a charge given by the trial court can not be considered where it raises a question of law as to the correctness of such charge which was not presented in the Court of Civil Appeals. (Pp. 508, 509).</p> <p>2. —Charge—Negligence—Assuming Facts.</p> <p>In an action to recover for injuries caused to a footman walking through, railway yards, by being struck by moving cars, an instruction that, if plaintiff was a licensee, and not a trespasser, his right to recover would depend upon whether or not he was negligent, was erroneous, as assuming that the facts established negligence on the part of defendant. (P. 509)</p> <p>3. —Negligence—Charge—lookout in Switching Cars.</p> <p>An instruction which submitted the issue of negligence on the part of a railway in failing to provide an employe to ride on moving cars switched .in its yards, for the protection of persons who might be passing through same, was not warranted by evidence which showed that one was so employed, but was negligent in the discharge of the duty. (Pp. 509, 510).</p>

Waterman sued Charlton and others, and prosecuted error from a judgment in favor of defendant. On affirmance he obtained writ of error from the Supreme Court.

<p>Original application to the Supreme Court for writ of mandamus against Stephens as Comptroller.</p>

Leaverton and others sued the Land ■ Commissioner and certain adverse -claimants, made co-respondents with him, in an original proceeding before the Supreme Court for writ of mandamus.

Rhodes and others, officers of the Acton Masonic Lodge, sued the trustees and teachers of Acton School District Ho. 27 for the possession of a building. Judgment for defendants was affirmed on appeal by plaintiffs, who then obtained writ of error.

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

Mrs. Hodges and others, the widow and children of I. J. Hodges, sued the railway company for negligently causing his death. Defendant appealed from a judgment in their favor, and on its affirmance applied for writ of error.

<p>A purchaser of school land, required by the law to reside thereon, who, after settling on and improving same, left the premises, putting a man and his wife in charge of them and of her household goods, intending an absence of four or five weeks to visit her parents in California, and to procure medical attention there, but who, by reason of sickness, was detained there three months, could not be held to have failed to reside on the land because of such temporary absence; and a cancellation of the sale by the Land Commissioner for such cause was unwarranted. (Pp. 526, 527.)</p>

Frey brought suit against Myers and wife for the recovery of real property, and appealed from a judgment for defendants. This was reversed and rendered in his favor, and the appellees thereupon obtained writ of error. Appellant also applied for writ of error upon points ruled adversely to him in that court.

<p>Vendor and Vendee—Note Payable to Heirs—Gift.</p> <p>•Land was conveyed in consideration of quarterly payments of $50 to be made to the grantor during life and $2400 to be paid to her heirs after her death, the same being secured by grantee’s note and express reservation ..of vendor’s lien therefor in the deed; the grantor:-deposited.the note with another, saying, “this is for my children and my will;” subsequently, by agreement with the grantee, she set aside the first bargain and conveyed the land to him for a consideration payable to herself; on her death her heirs sought to enforce the first note, as being a completed gift which was not affected by her new contract. Held, that the note was such completed gift only if payable to persons then definitely determined; that the contract contemplated payment to those who should be her heirs on her death, which was uncertain, not to those living at the time of the contract who would inherit if she then died; that there being no certain payees, and hence no completed gift of the first note, it remained in the power of the grantor and grantee to change their contract, and their agreement so doing invalidated the first note. (Pp. 532-535.)</p>

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Travis County.</p> <p>The city sued Halle and appealed from a judgment for defendant, on affirmance of which it obtained writ of error.</p>

<p>Original application to the Supreme Court, by the drainage district, for writ of mandamus against the Attorney-General.</p>

Questions certified from the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County. The railway company sued Lively and others to enjoin the collection of certain taxes, and had judgment, from which the defendants appealed.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Jones County.</p> <p>Mrs. King sued Underwood and others in trespass to try title, and appealed from a judgment for defendants. It was reversed and rendered in her favor, whereupon appellees obtained writ of error.</p>

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

The State of Texas and Dallas County sued the street railway company to recover State and county taxes. They had judgment which was affirmed on appeal by defendant, who thereupon obtained writ of error.