Volume 92 — Texas Reports

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Harris County.</p> <p>Strycharski sued Dillingham, receiver of the Houston & Texas Central Railway Company, and the Houston & Texas Central Railway Company, the purchaser of the property at a receiver’s sale, to recover for personal injuries received as an employe of the receiver. Plaintiff had judgment against the company, but the trial court directed a verdict in favor of the receiver. The company appealed, Strycharski filing' cross-assignments of error, upon which the Court of Civil Appeals, while affirming the judgment against appellant, reversed that in favor of the receiver and rendered judgment against him. Both the company and the receiver then obtained writs of error from the Supreme Court.</p> <p>Upon the judgment here rendered the Houston & Texas Central Railroad Company obtained writ of error from the Supreme Court of the United States.</p> <p>The case upon a former appeal, in which it was reversed and remanded, ’is reported in 6 Texas Civil Appeals, 555.</p>

<p>Motion in the Supreme Court, by appellant, to retransfer a cause formerly transferred from the Court of Civil Appeals of the First to-that of the Fourth District.</p>

Plaintiffs, heirs of R. Langham, deceased, sued the city of Sherman to revive a judgment recovered by him against the city and to compel a levy of taxes to pay the same, and obtained the judgment and writ of mandamus sought. The city of Sherman appealed, and on affirmance by the Court of Civil Appeals obtained writ of error.

<p>Application for writ of error to the Court óf Civil Appeals for the Fifth District, in an appeal from Hunt County.</p> <p>Smith sued in the District Court to restrain Horton, the constable, from selling under execution a bicycle claimed to be exempt. He appealed from an order dissolving the _ injunction on final hearing, and on affirmance of this judgment by the Court of Civil Appeals applied for a writ of error.</p>

Ward prosecuted writ of error upon a judgment rendered against him in the District Court of Clay County upon the compromise agreement shown in the opinion, and subsequently obtained writ of error from the Supreme Court upon a judgment of the Court of Civil Appeals reforming the judgment of the lower court. 43 Southwestern Reporter, 833.

Mary D. Woolley et al. sued D. Sullivan & Co. et al. in the District Court. Exceptions by the defendants to the petition were sustained ■and the case dismissed. Plaintiffs appealed, and on affirmance by the Court of Civil Appeals obtained writ of error. Plaintiff in error Mary D. Woolley and defendants in error D. Sullivan & Co. et al. filed motions for rehearing in the Supreme Court, which were overruled in accordance with the opinion thereon filed June 23, 1898.

<p>1. Bes Adjudicata — What Determined.</p> <p>A judgment unreversed, though wrong, binds the parties thereto in a subsequent action as to the matter decided, but not, it seems, as to the inferences to be drawn from the view of the law on which the decision proceeded. (Pp. 40-44.)</p> <p>2. Same.</p> <p>J. M., a minor, was sued and cited, and appeared, and judgment was had against him, under the name of A. M., in favor of R., quieting the latter’s title to a tract of university land claimed byr him under a deed from the mother of J. M. The parents of J. M. had settled on the land and partly paid the State for it when the father died. R., as purchaser under the surviving wife, completed payment, and after the judgment obtained patent. J. M., on coming of age, brought proceedings to set aside the judgment quieting the title, against R., who in this latter action bad judgment on demurrer upon the ground that J. M., being a stranger to the judgment, could not sue to set it aside. J. M. then sued R. for a community interest in the land. Held, that plaintiff was concluded by the previous judgments, being bound by the decree quieting title, though sued by a wrong name, and the judgment upon the subsequent proceedings being conclusive against Ms right to set aside such decree, but not as an adjudication that such decree did not bind him. (Pp. 40-44.)</p>

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Victoria County.</p> <p>The suit was brought by Packard against Hynes et ah, and the latter appealed from a judgment recovered by plaintiffs, and on its affirmance obtained a writ of error.</p>

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

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from ICaufman County.</p> <p>Action by Brown against Roland. Plaintiff obtained writ of error upon a judgment for defendant affirmed by the Court of Civil Appeals.</p>

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

<p>Error to -the Court of Civil Appeals for the First District, in an appeal from Washington County.</p> <p>Suit for partition by L. J. Clemons et al., heirs of Ira Clemons and his first wife, against S. J. Clemons et al., his widow, and his children by her, for partition of homestead. Defendants appealed from the judgment, and upon a decision by the Court of Civil Appeals reversing and rendering judgment appellees obtained writ of error.</p>

<p>1. Breach of Warranty — Eviction.</p> <p>Where the vendee already owns the superior title to land conveyed to him with covenant of warranty, there being no eviction, there is no such breach of the warranty as will support an action on the covenant. (Pp. 74-76.)</p> <p>2. Same — Equitable Action for Mistake — Suit Against Remote Vendor.</p> <p>Vendees to whom were conveyed with warranty of title lands of which the boundaries conflicted with those of older surveys which they already owned, conveyed all the lands in question to plaintiff, who then sued such remote vendor for breach of warranty on the part so in conflict. Held, that, if the first vendee might have maintained an equitable action independent of the warranty, based upon mistake, etc., such action did not pass to his vendee, and action upon the warranty could not be maintained by such vendee because there was no eviction. (Pp. 74-76.)</p>

<p>1. State — Contracts By.</p> <p>So long as the State is engaged in the discharge of governmental functions it is to-be regarded as a sovereign, but when it becomes a party to a contract with a citizen the same law applies to it as under like conditions governs the contracts of an individual. (Pp. 80, 81.)</p> <p>2. State as Vendor of Land — Nonpayment—Rescission.</p> <p>One who contracts with the State to acquire land on completion of deferred payments thereon, acquires, so long as he pays the purchase money and interest, rights in the land of which the State can not deprive him; but the State has by common law the right as a vendor, upon the purchaser’s failure to perform his part of the contract, to rescind the sale made to him and resume its control of the land. (P. 81.)</p> <p>3. School Land — Forfeiture—Act of 1887 Construed — Antecedent Contract.</p> <p>The provision of section 11 in the act for sale of school lands of April 1, 1887, for declaring a forfeiture upon default in making payment of “any obligation” applies to antecedent as well as to prospective contracts. (Pp. 81, 82.)</p> <p>4. Same.</p> <p>Section 25, declaring that such act shall not be construed to “impair or interfere with” or affect any sale made under former laws, does not make section 11 apply only to prospective contracts. Empowering the Commissioner of the Land Office to declare forfeiture of a contract on noncompliance by the purchaser, does not impair, interfere with, or affect any right acquired by such purchaser under the contract. (Pp. 82, 83.)</p> <p>5. Same — Constitution.</p> <p>Such construction does not render the statute unconstitutional as violating the obligation of a contract. The right to declare a forfeiture existing in this case when the contract was made, its repeal would impose no obligation on the State not to restore it. And where a right exists — as here to rescind for nonpayment— the Legislature may give a new remedy, provided it does not deprive either party of a substantial right. (Pp. 83, 84.)</p> <p>6. Same — Interest—Change in Time of Payment.</p> <p>The extension of time of paying interest on previous contracts from March 1 to August 1, involved in this construction of the act, did not change the terms of contract. The purchaser still had the right to pay interest at its maturity according to his contract and an indulgence of five months added nothing to his burden. (Pp. 84, 85.)</p> <p>7. Forfeiture — Judicial Act.</p> <p>The power conferred by the Act of April 1, 1887, upon the Commissioner of the General Land Office to declare forfeitures of contracts for purchase of school land on default in payments is no more judicial, though exercised on behalf of the State, than if done by an individual vendor or his agent, and is inaptly described in the statute as a forfeiture. (P. 85.)</p> <p>8. Case Criticised.</p> <p>The rulings in Berrendo Stock Co. v. McCarty, 85 Texas, 412, explained as not in conflict with this opinion, but approval of that decision withheld. (P. 85.)</p>

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

<p>Question certified from the Court of Civil Appeals for the Fourth District, on writ of error to Karnes County.</p>

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

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Fueces County.</p>

<p>1. Estoppel by Acceptance of Conveyance.</p> <p>One who accepts a benefit under a conveyance must adopt the whole of it and be held to renounce every right inconsistent with its provisions. (P. 107.)</p> <p>2. Same.</p> <p>One claiming under the grantee of an assignee in bankruptcy — the records of the bankruptcy proceedings having been destroyed — accepted from the heir of the bankrupt a conveyance, “for the purpose of supplying any imperfection or deficiency in the title * * * caused by the burning * * * of the records, etc.,” describing the land as the same conveyed by the assignee in bankruptcy, and giving its metes and bounds. Held, that such grantee and his privies were estopped from claiming any lands under the conveyance by the assignee in bankruptcy which were not included in the boundaries given in the subsequent conveyance by the heir. (Pp. 105-107.)</p>

<p>1. Suit on Contract — Legal and Equitable Interest — Parties.</p> <p>A party who holds by assignment the entire equitable interest in a contract may, under our procedure, sue alone to enforce it. This rule does not prohibit suit by the legal holder of such interest; but where an assignee acquires both the legal and equitable title he must sue. (P. 111.)</p> <p>3. Written Contract — Assignment—Legal Interest.</p> <p>Article 308, Revised Statutes, gives to the assignee, whether by writing or otherwise, of a non-negotiable written instrument, the legal as well as the equitable title. (P. 112.)</p> <p>3. Suit on Contract — Partnership—Agency—Assignment—Parties.</p> <p>Suit was brought by I. H. on a contract made by him in his individual name, he being at the time a partner with R. B. H. The evidence would have supported either1 of these conclusions: (1) that the contract was made on behalf of the firm; (2) that it was made for the firm conditionally upon its acceptance by R. B. H., and afterwards so accepted; (3) that I. H. made it for himself and afterwards assigned to the firm. Held: in the first case suit could have been brought by I. H. alone, as legal holder, or by the partnership as undisclosed principal; the same rule would apply to the second case — the ratification relating back to the original transaction; in the third case suit should be brought by both partners, and not by I. H. alone. But if I. H. made the contract on his own account, and afterwards transferred a. half to R. B. H., so as not to make it the property of the partnership, the former could have sued alone, because such transfer passed only an equitable interest in one-half to R. B. H. (Pp. Ill, 112.)</p> <p>4. Same — Charge.</p> <p>See opinion for instructions held properly refused under foregoing rules and charge-on subject which would have been proper. (Pp. 112, 113.)</p> <p>5. Case Approved.</p> <p>The rulings of the Court of Civil Appeals in this case (44 Southwestern Reporter, 551) approved. (P. 113.)</p>

<p>1. Guardian — Attorney’s Fees — Allowance of Claim — Final Judgment.</p> <p>The action of the probate court in approving a claim for attorney’s fees for services rendered a guardian, is a final judgment and not subject to revision and reduction in passing upon the guardian’s final report, such ease being distinguishable from a mere credit for a payment other than that of an approved claim, made by and allowed to the guardian in his reports. (Pp. 115, 116.)</p> <p>2. Cases Criticised.</p> <p>Oldham v. Brooks, 25 Southwestern Reporter, 648, disapproved; Ingraham v. Rogers, 2 Texas, 465, distinguished; Moore v. Hillebrandt, 14 Texas, 312, and Williams v. Robinson, 63 Texas, 576, followed. (P. 116.)</p> <p>3. Case Approved.</p> <p>The rulings of the Court of Civil Appeals in this case on appeal (45 Southwestern Reporter, 412), approved, except as to allowance of attorney’s fees as above indicated. (P. 116.)</p>

<p>1. Contract — Notice—Time for Suit — Interstate Commerce.</p> <p>Articles 3378 and 3379 of Revised Statutes, prohibiting contracts restricting the time for bringing suit on any action to less than two years and restricting the right to contract for notice of claim of damages before suit, are within the power of the Legislature to enact, and valid as applied to contracts for interstate transportation of property. Railway v. Solan, 18 Sup. Ct. Rep., 289. (Pp. 119, 121.)</p> <p>2. Rulings Approved.</p> <p>The rulings of the Court of Civil Appeals in this case (43 Southwestern Reporter, 614), except as to the validity of the contract requiring notice and suit within a time limited, approved. (P. 122.)</p>

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

Sallie Burgess sued the telegraph company and obtained a judgment which, on defendant’s appeal, was reversed and judgment was rendered for appellant. Thereupon she obtained writ of error.

<p>Error to the Court of Civil Appeals, Fourth District, in an appeal from Harris County.</p> <p>Storrie sued the street railway company and obtained judgment, from which the company appealed. The appellate court reversed, reformed, and rendered the judgment, and both parties obtained writs of error.</p>

Rowell sued the railway company for damage from personal injury and recovered a judgment which was affirmed (45 Southwestern Reporter, 763) on appeal by defendant, which thereupon obtained writ of error.

Motion in Supreme Court to require the clerk thereof to issue a mandate. The opinion reversing the judgment and remanding this cause for trial is reported in 89 Texas, 635.

<p>1. Statutory Construction — Intention Preferred to Literalism.</p> <p>The construction required by literal adherence to the words of a statute will not be followed where it would depart from true intention of the legislators, (Pp. 153, 154.)</p> <p>2. Justice Court — Bond on Appeal.</p> <p>Article 1670, Revised Statutes, requiring the party appealing from justice court to give bond in double the amount of the judgment, applies only to cases where such judgment is rendered against the appellant. One who recovers a judgment for an amount less than that claimed and for costs, may appeal therefrom without bond. (Pp. 153-155.)</p> <p>3. Justice Court — Appeal—Notice.</p> <p>No notice of appeal from justice to county court is necessary. Where the appellant is not required to give bond he may take his appeal by requesting the justice to make out the transcript (Revised Statutes, article 1673), and transmitting it, with the original papers, to the clerk of the county court. (Pp. 154, 155.)</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County.</p> <p>Cunningham and wife brought suit and recovered judgment, defendant’s application for removal of the case being denied by the District Court, and the judgment, on its appeal, affirmed by the Court of Civil Appeals; whereupon it applied for and secured writ of error.</p>

Erbob to the Court of Civil Appeals for the Third District, in an appeal from McLennan County. Johnson brought suit in trespass to try title against Simpson and others and recovered judgment, which being affirmed on appeal by defendants, they obtained writ of error.

<p>1. Eminent Domain — Railway Connections — Crossing Intervening Road.</p> <p>The statutes of the State confer authority upon a railway to condemn the right of way of another road, when necessary to cross it for the purpose of making connection with a third railroad, although the first and last roads do not intersect. Const., art. 10, sec. 1; Rev. Stats., arts. 4440, 4441, 4442, 4445. (P. 166.)</p> <p>2. Same — Condemnation of Property Devoted to Public Use.</p> <p>The law does not authorize the condemnation of property which has been already dedicated to a public use when such condemnation would practically destroy the use to which it has been devoted (e. g., the condemnation, for a connection between two railroads, of lands acquired and needed by a third for yard purposes, and which would be rendered useléss therefor if so crossed), unless the necessity be so great as to make the new enterprise of paramount importance to the public, and it can be practically accomplished in no other way. (Pp. 166-168.)</p> <p>3. Same — Railway Crossing — Point and Manner of Intersection — Powers of Commissioners.</p> <p>Differences between the corporations as to the point and manner of intersection as well as amount of compensation can- be investigated and adjusted by the commissioners on condemnation proceedings (Revised Statutes, articles 4177, 4192, 4193), who, in ease of such conflict of interests, should regard that of the public, not that ox the corporation, and should not take the property, so devoted to one public use, for another, unless it be found that the connection sought to be made is of so great importance to the public as to demand that another public use of less importance shall be set aside for its benefit, and that the new enterprise can not be accomplished in any other practical way. (Pp. 167, 168.)</p>

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

<p>1. Corporation — Paid Tip Stock — For What Issued.</p> <p>A corporation may issue its authorized capital stock for either money, labor, or property. Promoters who transfer to the corporation property and contract rights obtained by them in contemplation of its organization can lawfully take, as paid-up stock, the fair value of the property and rights so transferred; and such value and .the amount of stock to be issued therefor may be increased, where not issued till later, by net earnings of the corporation which, instead of distributing as dividends, it had invested in its plant prior to the issuance of the stock. (Pp. 175, 176.)</p> <p>2. Same — Liability o£ Stockholders.</p> <p>Stock was issued by a corporation in payment for land worth half the par value of the stock and for valuable contracts for the construction of water-works and light plants and net earnings invested in the plant prior to such issuance of stock, all of which were estimated by the corporation, in good faith, at the par value of the stock. Held, that the stockholders were not liable for payment of claims against the corporation, under Constitution, article 12, section 6. ( Pp. 173-176.)</p>

Fielder sued the railway company to recover penalties for discrimination. Judgment being for defendant, he appealed, and on its affirmance, obtained writ of error.

Ebbob to the Court of Civil Appeals for the Third District, in an appeal from Milam County. Smith sued Olsen et al. in trespass to try title, and appealed from a judgment for defendants for the portion of the laud to which they had claimed title. The judgment being affirmed, he obtained writ of error.

Ebbob to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County. In garnishment by the bank against seed company, judgment was rendered for the bank, and the garnishee upon affirmance on its appeal obtained writ of error.

<p>Original application, in vacation, for a writ of mandamus to the clerk of the Supreme Court.</p>

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

<p>1. Execution. Sale — Trust—Equity.</p> <p>A purchaser at execution sale of land which the defendant in execution holds in trust for another, acquires no title if he has notice of the trust at the time of purchase, though the judgment creditor may, without notice of the eqxiity, have fixed a lien upon the land in any of the modes provided by statute. (P. 206.)</p> <p>2. Same.</p> <p>The same rule applies though the trustee has previously conveyed the legal title to the cestui que trust by a deed void as against the purchaser at execution sale because unrecorded; as to such purchaser the unrecorded deed can not be held void as a conveyance of title and at the same time effective in extinguishing the equity. (Pp. 206. 207.)</p> <p>3. Same — Cases Criticised.</p> <p>Calvert v. Roche, 59 Texas, 463, and Gaines v. Bank, 64 Texas, 18, criticised, and Blankenship v. Douglas, 26 Texas, 225, followed. (Pp. 206, 207.)</p> <p>4. Execution — Sale of Land — What Passes.</p> <p>The right to receive back from the State money paid for the purchase of land under the “Scrap Act” upon discovery of the fact that such land was not vacant, does not pass by sale and purchase of the land itself under execution against the person paying such money in the attempt to purchase from the State. (P. 207.)</p>

The city sued Chamberlain et al. for use of Ockander. A judgment for defendant was affirmed by the Court of Civil Appeals, and plaintiff obtained writ of error.

Scharff sued Whitaker and others and obtained judgment from which Whitaker appealed. The Court of Civil Appeals having reversed the judgment and dismissed the case as to Whitaker, Scharff obtained writ of error.

<p>1. Pleading.</p> <p>A plea distinctly alleging that a partnership in which an accounting was sought was formed for the purpose of procuring an unlawful contract out of which the alleged profits arose, is not subject to demurrer because the contract appears to bear a date prior to that of the creation of the partnership. (Pp. 221, 222.)</p> <p>2. Partnership — Action for Profits of Illegal Contract.</p> <p>In an action between partners for recovery of alleged profits of the business, an answer which asserted the illegality of the partnership (as that it was formed to carry out restrictions in trade in violation of the anti-trust law) presented a defense to the action. (Pp. 222, 223.)</p> <p>3. Same — Cases Discussed.</p> <p>Read v. Smith, 60 Texas, 379, and other cases followed, and Pfeufi'er v. Maltby, 54 Texas, 454; DeLeon v. Trevino, 49 Texas, 89, and Brooks v. Martin, 2 Wall., 70, distinguished. (Pp. 222-225.)</p>

The Temple Building and Investment Company and the Temple National Bank having intervened in a suit brought by Warner against Merrick, appealed from an adverse decision therein, and on its affirmance by the Court of Civil Appeals obtained writ of error.

Errob to the Court of Civil Appeals for the Third District, in an appeal from McLennan County. Gurley sued the railway company in the District Court to recover land by reason of noncompliance by defendant with the contract of purchase. Defendant, on complying, had judgment for the land, plaintiff recovering damages.

Mrs. Collier sued Couts for recovery of land and was defeated on his plea of ten years limitation. The judgment being affirmed upon her appeal, she obtained writ of error.

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

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

<p>Ebbob to the Court of Civil Appeals for the Second District, in an appeal from Tarrant County.</p> <p>Swayne, county attorney, sued for and obtained a writ of mandamus against Jackson, city judge, who appealed, and on affirmance of the judgment obtained writ of error.</p>

<p>Ebbob to the Court of Civil Appeals for the Fifth District, in an appeal from Hill County.</p> <p>Pattie B. Quisenberry, joined by her husband, brought suit against the mortgage company and others interested, to annul the deed of trust, obtain construction of a will, and remove clouds from the title. Plaintiff had judgment, which, on defendant’s appeal,- the Court of Civil Appeals reversed and rendered for appellants. Appellees thereupon obtained writ of error.</p>

Illg, defendant in the trial court, appealed from a judgment against him for the recovery of real property, and on the affirmance of the judgment obtained a writ of error.

Ebbob to the Court of Civil Appeals for the Fourth District, in an appeal from La Salle County. Irvin brought suit to restrain the sheriff from collecting certain taxes, and obtained injunction, which was perpetuated by the trial court, but on appeal by defendant was dissolved. Thereupon Irvin obtained writ of error.

<p>Question certified from the Court of Civil Appeals for the Third District. '* •</p>

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

<p>Writ of Error — Bond—Dismissal.</p> <p>The grant of a writ of error to one who, being appellee below, had given no bond, is upon condition that the bond required therefor must be given within the time prescribed by the rules or order of the court. Where the condition has not been complied with, the grant of the writ has become of no effect and the application for writ of error must be dismissed.</p>

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Bowie County.</p> <p>The suit was brought by the bank, upon notes against Norwood, who-reconvened for damages sustained in a previous sequestration suit. Both parties assigned error on Norwood’s appeal, and both obtained writ of error when the judgment was reformed and affirmed by the Court of Civil Appeals.</p>

Ebbob to the Court of Civil Appeals for the Third District, in an appeal from Williamson County. Price sued to foreclose a vendor’s lien making Glasscock a defendant as claimant of an adverse judgment lien on the premises and had judgment for foreclosure as against Glasscock, who appealed. The judgment being affirmed, he then obtained writ of error.

<p>1. Corporation — Ship Channel — “Along Bay” Includes Along Shore of Bay.</p> <p>A corporation created under article 721, Revised Statutes, for the purpose of constructing, etc., a deep water channel and docks on the coast of Texas, under the power, given by section 3 of article 722, Revised Statutes, to construct its channel “along a bay,” may construct same and condemn land therefor along the shore thereof, and is not limited to a construction through or upon the waters of the bay. (Pp. 281, 282.)</p> <p>2. Same — Construction Inland.</p> <p>The power to so construct and condemn land therefor is also maintainable under the authority given by the same section of the statute to construct “so far into the mainland as may be necessary to reach a place for its docks that will afford security from cyclones,” etc. (P. 282.)</p> <p>3. Same — Ship Channel — Starting Point — “Waters of Gulf.”</p> <p>Article 721, Revised Statutes, authorizing the creation of a corporation to construct a channel “from the waters of the Gulf of Mexico,” embraces and authorizes one having its initial point upon a bay or inlet of the gulf coast subject to ebb and flow of tide. (Pp. 282, 283.)</p> <p>4. Same — Case Stated.</p> <p>The P. A. C. & D. Co., appellee, was incorporated under articles 721, 722, Revised Statutes, to construct a ship channel commencing on Sabine Pass, an inlet nine miles long, at a point four miles from its mouth in the gulf, running thence three miles inland to the shores of Sabine Lake, then upon and skirting the shore thereof for a half mile, and gradually diverging therefrom northwesterly to the town of Port Arthur, the site of the company’s proposed docks, crossing Taylor’s Bayou, a navigable stream, about 2000 feet from its mouth. Held, that such incorporation was authorized by Revised Statutes, articles 721, 722, and the company had power thereby to condemn land for such proposed channel. (Pp. 277-283.)</p> <p>5. Eminent Domain — Condemnation—Ship Channel — Consent of Government.</p> <p>The fact that the consent of the Secretary of War to the construction of a proposed ship channel in Texas was necessary and had not yet been obtained, would not avail a land owner as ground of objection to condemnation proceedings. (P. 283.)</p> <p>6. Eminent Domain — Necessity for Condemnation.</p> <p>The power granted such corporation to condemn land for a channel so far inland as to reach a place of safety for its docks was a privilege to and not a restriction upon the rights of the company. The corporation may judge of such necessity and need not show it in order to condemn. (Pp. 283, 284.)</p> <p>7. Statutory Construction.</p> <p>See opinion for application of canon of construction requiring a distinct meaning to be given to every word of statute. (P. 281.)</p>

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from McLennan County.</p> <p>The Behrens Drug Company obtained a writ of error, upon the affirmance by the Court of Civil Appeals of a judgment of the District Court of McLennan County, in which the plea of privilege by the First national Bank of Comanche was sustained.</p>

<p>1. Master and Servant — Acts Beyond Scope of Employment.</p> <p>A railway company which has intrusted the care of a handcar to a section foreman does not thereby become liable, either on grounds of public policy or of duty owing by it to the public, for an injury caused to one ait a public crossing by collision with such handcar through the negligence of the foreman while operating it upon his private errand, not in the performance of a duty to the company, and against its orders. (P. 292.)</p> <p>2. Same — Operation of Bead.</p> <p>Such act is not a part of the operation of the road wherein the master will be responsible for injuries caused by negligence in its performance. (Pp. 292, 293.)</p> <p>3. Same — Custody of Things Dangerous.</p> <p>The fact that the servant was intrusted with the possession and control of the car will not make the master liable, the machine not being dangerous in itself, but only by reason of improper use. Railway v. Cooper, 88 Texas, 608, followed. Railway v. Shields, 47 Ohio, 389, distinguished. (P. 293.)</p>

Payne, by next friend, sued Griffis in trespass to try title and recovered judgment, from which the latter appealed and on affirmance obtained writ of error.

Error- to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County. The cotton machine company sued the insurance company and recovered judgment against it for loss under a policy of insurance. The insurance company prosecuted writ of error in the Court of Civil Appeals and, on affirmance of the judgment there, obtained writ of error from the Supreme Court.

The railway company obtained a writ of error upon the affirmance by the appellate court of a judgment recovered against it by Runnels and from which it had appealed.

<p>1. Joinder of Actions — Conversion of Mortgaged Property.</p> <p>Plaintiff suing defendant in the county of his residence upon a note secured by lien on personal property, could properly join as defendants residents of another county, not parties to the note, who were alleged to have taken and converted the mortgaged property, though they were not charged to have acted with their codefendant in so doing and no foreclosure of the lien was sought. (Dp. 311, 312.)</p> <p>2. Same — Plea of Privilege.</p> <p>Such suit was properly brought against the parties charged with the conversion in the county where their codefendant, who was liable only on the note, resided. (P. 312.)</p>

Sanger Bros, sued Roberts in trespass to try title and recovered judgment, from which the latter appealed. The judgment being reversed and rendered in favor of appellant, Sanger Bros, obtained writ of error.

<p>1. Requested Charge — Measure of Damages.</p> <p>In a suit to establish a trust in favor of plaintiffs upon a tract of land conveyed to defendant and sold by him and to recover its value it was not error to refuse a charge that the measure of damages would be the market value of the land at the date appellant sold it, the true measure being either the purchase money for which the land sold and interest, or the value of the land at the time of the trial, at the option of the plaintiffs. Boothe v. Fiest, 80 Texas, 141. (Pp. 318, 319.)</p> <p>Z. Same — Assignment of Error.</p> <p>Error in the charge in giving to the jury as the measure of damages in such case the value of the land at the time suit was instituted could not be considered under an assignment of error in refusing a requested charge giving another measure of damages, also incorrect. (P. 319.)</p>

The city of San Antonio sued Berry to enforce the collection of taxes, and a judgment in its favor being reformed by the Court of Civil Appeals on appeal by defendant, both parties obtained writ of error from the Supreme Court.

Georges sued Morrison for land, and Thomas, his attorney, having bought at sheriff’s sale the title of George, the father and grantor of plaintiffs, for which Morrison refused to compensate him, intervened in his own behalf, asserting such purchase and also a part interest in the land as well as a money claim against Morrison for legal services.

The railway company obtained writ of error upon a judgment of the Court of Civil Appeals reversing and remanding, upon defendant’s appeal, a judgment in its favor in the trial court, on the ground that the decision was in conflict with previous rulings.

Separate suits were brought against Avery et al. by Popper & Bro. and by Heyland & Co., assignees of respective portions of a note given by defendants to King and secured by chattel mortgage of which foreclosure was sought. The actions were consolidated and defendant appealed from a judgment recovered against him. Judgment was reformed and rendered and appellants obtained writ of error.

<p>1. Independent Executor — Jurisdiction of Court.</p> <p>The object of article 1995 of the Revised Statutes was to enable a testator to commit the management of his estate to such person or persons as he might name, but not to so far withdraw the estate from the jurisdiction of the court that the settlement of it could not be resumed in case the trust should lapse by the failure of the executor to discharge his duties or from other causes. (Pp. 351, 352.)</p> <p>2. Same — Vacancy— Grant of Letters.</p> <p>Estates administered by independent executors are within the provisions of article 1924, Revised Statutes, which authorizes a grant of further administration when the estate is unrepresented “by reason of the death, removal, or resignation of the executor or administrator.” (P. 352.)</p> <p>3. Same — Statute Construed.</p> <p>Article 2012, Revised Statutes, by which an administrator de bonis non succeeds to all the rights, powers, and duties conferred by law on executors generally, but is denied the extraordinary powers of an independent executor, shows that the Legislature contemplated the appointment of administrators to succeed such executors. (Pp. 352, 353.)</p> <p>4. Same — Cases Reviewed.</p> <p>Langley v. Harris, 23 Texas, 569; Willis v. Ferguson, 59 Texas, 175; Frisby v. Withers, 61 Texas, 138; Dwyer v. Kalteyer, 68 Texas, 556, reviewed with reference to power to appoint an administrator de bonis non where an estate partly administered by an independent executor becomes vacant. (Pp. 353, 354.)</p> <p>5. Same.</p> <p>The application of article 1989 in Roberts v. Connellee, 71 Texas, 11; that of article 1997 in Perkins v. Wood, 63 Texas, 396; that of articles 1991-1994, inclusive, in Prather v. McClelland, 76 Texas, 584; and that of article 2012 in Todd v. Willis, 66 Texas, 704, to cases of independent executors discussed. (Pp. 354, 355.)</p> <p>6. Executor — When Includes Independent Executor.</p> <p>Except in those articles which relate to acts to be done in the settlement of an estate, the term “executors,” as used in our statutes, includes independent as well as other executors. (P. 355.1</p> <p>7. Independent Executor — Jurisdiction of County Court.</p> <p>The jurisdiction of the county court over estates of deceased persons administered under article 1995 attaches to the particular estate when proceedings for administration are begun; and when administered under that article the estate remains under the jurisdiction of the court, but all acts done in the “settlement” of the estate the independent executor is authorized to do and the court is prohibited from ordering. (Pp. 355, 356.)</p> <p>8. Same — Resignation.</p> <p>Article 2030, Revised Statutes, providing for the resignation of executors and administrators, embraces independent executors, and the county court has authority to accept the resignation of such an executor and appoint an administrator de bonis non. (P. 356.)</p> <p>9. Same.</p> <p>An independent executor, after qualifying and partially administering the estate, presented to the County Court his resignation, which was accepted and an administrator de bonis non appointed. Held, that its orders in making such appointment were not void as being beyond its jurisdiction. (Pp. 347-357.)</p> <p>10. Certified Questions.</p> <p>The Supreme Court will not answer abstract questions certified to them, the answers to which would not apply to any given state of facts' alleged -in the petition. (P. 357.)</p> <p>ON REHEARING.</p> <p>Opinion Delivered February 9, 1899.</p> <p>11. Administration — Sale of Interest of Heirs — Review by Certiorari.</p> <p>Orders of sale in the administration of the estate of a decedent could not affect the interest in the land so sold which his heirs had acquired by inheritance from his wife, previously deceased; and, not being bound, as to such interest, by the orders, such heirs could not have them reviewed in the District Court upon certiorari on the ground that they improperly ordered sold the entire title to the land instead of the community half interest of decedent. (Pp. 357, 358.)</p>

Trespass to try title by Susan F. Thompson, joined by her husband, against Johnson et al. Plaintiffs recovered, and on appeal by defendants the judgment was reversed and rendered in their favor,… Held: construing the statute, Paschal’s Digest, article 1003, that a literal compliance with the statute is not necessary. Belcher v. Weaver, 46 Texas, 294.

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

<p>1. Negligence — Habit as Evidence of.</p> <p>Evidence that a conductor whose negligence was charged to have caused an injury "was a drinking man” was inadmissible to show his unfitness upon the occasion in question. (Pp. 374, 375.)</p> <p>2. Same — Acts on Other Occasions.</p> <p>So evidence that at another time he had caused a wreck by disobeying orders in regard to setting a switch should have been excluded. (Pp. 375, 376.)</p> <p>3. Negligence — Incompetence—Unfit Servant.</p> <p>When defendant was charged with improperly employing a negligent and incompetent engineer, testimony, not as to a single act of negligence, but to an habitual course of negligent conduct during the time he was employed, was admissible. (Pp. 376, 377.)</p>

<p>1. Agency — Limited Authority — Change of Contract.</p> <p>A contract for the sale of cattle having provided that they should be delivered and weighed at a certain point and under certain conditions, a writing from the seller empowering the buyer to represent him in weighing the cattle did not authorize such agent to consent to a change in the place and conditions of the delivery and weighing. (P. 379.)</p> <p>2. Certified Question — Undetermined Facts.</p> <p>Where the answer to be given to a certified question depends upon the determination of a question of fact not found by the Court of Civil Appeals the Supreme Court will decline to answer it. (Pp. 379, 380.)</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Grayson County</p> <p>The railway company obtained writ of error on the affirmance, upon its appeal, of a judgment recovered against it by Johnson for personal injuries.</p>

Kannie Prior, joined hy her husband, sued for partition of her mother’s community interest in the estate of her deceased parents, and was held estopped by having accepted a benefit under her father’s will. The judgment being affirmed on appeal she obtained writ of error.

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

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

<p>1. Judgment — Two Causes — ¡Recovery on One.</p> <p>Where upon pleadings putting in issue plaintiff’s right to recover on two causes of action the judgment awards him a recovery upon one, but is silent as to the other, it is prima facie an adjudication that he was not entitled to recover upon such other cause. Backley v. Fowlkes, 89 Texas, 613. (P. 395.)</p> <p>2. Same — Final Judgment.</p> <p>Plaintiffs sued the heirs and administrator of D. for an undivided one-half interest in all the'estate of D., real and personal, alleging that it was partnership property of D. and their ancestor T., and had verdict and judgment for $14,000. Such judgment disposed of their entire claim, whether to realty or personalty, and was a final judg- ~~</p>

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

<p>1. Pleading — Conclusion of Law — Commissioners Court.</p> <p>In a petition seeking damages of defendants for unlawfully preventing plaintiff from occupying the office of county assessor, after his election thereto, which showed that there were two bodies of men each claiming to be the Commissioners Court of the county, an allegation that one body, stated to be the “real Commissioners Court,” was intimidated and prevented from approving his bond, and others, usurpers, procured to act as such court and reject a sufficient bond offered by him, states only a legal conclusion of the pleader, and is insufficient, on general demurrer, to enable the court to determine which of the two bodies constituted the court. (Pp. 401-405.)</p> <p>2. Same.</p> <p>In such case facts ought to have been stated which showed that the persons alleged to have been intimidated were lawfully selected and qualified or were de facto officers. (P. 405.)</p> <p>3. Same — Office—Action of Usurpers Void.</p> <p>The action of persons alleged to be usurpers of the office of commissioners, in rejecting plaintiff’s bond, could not deprive him of the office to which he had been elected nor support an action for damages for loss of its fees. (Pp. 405, 406.)</p>

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

<p>Appeal — Final Judgment — Trust—Allowance Pending Suit.</p> <p>Lands having been bequeathed to defendant charged with a trust for the payment of money for the support of plaintiff during his lifetime, he sued to enforce same, seeking an allowance for his support during the pendency of the suit and judgment on final hearing establishing his right to such support for life. An order before final trial adjudging the payment of an allowance to plaintiff pending suit was a final judgment as to that branch of the case, from which an appeal would lie. (P. 413.)</p>

Annie Seffel, joined by her husband, obtained injunction in the District Court against the sale by Hugo and others of her separate property under execution against her husband. Defendants filed appeal bond payable to Annie Seffel only, and, failing to file transcript in due time, the judgment was affirmed on certificate.

Motion in cause previously affirmed on error to the Court of Civil Appeals for the Fourth District in an appeal from Bexar County (91 Texas, 184), for leave to withdraw transcript.

Warren sued Harrold and East upon a note and to foreclose a mortgage, and recovered judgment, which on their appeal was reversed and the case dismissed. Warren then obtained writ of error.

<p>1. Trial of Eight of Property — Death of Claimant — Sureties—Judgment.</p> <p>On the death of one who has filed claim bond for property taken in execution (Revised Statutes, article 5288), on which claim issue has been joined, it is not lawful to dismiss as to such claimant and take judgment by default against the sureties. (Pp. 424-426.)</p> <p>2. Same — Statutes.</p> <p>The issues having been made conformably to the statute, the claimant has not failed to join issue as required by Revised Statutes, article 5299, nor has he, by not appearing after his death, failed to establish his case, within the meaning of article 5307; neither does article 1257, Revised Statutes, authorize dismissal as to him and judgment against the sureties, such article not applying in cases where the sureties are not really parties, but simply answerable for whatever judgment may be entered against their principal, and with no right to appear and take part in the trial. (Pp. 424-426.)</p> <p>3. Trial of Eight of Property — Procedure on Death of Claimant.</p> <p>The proper practice upon the death of claimant is to make his heirs or legal representatives parties. (P. 425.)</p>

Luck et al. obtained a writ of error from the Supreme Court upon a judgment of the Court of Civil Appeals dismissing a cause brought by them on writ of error from the District Court.

<p>1. Trusts — Beneficiary for Life — Alienation of Remainder.</p> <p>A deed by a married woman joined by her husband conveying her property to a trustee, who was to hold and manage it and devote the net income to her support and the maintenance and education of her children, did not divest the grantors of all title nor make void a subsequent conveyance by them to others. The trust was one which would necessarily cease on the death of all the beneficiaries, and the remaining estate could be conveyed by the joint deed of the husband and wife. (Pp. 432, 433.)</p> <p>2. Same — Alienation of Beneficial Life Estate.</p> <p>Conveyances of life estates made in trust for the benefit of -married women (and in this State for others) may restrict their power of alienation; and where such conveyance by the wife joined by her husband, in trust for the benefit of herself and children, contained no express restriction of her power to convey her beneficial interest, but such alienation was inconsistent with the purposes of the trust, which were that the trustee should manage and control the property and devote the income to the support of the beneficiaries, there remained no power to alienate such beneficial life interest, and the trustee was .entitled to possession as against subsequent grantees of the wife joined by her husband. (P. 433.)</p>

<p>Questions cebtified from the Court of Civil Appeals for the Third District, on error from Travis County.</p>

<p>Error to the Court of Civil Appeals for the Fourth District, in an .appeal from Bexar County.</p> <p>‘The Iron City National Bank of Llano sued the Fifth National Bank of San Antonio for a deposit the application of which to payment of a debt of plaintiff’s cashier defendant had made, and asserted that plaintiff was estopped from questioning. Judgment going for defendant, the plaintiff appealed and the Court of Civil Appeals reversed the judgment, holding that there was no evidence to support the claim of estoppel. Appellee thereupon obtained writ of error, on the ground that the ruling practically settled the case.</p>

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

<p>Ebbob to the Court of Civil Appeals for the Second District, in an appeal from Wise County.</p> <p>Porterfield sued the railway company for damages from death of a husband by defendant’s negligence through injuries at a railway crossing, and obtained judgment, which was affirmed on appeal, whereupon the company obtained writ of error.</p>

Vollmer obtained writ of error upon the affirmance by the Court of Civil Appeals of a judgment rendered in the District Court upon his intervention in the receivership case, which writ of error is here dismissed.

<p>1, Acknowledgment — Certificate—Known—Introduced.</p> <p>A certificate of acknowledgment to a deed that W. S., “known to me by introduction by” C. "W. D., appeared and acknowledged that, etc., is sufficient-to show that such person was known to the officer, as required by the Revised Statutes, article 4617. (Pp. 447, 448.)</p> <p>2. Same — What Knowledge Sufficient.</p> <p>The law has not prescribed the extent of acquaintance necessary to justify the officer in so certifying, and the question must be submitted to his decision. The words “by introduction,” etc., are surplusage and do not show that the introduction was the only means of knowledge. (P. 448.)</p>

<p>1. Evidence — Res Gestae — Acceptance of Deed.</p> <p>In a suit on a note for purchase money and to foreclose a lien, the defense being that plaintiffs had accepted a deed of the property from defendant which provided for their assuming payment of the note, the declaration of plaintiff’s agent, on being tendered such deed for acceptance, that they would not accept it, was admissible as part of the res gestae. (P. 450.)</p> <p>2. Indorser — Delay in Suit — Insolvency of Principal.</p> <p>In a suit against the indorser of a note, not brought at either the first or second term after its maturity, the allegation that the maker was notoriously insolvent, relied on to prevent discharge of the indorser by such delay, presented a material issue which, where the evidence did not preclude a finding in defendant's favor, it was error to withdraw from the jury. (P. 450.)</p> <p>3. Same — Bequest for Instruction — Positive Error.</p> <p>A charge to the jury, in such case, to find for the plaintiff, unless they found for defendant under the second clause of the charge, which second clause did not submit the issue of the principal's insolvency, was ground for reversal. It was not necessary to request an instruction submitting the issue, since such charge, if asked, would have been in direct conflict with that given. (Pp. 450, 451.)</p>

Original application for writ of mandamus requiring the Comptroller to issue warrants for fees of a district attorney in felony cases.

Breath and others obtained a writ of error from the Supreme Court upon the affirmance by the Court of Civil Appeals of a judgment of the District Court holding them liable for and foreclosing a lien for cost of street improvements, from which they had appealed.

The Texas Loan Agency obtained a writ of error upon the affirmance of a judgment against it in favor of the widow, children, and parents of Edgar Fleming, for injuries causing his death and alleged to have been occasioned by its negligence.

The insurance company obtained writ of error upon a judgment of the Court of Civil Appeals affirming a judgment recovered against it in the District Court by Sallie I. Wilkes upon a policy of insurance upon the life of her husband.

' Elmendorf et al. sued Classen, and recovered a judgment from which defendant appealed, plaintiff assigning cross errors. On affirmance appellees obtained writ of error.

<p>Certificate of dissent from the Court of Civil Appeals for the Second District, in an Appeal from Young County.</p>

Maddox et al. brought suit against Summerlin a-nd wife and appealed from a judgment for defendants, and on affirmance obtained writ of error.

Ebeoe to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County. Tessman & Bro. sued Schulz and had judgment for $1000, from which the latter appealed and on affirmance obtained writ of error.

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

Chenault recovered from the railway company, in the District Court, damages and penalty for failure to construct a crossing over its right of wa)r within plaintiff’s inclosure. On affirmance thereof upon appeal by the company, it obtained writ of error.

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

Hammon sued the railway company for personal injuries to his wife,. and obtained judgment, which was affirmed on appeal by defendant, who then obtained writ of error.

Jones sued Chapman, Spencer, et al. and obtained judgment foreclosing a vendor’s lien, from which Spencer appealed, and, on affirmance of the judgment, obtained a writ of error.

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Galveston County.</p> <p>Suit by R. A. Brown, executrix, against Galveston Wharf Company, in which Leon Blum intervened and plaintiff appealed from the judgment rendered. The appellate court, on cross-assignments by the intervener, having rendered judgment in his favor, appellant obtained writ of error.</p>

Casseday sued the railway company, by next friend, to recover for personal injuries, and had judgment from which defendant appealed. On affirmance the railroad company obtained writ of error.

<p>Questions certified from the Court of Civil Appeals for the Fourth District, upon error from Bexar County.</p>

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

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Fayette County.</p> <p>Dublin et al. sued the railway company and.Burldtt for damages caused by death of Roland Dublin, son of plaintiffs. The trial court instructed the return of a verdict for defendants, which was affirmed on appeal by plaintiffs, and thereupon they procured writ of error.</p>

Stewart sued the railway company and recovered judgment on account of personal injuries. The company appealed and, on affirmance, obtained writ of error.

Garrison sued Allen and others for the recovery of certain lots, for which he had judgment, which wa's affirmed on appeal by defendants, who thereupon procured writ of error.

Wagner & Chabot obtained writ of error from the Supreme Court upon a judgment affirming upon their appeal a judgment for defendant in a suit brought by them against the insurance company.

Ebbob to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County. White and wife sued McGregor and wife for the recovery of land, and had judgment, which, on defendants’ appeal, was reversed and rendered for appellant. Appellee then obtained writ of error.

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

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

<p>1. Attorney — Employment—Question of Fact.</p> <p>The fact that an attorney rendered legal services for another with his knowledge and consent in conducting a suit in court did not make the latter liable as matter of law for his services, though rendered under the belief that his employment proceeded from the party to the suit, when such party had not authorized his employment and supposed that he was looking for his fee to the person employing him, who had an interest in the success of the litigation.</p> <p>2. Same.</p> <p>Whether under all the circumstances attending the employment and services of such attorney the conclusion that he was employed by the party to the suit was warranted or not, was a question of fact which the Supreme Court had no jurisdiction to decide.</p>

The Missouri, Kansas & Texas Railway Company of Texas obtained writ of error upon a judgment of the Court of Civil Appeals affirming as to it, but reversing as to its coappellant, the Fort Worth & New Orleans Bailway Company, a judgment recovered against them jointly in the trial court.

Williamson and wife sued Conner in trespass to try title. Defendant had judgment which was affirmed on appeal hy plaintiffs, who then obtained writ of error.

Andrews, as administratrix, sued the insurance company and Dyke. The court instructed a verdict for defendants and the judgment was affirmed on appeal. The administratrix then obtained writ of error.

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

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

Ebbob to the Court of Civil Appeals for the Second District, in an appeal from Cooke County. Belcher sued the railway company and appealed from a judgment in the trial court in favor of defendant. It was affirmed in the Court of Civil Appeals, and he obtained writ of error. On a former appeal in this cause the opinion by the Supreme Court upon certified questions is reported in 88 Texas, 549, and 89 Texas, 428.

<p>Limitation — Five Years — Payment of Taxes.</p> <p>Refusing a writ of error upon the judgment of affirmance in this case by the Court of Civil Appeals for the Fourth District, on the ground that the judgment was correct, the court are not prepared to approve the ruling therein that the plea of limitation under the five years statute was sustained.</p>

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p> <p>Beitel sued Schauer & Co. and Ellison upon a promissory note and had judgment, from which Schauer & Co. appealed, and on its affirmance procured writ of error.</p>

McDonald sued Blinn and others and had judgment, from which they áppealed and on affirmance obtained writ of error from the Supreme Court.

Original application to the Supreme Court for writ of mandamus. J. W. Madden applied for the writ to compel D. H. Hardy, his successor in the office of Secretary of State, to deliver to him 300 copies of his biennial report, printed after his retirement from office.

Ebbob to the Court of Civil Appeals for the Third District, in an appeal from Waller County. Magee sued the railway company in the District Court of Waller County and obtained judgment. The company appealed, and bn affirmance obtained writ of error.

Summers sued the railroad company for personal injuries received by derailment of a train on which he was a passenger. He recovered judgment, from which the company appealed, and on its affirmance obtained writ of error.

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

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

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

The railway company appealed from a judgment recovered against it in the trial court, and on affirmance applied for a writ of error.

<p>1. School Land — Sale—Forfeiture—Statutes.</p> <p>The Act of March 25, 1897 (General Laws 1897, p. 39), empowering the Commissioner of the General Land Office to declare forfeitures of sales of public school lands, applies to and authorizes such forfeiture for default in payments of interest then already due, as Well as those to become due on such sales.. (Pp. 634, 635.)</p> <p>2. Same — Cumulative Statutes.</p> <p>Such Act of 1897, being declared cumulative, does not conflict with other laws on the subject, nor repeal section 11 of the law of 1895, so as to prevent a forfeiture under that section. (P. 634.)</p> <p>3. Statutory Construction — Emergency Clause.</p> <p>See opinion for example of resort to the emergency clause of a statute for determining its purpose and application by reference to the necessity there declared. (Pp. 634, 635.J</p>

Errur to the Court of Civil Appeals for the First District, in an appeal from Anderson County. The suit was brought upon the note sued on by Lubbock et al. against Mary Fields, executrix of Henry Fields, and revived, on the death of defendant executrix, against Parks, administrator de bonis non. Plaintiffs had judgment which was affirmed on appeal, and the administrator procured writ of error.

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

Action by the railway against Davis et al. The trial court gave judgment for plaintiff upon defendant's refusal to amend after the sustaining of exceptions to their answer, and they appealed. On affirmance they obtained writ of error.

Mrs. Less appealed from an order of the District Court (on Ghio’s appeal from the County Court) requiring her to give a new bond as guardian. The judgment being affirmed by the Court of Civil Appeals, she then obtained writ of error.

<p>1. Evidence — Leading1 Question.</p> <p>A question is objectionable; as leading, which elicits, by an interrogatory which admits of an answer “yes” or “no,” more than one simple proposition. (P. 657.)</p> <p>2. Same.</p> <p>The failure of a railway company to give signals on approaching a crossing being a material issue, the following question was leading and it was error to permit it: “Up to the time you saw H. D„ did you hear any whistle blown or bell rung by the approaching train?” (Pp. 656, 657.)</p> <p>3. .Same.</p> <p>See opinion for general discussion as to what questions will be held leading, either by reason of their form or substance. (Pp. 656, 657.)</p> <p>4. Same — Discretion of Court.</p> <p>While a large discretion is vested in the trial judge relative to the form of questions or mode of interrogating a witness, some reason for departure from the rule with respect to leading questions should be shown by the bill of exceptions, in order to justify such action. (Pp. 657, 658.)</p>

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Harris County.</p> <p>The suit was by Thayer et al v. Heintz et al. Plaintiffs recovering judgment, defendants appealed, and on affirmance by Court of Civil Appeals obtained writ of error.</p>

Ebbob to the Court of Civil Appeals for the Second District, in am appeal from Coolce County. M. E. Cairns appealed from an order of the District Court (on appeal from the County Court) directing the executors to sell real estate for payment of certain pecuniary legacies. The Court of Civil Appeals having reversed the judgment, the executors obtained writ of error.

Wipff, on attaining his majority, brought certiorari in the District Court to review the proceedings had in the probate court in the settlement of the estate of his deceased father. From a judgment recovered by him. appeal was prosecuted by defendants Kalteyers, and on affirmance after reformation they obtained writ of error.

<p>1. Street Improvement — Assessment of Abutting Owners — Constitutional Law.</p> <p>A city charter which authorizes the city council to improve the streets at the cost of owners of abutting property in proportion to frontage, without regard to special benefits to the property, is violative of sections 17 and 19 of the Constitution of the State and of the fourteenth amendment to the Constitution of the United States. Norwood v. Baker, 172 U. S., 269, discussed and followed, and Adams v. Fisher, 75 Texas, 657, overruled. (Pp. 690-692.)</p> <p>2. Same.</p> <p>The Legislature can not authorize a municipal corporation to assess upon abutting property the cost of a public improvement, in a sum materially exceeding the special benefits which that property may derive from the work. (P. 692.)</p> <p>3. Same.</p> <p>The Legislature can not confer upon a municipal corporation the authority to make an assessment of the cost of a public improvement upon abutting property conclusive upon the owner without giving an opportunity to contest the question of benefits. CP. 692.)</p> <p>4. Same.</p> <p>Such assessment without opportunity for a hearing on the question of benefits is a nullity, and not void merely as to so much as may be shown to be in excess of the benefits derived. (P. 693.)</p> <p>5. Same — Proceedings for Contesting Assessment — Estoppel.</p> <p>A city charter empowered the city council to determine what streets should be improved, and whether such improvements should be paid for by the city or by the owners of abutting lots, — in which latter case the cost should be defrayed by the owners of the lots, etc., abutting on such street according to the cost of works in front of the particular lot, and provided for the making of assessment rolls fixing liability on such basis, and for notice to the persons affected to contest such assessment by petition before the council, in default of which they should be estopped from contesting the validity of the tax. Held, that such proceeding did not provide for or authorize a consideration of the question of benefits by the council, nor estop the owner from questioning the constitutionality of the assessment in a suit brought by the contractor upon certificates issued to him as liens against the property, for doing the work. (Pp. 693-696.)</p> <p>6. Same — Injunction.</p> <p>Neither did a. requirement in the charter that upon final approval of the rolls by the city council any person deeming himself injured should apply to the proper court within five days for an injunction, “based on the facts alleged in such petition,” or be estopped from denying the correctness of the roll, work such estoppel, — the court being only empowered thereby to restrain the council from doing acts contrary to the charter, and not to consider the question of benefits. (Pp. 696, 697.)</p> <p>7. Same — Constitution.</p> <p>The Legislature can not pass a law validating by estoppel an act that it is forbidden by the law to authorize. (P. 697.)</p> <p>8. Same — Recovery According to Benefits.</p> <p>A provision in the charter that if, for any reason, recovery can not be had upon the certificates in accordance with the assessment or the front foot rule, it may be allowed according to the standard of benefits to the lot, did not authorize or require the defendant to enter into the question of benefits in order to defend against recovery upon the invalid assessment under the front foot rule. (Pp. 697, 698.)</p>

Greer, Mills & Co. appealed from a judgment of the District Court on appeal from the County Court in the administration of the estate of T. M. Riley, deed. The judgment being affirmed by the Court of Civil Appeals, they obtained writ of error.

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

Certificate of dissent from the Court of Civil Appeals for the Second District, in an appeal from Montague County. This case, on appeal from a judgment of the District Court, was on November 26, 1898, reversed and remanded, in accordance with the opinion of a majorit)r of the Court of Civil Appeals delivered by Stephens, A. J., from which Hunter, A. J., dissented and filed a dissenting opinion.