Volume 97 — Texas Reports

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

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

<p>1.—Telegram—Mental Suffering.</p> <p>The relation of an uncle to a niece is not ordinarily of a character to entitle the former to recover from a telegraph company damages for mental suffering from being unable to attend the funeral of the latter, in the absence of special circumstances brought to the knowledge of the company, of which it could not be charged with notice from the fact that a message announcing the impending death was sent to him. Following Telegraph Co. v. Coffin, 88 Texas, 94. (Pp. 24, 25.)</p> <p>2.—Same—Loss of Privilege to Console Relative.</p> <p>The loss oí the privilege of affording consolation to a sister on the funeral of her child, if a cause of mental suffering for which damages could be recovered, was not a consequence to the person to whom a telegram was addressed which the telegraph company could be held to have contemplated from the fact that a message was sent to the brother announcing the impending death of the child and dangerous condition of the mother. Following Telegraph Co. v. Luck, 91 Texas, 178. (P. 25.)</p>

<p>1. —Plea of Privilege—Railway—Connecting Lines.</p> <p>Plaintiff being ejected, in Bowie County, from defendant’s train on which he claimed the right to return from Texarkana by virtue of a contract for shipment of horses from Seymour to that point over the Wichita Valley, the Port Worth & Denver and the defendant’s lines, made with the first named company and alleged to be ratified by defendant carrying the shipment under it, sued thereon in Baylor County. A plea of privilege by defendant, denying any partnership or joint undertaking with the other roads, and asserting its right to be sued in a county where it had a road, office or agent, the facts therein alleged being admitted, should have been sustained. (Pp. 28-30.)</p> <p>2. —Same—Act of 1899.</p> <p>The Act of May 20, 1899 (Gen. Laws, 1899, p. 214), if applying to any case other than one of damage to property, does not authorize a suit against two railroad companies not acting under a joint contract, for the distinctly separate wrong of one, merely because property has been transported over the connecting lines of the two. (P. 30.)</p> <p>3. —Venue—Personal Injury.</p> <p>An action for ejecting plaintiff from a train was one for personal injuries, within the meaning of the venue act of March 27, 1901 (Gen. Laws, 27th Leg., chap. 27, p. 31), though the right of plaintiff and duty of defendant grew out of a contract of carriage, and though damages are sought for mental as well as physical pain. (Pp. 30, 31.)</p> <p>4. —Plea In Abatement—Giving a Better Writ.</p> <p>A plea of privilege which shows that the assault complained of occurred in another named county where action may be brought, complies with the requirement that such plea should give plaintiff a better writ. (P. 31.)</p>

8. —Findings of Fact—When Disregarded. Error to the Court of Civil Appeals for the Third District, in an appeal from McLennan County. Suits brought by the Farmers and Merchants National Bank, of Waco, against Scott and the Citizens Bailway Company, and by Parker against the Farmers and Merchants National Bank were consolidated and judgment was rendered for the bank with a lien on the property adjudged in favor of Parker.

From a judgment of the District Court, on appeal in a probate proceeding brought by Rogers on behalf of his wife agáinst De Cordova as guardian of her estate, the latter appealed, and on affirmance of the judgment he obtained writ of error from the Supreme Court.

<p>1. —Continuance—Bill of Exceptions.</p> <p>Without concurring in the ruling of the Court of Civil Appeals that appellant’s bill of exceptions to the overruling his application for continuance was insufficient (the bill did not embrace the motion, but asked that it be made a part of the record together with the bill) the- conclusion reached is affirmed on the ground that the application showed no sufficient ground for continuance. (P. 71.)</p> <p>2. —Continuance—Diligence.</p> <p>No sufficient diligence was shown by an application for continuance for a witness residing in another county, who had been present and testified on former trials of the case and had been notified to and had promised to attend in this instance, but whose deposition had never been taken or sought. (P. 71.)</p> <p>3. —Continuance—Materiality—Personal Injury.</p> <p>The testimony of an absent witness for defendant, in a suit for injury to the person, that plaintiff appeared to be in as good health since the injury as before, was not material unless shown to be so by other evidence. (Pp. 70, 71.)</p>

The railway company prosecutes error from a judgment affirming a recovery of damages in a suit brought against it by Bell.

<p>1. —Lease of School Land—Forfeiture.</p> <p>Section 21 of the Act of April 4, 1895, providing for the sale and lease of the free school and asylum lands, in requiring the lessee to pay the annual rents directly to the Treasurer of the State, does not require that said lessee, with the rent money, shall furnish a description of the land. Tender of the lease money is sufficient. (P. 77.)</p> <p>2. —Same—Default and Cancellation.</p> <p>Failure of lessee to pay rental within sixty days after it falls due, will not ipso facto work a forfeiture of the lease. The lessee, on the contrary, has the right to make payment at any time before the formal cancellation of the lease by the Commissioner of the Land Office in the manner prescribed by law. (P. 77.)</p>

<p>1. —County Treasurer—Available School Fund.</p> <p>The available school fund is one of the funds embraced in the provisions of article 867 of the Revised Statutes, which are required to be counted by the commissioners court. The language “all moneys received and disbursed by him” (the county treasurer) used in article 928, prescribing the report to be made to the commissioners court, is broad enough to include the available school fund the treasurer has received either from the State or the county. (Pp. 82, S3.)</p> <p>2. —Same—Treasurer’s Bonds.</p> <p>Article 921 of the Revised Statutes, which provides that, in addition to his general bond the county treasurer shall give a bond to secure the school fund coming into his custody, further fixes the school fund as one coming under the control and supervision of the county authorities. Following Kempner v. County of Galveston, 73 Texas, 231. See also Burk v. County of Galves-. ton, 76 Texas, 267, and Kempner v. County of Galveston, 76 Texas, 450. (P. 83.)</p> <p>3. —Same—Treasurer’s Report. •</p> <p>The reports required by article 928 to be made to each regular term of the commissioners court are the reports mentioned in article 867 as the quarterly reports of the treasurer. That article is designed to secure the enforcement of the conditions of the treasurer’s school fund bond “that he will safely keep and faithfully disburse the school fund according to law;” and it requires not only that che money shall be accounted for, but shall be actually kept, and actually in the hands of the treasurer to be counted and examined by the commissioners court at each regular term thereof. (Pp. 83, 84.)</p> <p>4. —Treasurer’s Relation to County—Not a Bailee.</p> <p>The relation of the county treasurer to the county, or to the school fund, is not that of a bailee, nor is it that of a debtor in the ordinary meaning of the term. He is a public officer intrusted with the money which belongs to the public, which continues to be public funds in his hands; his duties are prescribed by statute, and his obligations are fixed by the law and the terms of his bond. There is absolutely no qualification about the contract between the county and the treasurer, and the law and the bond obligate the latter to safely keep and faithfully disburse the money. (Pp. 84, 85.)</p> <p>5. —Breach of Bond—Treasurer’s Liability—County’s Cause of Action.</p> <p>When the commissioners court examined the report of the treasurer in this case and found that he had not the school fund on hand, it was established that he had not safely kept the school fund, and, therefore, there was a breach of his bond, and a right of action arose in favor of the county for the recovery and restoration of the school fund. (P. 85.)</p> <p>6. —Practice in Supreme Court.</p> <p>The Supreme Court can not be called upon to answer certified questions not coming within the statutes and rules governing its proceedings. (P. 85.)</p>

<p>1. —County—Public Road—Damaging Private Property.</p> <p>Property may be taken or damaged by counties for public use in establishing and maintaining public roads, and the authority thus given embraces the making of ditchés and drains (Batts’ Rev. Stats., arts. 4745, 4757, 4769, 4776, 4782, 4784, note 13,864); and where this authority is properly exercised a county may be made liable for the damage thereby caused to private property (Const., art. 1, sec. 17). (Pp. 91, 92.)</p> <p>2. —Same—Injunction.</p> <p>Where a road, with its ditches and drains, is constructed for the county, in the exercise of lawful authority, the owner of property taken or damaged is compensated, and the county acquires the right to apply the property to public use; in such case, neither the county nor the- officers acting for it can be enjoined from the continuance of such use; nor can the officers, if they have properly exercised the authority granted, be made liable to compensate the owner for his damages. In cases not falling within the above class, the county is not responsible, but the person through whose wrong or neglect the damage occurred may be. (P. 92.)</p> <p>3. —Same—Pleading—Public Road.</p> <p>See opinion for details of a petition held not to show a case for injunction or damages, either against a county or its officers constructing a road alleged to have injured plaintiff’s land by ditches diverting the flow of surface water upon it, the pleader failing to show whether same was or was not a public road. (Pp. 88-92.)</p>

<p>1. —Charter—City of Galveston—Suit for Taxes.</p> <p>The provisions of sec. 54 of the charter of the city of Galveston as to preparation of delinquent lists by the board of commissioners and authorizing suit brought by the city attorney for recovery of taxes, considered in connection with sections 56, 60 and 61, are to be construed as permissive and not mandatory, and did not restrict the right of the city to bring such suit nor make such procedure a condition precedent thereto. (Pp. 93-96.)</p> <p>2. —Same.</p> <p>In the absence of any express provision on the subject a city has the power to bring suit for its taxes. "(P. 96.)</p>

Motion by Trimble for leave to make himself party defendant in an original suit in the Supreme Court for writ of mandainus against the Land Commissioner.

<p>1. —Statutory Construction—“And” Meaning “Or.”</p> <p>Where a literal interpretation oí the words of a statute produces an absurdity, they may be restricted or enlarged to conform to the general purposes and intent of the Legislature, as by taking the word “and” in the sense of “or.” (Pp. 105, 106.)</p> <p>2. —Same—Descent—Art. 1695, Rev. Stats., Construed.</p> <p>Art. 1695, Rev. Stats., is to be construed as though reading: “When * * * any other relations of the deceased standing in the first degree come alone into the partition they shall take per capita, that is to say, by persons, and when any other relations of the deceased standing in the same degree come alone into the partition, they shall take per capita, that is by persons.” (P. 106.)</p> <p>3. —Same—Case Stated.</p> <p>A decedent leaving neither children, parents, nor their descendants, nor grandparents, had for kindred on the paternal side the descendants of three aunts,-—of one, a child still living; of another, four children still living and four children of a child deceased; of the third, six children of one deceased child and two of another. Held, that the paternal half of deceased’s estate should be divided into eight equal parts, one to be allotted to each of the five surviving first cousins, and one to the descendant’s of each of the three deceased first cousins. (Pp. 103-106.)</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Grayson County.</p> <p>Boyer & Lucas sued the railway company for damage to real property, and appealed from a judgment for defendant. On affirmance they obtained writ of error.</p>

Bosa Berwald sued the insurance company and had judgment against it. Defendant appealed, and on affirmance obtained writ of error.

<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 Fifth District, in an appeal from Bowie County.</p> <p>Sallie M. Hudgins sued the Maryland Casualty Company and recovered judgment. Defendant appealed, and on affirmance obtained writ of error.</p>

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

<p>Homestead—Urban or Rural.</p> <p>Considering the undisputed facts showing the growth of a town about the residence and nine acres of a former rural homestead, it is held that its character had been changed to an urban one, and that the adjoining 100 acres of the former rural homestead, lying outside the town, could be sold under execution. (Pp. 139-142.)</p>

' Spivey recovered judgment for personal injuries in his suit against the railway company. Defendant appealed, and on affirmance obtained writ of error.

This was a proceeding instituted in the probate court by the plaintiffs in error, as heirs at law, contesting the probate of a will of Mariab F. McElroy, deceased, alleged to be lost. That court admitted the will to probate. Appealed to the District Court the same judgment on trial de novo was entered, and this was affirmed on appeal to the Court of Civil Appeals.

The telegraph .company prosecutes error on the affirmance, upon its appeal, of a judgment recovered by plaintiff in a suit against it by Barefoot.

<p>School Land—Lease—Nonpayment—Forfeiture.</p> <p>The payment or receipt oí rent under a lease of school land by the State for eight months only of a current year would not prevent the forfeiture of the lease within sixty days after the rent for the year became due; a reinstatement of the lease after its cancellation therefor was unauthorized; and an applicant to purchase the land could enforce his right thereto by mandamus in spite of such reinstated lease. (Pp. 166, 167.)</p>

Startz sued the International & Great Northern Bailway Company, and others, and obtained judgment, which was affirmed on appeal by defendants, who thereupon obtained writ of error.

Cluck sued the railway companies and recovered judgment, which was affirmed on their appeal. The appellants thereupon obtained writ of error.

Giddings sued Fischer for the recovery of land, and had judgment therefor. On defendant’s appeal the judgment was reversed and rendered for appellant for a part of the land, and appellee, the plaintiff below, thereupon obtained writ of error.

<p>1. —Liquor Dealer—Permitting Minor on Premises.</p> <p>Permitting a minor to enter and remain on the premises, a condition of liability on a liquor dealer’s bond, implies a permitted remaining for a longer time than merely to purchase a drink, the selling of which was a distinct ground of liability and excused by belief that the buyer was of full age. (P. 192.)</p> <p>2. —Same.</p> <p>The mere fact that one believed by the liquor dealer to be of full age was allowed to enter his saloon, get a check cashed, purchase a drink and depart, will not make the dealer liable under his bond for permitting such minor to enter and remain on his premises. (Pp. 191-193.)</p>

Edrington and others, interveners in a suit by Austin against Hermann for the recovery of land, obtained writ of error on the affirmance on their appeal of a judgment by which the land was divided between plaintiff and defendant.

<p>1. —Jury—Challenges—Hostile Defendants.</p> <p>Defendants between whom there is a controversy are each entitled to six peremptory challenges, though they consult and act together in exercising the right. (Pp. 212, 213.)</p> <p>2. —Harmless Error—Distinct Defenses.</p> <p>Where the jury, under ihstructions on distinct defenses, one submitting the question whether plaintiff had been given a lien on certain cotton by the owner, and the other whether he had waived his lien by consenting to a sale by such owner, found for defendant on the latter issue without expressly passing on the former, errors in the charge submitting the question whether a lien was given became immaterial. (Pp. 213, 214.)</p> <p>3. —Damages—Proof of Value.</p> <p>A railway which converted cotton by refusing delivery without surrender of the bill of lading giving the right in the holder to demand it, could not defeat recovery on the ground that there was no proof of the value of the particular bales in question,—a few out of a large number whose aggregate value was proved; being in possession of defendant and never having been in possession of plaintiff, the latter could recover on the basis of the average price of the lot per bale, unless those in question were shown to be of less value. (Pp. 214, 215.)</p> <p>4. —Lien—Sale by Consent of Lienholder.</p> <p>The holder of a lien on cotton who consented to its sale by the owner and received the price it brought, had no claim by virtue of his lien to anything but such proceeds. (P. 215.)</p> <p>5. —Nominal Damages—Practice in Supreme Court.</p> <p>Where it is- sought to reverse a judgment for defendant on the ground that plaintiff was entitled to at least nominal damages, the point should be made in the Court of Civil Appeals, by brief and on motion for rehearing, in order to be available in the Supreme Court. (P.- 215.)</p> <p>6. —Practice on Appeal—Affirmance in Part.</p> <p>In a suit for conversion of personal property on which plaintiff claimed a lien, a judgment for defendant may be affirmed as to a part of the claim, as to which no error appears—property sold by consent of the lienholder— and reversed and remanded as to the rest of plaintiff’s claim—for that which was not so sold. (Pp. 215, 216.)</p>

<p>Practice in Trial Court—Practice on Appeal—Rendering Judgment.</p> <p>,The trial court can not render judgment contrary to the verdict, though the evidence is such as would have warranted a peremptory instruction to find a verdict supporting such judgment; but the Court of'Civil Appeals, under the power to render such judgment as the court below should have done, may render such as that court should have directed, that is where the evidence warranted peremptory instruction for plaintiff, it may reverse and render for him, though defendant had a verdict. (Pp. 216-219.)</p>

The Western Union Telegraph Company prosecutes error upon the affirmance, upon its appeal, of a judgment recovered against it by the bank.

<p>1. —Mayor—Impeachment by City Council.</p> <p>Construing articles 4, 7, 35, 36, 37, 87, 273 and 274 of the special charter of the city of Waco, it is held, that the city council had authority thereby to try the mayor and remove him from office for corruption, misconduct or malfeasance therein; that the term “any officer," as used in article 273, embraces elective officers as well as those appointed by the council; that the power conferred need not be exercised by the whole council, composed of mayor and aldermen, but in a case where the mayor was interested and disqualified could be by the aldermen and their president pro tem; and that the power of removal “after due notice and opportunity to be heard in his defense” was effective without the adoption of rules of procedure by the council before entering on the hearing. (Pp. 232-237.)</p> <p>2. —Same—Aldermen Preferring Charges—Disqualification.</p> <p>Aldermen were not disqualified from acting as members of the city council in an impeachment trial of the mayor by the fact that they had joined in offering the resolution presenting charges against him; they were acting in the trial in an administrative and not a judicial capacity; nor did the fact that they had presented the charges give them any disqualifying personal or pecuniary interest in the result. (Pp. 237, 238.)</p>

<p>Error to 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 Dallas County.</p>

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

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

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from McLennan County.</p> <p>Cox and others sued Patton and others and had judgment enjoining an execution issued against them for costs of a previous suit. Defendants appealed, and on affirmance obtained writ of error.</p>

<p>1. —School Land—Sale—Forfeiture—Resale.</p> <p>An application to purchase school land formerly sold to another, made on the day such prior sale became subject to forfeiture for nonpayment of interest and before notice had been sent by the Commissioner to the county clerk that the land was offered for sale as required by law (Rev. Stats., art. 4218) did not confer on the applicant any right preventing the reinstatement of the first sale. (Following Willoughby v. Townsend, 93 Texas, 80; Ford v. Brown, 96 Texas, 537. (P. 260.)</p> <p>2. —Same.</p> <p>The fact that the Commissioner had previously advertised the land for sale on the day when the first purchase would become forfeited, did not dispense with the necessity for the notice to the county clerk required by statute. (P. 260.)</p>

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

<p>1. —Benefit Society—Penalty and Attorney’s Fees.</p> <p>Findings considered and held to show that a defendant benefit society incorporated in another State was an association having no capital stock, but a relief fund created by assessments upon members, within the meaning of article 3096, Revised Statutes. (P. 270.)</p> <p>2. —Same—Proviso—Burden of Proof.</p> <p>In actions against benefit .associations such as are mentioned in Revised Statutes, article 3096, plaintiffs seeking to recover the penalty for nonpayment and the attorney’s fees provided by Revised Statutes, article 3071, must show the facts bringing defendant within the operation of that article, such as a failure to make its annual report under oath to the insurance department of this State. (Pp. 270, 271.)</p>

<p>1. —Practice in Supreme Court—Certificate of Dissent—Writ of Error.</p> <p>Where a case decided by the Court of Civil Appeals is sent to the Supreme Court on their certificate of dissent the appeal is to be disposed of in accordance with the opinion on such certificate; the decision is susnended in the appellate court meantime, the case remaining in its jurisdiction for that purpose, and writ of error will not lie while the case is in this attitude, because there has been no final judgment. Rev. Stats., arts. 1040, 1041, 1042. (Pp. 272. 273.)</p> <p>2. —Same—Withdrawal of Certificate.</p> <p>A party on whose motion a case has been sent to the Supreme Court on certificate of dissent, if desiring to waive such certificate and prosecute writ of error, should apply to the Court of Civil Appeals to have the certificate withdrawn. (Pp. 273, 274.)</p> <p>Application fox writ of error to the Court of Civil Appeals for the Third District, in an appeal from Milam County.</p> <p>McCord and others sued -Nabours and others and judgment went for defendants, plaintiffs appealing. On a judgment reversing and remanding, appellees applied for writ of error.</p>

The State sued the railway company and recovered a judgment which was affirmed on appeal by defendant, who thereupon obtained writ of error.

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

<p>1. —Telegraph—Death Message—Damages Not Remote.</p> <p>A message from Mrs. Swearingin to Green Swearingin: “Come; Frank is dead," was sufficient to enable the company to contemplate and to make it responsible for damages caused by its delay in delivery, which prevented the receiver from sending notice that he was coming and securing postponement of the funeral of his son till his arrival. (Fp. 294-296.)</p> <p>2. —Cases Distinguished.</p> <p>Western U. Tel. Co. v. Norris, 25 Texas Civ. App., 43, followed, and Western U. Tel. Co. v. Linn, 87 Texas, 7; Western TL Tel. Co. v. Motley, 87 Texas, 38; Western IT. Tel. Co. v. Stone, 27 S. W. Rep., 144, distinguished. (P. 295.)</p>

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

The railway company prosecutes error upon the affirmance, on its appeal, of a judgment recovered against it at suit of Scurlock.

<p>1. —School Land—Detached Section—Authority of Commissioner.</p> <p>The act of the Commissioner of the General Land Office, in awarding a survey of school land to an applicant to purchase it as a section detached from other public land, is a merely ministerial, and not a judicial determination by him of the fact that it is so detached, and does not conclude the State nor prevent him from correcting his error, if it was not in fact a detached section, by subsequently canceling the sale. (Pp. 314-316.)</p> <p>2. —School Land—Detached Section.</p> <p>Sections of school land contiguous at one corner with another section which had been sold were no longer detached sections, subject to sale as such, after the rights of the purchaser of such contiguous section had been forfeited for nonpayment by decree of court filed in the land office; and it was immaterial that such forfeited section appeared still marked as sold on the abstracts furnished the assessor of taxes by the land office, such abstracts being for his guidance, and not for that of prospective purchasers. (Pp. 313-316.)</p> <p>3. —Same—Purchase as Actual Settler.</p> <p>An actual settler on school land who has applied to purchase other lands under the law for sale of detached sections, can not, as against a subsequent applicant to purchase them, demand that, on cancellation of his first purchase because the lands were not in fact detached, they be awarded to him as additional lands to his home place. (P. 316.)</p> <p>4. —Purchase of School Land—Detached Sections.</p> <p>Two sections of school land contiguous to a third one having been improperly sold as detached sections, a purchase of the third by another party, as a detached section, was also invalid, and did not have the effect to make the purchase of the first two valid by making them detached. (P. 316.)</p> <p>5. —Same—Premature Application.</p> <p>The rule in Hazelwood v. Hogan, 95 Texas, 295, as to the effect of an award made on a premature application to purchase, after the land came on the market, does not apply to an acceptance and award on an application to purchase a tract as detached land made when the land was not detached or subject to sale as such. (Pp. 316, 317.)</p> <p>6. —Lease—Purchase—Application of Payments.</p> <p>A lessee of school land who abandons his lease and applies to purchase, can not demand that, where his attempted purchase is invalid, the payments made thereon be applied to keep his lease in force. (P. 317.)</p>

<p>1. —Married Woman—Deed—Dedication.</p> <p>The conveyance of land of a married woman, by deed acknowledged as required by law, has the same effect as if she were sole, as a dedication to the public of streets and alleys in a plat called for by her deed. (P. 322.)</p> <p>2. —Same—Case Stated.</p> <p>The husband having caused a subdivision, and survey of a tract of land, within the limits of a city, belonging to his wife, to be made and placed on the county record of deeds, conveyances subsequently made and duly acknowledged by him and his wife, of lots in such subdivision, calling for the map and for streets and alleys as shown thereon, operated as a dedication to the public of such streets and alleys, and empowered the city authorities to open them to the public as the growth of the city required, though over the protest of the grantors. (Pp. 321-324.)</p> <p>3. —Same—Acceptance.</p> <p>There was no necessity for an acceptance of the dedication by the city authorities, the right, resting in the purchasers of lots, to have such streets opened when necessary being irrevocable by the grantor. (Pp. 323, 324.)</p>

Questions certified from the Court of Civil Appeals for the Third District, in an appeal from Travis County.

<p>1. —Constitutional Law—Qualified Voter—Payment of Poll Tax.</p> <p>Voters at a local option election in Milam County on May 30, 1903, who had not paid their poll tax prior to February 1st were disqualified under section 2, article 6, of the Constitution as amended under resolution of' the Twenty-seventh Legislature, though the Act of the Twenty-eighth Legislature, taking effect March 30, 1903, extended the time for payment of taxes in that county until October 1, 1903. (Pp. 336, 337.)</p> <p>2. —Same.</p> <p>The act extending the time for payment of taxes in Milam County to October 1, 1903 (Laws 28th Leg., p. 63), did not by its terms relieve the disqualification of voters failing to pay their poll tax by February 1st of that year," and if it had attempted to do so would have been unconstitutional. (P. 337.)</p> <p>3. —Contested Election—Conspiracy.</p> <p>It was proper for the commissioners court to give instructions to election officers as to the disqualification of voters not paying their poll tax; and an allegation, in a contest of the election, that they had fraudulently conspired to prevent a fair election by giving such instructions was without effect. (P. 337.)</p> <p>4. —Contested Election—Case Distinguished. .</p> <p>The case of Stinson v. Gardner (2 Texas Law Journal, 672) does not hold that it was improper for election officers to require voters to produce their poll tax receipts, and whether it was so or not will not be decided in a case where the number alleged to have been denied a vote by such ruling was not sufficient to change the result of the election. (Pp. 337, 338.)</p>

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

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

L. L. Jester & Co. sued the city of Tyler upon certain promissory notes, and having judgment, though for less than sued for, the city appealed. The judgment was reversed and rendered for appellee for a less amount than the recovery below, and the city thereupon obtained writ of error.

The insurance company prosecuted error from a judgment for plaintiff in a suit against it by Monger & Henry, who obtained writ of error from the Supreme Court when the judgment was reversed and rendered for appellant by the Court Of Civil Appeals.

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Grayson County.</p> <p>Injunction was refused by the trial court on application of the drug company, and the decision affirmed on its appeal, whereupon it obtained writ of error.</p>

The State, on the relation of Gill, sued the city of Oak Cliff and had judgment, from which defendant appealed, and upon affirmance obtained writ of error.

Motion to vacate the judgment rendered in this ease March 7, 1904, ante, p. 383, on the ground of disqualification of the Chief Justice as being a taxpayer in the city of Dallas.

Annie Freeman and others sued the railway company and recovered ' judgment, which was affirmed on appeal, whereupon the company obtained writ of error.

Tiboldi sued Palms and others for the recovery of land purchased by him at a sale under a trust deed, and, in the alternative, for the establishment of the debt and foreclosure of lien.

<p>1. —Railroad—Right of Way—State School Land.</p> <p>The right of way given railroads over lands belonging to the State, by article 4423, Revised Statutes, extends to lands surveyed and set apart for the State school fund. (Pp. 420, 421.)</p> <p>2. —Same—Constitution.</p> <p>The power of the Legislature to grant to railroads a right of way over the State’s public school lands is not restricted by section Z of article 7 of the Constitution, appropriating such lands to a perpetual school fund; nor by section 3 thereof, providing that such lands be sold; nor by section 17 of article 1, providing for compensation for private property taken for public use; nor by section 3 of article 14, limiting the power to grant public lands in aid of railway construction. (Pp. 421-425.)</p>

<p>1.—Contested Election—Pleading—Amendment.</p> <p>Amendment of the statement of grounds of contest and reply thereto by contestee in election cases being governed by the rules applicable in this State in other civil cases (Rev. Stats., art. 1803), new matter may be set up by amendment by the contestee without showing that it is newly discovered or excuse for failing to present it sooner, subject to the discretionary right of the court to strike it out if the privilege is abused. (P. 431.)</p> <p>-2.—Same.</p> <p>Amended pleadings setting up new matter properly constitute the basis of the judgment in election cases as in other proceedings. (Pp. 430, 432.)</p> <p>3.—Contested Election—Cost Bond.</p> <p>Contestant in an election ease, as in other civil suits, may avoid the requirement of cost bond by affidavit of inability to give one. (P. 432.)</p>

Anderson sued the piano company and the latter appealed from a judgment in favor of plaintiff, on affirmance of which'it obtained writ of error.

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Grayson County.</p> <p>Lovett sued the railway company for personal injuries and recovered-judgment which, on defendant’s appeal, was reversed and rendered for appellant. Lovett thereupon obtained writ of error.</p>

<p>Application for writ of error and for leave to file petition for mandamus to the Court of Civil Appeals for the Third District, in an appeal from San Saba County.</p>

<p>1. —Appeal—Assignment of Errors.</p> <p>An appellee can not assign errors against his coappellee. (P. 450.)</p> <p>2. —Partnership—Sale—Lien—Waiver,</p> <p>The lien of partners on partnership property for the payment of partnership debts is generally waived by one who takes from the other, on dissolution and division of the property, an agreement to assume and pay the debts; and its retention in such case is to be distinguished from a conventional lien by agreement that one partner shall pay certain debts out of the partnership property received by him. (Pp. 451, 452.)</p> <p>3. —Lien—Agreement.</p> <p>A mere discussion between partners on dissolution as to how one might be able to pay certain partnership debts assumed by him out of the partnership assets which he retained did not amount to an agreement that the other should have a lien on such assets for securing the payment of the debt so assumed. (Pp. 451, 452.)</p> <p>4. —Appeal—Damages for Delay.</p> <p>A defendant who was forced to appeal to secure his rights against a co-defendant, held not liable to the plaintiff for damages for delay in such appeal, though neither defendant disputed plaintiffs right to recover. (Pp. 452, 453.)</p>

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

<p>Mandamus—Jurisdiction of Supreme Court—Question of Fact.</p> <p>On petition to the Supreme Court for mandamus requiring the respondent, as Commissioner of the General Land Office, to accept the applications of relator to purchase a section of school land as an actual settler and three others as additional sections to such home place, a plea filed by an intervener holding assignment of a leasehold interest in the land from one made a defendant to the proceeding as an adverse claimant, which plea denied relator’s claim to be an actual settler on his alleged home place, presented an issue of fact which precluded the Supreme Court from taking jurisdiction. (Pp. 458, 459.)</p>

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

<p>1. —Innocent Purchaser—All Grantor’s Separate Property—Unrecorded Deed.</p> <p>A power of attorney authorizing the grantee to sue for and recover and conveying to him, for past and prospective services in so doing, one-half interest in all lands in the State “belonging to the separate estate of” the grantor, was sufficient to support his claim as an innocent purchaser of and to vest title in him to one-half of all lands appearing of record in the name of grantor as her separate estate, as against one claiming the same under an unrecorded deed previously made. (Pp. 463-465.)</p> <p>2. —Same.</p> <p>The conveyance of all property “belonging to the separate estate of” the grantor, distinguished the land conveyed from that which might belong to her husband and did not except from the operation of the deed lands previously conveyed by her by a deed not recorded. (P. 465.)</p> <p>3. —Same—Case Distinguished.</p> <p>Patrick v. Badger, 41 S. W. Rep., 539, distinguished as involving effect of parol contract for sale of land, from present case. (P. 465.)</p>

Ward and others sued Cameron and others for the recovery of land. Defendants had judgment which was affirmed on appeal by plaintiffs, who then obtained writ of error.

Hutches sued the city of Galveston and those claiming under it for the recovery of land, and Abbott, a vendee of the city, intervening, on recovery of the land by plaintiff, had judgment against the city on its covenant of warranty. On appeal- by the city this judgment was reversed and rendered in its favor as against Abbott’s claim on the warranty, and thereupon he obtained writ of error.

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Galveston County.</p> <p>Markowitz sued the Greenwall Theatrical Circuit Company and recovered judgment, but appealed, complaining of insufficiency of the recovery. The appellate court reversed and rendered judgment in his favor for a larger amount, and appellee obtained writ of error.</p>

<p>1. —Carrier of Passengers—Misdirection—Duty to Remedy.</p> <p>Refusing a writ of error on the ground that the ruling here criticised was not necessary to the decision, approval is withheld from the opinion on appeal that it was the duty of a carrier whose conductor had directed to its train a passenger having a ticket over another line to comply with her request, when the mistake was discovered, to transport her to a station where she had relatives. (Pp. 489, 490.)</p> <p>2. —Same—Charge.</p> <p>Charge held not to place upon a railway the duty to carry a misdirected passenger taking the wrong train to a place where she had relatives, instead of putting her off at the first station. (Pp. 489, 490.)</p>

Original application to the Supreme Court for writ of mandamus. The Pish Cattle- Company brought suit against Terrell, Commissioner of the General Land Office, and Oglesby, and adverse claimants of lands, for writ of mandamus.

<p>1. —Assignment of Error.</p> <p>Assignment and proposition and statement thereunder held sufficient to raise the question of error in overruling defendant’s plea to the venue of the suit against a nonresident railway corporation having an agent in the State. (Pp. 495, 496.)</p> <p>2. —Venue—Railway.</p> <p>A foreign railway „ corporation operating no line in this State, but having an agent therein, was entitled to he sued in the county where it had such agent in an action on an interstate shipment of cattle over connecting lines of road under a contract which exempted each road from damage on other lines. (Pp. 496, 497.)</p>

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

Hill and Morris sued the railway company for damages and statutory penalty. Defendant had judgment below. Plaintiff appealed and secured a reversal with rendition of judgment in their favor. The railway company then obtained writ of error.

Original application to the Supreme Court for writ of mandamus to require the Commissioner of the General Land Office to accept the application of relatrix to purchase certain school lands claimed under lease by Keith, who was joined as respondent.

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Bell County.</p> <p>Lizzie Howard and others sued the railway company and recovered judgment which was affirmed on appeal by defendant, who thereupon obtained writ of error.</p>

<p>School Land—Purchase—Nonoccupancy—Innocent Purchaser.</p> <p>An innocent purchaser from one buying school land from the State and who has received his certificate of proof of three years occupancy is protected against the attack of the State up'on the sale on ground of nonoccupancy. (P. 521.)</p>

<p>School Land—Purchase—Actual Settler.</p> <p>Under Revised Statutes, article 4218fff (Act, April 19, 1901) an applicant to purchase school land within five miles of that which he owned and lived on was not required to make affidavit to such ownership, but only to absence of collusion; though he inadvertently applied to purchase as an actual settler on the tract applied for, and was not such settler, his application and affidavit covered all the requirements necessary to constitute him a purchaser of lands additional to his home place; and his purchase was not void, nor the land open to purchase by another applicant. (Pp. 525, 526.)</p>

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

<p>—Trust—Assignee Taking Title Through Sale by Himself—Charge.</p> <p>In a suit by accepting creditors to set aside a sale of property of an insolvent by his assignee who had acquired title thereunder it was error to charge that such sale was valid if the purchaser had not bound himself to let the assignee take the property at the amount of his bid, but had merely purchased under a guaranty, made in good faith by such trustee and for the purpose of having the whole property bring a fair price, to take a part of same off his hands. (Pp. 532-536.)</p> <p>2. —Same.</p> <p>A sale of property by assignees for the benefit of creditors made directly or indirectly to one of such assignees, without the consent of the beneficiaries in the trust, was voidable at the election of such beneficiaries, within a reasonable time, without regard to whether the purchase by such assignee was made in good faith and for an adequate consideration or not. (P. 533.)</p> <p>3. —Same—Cases Distinguished.</p> <p>The case of a trustee purchasing indirectly at his own sale distinguished from those of public sales by order of court and subject to its confirmation (Ives v. Ashley, 97 Mass., 198; Stalling v. Foreman, 2 Hill Qh., S. C., 405) and of purchases by a trustee from the beneficiary (Erskine v. De la Baum, 3 Texas, 406; Hickman v. Stewart, 69 Texas, 255), or by a beneficiary from the trustee (Howard v. Davis, 6 Texas, 174). (Pp. 533, 534.)</p> <p>4. —Same—Trustee’s Guaranty of Resale ‘by Purchaser.</p> <p>Where the trustee guaranteed resale by the one intending purchase of a part of the property at the price of sale, which was on credit, and after-wards furnished the money to carry out this arrangement in the name of a third party to whom, on making payment, the property, held by the trustee till that time, was transferred by the purchaser, the sale was, indirectly, one by the trustee to himself, and was voidable by the beneficiaries irrespective of the good faith of the transaction. (Pp. 535, 536.)</p>

<p>Practice in Supreme Court—Title to Office.</p> <p>Though the Supreme Court has granted a writ of error in a case involving the title to a public office, it will be dismissed upon expiration of the term of office in controversy before a decision has been reached.</p>

The Cuero bank sued Smith and Bay on a note, joining the Beeville bank on account of representations made as to the genuineness of Bay’s signature. Plaintiff recovered against Smith and the Beeville bank, Bay getting free on his plea of non est factum. The Beeville bank appealed, and on affirmance obtained a writ of error from the Supreme Court.

Hayden sued Cranfill and others for libel, and had judgment, which was affirmed on appeal by defendants, who thereupon obtained writ of error.

The bank sued Claxton on a note and the latter defended on plea of the bank’s misappropriation of his funds on deposit by his factor. From a judgment sustaining this defense, plaintiff appealed and, on its affirmance, obtained writ of error.

<p>School Land—Owner of Town Lot—Purchase of Additional Land.</p> <p>The owner and resident on a lot of four acres situated in an incorporated town is not such an “owner of other lands” as is entitled to purchase additional sections to his home place under article 4218fff of the Revised Statutes. (Pp. 579-581.)</p>

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

<p>Question certified from 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 Second District, in an appeal from Hood County.</p>

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

Corrigan sued Fitzsimmons for the recovery of land. The court directed a verdict for defendant, and the judgment was affirmed on appeal by plaintiff, who then obtained writ of error.

<p>1. —Conspiracy—Unlawful Act—Motive.</p> <p>A combination to destroy one’s business, for the purpose of securing advantage to the conspirators, is not actionable where the end is sought by no unlawful means, nor is it rendered actionable by the existence of malice or wrong motive so long as the means remain lawful, but it becomes so when the means resorted to are false representations as to the solvency, honesty, etc., of the party sought to be injured. (Pp. 609-610.)</p> <p>2. —Same—Pleading.</p> <p>Petition alleging a combination of defendants to destroy plaintiff’s business and divert the- business connections and benefits thereof to the conspirators by circulating false statements as to plaintiff’s solvency, honesty and faithful conduct of affairs intrusted to him held to state a cause of action. (Pp. 606-609.)</p> <p>3. —Same—Limitation.</p> <p>An action for destroying plaintiff’s business and business connections by conspiring to circulate false reports as to his solvency, honesty and faithful conduct of affairs intrusted to him, is not barred by limitation in one year. (P. 611.)</p>

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

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

Kelly and wife sued the railway company for personal injuries received by the wife. On appeal, by defendant, the judgment was reversed, and appellees, the plaintiffs, obtained writ of error on the ground that the ruling practically settled the case.

Bowen sued the telegraph company and recovered a judgment, which was affirmed on defendant’s appeal, whereupon appellant obtained writ of error.