Volume 99 — Texas Reports

<p>1. —Warranty—Incumbrance—Taxes—Penalties.</p> <p>The warranty against incumbrances on a sale of land covers, not only the lien for state, county and city taxes attaching to the property while owned by the grantor, but the costs and penalties incurred for nonpayment, though accruing after the conveyance. (P. 5.)</p> <p>2. —Same.</p> <p>The duty to prevent the attaching of costs and penalties by making payment of taxes resting on the warrantor of title, his warrantee was under no obligation to prevent the attaching of same by himself making payment, and could recover, upon the warranty, the costs and penalties, as well as the taxes which he was compelled to pay by the warrantor’s default. (P. 5.)</p>

The city of Tyler sued the Tyler Building and Loan Association for the recovery of city taxes. Defendant had judgment, except as to the portion of the taxes not contested. On appeal by plaintiff the judgment was reversed and rendered for appellant for a part of the disputed taxes also. Both parties applied for, and obtained, writs of error. The answer of the Supreme Court to questions certified while the case was before the Appellate Court is reported in 98 Texas, on page 69.

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p> <p>W. H. Peck sued L. P. Peck and recovered judgment. Defendant appealed and on affirmance obtained writ of error.</p>

<p>Jurisdiction of Supreme Court—Overruling Decision.</p> <p>The admission of evidence showing customary speed of train at the point of accident on other times, to prove fast running on the occasion in question, was not, in this ease, where the testimony as to speed on the particular occasion was conflicting, so directly in conflict or irreconcilable with the ruling of the same appellate court in Houston & T. C. Ry. Co. v. Jones, 16 Texas Civ. App., 180, where such testimony was held not admissible under the state of the evidence there pres'ented, as to amount to an overruling of that decision such as would give the Supreme Court jurisdiction to grant writ of error in a case reversed and remanded. (Pp. 16-18.)</p>

<p>Motion for rehearing on an application for writ of error to the Court of Civil Appeals for the Fourth District, which had been dismissed for want of jurisdiction.</p>

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

Highnote sued the railway company for damages for injury to the person. Plaintiff had judgment and it was affirmed on appeal. Appellant, defendant below, then obtained writ of error.

<p>1. —Death—Damages,</p> <p>The damages recoverable under the statutory action for injuries resulting in death include only such pecuniary benefits as plaintiff had a reasonable expectation of receiving from deceased had he lived; but in such pecuniary benefits are included, not only ■ money, but everything that can be valued in money, such as the reasonable value of the nurture, care and education a child would have received from the deceased parent, but not sorrow for the death of deceased, nor loss of his society by a wife or child. (P. 32.)</p> <p>2. —Same—Charge.</p> <p>An instruction on the measure of damages for the death of a husband and father which directed the allowance of such amount as would be full compensation, if paid now, for the actual damages shown, and such as was fairly proportioned to the injury sustained, and excluded any allowance for sorrow suffered, was misleading in that the specific mention of sorrow as excluded might be taken as implying that compensation for loss of society might be given; and in a case where the damages were unprecedently large and seemingly excessive (as the allowance of $20,000, to the wife and children of a section foreman 52 years of age, with an expectancy of life for 19 years, and earning $50. per month when killed) such error is held ground for reversal, (Pp. 31-33.)</p> <p>3.—Charge—Evidence—Knowledge.</p> <p>Testimony that a section foreman killed by collision of a itrain with his push car had given command to hurry up and get the ties off the push car, and said. the train was coming, was not so conclusive of the fact that he had seen or heard the train, or was aware of its immediate approach as to justify giving a charge assuming that he had such knowledge. (P. 33.)</p>

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

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

<p>Error to the Court of Civil Appeals for the Third District; in an appeal from McLennan County.</p> <p>Mrs. McGregor brought suit against Stone and others and recovered judgment. Defendants appealed, and on affirmance obtained writ of error.</p>

Rea sued the railway company for injuries to the person, and recovered a judgment which was affirmed on appeal by defendant. The company then obtained writ of error from the Supreme Court.

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

<p>1.—Cities—Street Improvement—Charter—Constitutional Law.</p> <p>Section 40b of the amended charter of the city of Houston, authorizing the city, which had abandoned the plan of street improvement by special assessment on owners of abutting property in proportion to frontage to follow that of improvement with funds derived from general taxation, to issue to those who had paid such special assessment refunding certificates for the amounts so paid, bearing coupons receivable for taxes, for the purpose of equalizing their burden with that of other taxpayers, was not unconstitutional. (P. 76.)</p> <p>2.—Same—Creation of Debt.</p> <p>Such equalization of the burdens upon property was not the creation of a debt by the city within the meaning of Art. 11, secs. 5 and 7. of the Constitution of the State, requiring provision to be made for interest and sinking fund on creating a debt, and was an adjustment of such burden which the Legislature could authorize the city to make. (P. 76.)</p> <p>3. —Same—Taxes not Collectible in Money.</p> <p>Art. 11, sec. 4, of the Constitution, making city taxes collectible only in current money does not apply to cities of over ten thousand inhabitants. (P. 76.)</p> <p>4. —Constitutional Law—Filling Two Offices.</p> <p>The appointment of an alderman as member of a board of appraisement for taxes, in accordance with the charter and ordinances of a city did not constitute him an incumbent of two offices in violation of Art. 16, Sec. 40 of the Constitution. His service on such board was as an alderman. (P. 76.)</p>

Smith sued the Oil Company and appealed from a judgment for defendant. His appeal was dismissed for want of a bond, which he had endeavored to supply by affidavit of his inability to give it. He thereupon obtained writ of error.

<p>Illegal Contract—Tease for Saloon—Prohibition.</p> <p>When, after premises were leased for three years “for the saloon business,” prohibition was adopted in the county by an election held under the “local option” law, though the stipulation as to the business to be conducted be considered a covenant by the lessee, the fact that such business was rendered unlawful by the result of the election did not relieve him from his obligation to pay the rent; the law being in existence when the lease was made, he should have provided in the contract against the contingency of its being put in force in the county if he wished relief from his obligation in that event. (Up. 79-82, 86.)</p>

The railway companies appealed from a judgment recovered against-them by Kelley and on its affirmance obtained writ of error.

<p>Chattel Mortgage—Parol Reservation of Title.</p> <p>Under article 3327, Revised Statutes, a verbal reservation of title in personal property to the vendor, at the time of the sale, to secure the payment of the purchase money thereof, though ineffectual to prevent the title from passing constitutes a valid mortgage as between the vendor and vendee. (Pp. 97, 98.)</p>

Emma Gibson sued the railway company for damages for personal injuries, and recovered judgment. Defendant appealed, and on affirmance obtained writ of error.

Butherford and others sued Carr in trespass to try title. Defendant had judgment and plaintiffs appealed, and on affirmance they obtained writ of error from the Supreme Court.

<p>1. —School Land—Lease—When Taking Effect.</p> <p>A lease of school land takes effect when the first annual rental is paid (Eev. Slat., art. 4218r), and where this payment was made and a new lease issued after the expiration of a former lease, though upon an application filed by the lessor while his former lease was unexpired, the land was lawfully so relet. (P. 109.)</p> <p>2. —Same—Cases Discussed.</p> <p>Hazelwood v. Eogan, 95 Texas, 295, and West v. Terrell, 96 Texas, 548, followed and Fish Cattle Co. v. Terrell, 97 Texas, 490, distinguished. (P. 109.)</p> <p>3. —Mandamus—Remedy at Law.</p> <p>One whose lease of school land has been wrongfully set aside by the Land Commissioners, in favor of a subsequent applicant to purchase, may maintain suit to be reinstated as such lessee in the land office, though he had a remedy by suit to recover the land from the purchaser. (Pp. 109, 110.)</p>

Error +o the Court of Civil Appeals for the Second District, in an appeal from Erath County. Robinson sued the railway company and had judgment. The company appealed, and on judgment being reversed and rendered in its favor, Robinson secured writ of error.

Floyd and others sued Lacey and others for the recovery of land and had judgment therefor. Defendants appealed, and on affirmance obtained writ of error.

<p>Question certified from the Court of Civil Appeals for the Third District, in an appeal from Bee County.</p> <p>The case, upon a previous appeal, is reported in 97 Texas, 536.</p>

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

Motion to dismiss writ of error to the Court of Civil Appeals for the Fourth District, in an appeal from El Paso County. Whatley sued the railway company and had judgment which was affirmed on defendant’s appeal. Defendant obtained writ of error, and plaintiff in error moved in the Supreme Court to dismiss the writ of error because the appeal bond was not filed in time to confer jurisdiction the Court of Civil Appeals.

Cluck sued the railroad company, which appealed from a judgment for plaintiff, and on affirmance obtained writ of error.

Field sued Cates on breach of warranty of title. Brown, the holder of paramount title, was made a party, and Cates sought foreclosure of a mortgage against him, and appealed from a judgment holding him liable on the warranty and denying foreclosure. The judgment, as between Cates and Brown, was reversed and remanded, and each obtained writ of error.

Robertson and others sued Cobb and others in trespass to* try title, and obtained judgment. Defendants appealed and the judgment was affirmed in part and in part reversed and remanded. From the affirmed judgment appellants prosecuted writ of error. The case on appeal is styled M. Logan, et ah, v. Geo.

Mrs. Dumke and her husband sued Barkley for the recovery of land. Defendant had judgment. Plaintiffs appealed and on affirmance obtained writ of error.

<p>1. —Johnson Grass—Statute—Proviso.</p> <p>The statute providing for the recovery of penalty and damages against a railway company permitting Johnson grass to mature on its right of way and spread over land of an adjoining proprietor, denies recovery to such proprietor who has himself permitted the grass to mature or go to seed on his own land, though it was communicated thereto from the railway premises (Act, April 18, 1901). (P. 156.)</p> <p>2. —Same—Constitutional Law.</p> <p>Query, whether that part of the Act of April 18, 1901, permitting recovery of damages by an adjoining proprietor for the spreading of Johnson grass on his premises from a railway is constitutional, damages not being mentioned in the caption of the act. (Pp. 156, 157.)</p>

<p>Original application for writ of mandamus by Raoul against Terrell and others to require issue of patents to land.</p>

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

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

<p>1. —Title by Limitation—Possession of Land.</p> <p>Where plaintiff, having settled upon a section of land, inclosed, by mistake-as to its boundaries, twelve acres of an adjoining section of 640 acres owned by another, and afterwards, ascertaining the true boundary, held possession of such twelve acres for ten years with the inward intention, not evidenced by any other possession or assertion of authority, of claiming title thereby to an undefined 160 acres' out of the section of such adjoining proprietor, such possession was not sufficient to support his claim of title under the ten years’ statute of limitation beyond the limits of his actual inclosure. Bracken v. Jones, 63 Texas, 184. (Pp. 206, 207.)</p> <p>2. —Same—Possession Extending Over Distinct Surveys—Election of Claim.</p> <p>The judgment of the Court of Civil Appeals herein is affirmed on the ground of the insufficiency of plaintiff’s acts of possession to maintain his claim of limitation, without passing on the correctness of their holding that the plaintiff, whose enclosure extended over the boundary lines between himself and two adjoining proprietors, had given direction to his claim to hold 160 acres under the ten years statute of limitation by such enclosure and possession, by asserting, though unsuccessfully, claim to such amount in answer to a suit by one of such proprietors, which precluded him from claiming a like amount by limitation against the other. (P. 207.)</p>

<p>1.—Contributory Negligence—Sitting Tinder Car.</p> <p>Plaintiff, employed by a city to unload cars of gravel delivered to it by a railway upon a spur track, during the noon hour, sat down under one of the unloaded cars to eat his lunch; while so engaged he was injured by a movement of the car caused by a switch engine coming upon the spur to deliver loaded and take out emptied cars; he had no reason for relying on the cars not being moved other than that such work, during the two or three days he had been employed there, had been done before or after his hours of labor. Held that the facts showed contributory negligence on his part unexcused by any circumstances shown, which required reversal by the Supreme Court of a recovery by him of his injuries from the railway company on the ground of negligence by its servants. (Pp. 210-213.)</p>

Court of Civil Appeals for the Fourth District, in an appeal from Bexar County. Lester sued the railway company and the latter appealed from a judgment in plaintiff’s favor, and on affirmance obtained writ of error.

<p>1.—Mortgage of Cattle—Description—Brand.</p> <p>That a mortgage of cattle described as branded 7X on left side did not include certain ones so branded on left hip could not be determined by mere construction of the instrument itself, where the facts indicated that the mortgage was intended tó include the mortgagor’s entire stock in the pastures named and where they were then held, and to cover the same cattle described in a prior mortgage which included all branded 7X. (P. 228.)</p> <p>2.—Same.</p> <p>The holder of a second mortgage on cattle having consented to their sale and delivery to the holder of the first, at a fixed price per head, the proceeds to be applied to the satisfaction of the incumbrances, apprehending that the mortgagor would not deliver all the cattle, refrained from interfering to see that all were delivered on assurance from the holder of the first mortgage that he would see that none were left out in the delivery. The mortgagor kept back and appropriated some of the cattle, claiming that they were not covered by the second mortgage, the holder of the first mortgage making no effort to secure their delivery. The proceeds met the first but only part of the second mortgage. Held, that by such undertaking the prior mortgagee became charged with a duty to use due diligence to obtain possession of and apply all the property to the secured debts, and was liable for any loss to the second mortgage from failure to use such diligence; and that it was not necessary to show collusion between him and the mortgagor to establish such liability. (Pp. 228-230.) .</p> <p>3. —Evidence—Diligence.</p> <p>It was competent to prove that the mortgagor stated to the holder of the prior mortgage that the entire number .of cattle named in the mortgage would be delivered, on a sale by former to the latter to meet both incumbrances, as bearing on the diligence exercised by the latter, who had undertaken to protect in such delivery the interest of a second mortgagee, and when it appeared that there was a considerable shortage. (P. 230.)</p> <p>4. —Evidence—Declarations—Impeachment.</p> <p>Declarations of one not a party to the suit and not made in the presence of a party are inadmissible except to contradict his testimony and after due predicate is laid for such impeachment. (P. 230.)</p>

<p>Liquor Dealer—Gift to Minor—Good Faith.</p> <p>The proviso to Art. 5060g, Rev. Stats., added by the amendment of 1893 (Acts 23d Leg., p. 181), relieving the liquor dealer from liability on his bond where the sale to a minor was made in good faith in the belief, upon good ground, that he was of age, applies as well to cases where liquor is given to the minor as where it is sold. (Pp. 232, 233.)</p>

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Travis County.</p> <p>Forbis sued the city and the Water and Light Commission to recover damages for personal injuries. Defendants appealed from a judgment against them, and on its affirmance obtained writ of error.</p>

<p>1. —Master and Servant—Negligence—Defective Tools.</p> <p>The question of the master’s negligence in furnishing the servant defective tools is not to be determined by fixed mies as to the duty of inspection, but is one for the jury if there be room for reasonable difference of opinion as to whether ordinary care has been exercised. Gulf C. & S. F. Ry. Go. v. Larkin, 95 Texas, 225, distinguished. (Pp. 245, 247.)</p> <p>2. —Same—Assumed Bisk—Inspection.</p> <p>The question of assumed risk by the servant of danger from the use of an ordinary tool the defects of which were readily discoverable is also one dependent upon circumstances and affected by necessity for haste as bearing upon his opportunity .to know its condition and the danger, and is for the jury where opinions might differ. (P. 246.)</p> <p>3. —Same—Knowledge and Capacity.</p> <p>The degree of mental capacity and knowledge of tools and machinery possessed by the servant are proper to be considered in determining whether he assumed the risk from readily discoverable defects. (P. 246.)</p> <p>4. —Case Stated.</p> <p>A servant engaged in loading steel rails on a car was sent upon the car to help put the rails in place as they were passed up, using for the purpose a rail hook put on the car for that purpose; after he had handled a few rails, the hook which was worn too small and not sufficiently curved and the condition of which he had not noticed, slipped from the rail he was lifting, throwing him from the car and injuring him. Held, that the question of defendant's negligence and plaintiff’s assumed risk of the danger were for the jury, and the appellate court in reversing a judgment in plaintiff’s favor could not render judgment for defendant. (Pp. 244-247.)</p>

Motion in the Supreme Court for leave to file an amended petition for writ of error after dismissal of the original petition for want of jurisdiction.

<p>1.—Will—Undue Influence—Eraud.</p> <p>A wife executed a will leaving her interest in .the community property absolutely to her husband, but with an expression of her confidence that he would make final disposition of the common estate remaining at his death in accordance with her present wishes, as they might be affected by changed conditions. She had desired that the property be entailed upon the death of both upon her children and grandchildren by a former marriage and the nephew of her husband, they having no children by this marriage, but was advised that this could not legally be done. There was a tacit understanding between them that the survivor would leave the property remaining on his or her death to these relatives, and evidence that she was led to execute the will by this understanding and tending to show that the husband did not intend at the time to carry it out. Held, on a contest of the will, that the evidence did not justify the submission of the issue as to undue influence of testatrix by the husband, but that it did require the submission of the issue whether the execution of the will was obtained by fraud on his part. (Pp. 255-258.)</p> <p>2.—Same—Trust—Avoiding Will.</p> <p>The fact that the circumstances relied on to avoid a will would be equally available to create a trust in favor of the contestants under the will does not deprive them of the right to elect which of these remedies they may prefer. (Pp. 258, 259.)</p>

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

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Jefferson County.</p> <p>Nichols sued Dixon and wife, the owners of the premises improved, and Hawkins, the contractor, claiming a lien for materials furnished. The Texas Builders’ Supply Co., and others suing to enforce liens on the same fund, were impleaded in the suit by defendant, Dixon, and Nichols appealed from a judgment giving a part of the claim of that company preference over his own. On affirmance, he obtained writ of error.</p>

Everett sued the three defendant railway companies and recovered judgment, from which they appealed, and, on affirmance, obtained writ of error.

Eainey sued the defendant companies for injunction against a nuisance. The facts were found in his favor, but the trial court refused an injunction. The judgment was affirmed on plaintiff’s appeal, and he thereupon obtained writ of error from the Supreme Court.

<p>1. —Railways—Connecting Lines—Limiting Liability.</p> <p>In a through contract for interstate shipment over two connecting lines of railway, a limitation of the liability of each to losses occasioned in transportation over its line is valid, though each operates a part of the line within the State of Texas. (Pp. 288, 289.)</p> <p>2. —Same—Statute.</p> <p>The main purpose of the Act of May 26, 1899 (Chap. 125, p. 214), was to fix the venue and authorize the joinder as defendants of all railroads participating in the transportation, and not to affect the contract rights of parties, and the provision for apportionment of damages shows that it was to be made only between defendants who were separately liable to plaintiff. (P. 289.)</p>

<p>1. —Venue—Railways—Connecting lines.</p> <p>The Act of May 26, 1899 (Laws, ch. 125, p. 214) fixing the venue in a suit against any or all of two or more railroads operating any part of their roads in this state, in an action for loss or damage to freight transported over them, in any county in which either of such roads extends or is operated, applies only to a defendant over whose road such property has been transported, and does not apply to an action against a carrier refusing to receive and transport the property when tendered to it by a preceding road under a contract fixing a through freight rate; which it claimed was unauthorized. (Pp. 293-295.)</p> <p>2. —Same.</p> <p>The statute applies to a railroad operating as a part of its line 1000 feet of the track of another road in this state, though it did not own such track. (P. 294.)</p> <p>3. —Venue—Joint Obligation—Domicile.</p> <p>The statute fixing the venue in an action on the joint liability of defendants in the county of the domicile of either (Rev. Stats., art. 1194, subd. 4) does not permit a railroad corporation of another state to be sued jointly with a domestic one in any county into which the latter extends; the domicile of .the domestic corporation is in the county when it maintains its principal office. (P. 295.)</p> <p>4. —Venue—Defendant—Making Parties.</p> <p>Article 1208, Rev. Stats., authorizing the bringing in of necessary or proper parties by either plaintiff or defendant, does not affect the question of venue, nor permit a defendant to maintain action over against the person causing his liability to plaintiff in a county in which the latter is not subject to be sued. (P. 295.)</p>

<p>1. —City Warrant's—Priority of Payment—Parties.</p> <p>Where a city for a series of years liad made no distinction in its general revenue fund between the moneys received on taxes for each year, placing all in one general fund and paying warrants issued for general expenses in the order of their issuance without regard to the year in which the obligation was incurred, the holders of older outstanding warrants against such fund were necessary parties to a suit for injunction requiring the city treasurer to pay warrants issued for the current year out of the revenue for that year in preference to the warrants issued for previous years. (Pp. 301, 302.)</p> <p>2. —City—Current Expenses—Priority of Payment.</p> <p>The holders of claims against a city which have accrued during a particular fiscal year for current expenses are entitled to priority of payment out of the current expense fund of that year, over debts incurred for previous years, and an ordinance giving the latter preference is invalid. (P. 302.)</p>

Certificate of dissent from the Court of Civil Appeals for the Second District, in an appeal from Howard County. The opinions, majority and dissenting, in the Court of Civil Appeals were as follows:

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

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Llano County.</p> <p>Stribling sued the San Antonio & A. P. Railway Company and the Houston & T. C. R. R. Co. for damages and penalties, and recovered judgment. Defendants appealed and on affirmance obtained writ of error.</p>

Kuykendall sued the telegraph company and recovered judgment. Defendant appealed and on affirmance obtained writ of error.

Scott sued the Houston & T. C. R. R. Co., the Gulf C. & S. F. Ry. Co. and the Atchison T. & S. F. Ry. Co. and recovered judgment from which the defendants appealed. On its affirmance they obtained writ of error.

The railroad company sued the railroad commission to enjoin the enforcement of its order requiring the construction of connections with the Missouri, K. & T. Ry. at their intersection with • the line of that road, at Italy, Texas. Judgment went for defendant. Plaintiff appealed and on affirmance obtained writ of error.

<p>1. —Railway—Public Crossing.</p> <p>A charge that a public crossing over a railway was not necessarily one maintained or constructed for the use of animals or vehicles or a street crossing, but any place generally used as a crossing for pedestrians, is incorrect, but not necessarily ground for reversal where the instructions impose only the duty of ordinary care to avoid injury; and not the use of precautions specifically prescribed by the statute for public crossings. (P. 340.)</p> <p>2. —Jury—Compromise Verdict—Charge.</p> <p>It was error, in response to an inquiry by the jury, after their failure for nearly two days to reach an agreement in a doubtful case, whether it was legal and right to make concessions in order to agree upon a verdict, to instruct them that it was entirely lawful and proper to make concessions provided' their verdict, as agreed to, was based alone upon the law as given in the charge and the facts as they found them from the evidence. (Pp. 340-342.)</p> <p>3. —Same.</p> <p>The law prescribes no rule for the court to lay down other than that involved in the oath of the jury “that they will a true verdict render according to the law and the evidence,” and the question as to concessions which may properly be made to this end is not one upon which the court may instruct them. (P. 342.)</p> <p>4. —Evidence—Damages—Parent and Child.</p> <p>In an action by a parent and a minor son for their respective damages from injury to the person of the latter, it was error to admit evidence that the parent depended upon her work for a living; such evidence is only admissible in death cases and as affecting the probable pecuniary benefits to relatives which might have been expected.from the life of deceased. (P. 342.)</p> <p>5. —Same.</p> <p>On the same principle, evidence was inadmissible, for defendant, in a suit by the parent for injury to her minor son, that she had another son who contributed to her support. (P. 343.)</p>

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

Anglin sued the railway company to recover for injuries to the person and recovered judgment which was affirmed ’ on writ of error prosecuted to the Appellate Court by defendant, who thereupon obtained writ of error from the Supreme Court.

Original application by Nevell, against the Commissioner of the General Land Office, for mandamus, to which Nixon, an adverse claimant of the land, was subsequently made a party.

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

<p>1. —Passenger—Boute—Misdirection by Ticket Agent.</p> <p>A railway is liable for the act of its ticket agent in routing a passenger applying to him for information as to the best way to reach his destination over lines involving a longer, less. expeditious and more inconvenient journey. (Pp. 363-366.)</p> <p>2. —Same—Damages—Injuries on Other Beads.</p> <p>Liability for the wrong done by the ticket agent of a railway in misdirecting a passenger applying to him for information as to the best route to his destination will not extend to injuries received upon other lines of railway by the failure of such other carriers to run their trains on time. (P. 365.)</p>

<p>1. —Attorney-General—Right to Prosecute.</p> <p>The legislature has the power to create causes of action in favor of the state and make it the exclusive duty of the attorney-general to prosecute suits thereon, ignoring the district or county attorneys of the county in which they are brought. (P. 373.)</p> <p>2. —Same—Case Limited.</p> <p>The expressions of opinion in State v. Moore, 57 Texas, 307, that the county attorney had authority to prosecute the action by the state, exclusive of the attorney-general, were unnecessary to the decision and may be regarded as obiter dicta; and at all events will not be here followed, being practically overruled in Day L. & O. Oo. v. State, 68 Texas, 526. (Pp. 374-377.)</p> <p>3. —County and District Attorneys—Constitution.</p> <p>Section 21 of article 5 of the constitution, in requiring the county or district attorney to represent the state in all actions, appears to contemplate duties to be performed rather than rights conferred, and, when read in connection with the power to represent the state given the attorney-general by section 22, article 4 of the constitution, will not be held to prevent the legislature from conferring an exclusive right to prosecute certain actions by the state on that officer. (Pp. 377, 378.)</p> <p>4. —Same—Construction.</p> <p>The variety and importance of the interests of the state sought to be guarded, the constituencies by whom and duties for which local prosecuting officers are usually selected, and like matters, considered as bearing on the question of the intention of the constitution to forbid the legislature from placing the protection of any of its interests in the hands of the attorney-general instead of such county officers. (Pp. 378-380.)</p>

Aspley appealed from a judgment dismissing his suit against Hawkins and others, and on its affirmance applied to the Supreme Court for a writ of error.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Wichita County.</p> <p>Sherrod and others sued the railway company for injury to cattle in their transportation, and recovered judgment which was affirmed on appeal by defendant, who then obtained writ of error.</p>

<p>1. —Appeal—Cross Assignments—Brief—Waiver.</p> <p>Cross assignments of error made on plaintiff’s appeal by an intervener, were waived by his failure to present them by brief in the appellate court, and the issues so waived were not before the court nor passed on by its judgment of reversal, especially where the opinion stated the only question involved to be that presented by plaintiff’s appeal. (Pp. 389, 390.)</p> <p>2. —Appeal Reversal—Entire or Separable Judgment.</p> <p>The reversal of a judgment against two or more parties upon the appeal of one oí them will not operate as a reversal as to all if the judgments be upon causes of action separate and distinct, -in which the parties are severally interested. (Pp. 390, 391.)</p> <p>3. —Same—Intervention.</p> <p>For convenience, our liberal practice permits intervention by one who claims the subject of controversy adversely to both parties to the suit; but if the causes of action are distinct the judgments will be independent, and a reversal as to one will not reverse the other. (Pp. 390, 391.)</p> <p>4. —Same—Res Adjudicata—Case Stated.</p> <p>One claiming land as his homestead sued to enjoin its sale under execution and a third person intervened claiming it as against both parties under trust deed and conveyance in satisfaction thereof by the plaintiff, but his deed was excluded and a judgment against him in favor of both plaintiff and defendant directed, while judgment in the injunction proceedings went against plaintiff, who appealed and secured a reversal. Intervener filed cross assignments of error but did not brief them and they were therefore not considered. Held, that the reversal did not affect the judgment as between the intervener and the defendant, and the latter’s plea of res adjudicata against intervener’s claim, made on a subsequent trial, should have been sustained. (Pp. 388-391.)</p>

<p>1. —Insurance Policy—location of Property—Misdescription.</p> <p>A policy of fire insurance which guarantees indemnity for loss of the property while contained in a certain described building, it being known to both parties to be in another building not answering such description, and intended to be insured while so situated, does not, by its terms, cover a loss by the burning of the building where it was in fact situated, and the mistake is not merely one in description which could be ignored if other sufficient and correct description of the property was given by which it could be identified. (Pp. 396, 397.)</p> <p>2. —Same—Pleading—Judgment.</p> <p>Plaintiff could only recover for loss of the property in such case by alleging and proving the facts entitling him to reform the contract for mistake in the description so as to make it cover the property while located in the building ■where it was situated and destroyed; but under our blended system of law and equity it was not necessary to first maintain action to reform the contract before suing on it; nor was it necessary, in suing for recovery on his contract, with allegation of the facts entitling him to its reformation, that he should pray for or obtain a formal judgment of reformation; he would be entitled to a direct judgment in accordance with the true contract thus shown. (Pp. 397, 398.)</p> <p>3.—Reformation of Contract—Estoppel.</p> <p>The_ doctrine of estoppel is not applicable to a defendant against whom his _ contract is sought to be reformed for mistake except in the sense that he will be bound by his own acts and words in the transaction and will not be heard to assert a secret fraudulent intention not to be bound by them as showing that a written instrument prepared by him and departing from the terms agreed on was not made by mistake on his part. (Pp. 398, 399.)</p>

Patterson sued Knapp and others in trespass to try title and recovered. Defendants appealed, and on affirmance obtained writ of error.

Original applications in the Supreme Court for writs of mandamus against the commissioner of the general land office. The lands applied for had been revalued by the commissioner of the general land office, which proceeding relators claimed was unauthorized, and they applied to purchase at the price originally fixed.

Original application to the Supreme Court for writ of habeas corpus. Lytle and other defendants, “ticket scalpers” in San Antonio, and their agents and servants, were enjoined, in a suit in the District Court, from selling reduced rate and nontransfer'able tickets in violation of the law forbidding such transactions.

Bourland sued the railway company and recovered judgment. Defendant appealed, and the judgment was reversed and rendered in his favor. Bourland thereupon procured writ of error.

Florence L. Taylor sued Sparks and others for the recovery of land and obtained judgment, which was affirmed on appeal. Defendants then 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. —Deed—Recitals—Evidence.</p> <p>The fact that a deed made by the representative of a deceased owner of land appeared on its face to be void as against his heirs, because shown by its recitals to be made in pursuance of an order of the probate court (the records of which had been destroyed) directing sale in accordance with a contract of decedent, which sale the probate court had then no authority to order, did not prevent the same being admissible in evidence as against one claiming title under a maker of such deed, the widow, and therefore bound by its recitals of fact. (P. 433.)</p> <p>2. —Same—Estoppel.</p> <p>The recitals in a deed by the widow of the deceased owner of land, showing a contract by deceased to convey to the grantee therein and payment to decedent’s personal representatives of the consideration agreed on, were binding by estoppel upon those claiming under her, apd showed, as against them, an equitable title to the land in the grantee, and a conveyance of the legal title to the widow’s one half interest. (P. 433.)</p>

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Dallas County.</p> <p>The railway company sued the salt company and had judgment for the specific performance of the contract sued on, which was affirmed on appeal by defendant. Appellant thereupon procured writ of error.</p>

<p>1. —District Court—Jurisdiction—Mandamus.</p> <p>The district court had jurisdiction of a suit to require by mandamus the county auditor to countersign in his favor a warrant on the county treasurer for an amount less than one thousand dollars. (P. 451.)</p> <p>2. —County Auditor—Commissioners Court—Allowance of Claims.</p> <p>In counties having a county auditor under Acts 29th Legislature, chapter 161, the Commissioners’.Court has no power to allow a claim against the county after it has been examined and disapproved by the auditor, and the latter may refuse to countersign the claim after such allowance by the court. (P. 451.)</p> <p>3. —Claims Against Counties—Suit—Rejection.</p> <p>The rejection of a claim by the county auditor, putting it out of the power of the Commissioners’ Court to allow it, amounted to such a rejection of the claim by that court, though they had, in fact, attempted to overrule the auditor’s action by allowing it, as entitled the holder to bring suit upon it as a claim rejected by the court, under article 790, Revised Statutes. (Pp. 451, 452.)</p> <p>4.—Constitutional Law—Depriving of Remedy.</p> <p>The legislature could not take away from a party the right to pursue his remedy in the courts upon a claim against the county, unless another remedy was provided. (Pp. 451, 452.)</p>

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

<p>Original application, in the Supreme Court, for writ of habeas corpus.</p>

Couch sued the railway company and the city of Baird for appropriation of water on his land covered by the company’s right of way, for the use of the city. Defendants had judgment. Plaintiff appealed, and on affirmance obtained writ of error.

Finley sued Williams and others for recovery and foreclosure on purchase money notes. He had judgment after allowing for the expense of vendees in acquiring an outstanding title of the state. This was affirmed on appeal by defendant, who thereupon obtained writ of error.

<p>1. —laws of Spain—Expropriation—Compensation to Owner. -</p> <p>By the laws of Spain the expropriation of property previously granted by the government, for the purpose of establishing a town thereon, could only be accomplished by compensating the owner for the land so taken. (P. 484.)</p> <p>2. —Same—Judgment—Recitals—Res Adjudicata.</p> <p>The recitals in a judgment in a suit against the State to recover a tract of land granted to those under whom plaintiff claimed title by the Kingdom of Spain, which showed that such grant was made, but that a certain part of the same was subsequently expropriated by the government for the purpose of establishing a town thereon, and the owner compensated by receiving a certain tract of land adjoining the original grant, as the basis for a judgment by which the plaintiff recovered only so much of the tract sued for as was not so expropriated, were of matters necessary to a determination of that case, and were evidence, in a subsequent suit by the State to recover against those claiming, in privity from such plaintiff, said adjoining tract, of the grant of same by the Kingdom of Spain, as compensation for the land expropriated by it, as recited in such judgment, though not conclusive as to what particular lands were granted as such compensation, since that question was not necessary to the determination. (Pp. 484, 485.)</p> <p>3. —Presumption of Grant.</p> <p>Evidence of possession and long continued claim of lands granted by the Kingdom of Spain, considered and held sufficient to authorize a presumption of such grant, in support of the authority of the officers of the State who had subsequently issued patent therefor to the claimants, which patent the State here sought to cancel. (Pp. 485-487.)</p> <p>4. —Case Followed—Judgment—Jurisdiction—Statute Expiring by Its Terms.</p> <p>Suit under the Act of February 11, 1860, for adjudicating certain claims for land against the State was a special proceeding in which the district court had no authority except to proceed as authorized in the act. Such law of 1860 expired by its own limitation in 1865; and the court had no power to set aside, in 1872, its judgment rendered under said Act in 1860, and render a new judgment for the recovery of land under such Act. State v. O’Connor, 96 Texas, 484, followed. (P. 487.)</p>

Original petition in the Supreme Court by Willoughby for writ of mandamus against the Commissioner of the General Land Office. Various other persons claiming an interest in the land were made parties.

The city of Tyler and others sued the railway company and appealed from a judgment for defendant. On its affirmance the company obtained writ of error.

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

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

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County.</p> <p>Plowman sued the county to enjoin the taking possession of his land for a public road. His preliminary injunction was dissolved on hearing and himself enjoined from obstructing the highway. He appealed, and the judgment was reversed and rendered in his favor, making his injunction perpetual. The county then obtained a writ of error.</p>

<p>Trespass to Try Title—Burden oí Proof—Admission.</p> <p>When defendant in trespass to try title to land, which plaintiff sequestered, admitted plaintiff’s fee simple title, but pleaded in reconvention right to possession of premises under lease from plaintiff and damages by the sequestration of the property, the admission made a prima facie case of right to recovery by plaintiff, and the burden was on defendant to prove the lease. (P. 515.)</p>

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

Little, trustee in bankruptcy, sued Horstman and others, and obtained judgment. Defendants appealed, and on affirmance secured writ of error.

<p>Railroad—Cattle Shipment—Demand for Cars.</p> <p>([a written demand upon a railway company to furnish cars for the shipment of cattle “as soon as possible” is not such compliance with the terms of article 4498, Revised Statutes, since it fails to state “the time they are desired,” as to entitle the shipper to recover either the penalty or damages under the statute. Being highly penal, he who seeks recovery under it must bring himself strictly within its provisions. (P. 536.) j</p>

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

<p>Overflow—Case Followed.</p> <p>The ruling in Gulf, C. & S. F. Ry. Co. v. Harbison, ante, followed.</p>

Runge sued Gilbough and others, vendees of the latter, to foreclose a vendor’s lien, and, on limitation being pleaded to the notes, amended seeking recovery of the land, to which action Gilbough’s vendees pleaded limitation. A judgment for defendant was reversed and rendered in favor of Runge on his appeal, and appellees obtained writ of error.

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Bowie County.</p> <p>Turner obtained writ of error, on the ground that the ruling practically settled the case, from a judgment of the Court of Civil Appeals reinstating an administrator who had been removed.</p>

<p>Error to the Court of Civil Appeals for the First District in an appeal from Leon County.</p> <p>Johnson and wife sued Callaway and Dashiell for the recovery of four tracts of land, Dashiell disclaiming as to all but one. Plaintiff appealed from an unfavorable judgment, and the court, reversing, rendered judgment in his favor from which writ of error was prosecuted.</p>

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

<p>1. —Mechanics’ lien—Several Houses under One Contract.</p> <p>Under a single contract for erecting three houses upon three different lots, two of them contiguous and the third situated in another block, the builders’ lien did not attach to each house and lot for the contract price of all, but each was subject to the lien for the proportion of the labor and material only which entered into its construction. (Pp. 556-559.)</p> <p>2. —Same.</p> <p>Continuous lots on which distinct houses are erected under one contract by which the owner treats them as one property become subject as a whole to the lien for the entire contract price (Lyon v. Logan, 68 Texas, 521). But the statute (Rev. Stat., arts. 3294, 3300), while contemplating one improvement, constituting an entirety, to be affected by the lien without regard to the character of structures, also contemplates their location on one body of land; and the fact that the contract is an entire one for several buildings, on distinct lots, does not warrant the attaching of the lien for the entire cost to each distinct lot and structure. (Pp. 557, 558.)</p>

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

<p>1. —Mandamus—School Land.</p> <p>Action in the Supreme Court for mandamus to require the Commissioner of the General Land Office to accept relator’s application to purchase school land at its appraised value as dry grazing land, without requiring of applicants a relinquishment of the right, under the purchase, to minerals thereon, could not be maintained when the relators, though under protest, had filed the required waiver and had been awarded the land by the Commissioner. (P. 564.)</p> <p>2. —Same—Premature Suit.</p> <p>The action of the Land Commissioner in requiripg applicants for the purchase of school land to release their right to minerals therein, if unauthorized, did not entitle them to mandamus requiring an unqualified acceptance; their applications having been accepted, they could complete their payments and thereafter raise the question of the right to impose the condition, by demanding a patent without such qualifications. Hazelwood v. Hogan, 95 Texas, 295, distinguished. (Pp. 564, 565.)</p>

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Eavarro County.</p> <p>For the previous history of this case see Baum v. Sanger, 49 S. W. Rep., 650; Weaver v. Goodman, 51 S. W. Rep., 860; Corsicana Eational Bank v. Baum, 62 S. W. Rep., 812; Baum v. Corsicana Eational Bank, 75 S. W. Rep., 863.</p>

<p>1. —Fellow Servant—Machinist and Helper.</p> <p>A machinist’s helper is not a fellow servant of the machinist he assists and whose orders he is bound to obey. (P. 574.)</p> <p>2. —Master and Servant—Injury in Lifting.</p> <p>Evidence considered and held not such as to preclude recovery as matter of law, where the servant injured by mere overexertion in lifting a heavy iron onto a lathe was an inexperienced youth of seventeen, employed in shops as a machinist’s helper, and performed the work by direction of the machinist whom he was under obligation to obey. (Pp. 573, 574.)</p> <p>3. —Same—Obeying Orders.</p> <p>The law does not require the servant, in doubtful matters, at his peril to disobey the orders of his superior or assume the risk of obeying. (Pp. 574, 575.)</p>

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

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

<p>Justice Court—Appeal—Jurisdiction.</p> <p>From a judgment in justice court in favor of plaintiff against defendant on a contract of sale, and in favor of defendant for a like sum against a third party impleaded by defendant as liable to it in ease of recovery by plaintiff, the third party so impleaded alone appealed. Held that his defense, involving the liability of defendant to plaintiff as a condition of his own liability to defendant, brought up the entire case for trial de novo, and defendant could appeal from a judgment of the county court awarding plaintiff recovery but denying defendant recovery against the party impleaded and who had prosecuted appeal from justice court. (Pp. 582, 583.)</p>

Morrison sued Hazzard and others, and prosecuted error from a judgment sustaining a general demurrer and dismissing his petition. On affirmance he obtained writ of error from the Supreme Court.

Graham sued the railway company, and appealed from a judgment for defendant, which was affirmed. He then obtained writ of error.

<p>1. —Limitation—Land—Payment of Taxes.</p> <p>To sustain the defense of limitation by possession and payment of taxes for five years under a deed to land duly registered, the defendant must show payment before suit was brought of the taxes for the last year necessary to complete the bar where it was possible to make such payment before that time. (P. 595.)</p> <p>2. —Same—Pacts Stated.</p> <p>The period of limitation by possession, etc., of land by defendant under registered deed expired in November, 1903, and the suit was brought in April, 1904. He could have paid the taxes on or after October 1, 1903, but the state could not enforce payment until after January 1, 1904. Held that the limitation was not complete without payment of the taxes, and was not made so by payment after suit was brought. Mariposa L. & O. Co. v. Silliman, 27 S. W. Rep., 773, and Halbert v. Brown, 31 S. W. Rep., 535, distinguished as cases where period of limitation was complete before the taxes could be paid. (P. 595.)</p> <p>3. —Limitation—Undivided Interests—Common Possession.</p> <p>D. held deed to an undivided half interest in a tract of land, and under a later deed to an undivided third of another half interest jointly with two others, their possession being common. Limitation by possession for five years, with payment of taxes, was completed as to his half interest before suit was brought; but was not perfected as to the half interest so held by him and others jointly, because of failure to pay the last assessed taxes. Held that his title by limitation under the first deed, was not defeated by failure to pay taxes on the other half interest before suit was brought. (Kelly v. Medlin, 26 Texas, 48, distinguished. (Pp. 594, 595.)</p> <p>4. —Vendor—Enforcement of Lien—Superior Title—Election of Remedies.</p> <p>The vendor who has foreclosed his lien and sold a part of the land conveyed is estopped by such election from disaffirming the sale as to the remainder because of nonpayment.</p> <p>5. —Same—Pacts Stated.</p> <p>Two owners, the common source of title, made a conveyance to two vendees, retaining vendor’s lien; they then assigned the notes and lien for benefit of their creditors, one of the vendees having died, the assignee sued to foreclose the lien, taking judgment and selling in foreclosure the interest of the surviving vendee, and certifying judgment to the Probate Court for enforcement against the administratrix of the deceased, but proceeding no further therein; then he conveyed the land to one whose title was held by defendants. Held that this deed conveyed no title, the election to foreclose preventing the assignee from disaffirming the sale for nonpayment; and that plaintiff, claiming under purchase from the foreclosure sale and by conveyance from the devisee of the deceased vendee, was not bound to pay the purchase money as a condition of recovering the land. (Pp. 593-596.)</p> <p>6.—Deed—Description.</p> <p>A deed is not insufficient to support limitation because boundaries called for are determined by courses and distances from a corner of another tract in the survey conveyed by deed not shown to be recorded. Such case is distinguished from McDonough v. Jefferson County, 79 Texas, 535, where no description was given except by reference to an unrecorded deed. (P. 596.)</p>

Kramer sued the cigar company and recovered judgment for $763, from which defendant appealed, appellee filing cross-assignments of error. Judgment was reversed and rendered for appellee for $138, and he obtained writ of error.

<p>Error to the Court of Civil Appeals for the Fourth District in an appeal from Tarrant County.</p>

The Alabama, etc., Company sued the Sun Company. Defendant had judgment and plaintiff appealed and, on affirmance, obtained writ of error.

Certificate of dissent from the Court of Civil Appeals for the Second District, in an appeal from Bosque County. The majority and dissenting opinions in the Court of Civil Appeals were as follows:

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

<p>Original application in the Supreme Court for mandamus against the Commissioner of the General Land Office, the adverse claimant of the lands involved being also made a defendant.</p>

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Cooke County.</p> <p>Huyett sued the railway company and had judgment which' was affirmed on appeal by the defendant, who then obtained a writ of error.</p>

O’Donnell sued the railway company for personal injury and recovered judgment, which was affirmed on appeal by defendant, who thereupon obtained writ of error.

Grossman sued the railway company and recovered judgment, which was reversed and rendered in favor of defendant on its appeal. Gross-man then obtained writ of error.

<p>Certificate of dissent from the Court of Civil Appeals from McLennan County.</p>

<p>1. —Venue—Residence in Two States.</p> <p>The terms “inhabitant” and “domicile,” “residence” and “resident,” used in different clauses of the statute on venue of suits (Rev. Stats., art. 1194), mean the same thing, and the right of one having a fixed place of residence in this state to be sued in the county of such residence is not to be denied him by reason of his having his citizenship and a legal domicile in another state. (P. 653.)</p> <p>2. —Same—Defendant Residing Without State.</p> <p>The exception to the right of a defendant to be sued in the county of his residence which permits a resident of another state to be sued in the county of plaintiff’s residence in this (Rev. Stats., arh 1194, subd. 3) does not apply to a defendant having also a place of residence in Texas; he may claim the right to be sued there though he has a place of residence, his family, and his citizenship in another state. (P. 653.)</p> <p>3. —Same—Pact Case.</p> <p>A defendant who had been living for fourteen months in Beaumont, engaged in the oil business there, but who was a citizen of New York, having business interests there, a family there resident, and visiting them three times during that period, was entitled, on his plea of privilege, to be sued in the county of his Texas residence, instead of the county of plaintiff’s, as in the case of a nonresident. (Pp. 652-654.)</p>

<p>1. —Removal of Causes—Joinder of Parties—Fraud ron Jurisdiction.</p> <p>The joinder as defendant with a federal corporation of one against whom no cause of action was alleged would not prevent the corporation from removing the suit to the Federal Court; nor would the joining of such codefendant fraudulently, for the purpose of preventing the removal, have that effect; but in the latter ease it is not sufficient for the removing party to allege such fraudulent intent, as a mere conclusion, without stating the facts warranting it. (Pp. 658, 659.)</p> <p>2. —Principal and Agent—Joint Wrongdoers.</p> <p>For mere neglect of an agent the principal only is liable; but for the doing of a wrongful act by the agent, acting for his principal, both are liable, and may be sued jointly. (P. 659.)</p> <p>3. —Same—Removal of Causes.</p> <p>Plaintiff having charged a railway company incorporated by- Act of Congress, jointly with its agent, with refusing, under circumstances constituting duress of plaintiff’s property, to ship his cattle by the most direct route to their destination, and compelling him to accept a routing over roundabout lines, an application by defendants to remove the cause to the Federal Court on the ground that the company was a federal corporation, and that no cause of action was alleged against its codefendant, but that he was fraudulently joined for the purpose of preventing the removal, was properly refused. (Pp. 657-659.)</p>

The cotton oil company sued Mrs. Browne on subscription to its stock and defendant had judgment. Plaintiff appealed and on affirmance obtained writ of error.