Sproll was holding the cattle for Ulch, but the theory advanced by appellant is that if appellant took Ulch's cattle from Sproll, and converted them, not knowing they were Ulch's cattle, he would not be liable for such conversion. The charge was properly refused. If the property seized was the property of Ulch, the sheriff cannot justify his action by the plea that he did not know that Ulch owned it. The property was taken and converted by the sheriff, and the owner is entitled to compensation for his loss. Lackey v. Campbell (Tex. Civ. App.) 54 S. W. 46.

The sheriff might have protected himself by an indemnity bond, and, if he did not do so, he cannot escape liability by a plea that he was compelled to levy the writ. Vickery v. Crawford, 93 Tex. 373, 55 S. W. 560.

The charge of the court was a full and fair exposition of every issue raised by pleading and evidence, and it was not error to refuse the special charges requested by appellant. There is no merit in the fifth and ninth assignments of error. The judgment is affirmed.

AYCOCK v. BAKER et al.

(Court of Civil Appeals of Texas. Dec. 12, 1900.)

ATTORNEYS-CONTRACTS-DIVISION OF FEES

-EVIDENCE.

1. In an action by the executrix of an attorney against an attorney, it appeared that K. had taken from deceased to defendant a note in which deceased stated that he could not take K.'s case against a city, but that if defendant commenced suit he would aid him all he could. Defendant commenced suit, and it was agreed that he should have one-half of the amount recovered; and to the second amended petition defendant signed deceased's name, as well as his own. After the death of deceased, defendant employed counsel in the case; the counsel to have one-third of the fee. Counsel testified that in a book kept by him he entered a memorandum to the effect that an assignment of the fee by K. read two-thirds of one-half of the fee to defendant, and that it was so arranged because the executrix wished defendant to hold her one-third in trust, and they did not wish her name to appear in the assignment; and he read from his book a memorandum of his retainer, which stated that the executrix was to have a third. Counsel testified that he showed the entries to defendant, who assented, and said that he had agreed with deceased to divide his fee. Defendant denied that he had ever seen the entries or agreed to divide the fee. Held, that a finding in favor of plaintiff was warranted by the evidence.

2. It was immaterial whether the client knew deceased as counsel in the case, or had anything to do with his connection with it.

3. Allegations of the complaint, in addition to those proved, that the client agreed to pay both deceased and defendant, which were not proved, might be rejected as surplusage.

J. A. Buckler and J. B. Polley, for appellant. Nat. B. Jones and Wm. Aubrey, for appellees.

JAMES, C. J. The amended original petition was by Mrs. A. L. Baker, in the capacity of independent executrix of the will and sole legatee of L. F. Price, deceased, to recover the sum of $667.90, as money recovered by defendant, B. L. Aycock, for and on behalf of her, as such executrix. The amount claimed was a part of the fee arising from a suit brought by one Kreusel against the city of San Antonio, being one-third of a half of the sum recovered. The following facts appear: Aycock and L. F. Price were lawyers. About January 6, 1893, Kreusel brought from Price to Aycock the following letter: "B. L. Aycock, Dear Sir: This will introduce to you Julius Kreusel, who has a case against the city. Investigate, and, if you think there is any money in it, bring the suit. I am so situated that I cannot take charge of it, but will aid you all I can. Yours, truly, L. F. Price." Defendant testified: That he investigated the case, saw witnesses, and on February 6th brought the suit, signing his name alone as counsel. That he made a contract with Kreusel for one-third of the recovery for his services, Kreusel to furnish cost bonds. After several terms the clerk demanded a cost bond, and Kreusel was unable to make such bond. Witness told Kreusel the consequences of not giving the bond, and offered, for onehalf of the recovery, to give the bond, to which he assented; and witness satisfied the clerk on this subject. That witness conducted the case alone until he employed with him Mr. Vanderhoeven, in 1896, agreeing to give the latter one-third of his fee; that, after the case was tried in the district court, Vanderhoeven suggested the propriety of an assignment of the fee by Kreusel, and such instrument was prepared by Vanderhoeven, which, however, witness objected to because it gave Vanderhoeven half instead of a third, and the result was that Vanderhoeven made it read one-third of one-half to Vanderhoeven and two-thirds to Aycock. That to the first amended original petition in the Kreusel case, filed March 19, 1895, witness signed his own name, and also that of L. F. Price. That to a trial amendment filed March 25, 1895, witness signed only his own name. Kreusel testified that he went to Mr. Price with a note, which was the first time he ever saw him; that he said he could not take the case, and wrote the letter to Mr. Aycock; that he did not employ Price, but employed Aycock; that the first contract with Aycock was for one-third, Aycock to stand for the costs; that he afterwards agreed to give him

Action by A. L. Baker and another against B. L. Aycock. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

60 S.W.-18

Aycock and Mr. Vanderhoeven tried the case. Vanderhoeven testified that defendant engaged him to assist in the case about May, 1896. The case was tried June 5, 1896, with

verdict for Kreusel. It was stubbornly contested, and was carried to the court of civil appeals, where it was affirmed, and afterwards carried to the supreme court on application for writ of error, which was denied. The money was collected September 5, 1899. On June 8, 1896, a writing was signed by Kreusel, wherein he, in consideration of legal services rendered by B. L. Aycock and T. T. Vanderhoeven, etc., assigned to said Aycock and Vanderhoeven a one-half interest in the judgment, giving them power to collect and receipt for the same; and in case of a reversal he transferred a half of the further judgment recovered in the case. This witness testified further that he kept a book in which it was his custom to make at the time a careful record of his business, and in which he entered the following memorandum: "1896, June 6. 37th Dist. (No. 5,927.) Julius Kreusel vs. City of San Antonio. Cause tried and won. Verdict for plaintiff for $3,500, and judgment accordingly for said amount, with 6% interest p/a. from this date, and costs. June 6. Def't's motion for new trial filed. June 8. Plaintiff signed written assignment of one-half of the judgment and cause of action to B. L. Aycock and T. T. Vanderhoeven, duly acknowledged, filed, and noted on the margin of the judgment entry. The assignment says: % of one-half to B. L. A., and of 1⁄2 to T. T. V. This was done in that manner because we did not wish to put the widow of Judge L. F. Price in the transfer, and she wished B. L. A. to hold her in trust for her." Witness also read from the same memorandum book the following memorandum: "May 11, 1896. Julius Kreusel vs. City of San Antonio. (No. 5,927.) 37th District. Retained by plaintiff and B. L. A. to assist B. L. Aycock, Esq., in the prosecution of the above damage suit for personal injuries to Bertha Kreusel, plff's wife. Fee contingent, one-half, to be divided as follows: To B. L. Aycock, % of said 2. To T. T. Vanderhoeven, % of 1⁄2, and widow of L. F. Price, dec'd, % of 1⁄2." Witness testified: That he was sure that he showed these entries to Mr. Aycock at the time, and that he assented to them as correct. That defendant said that he was to divide with Mrs. Price, and the memoranda were made, and the name of Mrs. Price was left out partly because he did not know exactly whether she should have the third as executrix or in her individual right; at that time they did not know where she was. That defendant said he agreed to divide with Price the fee; that his Masonic word was out, and he intended to make it good. That, when the judgment was collected and the money divided, Aycock kept two-thirds of one-half. Defendant testified that he never had seen the entries made by Vanderhoeven in his book, and had never said they were correct; that he did not know of the existence of the book; that he dil say to him that he intended to give Mrs. Price, the widow, a part of the

money, and may have said one-third; that he did intend to do so, but felt under no obli gation to do so after she married; that he had never talked to Mrs. Price about business. The case was tried by the court, and judgment was rendered in favor of plaintiff, as executrix, for $696.96.

The facts upon which plaintiff has recov ered are the following, briefly stated: That through Price the business came to defendant; Price offering to aid defendant in any way he could in case a suit was brought; that defendant, before associating with himself Mr. Vanderhoeven, promised to divide his contingent fee of one-third with Price, and had signed Price's name with his own, as counsel, to one of the amended petitions, and, further, had acknowledged to Vanderhoeven that he was to pay Price a half of the fee received by him. We say he promised Price to divide the fee with him, as he stated to Vanderhoeven that his word was out to do so, and this promise must have been made to Price, as he testified he had had no communication with his widow. This promise to Price would be binding if founded upon a consideration. The Kreusel suit was brought in February, 1893. Price died in October, 1895. The case was tried in June, 1896, and defendant employed Vanderhoeven in May, 1896. Defendant testified that he conducted the case alone until he engaged Vanderhoeven. The district judge was authorized to base his judgment upon the facts in evidence and all reasonable inferences therefrom. If the case rested solely upon the letter, there would be no liability; for it contained only an offer to assist in the suit, which Aycock could have ignored. The fact, however, that at some time or other (presumably before Aycock signed Price's name to the amended petition, and thereby recognized him as associate counsel) he agreed with Price to give him half of his one-third contingent fee tends to prove that he saw fit to avail himself of Price's offer to aid in the case, and that upon that basis he promised him one-half of the fee. It is true that in such a case, if Price was called in to aid him, and failed to do anything, and this state of facts existed when Price died, Aycock could have set up such matters as a good defense. It is to be presumed that, if Price had done nothing in the case, defendant would not, after his death, have recog nized an obligation on his part to pay him one-half of such fee. This liberality would not be in accord with the ordinary conduct of men. A fair inference from the facts in evidence is that defendant took Price in with him on the basis of the latter's aiding in the case, and agreed to give him half of his onethird contingent fee, and that Price rendered him services that were satisfactory to him. These inferences are in some degree re-enforced by the fact that Aycock deemed it necessary for some reason to have the ald of some other attorney, and it may be fairly

inferred that Vanderhoeven was employed because Price had died, and that if Price had continued to live this employment would not have been made. After Price's death it probably would be that defendant would have been allowed, in abatement of the fee promised the former, any reasonable sum out of that fee which was necessary to secure some one to take his place, but it is shown that the fee of Vanderhoeven was covered by an extra sum contributed by Kreusel, and defendant's fee was not affected. As to defendant Price, it was wholly immaterial whether or not Kreusel had anything to do with or knew Price as counsel. The material questions would be, was Price, by agreement with defendant, entitled to share the fee? and did defendant receive the fee? There are matters alleged in the petition which were not proved, such as Kreusel having employed both, and agreed to pay both; but this was immaterial, and could be rejected as surplusage. Outside of this the allegations of the petition sufficiently state the fact that as between themselves Price was to get onehalf of the fee, and that the share which he was to get was collected and received by Aycock with the declared purpose of paying the same over to plaintiff. These allegations were supported by testimony, and the judge, in our opinion, had warrant for rendering the judgment that was made.

It is not necessary to discuss all the assignments. We regard none of them as well taken. Judgment affirmed.

FT. WORTH & D. C. RY. CO. v. PETERSON, (Court of Civil Appeals of Texas. Dec. 15, 1900.) CARRIERS-PASSENGERS ON FREIGHT TRAINPERMIT FROM AGENTS-EJECTION OF

PASSENGER-INSTRUCTIONS.

1. Plaintiff obtained a permit from defendant's local agent to ride on a freight train, and was subsequently ejected by defendant's conductor, because the company's rules did not allow passengers on freight trains, for which ejection he sued. Held, that it was error to submit to the jury, as an issuable fact and ground for recovery, the question of the agent's authority to issue the permit in question, where the proof showed that the agent had no such authority.

2. Such error was not cured by an instruction to find for defendant if the authority to issue permits had been revoked, since this instruction required the jury to find that the order of revocation was in force, and was therefore calculated to suggest to the jury the idea that the agent's act showed that the order of revocation was not in force.

3. In an action for unlawful ejection from a train, the word "humane," in an instruction that it was the duty of the conductor to "exercise such care to avoid unnecessary injuries to plaintiff's feelings and person" as a "humane person of ordinary prudence would use," etc., should have been excluded as unnecessary, and suggestive of a somewhat new, and probably higher, standard of liability than that recognized by law.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by John Peterson against the Ft. Worth & Denver City Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Stanley, Spoonts & Thompson and Robert Harrison, for appellant. Wynne, McCart & Bowlin and W. B. Scott, for appellee.

STEPHENS, J. Appellee obtained a permit from appellant's local agent at Rhome station to ride on a freight train to Ft. Worth, and was ejected from the train by the conductor because the rules of the company did not allow him to carry passengers on freight trains. This action was consequently brought to recover damages, and resulted in a verdict and judgment in his favor, from which this appeal is prosecuted.

The first error is assigned to the charge of the court for submitting to the jury, as an issuable fact and ground of recovery, that the agent at Rhome had authority to issue the permit in question, "as there was no proof of such authority in the agent, and the proof was conclusive that the agent did not have such authority." Under repeated decisions in this state, this assignment must be sustained. The evidence did not admit of a finding that the agent had any such authority, but, on the contrary, showed beyond question that he acted through mistake, and in ignorance of the rule of the company which prohibited the issuance of such permits on that division of the road; he having just been transferred from a division where a different rule prevailed. This error in the charge was by no means cured, as appellee seems to contend, by the further instruction to the jury to find against appellee on this issue if the authority to issue permits had been revoked. Indeed, that instruction seems to add force to the objection urged in the assignment to the charge complained of, because it contained the suggestion that, in addition to finding that the company had made and issued the order prohibiting agents from issuing permits, they should further find that the "order was in force," which was calculated to suggest to the minds of the jury the idea that the nonobservance of the order by the agent in this instance might be considered by them as showing that the order was not in force, and hence of no effect.

As the judgment must be reversed, we will consider some other objections to the charge, but without determining whether the assignments urging them would require us to reverse the judgment. Among these is the objection that the pleading and evidence did not warrant the submission of the issue of liability on the ground that appellee was ejected at an improper and unsuitable place. It is questionable, we think, whether, as a distinct ground of recovery, this issue should have been submitted to the jury.

In submitting the main and substantial, if not the only real, issue in the case, as to the

manner in which appellee was ejected from the train, the charge is also complained of for exacting a higher standard than the law fixes, in that it was held to be the duty of the conductor to "exercise such care to avoid unnecessary injuries to plaintiff's feelings and person" as a "humane person of ordinary prudence would usually exercise with reference to a similar matter." We concur with appellant that the word "humane" should have been excluded from this charge as unnecessary, and suggestive of a somewhat new, and probably higher, standard of liability than that recognized by the law, as will appear from the following definition quoted from the Standard Dictionary: "Humane denotes what may rightly be expected of mankind at its best in the treatment of sentient beings." The judgment is therefore reversed, and the cause remanded for a new trial.

FAUCETT v. SHEPPARD.

(Court of Civil Appeals of Texas. Dec. 22,

1900.)

PUBLIC LANDS-SCHOOL LANDS-ADDITIONAL SALES TO PURCHASER-RIGHT TO PURCHASE -PROOF-APPLICATION FORM TITLE ΤΟ HOME SECTION - FIRST PAYMENT — SUFFICIENCY.

1. Plaintiff and defendant were both applicants for the purchase of the same tract of land, under Act 1895, as amended by Act 1897 (Sayles' Civ. St. 1897, art. 4218f), providing that any bona fide purchaser of classified free public school, asylum, and public lands may purchase lands in addition to such purchase not exceeding four sections, but that the lands purchased in excess of one section must be within the radius of five miles of the lands occupied by the purchaser. Plaintiff's application was filed first, but was rejected, and defendant's application granted, and plaintiff then brought trespass to try title. Held, that a judgment in favor of plaintiff could not be sustained, there being no proof that the land in controversy was situated within a radius of five miles of the land occupied by him, though his application to purchase was rejected on other grounds.

2. The fact that an unsuccessful applicant for the purchase of additional lands, under Act 1895, as amended by Act 1897 (Sayles' Civ. St. 1897, art. 4218f), providing that a bona fide purchaser of classified public free school, asylum, and public lands may purchase additional lands, not exceeding four sections in all, made his application on the blank form prescribed under Act 1895, instead of that prescribed by Act 1897, and did not file an affidavit that a lessee of the land had not settled thereon, and had not made improvements thereon of the value of $200, would not preclude his recovery in an action of trespass to try title against the successful applicant for the same land, whose application was filed subsequently to plaintiff's.

3. An applicant for the purchase of additional lands, under Act 1895, as amended by Act 1897 (Sayles' Civ. St. 1897, art. 4218f) had executed his obligation for the payment of his home section, and made the first payment thereon, as required by article 4218j, but, through some oversight or mistake of the treasurer or commissioner of the general land office, two dollars of such amount had been returned to him, which he had made every effort

to return. Held, that he was not precluded thereby from recovery in an action of trespass to try title against the successful applicant for purchase of the same land, whose application was filed subsequently to plaintiff's, on the ground that he had not made the required payments on his home section, since the mistake of the officers could not defeat his right to purchase additional lands after actual receipt by the treasurer of the amount required.

Appeal from district court, Taylor county; N. R. Lindsey, Judge.

Trespass to try title by A. M. Sheppard against J. H. Faucett. From a judgment in favor of plaintiff, defendant appeals. Reversed.

J. M. Wagstaff and Theodore Mack, for appellants. R. E. Chandler and A. H. Kirby, for appellee.

CONNER, C. J. This is a contest between rival claimants to section 134, block 64, Houston & Texas Central Railway Company surveys, in Taylor county, Tex. Appellee was an applicant for the purchase of said section as the owner of, and as an actual settler upon, the N. E. 4 of section 146, block 64, of the same surveys; the application being for the purchase of additional lands under the act of 1895 as amended in 1897. Appellant likewise was an applicant to purchase said section 134 as additional land under the same law. The land had been duly classified, appraised, and listed with the county clerk prior to the application of either of the parties. The appellant's application to purchase was dated October 21, 1897. The appellee made his application, affidavit, and obligation on August 20, 1897, and filed the same in the land office on August 23, 1897, at the same time tendering to the state treasurer the amount required for the first payment. Appellee's application was rejected on the alleged ground that his application was on the blank form prescribed under the act of 1895 instead of that prescribed by the act of 1897, and also because the land was leased to E. B. Sparks, and appellee had failed to file an affidavit that the lessee had not settled on the same, and had not placed improvements thereon of the value of $200, and also because the total of appellee's first payment on his said home tract was not in the treasury. The application of appellant was accepted. The trial in the district court resulted in a verdict for appellee, from which this appeal has been prosecuted.

Appellant's first assignment of error ques. tions the sufficiency of the evidence to sustain the judgment in appellee's favor, and we are of the opinion that the assignment must be sustained.

Appellee was the plaintiff below, having sued in the ordinary form of trespass to try title. It is expressly provided in the law constituting appellee's right to purchase that, "in all cases where a settler purchases more than one section, the land in excess of one section so purchased must be situated within

a radius of five miles of the land occupied by him." Article 4218f, Sayles' Civ. St. 1897. The case comes before us on an agreed statement of facts, duly approved by the trial judge, and duly certified to contain "a full, true and correct statement of all of the facts proven on the trial," and we fail to find contained in the statement of facts any proof that the section of land involved in this controversy is situated "within a radius of five miles of the land occupied" by appellee. It is insisted that this fact is to be inferred by us in aid of the judgment, and because appellee's application was rejected by the commissioner of the general land office upon other grounds. This we do not think we can properly do. One of the prerequisites to appellee's right to purchase was that the land should be within the radius prescribed by law, and this fact should not rest upon a mere inference. The burden was upon appellee to establish this fact by competent evidence, and we do not feel that we would be authorized in supporting the judgment under consideration upon the inference suggest

ed.

Other assignments need not be noticed particularly. They have been examined, however, and we find nothing in the form of appellee's application to purchase that would preclude his recovery. See Live-Stock Co. v. Guinn (Tex. Civ. App.) 51 S. W. 885. Nor can we agree with the appellant's contention that appellee was precluded for want of title in his home quarter section. While it is doubtless true that an applicant for the purchase of additional lands under the section quoted must establish, as one of the necessary steps in his right to such purchase, the fact that he is an actual settler upon and the owner of his home section, yet in the case before us it appears that appellee was such actual settler; that he had duly applied to purchase the same; that he had properly executed his obligation therefor as provided by law, and filed the same with the commissioner of the general land office; and that he had forwarded to the state treasurer the necessary amount for the first payment. Of the amount so forwarded to the treasurer it appears, however, that the sum of two dollars had been returned to him. This was evidently done through some oversight or mistake of the treasurer or commissioner of the general land office. We do not think such mistake on the part of the officers could defeat appellee's right to purchase additional lands after actual receipt by the treasurer of the amount required, in addition to which it also appears from the record that appellee used every effort on his part to again transmit the two dollars deficit when informed that it would be necessary. We think it quite clear from the record that appellee did not abandon the purchase in controversy. For the failure in the evidence stated, the judgment is reversed, and cause remanded for a new trial.

VON KOEHRING v. SCHNEIDER.1 (Court of Civil Appeals of Texas. Nov. 28, 1900.)

JUSTICES OF THE PEACE JUDGMENT-REVIEW CERTIORARI - MOTION TO DISMISSALLEGATIONS-CONTRADICTION - EVIDENCE -ADMISSIBILITY-APPEAL NECESSITY.

1. On a motion to dismiss a petition for a writ of certiorari to review a judgment of a justice of the peace, the admission of affidavits or evidence to contradict the allegations of the petition was erroneous, since such allegations must be taken as true.

2. Where a petition for certiorari to review a judgment of a justice of the peace alleged that the petitioner was a physician, and had a diploma from a recognized medical school, duly recorded, and had rendered medical services to the defendant, which the latter admitted were unpaid, and that the justice rendered judgment against petitioner because his certificate from the Texas board of medical examiners had not been recorded, it was error to dismiss the petition, since it showed a material and vital error in the proceedings before the justice, petitioner's recorded diploma being sufficient to entitle him to practice.

3. Where a petition for certiorari to review a justice's judgment alleged that defendant was indebted to the petitioner for medical services, and that the justice rendered judgment against petitioner because of the forged receipt introduced by defendant, it was error to dismiss the petition, since it showed that a material and vital error occurred in the proceedings before the justice.

4. On petition for a writ of certiorari to review a judgment of a justice of the peace, it was not incumbent on the petitioner to show any reasons for not taking an appeal.

Appeal from Guadalupe county court; F. C. Weinert, Judge,

Action by H. Von Koehring against Anton Schneider. There was a judgment in the justice court in favor of defendant, and plaintiff brought the case to the county court by writ of certiorari. From an order of the county court sustaining a motion to dismiss the writ, plaintiff appeals. Reversed.

W. R. Neal and Adolph Seidemann, for appellant. Dilrell & Mosheim, for appellee.

NEILL, J. This action originated in the justice court by the appellant suing appellee to recover $115.50, the alleged value of medical services rendered the latter by the former as a practicing physician. The defendant pleaded: (1) A general denial; (2) that, if the services were rendered, plaintiff could not recover, because he had not complied with the law of the state regulating the practice of medicine; (3) payment; and (4) a plea in reconvention for damages caused by malpractice. The trial in the justice's court having resulted in a judgment in favor of defendant, plaintiff applied for and brought the case to the county court by a writ of certiorari. There a motion of appellee to dismiss the certiorari proceedings was sustained. Appellant alleged in his petition for the writ of certiorari that the substance of the testimony in the justice's court

1 Rehearing denied January 9, 1901.