*1 * 355 Terrell. v. Nevell 1905.] such charge because contributory negligence, of the establish defense consider alone should that they to believe lead the jury to was calculated Texas Citing that issue. upon defendant offered the by evidence the Gulf, case of Texas, 447.” But the Reed, 88 Pacific v. Railway & Texas, 582), v. Howard (96 Fe Railway Company Colorado & Santa erroneous, though that such a charge, for the authority is proposition same the of it corrected other by parts is not be provided prejudicial to easy is it since reversed, this and Since is to charge. judgment be to labor unnecessary error trial, avoid the another it an upon we deem rule. whether that inquire, the in falls within charge question own his of also and insisted, It is that the of the plaintiff evidence and contributory negligence witnesses him exposed to a of suspicion not guilty was that therefore the he burden him show that was to upon court this by of such negligence. recognized That rule was at one time every in that state; as the law of settled this but it is now definitely the ground in on case which the of defendant seeks to recover plaintiff de- the of of the and defendant relies negligence upon defendant the it defense, in that fense of order to maintain contributory negligence, was a the must of the evidence that appear by preponderance plaintiff of such negligence. guilty and the out, the is reversed judgment For the error first pointed and remanded. remanded. Reversed cause Terrell, R. L. Nevell v. J. J. of the Commissioner General Land
Office. 27, 1435. Decided November 1905. No. Mandamus—Estoppel—Cancellation of lease. the Commissioner of the General Land to procured had Office One who years, years’ expiration school land at the of lease of five on the
cancel his ten water, that, longer it theory having permanent could not be let for than such it, term, again leasing of himself not purpose the can maintain suit and for lease, though his reinstatement under the first it should compel mandamus to for who, valid, cancellation, against the commissioner after had relet it to be held (P. 356.) higher and bidder. another Nevell, the of the by against Commissioner Original application mandamus, for to Office, Nixon, Land which an adverse claim- General land, a was made subsequently party. ant of the Sickle, for relator. Morris & Van Reese, Davidson, assistant, and T. S. for re- attorney-general,
R. V. spondent. This isa GAINES, relator, Nevell, Justice. the petition by Chief of General Land the Commissioner Officeto him reinstate
to compel the. of office as lessee the north half of records of his section 37 of the upon A. Co. Ry. surveys. S. The 13 the H. & respondent of G. pleads block suit, that after the cancellation of the of the relator’s abatement in lease, one, leased him to by had W. H. Nixon, land been the and Supreme [November, Reports, 356 99. Court Vol. Texas is a Nixon therefore is in and that good standing; that this lease and be sustained should the think the to suit. We *2 necessary party it plea re- unless the dismissed is so The suit will be ordered. accordingly a make Nixon party his and days lator within fifteen amend petition defendant tó the action. 25, Filed 1905. May an WILLIAMS, original application This in Justice. Associate re to for a the respondent to mandamus seeks whereby compel relator by been cancelled instate a had lease for a half of land which section holder the the a as commissioner. made party Nixon is Corespondent of after cancella a lease the for the the land, executed commissioner by tion of the first. the that are The as and answers facts from the they appear petition land, including of commissioner leased to number sections relator a of 1899. 26, the in from half section for ten August controversy, years The half section and them permanent some of the sections had upon water, executed which fact was when he unknown to the commissioner from 1904, this lease. In of years of five about the time the expiration fact the date this at which the effect, represented lease took the relator the it the to of substance, by commissioner and in reason that asserted of the term that the lease was five and years, limited the statute to by .of all land was lease subject leased, to and for a new again be applied commissioner, of the agreeing land for a new term of five The years. law, relator with this view of the executed to cancelled the first lease and a let to new one for all of the which was land the half section except dis- Nixon because thus he offered a relator. larger price Being than lease, in his new appointed effort to obtain this half under the section ten relator it for falls back the former one claims that is upon good and by it years from the time took effect. is an effort to Plainly compel it caused or mandamus the of that which the relator himself undoing not done, to be which can succeed. When relator induced the helped lease, to commissioner to cancel the first other had the persons right it land, bid for and became the of the commissioner to take duty the offered, own action the best and relator’s him from ob- precludes price to set aside an action which he asked for this writ and assented taining court It be outside the case for this to enter to. would therefore upon law as of the of to the of questions presented a discussion effect legal the first lease.
Writ refused. Margaret V. E. Welch et al. v. Weiss. 27, 1905.
No. Decided November 1490. 1.—Appeal—Affirmance on of Error. Certificate—Writ excuse, appeal perfected appellant, has but without Where an been lawful delay, of failed design purpose transcript but not or for the has to file the with law, by on required appellee in time is entitled to affirmance under certificate Statutes, 1016, appellee Revised a writ of error and article the has in the though perfected meantime 359.) (P. filed transcript therein.