used under like circumstances. And, where a person is on the premises of a railway company under either of the conditions as last above set out, it becomes the duty of such railway company to use such care to avoid injury to such person as a man of ordinary prudence would have used under like circumstances, and a failure so to do would be negligence on the part of said railway company." The second assignment urges error in this instruction, "in that it placed the duty of anticipating danger to Carl Brown from the mere fact that his presence was known to the defendant's agents." This charge requires the concurrence of two facts or conditions to constitute negligence: (1) Knowledge of the presence of the appellee; (2) knowledge of his incapacity, or the power of ascertaining that fact by the use of ordinary care. The second element was unnecessary, for if his mere presence in a dangerous position, without reference to his incapacity, was known to the appellant, it was its duty, after discovering the danger, to use ordinary care to avoid injuring him. Railway Co. v. Robinson, 4 Tex. Civ. App. 125, 23 S. W. 433, and the numerous authorities there cited. The appellant is in no attitude to complain of the instruction.

It is urged in the third, fourth, and eighth assignments of error that the second clause of the charge above set out was further erroneous in that there was no evidence to the effect that Carl Brown's presence was known to the defendant's agents, or that the agents knew that he was in a dangerous position, or that any one knew of his incapacity to take care of himself. We do not interpret the testimony in accordance with the contention of these assignments. The evidence shows, or tends to show, that the appellee was a child 10 years old, small in stature; that he was standing, in a position quite upright, between two flat coal cars, his shoulders above them; that several boys were playing on the top and side of these coal cars, the intervening cars being flat; that the appellant's foreman, who was directing the movement of the engine, was 40 yards away, and saw the boys; and that they were in plain view of the engineer. A proposition under these assignments further assails the instruction on the ground that there was no allegation in the petition that the operatives of the train knew of the incapacity of the appellee to take care of himself. Among numerous other averments, the petition describes the plaintiff as an immature child, of 10 years of age, and in effect charges that the defendant's agents in charge of the switch engine and yards saw the plaintiff, and the danger to which he was exposed by reason of their negligence, in ample time to have avoided the infliction on him of any injury, and that, thus seeing and apprehending his danger, they negligently forced a number of detached cars against the car on which the plaintiff was standing, and seriously injured him.

No special exception was addressed to the pleading on account of the absence of the specific allegation referred to. The averment of negligent injury, with knowledge of the dangerous position and the presence of the appellee, an immature child of 10 years, as against a general demurrer, at least, covered the issue of incapacity submitted by the court. Besides, as already indicated, the submission of this issue, conceding knowledge by the appellant of the boy's presence and of his dangerous position, was unnecessary, and but imposed upon the plaintiff the burden of proving an additional fact, not essential in this connection to the maintenance of his case.

The sixth assignment complains of the refusal of the following special instruction: "If the jury believe that defendant had exercised proper care to keep boys out of its yards, and that plaintiff was there without any permission or consent of it, and that its servants did not see or know of his danger, and had no reason, in the exercise of ordinary care, to suppose that he was in danger, under all the circumstances, then in such event you will find for the defendant." It is believed that the propositions incorporated in this requested charge were substantially included in the second paragraph of the court's charge.

The objection to the admission in evidence of the municipal ordinance requiring the ringing of a bell in the running of locomotives within the corporate limits of the city was properly overruled. We have heretofore held that the enactment of this ordinance was a valid exercise of municipal power, under the terms of the charter. Railway Co. v. Nelson (Tex. Civ. App.) 29 S. W. 80 (in which a writ of error was refused.) Nor are we prepared to hold that the court should have excluded this ordinance as unreasonable in its provisions, or inapplicable to the facts of this case. In terms the ordinance requires that, where a locomotive is operated within the corporate limits of Ft. Worth, the bell attached thereto shall be rung before starting, and shall be kept ringing all the time the locomotive or engine shall be in motion. If the ordinance be inapplicable, it must be because, under the evidence, it is unreasonable; and, if unreasonable, it seems that it should be thus assailed by proper averment and proof. Blueborn v. Railway Co., 25 S. W. 944; City of Austin v. Austin City Cemetery Ass'n, 87 Tex. 330, 28 S. W. 528. The ordinance in question was declared upon by the plaintiff as the basis for his cause of action, and the defendant failed to allege its unreasonableness or its inapplicability. Besides, it should be remembered that the defendant's employés testified, in support of the plaintiff's allegations, that these premises were, without protest or objection, much frequented by the public, and that the yards, situated in a thickly-settled portion of the city, were traversed by people at any and all times

and places. Under such circumstances, we should besitate to hold that the regulations prescribed by the ordinance were either unreasonable or inapplicable. Conceding the validity of the ordinance, which constituted a law within the limits of the city, its violation by the defendant, attended with injury proximately resulting, would, under the doctrine established in this state, constitute negligence per se, and it would become the duty of the court to so charge. Railway Co. v. Nixon, 52 Tex. 19; Railway Co. v. Moore, 69 Tex. 160, 6 S. W. 631; Railway Co. v. Porfert, 72 Tex. 351, 10 S. W. 207; Bish. Noncont. Law, § 445.

The character of the injury, as indicated by the testimony of the plaintiff and of his attending physician, precludes us from holding the verdict of $1,500 excessive. We fail to find merit in any of the assignments presented in the able brief of appellant's counsel, and consequently order an affirmance of the judgment.

BRADFORD et al. v. KNOWLES et al.1 (Court of Civil Appeals of Texas. Nov. 13, 1895.)

APPEAL-REQUISITES-STATEMENT OF FACTS-BILL OF EXCEPTIONS--DECISION.

1. The court of civil appeals may ascertain by affidavit or otherwise any fact necessary to the proper exercise of its jurisdiction.

2. Section 24 of the act organizing the court of civil appeals (Laws 1892, p. 29), in permitting that court to recognize bills of exceptions, under certain circumstances, although not signed by the judge below, has no reference to the recognition of conclusions of fact not filed in time.

3. Where the court below adjourned one week before the time fixed by law, and the judge, having had submitted to him appellant's bills of exceptions, took such bills home with him, and nine days afterwards returned them, with his conclusions of law and fact, to the clerk, directing him to file them as of the last day of the term, the fact that on the day of adjournment appellant's counsel knew that the judge was to adjourn court that day, and intended to file the bill and conclusions afterwards, as was done, and that notwithstanding this he failed to take advantage of the irregularity by bill of exceptions filed during the term, prevents his complaining that the judge failed to file conclusions during the term, and securing a reversal of the judgment.

4. The fact that the record is made to indicate that the statement of facts was prepared and filed in time does not preclude inquiry into the question.

Appeal from district court, Guadalupe county; Thomas H. Spooner, Judge.

Action between M. G. Bradford and others and Thomas J. Knowles and others, from the judgment in which Bradford and others appeal. Affirmed.

W. M. Rust and W. E. Goodrich, for appellants. John Ireland, W. R. Neal, and McNeal, Harwood & Walsh, for appellees.

JAMES, C. J. There is no statement of facts in the record. It contains, however, 1 Rehearing denied.

conclusions of fact, appearing to have been filed during the term at which the cause was tried; also, a number of bills of exceptions relating to testimony, which also appear from the record to have been filed during the term. So far as the record shows, there is no reason why this court should not consider both the conclusions and the bills of exceptions. Appellant assigns as error that the bills and the conclusions were not in fact filed by the judge until nine days after adjournment, although appellant had caused the bills to be presented to the judge during the term, and 10 days before adjournment, and also had, before adjournment, in writing, requested him to file conclusions of fact and law, and claims that his rights have been violated by said proceeding. The matter being assigned. as error, we are of opinion that it is our duty, when it is called to our attention that the record has been made to show conclusions of law and fact and bills of exceptions to have been filed during the term, when such was not the case, and thereby this court is improperly asked to exercise its jurisdiction to revise the judgment, to determine the facts, and, if substantiated, to decline to recognize the conclusions; and where one who has sought to perfect his appeal, and has failed to do so, through the act of the court, without any fault of his own, this court should afford relief, by reversing and remanding the cause for another trial. Hilburn v. Preston (recently decided by this court) 32 S. W.. 702; Collins v. Kay, 69 Tex. 365, 6 S. W. 313; Railway Co. v. Underwood, 67 Tex. 590, 4 S. W. 216. The statute is that this court may ascertain by affidavit or otherwise any fact necessary to the proper exercise of its jurisdiction. Appellant has accordingly made. a motion to have the judgment reversed and the cause remanded, based on the above assignment. It is shown conclusively that the court adjourned a week before the time fixed by law; that the bills of exceptions were presented and the conclusions requested before adjournment; that the judge adjourned court, and took the bills home with him, and nine days afterwards returned the bills (refusing one), and also his conclusions of law and fact, to the clerk, directing him to file them as of the last day of the term, which was done. It is a proper inquiry in this connection, from these affidavits, whether or not the appellant has placed himself in a position where he can complain of the failure of the court to file conclusions during the term. It has been repeatedly held that a party cannot complain of such failure, except upon bill of exceptions thereto, which, like other bills, must necessarily be filed during the term. We are satisfied from the affidavits before us that appellant's counsel was informed on the day of adjournment that the judge was to adjourn the court that day, and intended to. file the bills and the conclusions afterwards, as was done; and counsel had the opportunity, if he had desired to do so, to have taken,

denying the writ, petitioner appeals. Reversed.

Hume & Kleberg and Byron Johnson, for appellant. Thos. J. Ballinger, for appellees.

GARRETT, C. J. The appellant, Marsene Johnson, brought this action in the district court of Galveston county against the mayor and aldermen of the city of Galveston for a writ of mandamus to restore him to the office of recorder of the city of Galveston, from which he alleged he bad been illegally ousted by the city council. The case has been improperly entitled and docketed as "The State of Texas ex rel. Marsene Johnson vs. The Mayor and City Council of the City of Galveston." The state is not a party to the suit, which is an application by the appellant to the district court for a writ of mandamus to restore him to the office. The clerk of this court will be instructed to correct the style of the case. The suit is against the mayor and aldermen of the city, who compose the city council. Appellant alleged that the city council had on the 10th day of September, 1895, unlawfully and without power or authority of law, removed him, and declared said office vacant. Appellees deny the jurisdiction of the district court to grant the writ of mandamus to compel them to restore the appellant, and say further that he was rightfully removed. Appellant had been duly appointed and had qualified as recorder of the city of Galveston for the term of two years from June 17, 1895, and was acting as such when removed. On Saturday, August 24, 1895, he committed an assault upon one Edward Hirschfield, by striking him on the head with a pistol. The evidence showed that the assault was committed on account of an assault by Hirschfield upon the child of Johnson, and grew out of a provocation entirely personal, and in no manner related to the discharge of appellant's duty as recorder. Hirschfield made a complaint before the city council, as follows: "Now comes Edward Hirschfield, and, as a citizen of the city of Galveston, makes it known to the honorable city council of the city of Galveston that Marsene Johnson, the recorder for the said city of Galveston, has during his present term of office as such recorder committed such acts of malconduct as to warrant his removal from said office. As a citizen of said city, your informant now charges that the acts of malconduct committed by said Marsene Johnson during his present term of office are as follows, and he charges as follows, to wit: That he, said Marsene Johnson, did on, to wit, Saturday, August 24, 1895, enter the place of business of your informant, and did then and there unlawfully commit an assault upon your informant, Edward Hirschfield, by striking him on the head with a deadly weapon, to wit, a pistol. Your informant charges that the aforesaid acts on the part of said Marsene Johnson were in

violation of the laws of the state of Texas, and constitute malconduct in office on the part of said Marsene Johnson, he being guilty of acts unbecoming a judge and peace officer. Your informant now asks that the aforesaid charges be heard, and that the said Marsene Johnson be served with a copy of said charge, and that he be cited to appear before the honorable city council of the city of Galveston, and show cause, if any he has, why he should not be removed from the said office of recorder, and that he be removed therefrom." Appellant, having been duly cited to appear before the said city council, answered the charge, and denied that he had been guilty of any act which, under the charter of the city, would give jurisdiction to the council to remove him, and denied the charge made against him. He also introduced evidence upon the trial in rebuttal of the evidence offered in support of the complaint. After hearing the evidence the city council, on the 10th day of September, 1895, sitting as a court for the trial of the appellant upon the charge preferred against him, by a vote of more than two-thirds of the aldermen, adjudged that the charge had been sustained, and that appellant was guilty of malconduct in office, and that he be removed from said office of recorder of the city of Galveston, and that said office be declared vacant. Appellant acted as recorder until the 10th of September, 1895, when he was removed as above stated. The unexpired term of the office is worth the sum of $3,150, as stated in the petition.

It is well settled that mandamus is a proper writ to restore a person to an office from which he has been illegally ousted. Banton v. Wilson, 4 Tex. 400; Nelson v. Edwards, 55 Tex. 389; Lindsey v. Luckett, 20 Tex. 516; Milliken v. City Council, 54 Tex. 388; Terrell v. Greene (Tex. Sup.) 31 S. W. 681. It is also a well-recognized principle of law that the writ will not lie to revise the judgment of an inferior court, or to compel the action of a public officer to whom a discretion is given by law in the decision of a question. Ewing v. Cohen, 63 Tex. 484; Bledsoe v. Railway Co., 40 Tex. 554; Sansom v. Mercer, 68 Tex. 488, 5 S. W. 62. But where a court is without jurisdiction of the subject-matter which it has undertaken to adjudicate, and has no authority conferred upon it by law to entertain the complaint or cause of action, any judgment it may render, undertaking to adjudge the rights of the parties, will be void, and may be attacked collaterally and its nullity shown. This is a familiar principle of law, and needs no citation of authority in support of it. The city council of the city of Galveston had the authority conferred upon it by the charter of the city to sit as a court, as it did in this case, and try an officer of the city, and remove him upon any charge made a cause for removal by the charter itself, and its judgment in

such case could not be reviewed upon application for a writ of mandamus to restore the officer so removed. The judgment of the city council in such case would also be final, if not void, as no appeal is provided for. If the judgment of the city council be not void, the writ will not lie, and the judgment below is correct. So the investigation must be as to the validity of that judgment. If the charge upon which the appellant was tried was one for which the charter authorized his removal, the action of the city council, even if not correct, was final, and cannot be reviewed by the district court. But, if the appellant was removed for a cause not authorized by the charter, the city council was without jurisdiction of the charge, and had no authority to remove the appellant, and mandamus will lie. Milliken v. City Council, supra; State v. Common Council of City of Watertown, 9 Wis. 254; State v. Common Council of Jersey City, 25 N. J. Law, 536; and other authorities cited by counsel for appellant. Section 156 of the charter of the city of Galveston set out the causes for which the recorder may be removed, as follows: "The city council shall have power to remove any officer for incompetency, corruption, malconduct, malfeasance or nonfeasance in office, after due notice," etc. The malconduct in the charter is malconduct in office. If appellant is removed, that is the charge which must be sustained. "Malconduct," as used, means misconduct, and the offense is official misconduct. However reprehensible the conduct of the appellant may have been, it was in no manner connected with the discharge of the duties of his office, either as recorder or as an ex officio magistrate of the state, and was not malconduct in office. The council had no authority to remove him upon the charge made. The cause was not sufficient, as stated in the complaint, and the evidence produced does not tend in any way to connect the assault with appellant's official duties. The city council was therefore without jurisdiction of the charge, and could not legally remove the appellant, and the court below should have granted the writ to restore him. The judgment of the court below will be reversed, and judgment here rendered in favor of the appellant, granting him the relief prayed for.

BAKER v. MILDE.

(Court of Civil Appeals of Texas. Nov. 14, 1895.)

APPEAL-BILL OF EXCEPTIONS-TIME OF FILINGACTION TO SETTLE PARTNERSHIP ACCOUNTS

-EVIDENCE-Costs.

1. On a motion to strike a bill of exceptions on the ground that it was not filed during the term, it appeared that the filing mark on the bill bore a date prior to the adjournment, that it was put on after the adjournment by one who had ceased to be the clerk after the court ended, that the bill was found among the pa

pers at the time it was so indorsed, and that it was approved by the judge on the day court adjourned. Held, that the motion would be denied, in the absence of any showing that the bill was not deposited with the clerk before court adjourned.

2. Where a written contract of partnership provided that the parties should share equally the profits and losses, in an accounting it was error to exclude evidence offered of a credit of $300 paid out by defendant as necessary expenses, on the ground that defendant, in his testimony, admitted that plaintiff had not expressly agreed to pay one-half, or that they should be incurred on behalf of the partnership.

3. In an action to settle partnership accounts, where both parties sought settlement, and each claimed of the other sums not recovered, and each was in fault in allowing the accounts to stand in such a condition so long that the service of an auditor was necessary, it was not error to tax one-half of the auditor's fees to the successful party.

Appeal from district court, Goliad county; S. F. Grimes, Judge.

Action by E. Milde against C. H. Baker for settlement of accounts of a partnership between plaintiff and defendant. From a judgment for plaintiff, defendant appeals. Reversed.

Patton & Burke and T. P. Holliday, for appellant. Ellsberry R. Lane, for appellee.

WILLIAMS, J. Appellee sued appellant for a settlement of the accounts of a partnership which had existed between them since November 18, 1878,-for more than 15 years, and to recover a balance of $3,857.84 alleged to be due plaintiff on settlement. Appellant answered, denying that he was indebted, and setting out the account, as he claimed it to be, and claiming a recovery of over $4,000 against plaintiff. Among the credits claimed was the sum of $300, which appellant averred he had paid out as necessary expenses on a trip to St. Louis to purchase goods for the firm. By consent the accounts were referred to an auditor, who reported a balance in favor of appellee of $82.10, and submitted for the decision of the court two items of $200 and $400 claimed by plaintiff, as to which there was a conflict of evidence, and as to which the auditor made no finding. Plaintiff filed exceptions to the auditor's report, claiming the two items thus referred back to the court, and also objecting to the findings of the auditor as to other named items. Defendant, also, objected to the report, because the $300 item above referred to had not been allowed, and again asserted his right to recover same. The items thus put in issue, except the last named, were submitted to a jury, who found in favor of plaintiff for $900. The court excluded evidence offered by defendant to establish the $300 credit for expenses, upon the ground that defendant, in his testimony, admitted that plaintiff had not expressly agreed to pay one-half, or that they should be incurred on behalf of the partnership. The contract of partnership was in writing, and provided that the parties should share