to the place of beginning. The remainder of
said 81 acres was allotted to J. T. Brady. The
652 acres set apart to John T. Brady was con-
veyed by him to the Houston Land & Trust
Company, as trustee for the Port Houston
Land Improvement Company, as part of a tract
of 1,374 acres, and was acquired through
mesne conveyances by the defendant Magnolia
Park Company. The 81 acres conveyed by
Mary A. Tinsley to John T. Brady included the
balance of her share and the shares of Chas. Tin-
sley and Isaac Henderson Tinsley, and the jury
found on special issues submitted that the con-
veyance as to the shares of Chas. and Isaac
Tinsley was made in trust for them. We think
the facts of the case justify this conclusion.
The Magnolia Park Company, as an innocent
purchaser for value, acquired title to the tract
of 65% acres, and as to it should have judg-
ment. As the heirs of John T. Brady, Jr., the
defendants Lucy Sherman Brady, Sidney Sher-
man Brady, and Mary Etta Brady acquired
title to the tract of 28 acres conveyed by Mary
A. Tinsley to John T. Brady, for the use of
John T. Brady, Jr., as his share of the lands
set apart to Mary A. Tinsley in lieu of the
stock in the New Houston City Company, and
are entitled to judgment therefor. The tract
of 15 acres set apart to Lucy S. and Sidney
S. Brady in the partition between John T.
Brady and his deceased wife, Lennie S. Brady,
was received by them charged with the trust in
favor of the plaintiffs; but, as Mary A. Tinsley
owned an absolute interest in the 81 acres con-
veyed by her to John T. Brady, amounting to
the difference between the entire tract and the
shares of the plaintiffs, which were found to
be 64% acres, to wit, 16% acres, which more
than covers the 151⁄2 acres, the heirs of Lennie
S. Brady would take her share of the com-
munity unaffected by such trust. The jury
found the interest of Chas. Tinsley, Isaac H.
Tinsley, and John T. Brady, Jr., in the 109
acres to be 32% acres each, which would leave
only 12 acres to Mary A. Tinsley; but, as she
conveyed only 28 acres of the land in full of
John T. Brady, Jr.'s, interest, we must suppose
that the difference in acreage was accounted for
in the quality of the land, as she was invested
with the legal title and had the right to make
partition. There would still be a question, per-
haps, of division between the share of Mary A.
Tinsley and those of the plaintiffs; but the
number of acres that she received from
the 109-acre tract and the balance to her
in the 109 acres would still amount to less
in acreage
than the difference between the
shares of the plaintiffs and the entire tract
conveyed by her to Brady. So we conclude
that the interest in the 109 acres of Mary
A. Tinsley as the owner of one of the shares
does not amount to less than the 15% acres,
and that the title to this amount at least be-
came vested in the community estate of John
T. and Lennie S. Brady unaffected by the trust
in favor of plaintiffs, except as to the com-
munity share of John T. Brady, which equity
would require to be substituted in the place
of the land really charged with it, and con-
veyed by him and acquired by the Magnolia
Park Company discharged of it. The plaintiffs,
therefore, would be entitled to recover an
divided one-half of the tract of 15% acres, and
for the other half of said tract the defendants
Lucy Sherman Brady and Sidney Sherman
Brady should have judgment. The judgment
heretofore entered by this court is set aside of
the court's own motion, and judgment will be
here rendered in accordance with the above cou-
clusions. Reversed and rendered.

On Motion for Additional Conclusions.
(June 19, 1903.)

un

The appellees have filed a motion for additional conclusions of fact, and specify a number of points on which they desire such conclusions.

Several of the particulars upon which they ask for conclusions are of matters that appear from the record as of the facts appertaining to the motion to dismiss the appeal. Counsel may present such facts to the Supreme Court in their application for a writ of error, should they make one, without its being necessary for this court_to_gather such facts for them from the record. There are other particulars which are either included in the conclusions heretofore filed or upon which this court does not think it would be material to make conclusions. But the following facts are found supplemental to those included in the conclusions heretofore filed. We refer to the statement made for the Supreme Court on the certified questions, and to the facts found in our disposition of the case on May 21, 1903, as conclusions heretofore filed. (1) The jury in the court below, upon the submission to them of special issues, found that the 209 acres was awarded in the partition to Mary A. Tinsley in lieu of the 1,700 shares of stock conveyed to her in trust by Isaac T. Tinsley for the benefit of his heirs; that the said Mary A. Tinsley so held the land in trust, and at all times recognized the beneficial interest of the parties mentioned in the deed. (2) The consideration of the deed from John T. Brady to the Port Houston Land & Improvement Company, as found by the jury, was bonds and stock of said company, to wit, 260 bonds of $1,000 each and 2,500 shares of stock; that at the time of his death Brady owned about one-half of the bonds of said company, and that the Magnolia Park Company issued to the heirs of Brady stock and bonds in lieu thereof; and that the heirs of Brady still own the same, and inherited from their father that and other property, all amounting to $200,000, which is in the hands of their guardian. (3) At the date of the deed from Mary A. Tinsley to John T. Brady, to wit, October 2, 1881, as stated in the certificate, Isaac Henderson Tinsley was of unsound mind. He continued so until his death March 19, 1882. When he died he left surviving him his wife, Louisa Tinsley, and two children, to wit, Mamie and Henderson, both of whom were under age when this suit was brought. Isaac Henderson Tinsley never knew of the conveyance to Brady, or that he was claiming the land. The jury found that the land was worth, at the time of the trial in the court below, $200 an acre. The deed executed by Mary A. Tinsley to John T. Brady did not purport to have been executed by her as trustee, and did not disclose that she intended to act in any other than an individual capacity.

V.

MASEK & JIRASEK FIRST NAT. BANK OF BARTLETT. (Court of Civil Appeals of Texas. May 20, 1903.) Appeal from Bell County Court: G. M. Felts, Judge. Action between Masek & Jirasek and the First National Bank of Bartlett. From a judgment for the latter, the former appeals. Affirmed. Robertson & Goldstein, for appellant. A. M. Monteith and Stanton Allen, for appellee.

FISHER, C. J. There is evidence in the record which authorized the conclusion of the trial court that the jurisdiction and venue of the suit was properly in Bell county. There was no error in the court's rendering judgment for the interest, as complained of in appellant's second assignment of error. No amendment was necessary. We find no error in the record. and the judgment is affirmed.

SLAYDEN-KIRKSEY WOOLEN MILLS v. FRANKLIN. (Court of Civil Appeals of Texas. June 17, 1903.) Appeal from McLennan County Court; G. B. Gerald, Judge. Action between the Slayden-Kirksey Woolen Mills and J. B. Franklin. Judgment for Franklin, and the

Slayden-Kirksey Woolen Mills appeal. Affirmed. T. A. Blair and Allan D. Sanford, for appellant. Boynton & Boynton, for appellee.

FISHER, C. J. The law as stated in National Bank v. Ashworth (Pa.) 16 Atl. 596, 2 L. R. A. 493; Ward v. Smith, 7 Wall, 447, 19 L. Ed. 207; Dodge v. Trust Co., 93 U. S. 379, 23 L. Ed. 920; Bank v. Goodman, 109 Pa. 422. 2 Atl. 687, 58 Am. Rep. 728; Bank v. Packing Co., 117 Ill. 100, 7 N. Ě. 601, 57 Am. Rep. 855; Anderson v. Gill, 79 Md. 318, 29 Atl. 529, 25 L. R. A. 200, 47 Am. St. Rep. 415; Hazlett v. Bank (Pa.) 19 Atl. 55; and Fernald v. Bush, 131 Mass. 591-when applied to the facts stated in the record, settles the case in favor of appellee. Affirmed.

SMITH et al. v. KIRKHAM. (Court of Civil Appeals of Texas. April 15, 1903.) Appeal from District Court, Johnson County; J. F. Henry, Special Judge. Action by William Kirkham against L. L. Smith and others. Judgment for plaintiff. Defendants appeal. Affirmed. Frost, Neblett & Blanding and Plummer & Green, for appellants. E. L. Stovall and L. B. Davis, for appellee.

KEY, J. This is an action of trespass to try title, resulting in a judgment for the plaintiff, and the defendants have appealed. The trial judge filed conclusions of fact and law. The former find support in the testimony, and the latter state the law correctly on the principal questions in the case. The conclusions referred to are adopted by this court, and the judgment is affirmed. Affirmed.

STATE v. LAREDO ICE CO. et al. (Court of Civil Appeals of Texas. May 20, 1903.) Ap*Rehearing denied June 17, 1903.

peal from District Court, Webb County; A. L. McLane, Judge. Action by the state of Texas against the Laredo Ice Company and others. On rehearing, after remand from the Supreme Court with answers to certified questions. Judgment below reversed. C. K. Bell, for appellant. Nicholson & Mullaly and E. A Atlee, for appellees.

JAMES, C. J. The district court sustained a general demurrer to the petition; the ruling being to the effect that the act of the Legislature known as the "Anti-Trust Law of 1899" (Laws 1899, p. 246, c. 146) was unconstitutional. We certified the question to the Supreme Court, and they have, in an opinion published in 73 S. W. 951, 7 Tex. Ct. Rep. 239, held it constitutional. Therefore the judgment is reversed, and the cause remanded.

SUPREME COUNCIL OF AMERICAN LEGION OF HONOR v. TAYLOR et al. (Court of Civil Appeals of Texas. May 27, 1903.) Appeal from District Court, Milam County; J. C. Scott, Judge. Action between the Supreme Council of the American Legion of Honor and Hattie E. Taylor and others. From a judgment for Taylor and others, the Supreme Council appeals. Affirmed. John L. Terrell and Monta J. Moore, for appellant. Hefley, McBride & Watson, for appellees.

STREETMAN, J. The questions involved in this appeal are the same as in the case of Supreme Council of American Legion of Honor v. Storey (this day decided) 75 S. W. 901. There is no complaint against the findings of fact filed by the court, and it is not necessary to set out the facts in this opinion. We find no error in the judgment, and it is therefore affirmed. Affirmed.

ABANDONMENT.

ACCOMMODATION PAPER.

Of contract, see "Contracts," § 4.

Of public lands, see "Public Lands," § 2.

ABATEMENT.

Of nuisance, see "Nuisance," § 2.
Pleas in abatement, see "Pleading," § 2.

ABATEMENT AND REVIVAL.
Judgment as bar to another action, see "Judg-

ment," § 5.

Pleas in abatement, see "Pleading," § 2.
Right of action by or against personal repre-
sentative, see "Executors and Administra-
tors," § 6.

1. Objections to jurisdiction.

Where defendant's domicile is in a county
other than that in which he is sued, his plea
of privilege to be sued in the county of his
residence held well founded.-Pearson v. West
(Tex. Civ. App.) 334.

2. Transfer or devolution of title,
right, interest, or liability.

An action by a guardian for sale of the min-
or's real estate held not to abate by his resigna-
tion, and failure of his successor to file an
amended petition and obtain an order of sub-
stitution. McVaw v. Shelby (Ky.) 227.

3. Death of party and revival of ac-
tion.

Under Sayles' Ann. Civ. St. 1897, art. 3353a,
where cause of action for personal injuries re-
sulting in death did not survive, defendant held
not liable to representatives of deceased for
medical expenses incurred by reason of the
injuries.-Ellyson v. International & G. N. R.
Co. (Tex. Civ. App.) 868.

ACCOMPLICES.

Testimony, see "Criminal Law," §§ 13, 21.

ACCORD AND SATISFACTION.
See "Payment."

Facts held to show an accord and satisfaction.
(Mo. App.) 178.
-Andrews v. W. R. Stubbs Contracting Co.

ACCOUNT.

Accounting between partners, see "Partner-
ship," § 1.
Accounting by executor or administrator, see
"Executors and Administrators," § 7.
Accounting by foreign administrators, see "Ex-
ecutors and Administrators," § 8.
Accounting by guardian of infant, see "Guard-
ian and Ward," § 4.

ACCUMULATIONS.

Restrictions on creation of trusts for accumula-
tion, see "Perpetuities."

ACKNOWLEDGMENT.

Operation and effect of admissions as evidence,
Operation and effect of admissions as ground
see "Evidence," § 4.
of estoppel, see "Estoppel," § 1.

§ 1. Taking and certificate.

868.

ABDUCTION.

See "Seduction."

ABUTTING OWNERS.

Assessments for expenses of public improve-
ments, see "Municipal Corporations," § 5.
Compensation for taking of or injury to lands
or easements for public use, see "Eminent Do-
main," § 3.

Rights in streets in cities, see "Municipal Cor-
porations," § 7.

ACCEPTANCE.

Of dedication, see "Dedication," § 1.
Of goods sold in general, see "Sales," § 3.

ACCIDENT

Accident insurance, see "Insurance," § 8.
Cause of death, see "Death," § 1.
75 S.W.

ACTION.

Abatement, see "Abatement and Revival."
Bar by former adjudication, see "Judgment,"
§ 5.
Constitutional guaranties of remedies, see "Con-
stitutional Law," § 5.

Counterclaim, see "Set-Off and Counterclaim."
Jurisdiction of courts, see "Courts."
Limitation by statute, see "Limitation of Ac-
tions."

Malicious actions, see "Malicious Prosecution."
Pendency of action, see "Lis Pendens."
Review of proceedings, see "Appeal and Error"
"Exceptions, Bill of"; "Justices of the Peace,'
§ 2; "New Trial."

Set-off, see "Set-Off and Counterclaim."
Survival, see "Abatement and Revival," § 3.

Actions between parties in particular relations.
See "Landlord and Tenant," § 3; "Master and
Servant," §§ 7-9; "Partnership," § 1.
Co-tenants, see "Partition," § 1.

Actions by or against particular classes of
parties.

See "Carriers," §§ 2-7; "Corporations," § 3;
"Executors and Administrators," § 6; "Hus-
band and Wife," § 3; "Municipal Corpora-
tions," 8; "Railroads," §§ 3, 6-10; "Street
Railroads," § 2.

Assignee for creditors, see "Assignments for
Benefit of Creditors," § 1.

Banks, see "Banks and Banking," § 1.
Connecting carriers, see "Carriers," § 2.
Creditors of estate of decedent, see "Descent
and Distribution," § 1.

Foreign corporations, see "Corporations," § 6.
Heirs, see "Descent and Distribution," § 1.
Telegraph companies, see "Telegraphs and Tele-
phones," § 1.

Trustees, see "Trusts," § 4.

Trustees in bankruptcy, see "Bankruptcy," § 1.

Particular causes or grounds of action.

See "Bills and Notes," § 2; "Death," § 1;
"Forcible Entry and Detainer," § 1; "Fraud,'
§ 2; "Insurance," §§ 12, 13; "Libel and Slan-
der," § 3; "Malicious Prosecution," § 2; "Neg-
ligence," § 3; "Nuisance," § 1; "Taxation,"
§ 4; "Trespass"; "Trover and Conversion,"
§ 1.

Breach of contract, see "Contracts," § 6;
"Sales," § 5.

Breach of warranty, see "Sales," § 5.
Champertous contracts, see "Champerty and

Maintenance."

Civil damages for sale of liquors, see "Intoxi-
cating Liquors," § 8.

Delay in delivery of message, see "Telegraphs
and Telephones," § 1.

Fires caused by operation of railroad, see
"Railroads," § 10.

Guardian's bond, see "Guardian and Ward,"
§ 5.

Injuries caused by surface waters, see "Wa-
ters and Water Courses," § 1.
Injuries to animals caused by operation of
railroad, see "Railroads," § 9.
Injuries to live stock in transit, see "Carriers,"
§ 3.

Liquor dealer's bond, see "Intoxicating Liq-
uors," § 3.

Loss of goods by carrier, see "Carriers," § 2.
Loss of passenger's baggage, see "Carriers,"
$ 7.

Loss of services of child, see "Parent and
Child."

Municipal bonds, see "Municipal Corporations,"
§ 9.

Penalties for violation of usury laws, see
"Usury," § 2.

Personal injuries, see "Carriers," § 4; "High-
ways," $2; "Master and Servant," §§ 7-9;
"Municipal Corporations," § 8; "Railroads,"
§§ 3, 6-8; "Street Railroads," § 2.
Recovery of interest, see "Interest," § 1.
Recovery of price paid for goods, see "Sales,"
$ 5.

Rent, see "Landlord and Tenant," § 2.
Taking of or injury to property in exercise of
power of eminent domain, see "Eminent Do-
main," § 3.

Wrongful attachment, see "Attachment," § 5.
Wrongful ejection of passenger, see "Carriers,"
8 6.

Particular forms of action.
See "Ejectment"; "Replevin"; "Trespass,"
2; "Trespass to Try Title"; "Trover and Con-
version."

Particular forms of special relief.
See "Divorce"; "Injunction"; "Interpleader";
"Partition," § 1; "Quieting Title"; "Specific

Performance.'

Alimony, see "Divorce," § 3.
Construction of will, see "Wills," § 4.
Determination of adverse claims to real prop-
erty, see "Quieting Title."

Disbarment of attorney, see "Attorney and
Client," § 1.

Dissolution of partnership, see "Partnership,"
§ 1.
Enforcement of vendor's lien, see "Vendor and
Purchaser," § 1.

Establishment and enforcement of trust, see
Establishment of will, see "Wills," § 3.
"Trusts," § 4.
Foreclosure, see "Chattel Mortgages,' § 6;
"Mechanics' Liens," § 2; "Mortgages," § 7.
Reformation of written instrument, see "Ref-
ormation of Instruments."
Removal of cloud on title, see "Quieting Title."
Setting aside fraudulent conveyance,
Setting aside will, see "Wills," § 3.
"Fraudulent Conveyances," § 3.

see

Particular proceedings in actions.
See "Appearance"; "Continuance"; "Costs":
"Damages"; "Depositions"; "Evidence"; "Ex-
ecution"; "Judgment"; "Jury"; "Limitation
of Actions"; "Parties"; "Pleading"; "Refer-
ence"; "Removal of Causes"; "Trial"; "Ven-

ue.

Particular remedies in or incident to actions.
See "Attachment"; "Discovery"; "Garnish-
ment"; "Injunction"; "Receivers."

Proceedings in exercise of special jurisdictions.
Courts of limited jurisdiction in general, see
"Courts," § 4.

Criminal prosecutions, see "Criminal Law."
Suits in justices' courts, see "Justices of the
Suits in equity, see "Equity."
Peace," § 1.

§ 1. Nature and form.

A cashier's entry of credits on the bank
book of interest due a county on daily balances
held not to amount to a settlement, requiring
take therein to entitle it to recover.-Linn Coun-
the county to resort to equity to correct a mis-

593.

v. Farmers' & Merchants' Bank (Mo. Sup.)

Whether a cause arising in the circuit court
is to be judged to be an action at law or a suit
in equity must depend on the facts of the case.-
State ex rel. Wyandotte Lodge, No. 35, I. O. 0.
F., v. Evans (Mo. Sup.) 914.

If the pleadings presented to the court a suit
in equity, its character would not be changed
because the decree in one respect took the
form of a judgment at law.-State ex rel.
Wyandotte Lodge, No. 35, I. O. O. F., v. Evans
(Mo. Sup.) 914.

Distinction between law and equity is ob-
served in Missouri.-State ex rel. Wyandotte
Lodge No. 35, I. O. O. F., v. Evans (Mo. Sup.)
914.

§ 2.

Joinder, splitting, consolidation,
and severance.

Motion for consolidation of actions held prop-
erly denied.-Klondike Lumber Co. v. Bender
Wagon Co. (Ark.) 855.

Defendant in an action on a contract held to
have waived its right to object to splitting the
cr use of action.-Louisville Bridge Co. v. Lou-
isville & N. R. Co. (Ky.) 285; Pittsburg, C.,
C. & St. L. Ry. Co. v. Same, Id.

A cause of action against one in her individ-
ual capacity held not susceptible of being joined
with one against her as the surviving wife of
the member of a partnership.-First Nat. Bank
v. Valenta (Tex. Civ. App.) 1087.

ACTION ON THE CASE.
See "Trespass," § 2.

Where land is occupied outside the boundaries
of a deed, the vendee cannot sustain adverse
possession by asserting that his possession was
that of his vendor, and the latter's deed was
color of title which inured to him.-Slatton v.
Tennessee Coal, Iron & R. Co. (Tenn.) 926;
Tennessee Coal, Iron & R. Co. v. J. J. Dykes
& Co., Id.

Purchase of land from a certain person held
not recognition of an adverse title in a third
person on the part of the purchasers.-Pendle-
ton v. McMains (Tex. Civ. App.) 349.

Adverse possession of land for 10 years es-
tablishes a title against one whose title is
derived from a judgment, though the adverse
possessor be the defendant in such judgment.
-Pendleton v. McMains (Tex. Civ. App.) 349.
No joint tenancy held to have existed be-
tween defendant in a judgment whereby title
to land was obtained, and the plaintiff, so as to
ant remaining in possession.-Pendleton v. Mc-
Mains (Tex. Civ. App.) 349.

ADMINISTRATION.

Of estate assigned for benefit of creditors,
see "Assignments for Benefit of Creditors,"
§ 1.

Of estate of decedent, see "Executors and Ad-
ministrators."

Of estate of ward, see "Guardian and Ward,"
§ 2.

Of property in hands of receiver, see "Re-
ceivers," 1.

Of trust property, see "Trusts," § 3.

ADMISSIONS.

As evidence in civil actions, see "Evidence,"
§ 4.

To prevent continuance of action, see "Con-
tinuance."

ADOPTION.

In a probate proceeding, where petitioner
claimed as heir by adoption, evidence held in-
sufficient to show heirship.-McColpin v. Me-
colpin's Estate (Tex. Civ. App.) 824.

ADULTERY.

As bar of dower, see "Dower," § 2.

ADVERSE CLAIM.

To real property, see "Quieting Title."

ADVERSE POSSESSION.

See "Limitation of Actions."

By grantee of life tenant, see "Life Estates."

§ 1. Nature and requisites.

A declaration of law that a widow's oc-
cupancy of land in controversy as a homestead
was not adverse to heirs or purchasers of the
land at administration sale for payment of
debts held proper.-Meddis v. Kenney (Mo.
Sup.) 633.

Adverse possession of an entire tract, under
a conveyance by the owner's widow of her dow-
er interest therein, relates only to the life es-
tate conveyed, and terminates therewith.-Beaty
v. Clymer (Tex. Civ. App.) 540.

In trespass to try title, where it did not ap-
pear that an agent asserting a claim to the land
had repudiated his agency, the statute of lim-
itations did not apply.-Richardson v. Bruce
(Tex. Civ. App.) 835.

Where the grantee in a recorded deed pays
taxes on the number of acres called for in his
deed, actually believing he is paying for the
full quantity in his possession, he is not depriv-
ed of the five-year statute of limitations merely
because his tract is larger than he supposed.
-Henning v. Wren (Tex. Civ. App.) 905.

Record of deed held insufficient to support the
five-year statute of limitations.-Henning v.
Wren (Tex. Civ. App.) 905.

§ 2. Operation and effect.

Where the state made three successive grants
of the same lands, and those claiming under the
grantee in the third grant had been in posses-
sion for seven years, they acquired an absolute
title, under Act 1819, c. 28, § 1.—Earnest v.
Little River Land & Lumber Co. (Tenn.) 1122.

Where the state has granted certain lands,
and a person has held adverse possession for
seven years under color of title, he takes the
title of the real owner, under Shannon's Code,
§ 4456.-Earnest v. Little River Land & Lum-
ber Co. (Tenn.) 1122.

AFFIDAVITS.

See "Depositions."

In particular proceedings.

For change of venue, see "Criminal Law," § 2.
For continuance, see "Continuance."
For new trial, see "Criminal Law," § 24;
"New Trial," § 2.

AGENCY.

See "Principal and Agent."

AGREEMENT.

J. J. Dykes & Co., Id.

Where land not in the boundaries of a deed

AIDER BY VERDICT.

is occupied by the vendee, and the deed is

sion cannot be perfected by relation to the sub-

sequently acquired title.-Slatton v. Tennessee
Coal, Iron & R. Co. (Tenn.) 926; Tennessee

ALIBI.

75 S. W.-72