and I did not count same. I did pay back to Emmett Patton the excess over the amount of money found to be due said Dodsons by the court and the amount he originally paid me; the amount was the difference between $1782 and $1638. I had none of the original money paid me by Patton at that time. The money I paid back to Patton was money I collected as costs, etc. Shortly after the rendition of said judgment I wrote to the clerk of Philadelphia County, Pennsylvania, to know if he knew anything of the Dodsons. He wrote back that he did not know. anything of them, that there was no guardianship of said lunatic pending there. Cross-examination: I did keep a trust fund record book, but did not make the entries spoken of by Mr. Patton after the judg ment in cause No. 1154. I had spent all of said money before court met in September, 1896."

This testimony makes at least a prima facie case of embezzlement against the witness, but as it was given September 28, 1901, and dated the crime back more than five years, it can hardly be said, in view of the statutes of limitation and his previous testimony to the contrary, to entitle him to the credit of one "that sweareth to his own hurt and changeth not." It was in direct conflict with the solemn recital above mentioned, recorded by the witness as clerk of the court, in the judgment of September 18, 1896, and which was the basis of that decree. It was in direct conflict with the statement of facts filed in that case. It was in direct conflict with the testimony of H. A. Allen, Esq., guardian ad litem for the nonresident defendants, who remembered that C. L. Ford had testified when the original judgment was rendered, as recited therein and in the statement of facts, that he then had the money in his hands. It was in direct conflict with the evidence of Emmett Patton, Esq., attorney for plaintiff in that case, who testified that when he paid the money to C. L. Ford it was placed in an envelope, sealed up, and entry thereof made in his trust fund book and signed officially by C. L. Ford; and who also testified to the fact that C. L. Ford had testified on the trial of the original suit that he then had in his possession the money so deposited with him; and further, that soon after the rendition of the judgment in that case he and Ford counted. the package of money in Ford's presence and it contained the amount originally paid him, and another entry was then made in the trust fund book. No trust fund book was ever produced by Ford or turned over to his successor in office, although he admitted that he had one. The books of the Farmers National Bank showed a deposit of $1782 by C. L. Ford on November 19, 1895, which was withdrawn February 19, 1896, which was the only circumstance at all corroborative of the testimony of Ford, and it tended very slightly, if at all, to corroborate him in the all material but very general statement that he spent the money before the judgment was rendered, without naming time, place, or circumstance. He admitted paying back the excess to Patton after the judgment was rendered and also writing to the clerk of Philadelphia County, Pennsylvania, inquiring for the Dodsons. The bare statement of C. L. Ford,

in the face of these well established facts and embarrassing circumstances, especially in view of the irrepressible motive to screen both himself and J. B. Ford, that he had spent the money before the judgment of September 18, 1896, was rendered, should have been discarded bythe trial court as not sufficient to warrant the judgment.

The assignment under which the evidence bearing on this, the vital issue in the case, is set out is objected to for not stating "wherein the evidence is insufficient to support the finding of the trial court;" but while it is by no means clear that the objection is not technically well taken, we have concluded that justice demands in this instance that the defect be overlooked, as appellants evidently did not intend to waive this error, and it would not do to allow an officer of a court of justice in Texas receiving a trust fund belonging to nonresidents without their knowledge, as provided in the Texas statute, to misappropriate their money and thus swear away their rights.

The judgment will therefore be reversed and here rendered for all appellants against C. L. and J. B. Ford for the full amount sued for, and affirmed as to other parties.

ON MOTION FOR REHEARING.

We erred in rendering judgment instead of remanding the cause for a new trial, notwithstanding the waiver of the right of trial by jury, as was held in Stevens v. Masterson, 39 Southwestern Reporter, 292, and to that extent the motion will be granted. In other respects it is overruled and the case remanded for a new trial.

We will add, however, that we need not now determine whether it was necessary for the money to be in the registry of the court when the original judgment was entered in order to bind the sureties.

Reversed and remanded.

Hunter, Associate Justice, did not sit in this case.

A. W. WRIGHT V. J. R. DAVIS ET AL.

Decided April 26, 1902.

Landlord's Lien-Oral Lease Agreement to Purchase-Waiver-Charge.

A landlord, claiming a lien on the crop raised on his land, sued defendant, who had purchased the crop, for its conversion, alleging that he made an oral contract with one K., who raised the crop, leasing him the land for that year for an agreed rental, which agreement was afterwards reduced to writing,—and plaintiff testified to that effect. K. denied the execution of the written lease, and claimed to have made an oral contract over a year previous to purchase the land, under which he took possession. The court charged the jury, in effect, to find for defendants if they found there was such an oral contract of purchase, or that K. did not sign the alleged written lease contract. Held error, as the lease, if made, was a waiver for that year of a previous oral contract of purchase, and plaintiff's failure to prove a written lease did not deprive him of the right to recover if he proved an oral one.

Appeal from the County Court of Bosque. Tried below before Hon. B. J. Word.

Geo. P. Robertson and Robertson & Robertson, for appellant.

Lockett & Cureton, for appellees.

STEPHENS, ASSOCIATE JUSTICE.-Appellant sued appellees for conversion of the crops raised during the year 1900 on 240 acres of land in Bosque County by J. A. Kilman and sold by him to appellees. His right to recover depended mainly upon the existence of the landlord's lien, which was thus alleged in his petition: "On or about the 9th day of November, 1899, the plaintiff herein acting by and through his agent, George P. Robertson, entered into a verbal contract and agreement with J. A. Kilman, by the terms of which the said plaintiff rented and farm let to said Kilman 240 acres of land situated near Willow Springs, in Bosque County, Texas, on the Juana Diaz survey, for the season of 1900, and by which the said Kilman agreed and bound himself to pay to plaintiff as rents therefor the sum of $300 on November 1, 1900, which said verbal agreement as aforesaid was afterwards, on or about the 10th day of March, 1900, reduced to writing and signed by the said plaintiff, acting by his aforesaid agent, and the said Kilman."

The evidence tended to sustain these allegations; but the execution of the written lease, which was an exhibit to the petition, was positively denied in the testimony of Kilman, who also claimed to have made an oral contract in October, November, or December, 1898, for the purchase of the land, but admitted the execution of a lease, dated December 31, 1898, for the year 1899, similar to the one in dispute.

The court charged the jury as follows: "The jury are further instructed that if they believe from the evidence that J. A. Kilman, on or about March 10, 1900, signed and delivered to the plaintiff the certain written instrument introduced in evidence by the plaintiff as the rental contract of himself and said Kilman for the 240 acres of land therein mentioned, for the year 1900, and upon the terms therein stated, they will find for the plaintiff against the defendants, J. R. Davis & Co., damages in the sum of $300, together with interest thereon from November 1, 1900, at the rate of 6 per cent per annum; unless they should further find from the evidence that at the time of the execution of said contract (if any) the said Kilman was the owner of said land under a verbal contract of purchase from plaintiff under which he had entered and partly performed by part payment to plaintiff on said land, in which case they will find for the said defendants. If the jury believe from the evidence that J. A. Kilman did not sign and deliver to the plaintiff the said alleged rental contract hereinbefore mentioned, they will find for the defendants."

In thus allowing appellees, purchasers of the crops raised on lands leased to Kilman, to dispute the landlord's title on the ground of a

previous oral and unexecuted sale of the leased premises to the tenant, and also in thus denying appellant the right to recover under the alleged oral lease if he failed to establish the further allegation that it was afterwards reduced to writing and signed by the parties, we think the court erred. Whatever equitable rights Kilman may have acquired under the alleged parol sale must be held to have been waived by him. so far as the crops of 1900 were concerned when he executed the written lease for that year, and the appellees, who claimed under him, were equally bound by this waiver. That lease, if made, certainly established the relation of landlord and tenant between appellant and Kilman for that year, for it was the very contract under which the land was cultivated and itself determined the respective rights of the parties to the crops then and there grown. And the result would be the same if only an oral lease was made. True, appellant alleged that this oral lease was afterwards reduced to writing, but if this allegation was disproved by appellees, and there was yet sufficient proof of the oral lease, we see no reason why appellant's failure to prove all that was alleged should deprive him of the benefit of what was both alleged and proven.

The judgment is therefore reversed and the cause remanded for a new trial.

Reversed and remanded.

B. J. WORD, COUNTY JUDGE, ET AL. V. O. E. SCHOW ET AL.

Decided April 19, 1902.

1.-Incorporation of Town-Ordering Election-Number of Inhabitants.

Under the statute providing that when satisfactory proof is made to the county judge that a town contains one thousand or more inhabitants he shall, upon due petition therefor, order an election to determine the question of incorporation, his decision that the town, or designated territory, contains the requisite number of inhabitants is conclusive, and can not be attacked by an action to enjoin him from entering up on the records the result of the election, on the ground that he had been fraudulently deceived as to there being the required number of inhabitants. Rev. Stats., arts. 385, 580, 581.

2. Same-Fraud Not Vitiating.

False representation made to the county judge as to the number of inhabitants did not in itself render his decision as to the number fraudulent and void, and the statute has made no provision for the correction of an error by him in such a case.

Appeal from Bosque. Tried below before Hon. William Poindexter.

Richard Kimball, for appellants.

Wm. M. Knight, for appellee.

STEPHENS, ASSOCIATE JUSTICE.-This suit was brought to enjoin the county judge of Bosque County from making an entry upon the

records of the Commissioners Court of that county that the inhabitants of the town or city of Clifton, to the number of 1000 or over, were incorporated within designated boundaries, the election ordered for that purpose having resulted in favor of incorporation. The petitioners for injunction were property owners and taxpayers within the designated territory, and obtained the injunction, which was made perpetual on final hearing, upon the ground that the inhabitants of this territory were less than one thousand but that by fraudulent representations and false swearing the county judge had been induced to believe and find that said town or city contained the requisite number of inhabitants and to order the election.

The case made by the petition did not entitle the petitioners to any relief; the general demurrer should therefore have been sustained and the suit dismissed. If, as provided in article 581, Revised Statues, the proof submitted to the county judge of the requisite number of inhabitants be accepted by him as satisfactory, no proof on that subject will be heard by any other tribunal. Rev. Stats., arts. 385, 580, 581; State v. Goodwin, 69 Texas, 58; Ewing v. State, 81 Texas, 178; Scarborough v. Eubank, 53 S. W. Rep., 573; Rayner v. Forbes, 54 S. W. Rep., 650. It seems to be conceded by the appellees that the above authorities treat the decision of the county judge as conclusive in the absence of fraud, but they insist that fraud vitiates his decision and opens it to attack. It is a sufficient answer to this contention that no fraud was charged against the county judge in this instance. It matters not that false representations as to the number of inhabitants may have been designedly made to him or that his decision may have been influenced by testimony that was not only false but not believed by the witnesses to be true, as alleged. That did not render the decision itself fraudulent and void, but only erroneous; and as no provision has been made for the correction of such an error the District Court was without power to afford relief. Even in ordinary suits false testimony, so far from infecting with fraud and annulling the judgment founded upon it, is but a ground for a new trial. Other reasons might be assigned in support of the demurrer, but this is deemed sufficient.

The judgment will therefore be reversed, the injunction dissolved, and the suit dismissed at appellees' costs.

Reversed and dismissed.

Hunter, Associate Justice, did not sit in this case.