land from J. R. Rierson and wife, situated in Kaufman county, Tex., and being part of the Friend McMahan survey of one-half league, which was located on an original survey which was part of the Kings Block system of 115 leagues originally located in Kaufman county; that this 110 acres was the separate property of J. R. Rierson's wife, and that he joined her pro forma in the sale to plaintiff. Second. The court finds that J. R. Rierson, joined by his wife pro forma, had previously, on June 22, 1896, conveyed by deed to one Hattie P. Williamson, wife of defendant Julius Williamson, 252 acres of land out of the same original McMahan survey, and that it was surveyed off first, and field notes made by the surveyor, who went on the ground, and that the surveyor began at the most south corner of the Friend MeMahan survey, within two varas north, 45° west, of a large post, about 20 inches in diameter, set in the ground, and that the surveyor ran from said beginning corner north 45° west, 663 varas, along the southwest base line of the McMahan survey, and set a stake in the ground for corner of the said Williamson 252acre tract; and from said point thence he ran and fixed a corner at a point on the line of a wire fence, north, 45° east, 1,720 varas, at which point he drove down a bois d'arc stob for corner, which was in edge of small timber, and that he marked this last-named line from said corner as far as timber existed to mark it, and until he practically reached the prairie, on a straight line from said last-named corner to woods, and south, 45° west, on the above 1,720vara line, to the second corner fixed for said 252-acre tract so sold to Hattie P. Williamson. Third. This survey was made at the instance and request of Julius Williamson, the husband of Hattie P. Williamson, and said corners and lines were carried into and made the corners and lines in her deed from Rierson and wife, and all three of them were pointed out to said Williamson, defendant, and were recognized by him as the corners. That the two corners having been fixed by the surveyor, one at each end of the 1,720-vara line, and this line marked as far as timber was found to so mark it, it was as a matter of fact the dividing line between the 252-acre tract sold to Hattie P. Williamson and the 110-acre tract sold to plaintiff, O'Connor, and made so by the surveyor, who went on the ground at the time both surveys were made. Fourth. The court finds as a fact that the same surveyor who first surveyed and fixed the two lines and three corners, one of which was the beginning corner of the Williamson 252-acre tract, as hereinbefore specified, was the same surveyor who ran out and fixed the four corners of plaintiff's (O'Connor's) 110-acre tract, sold him out of the Friend McMahan survey by Rierson and wife, and that he began at the stake for corner set by him at a point 663 varas north, 45° west, from a point and stake originally set by him 2 varas north, 45° west, from the big post set in the ground and about 20 inches in diameter, which was the beginning corner of the said Williamson 252acre tract as made and recognized as the most south corner of the McMahan survey. Fifth. That he began at a stake fixed as a corner by him for Hattie P. Williamson, which was at the end of 663 varas run north, 45° west, from the aforesaid beginning corner of said 252-acre Williamson tract; thence north. 45° west, along the southwest boundary line of said McMahan survey, 363 varas, to corner stob set on the southeast boundary line of the Venner tract, and in line of his fence; thence north, 45° west, 1,720 varas, to a stake set by him for corner in corner of fence; thence south, 45° east, 363 varas, to the stake for corner, which was the corner fixed by him for the Williamson 252acre tract as hereinbefore specified; thence south 45° west, 1.720 varas, along the Williamson line first fixed by him at the stake orig

inally herein mentioned at the end of the 603vara Williamson line first mentioned herein in the second paragraph of these findings of fact, which was the place of beginning fixed by said surveyor in running out said O'Connor 110 acres of land; and this last survey and field notes made on the ground by the surveyor was carried into the deed from Rierson and wife to O'Connor, the plaintiff, which deed is dated April 21, 1897. Sixth. The court finds that there was in fact no privity between Hattie P. Williamson and William O'Connor in their purchases from Rierson and wife, and there was no fraud practiced by either in their said purchases of the aforesaid tract, and that each bought with the corners and lines shown them and their representatives, as hereinbefore set out. Seventh. The court finds as a matter of fact that Williamson and wife on the 7th day of September, 1896, sold by deed the 252 acres conveyed to them by Rierson and wife to W. S. Long, and that said Long conveyed the same to defendant John Sline on the 30th day of April, A. D. 1900; and the court further finds as a matter of fact that said Long had the 252 acres conveyed to him by Williamson and wife resurveyed in the spring of 1899, and that this resurvey was made by one W. H. Barnes, and that in making said resurvey said Long caused the beginning corner and his seeond and third corners to be changed, and in se doing he began 69 varas north, 45° west, from the stob originally set in 2 varas of the large post, mentioned as originally begun at by Kyser, county surveyor, in running off the 252 acres first, and then in running off the 110 acres for plaintiff; and in running from said 69-vara point as above set out, and making his measurements, he ran upon O'Connor's 110acre tract, so as to cut off a strip of O'Connor's land 65 varas wide and 1,720 varas long, amounting to 20 acres of plaintiff's land, and that this was done with the approval of Julius Williamson, defendant. Eighth. The court finds as a fact that this change of the three corners and two lines, set out in the above paragraph, by Long and Williamson, was done without the knowledge of plaintiff, O'Connor, and without the knowledge of their vendors, Rierson and wife." Conclusions of law: "First. The court finds as a matter of law from the above facts that plaintiff is entitled to recover his land, which was conveyed and marked on the ground to him for 110 acres, which includes the strip 65 varas wide and 1,720 varas long, amounting to 20 acres of land, sued for. Seeond. The court finds as a matter of law that plaintiff is entitled to recover the sum of $60 for the use and occupation of his said 20 acres of land by the said defendant John Sline for the period beginning about the 30th day of April, A. D. 1900, and also his writ of possession for said land and execution for said money judgment and costs of suit against defendant Sline. Third. The court finds that J. R. Rierson, who was made a party hereto by defendant Sline, is entitled to be discharged under the statute of limitations of two and four years, and because that his wife was not impleaded, and because Rierson and wife's deed to Hattie P. Williamson did not cover the strip of land in controversy, with his cost against Sline, and that defendants Cartwright and Cate are entitled to be discharged, with judgment also for their costs against defendant Sline, all of which is ordered by execution.”

Conclusions of fact and law as between de fendant Sline on his cross bill and Williamson and Long, his remote and immediate vendor and warrantor: "First. The said Long and Williamson having agreed with defendant Sline in open court that the 20-acre strip on O'Cɔnnor's land, as claimed by him, and sold ta Sline by Long, was worth at the date of Sline's purchase $25 per acre, and that the woodland and the neck of the 252-acre tract was worth

$12 per acre, and the other land east of this strip aforesaid was worth $25 per acre, and that getting the 20-acre strip from Long was the inducement for defendant to buy the 252 acres, it being represented to be a part of the 252 acres purchased by him, the court finds as a matter of law that defendant John Sline is entitled to recover from defendants Williamson and Long on his cross bill the sum of $700 and costs against them."

Appellant excepted to said conclusions. We have carefully considered the several assignments of error presented in appellant's brief, and are of the opinion that no reversible error is pointed out in any of them. Believing the proper judgment was pronounced by the trial court, the same is aflirmed. Affirmed.

STARK et al. v. CARLISLE et al. (Court of Civil Appeals of Texas. April 30, 1902.) Appeal from Collin county court; J. H. Faulkner, Judge. Action between J. T. Stark & Co. and H. B. Carlisle and others. From a judgment in favor of the latter, the former appeal. Affirmed. J. D. Cottrell, Abernathy & Beverly, and Wallace Hughston, for appellants. J. R. Gough, for appellees.

FISHER, C. J. The only controverted question in the case is whether the evidence is sufficient to sustain the judgment of the trial court, on the ground that appellee Razor was not a partner of Carlisle. We have carefully read the evidence in the record upon this subject, and we think it sufficient to sustain the judgment of the court. Judgment affirmed.

TALLEY v. MICHAELIS.1 (Court of Civil Appeals of Texas. May 7, 1902.) Appeal from district court, Comal county; L. W. Moore, Judge. Action on a note by M. G. Michaelis against J. E. Talley. From a judgment for

1 Rehearing denied June 4, 1902.

plaintiff, defendant appeals. Affirmed. J. D. Guinn, for appellant. F. J. Maier, for appellee. FISHER, C. J. This is an action by appellee against appellant on a promissory note for $300. The note was given for the purchase of a jack, with a mortgage on the same to secure the payment of the note. The defense was that, at the time the defendant executed the note, the plaintiff also signed and delivered to defendant an agreement by which he warranted said jack to prove a performer and foal getter with proper handling and care. Defendant claims that the jack did not comply with the warranty, and was worthless, and he also filed a cross action for damages. By supplemental petition the plaintiff alleged that the jack was an untried two year old colt when the sale was made, which defendant knew, and that the plaintiff warranted him to prove a performer and foal getter with proper handling and care, and that the defendant did not give him the proper handling and care, as agreed upon; further, that as a matter of fact the jack was a performer and foal getter,-and asked for a foreclosure of his mortgage on the jack. The case was tried before the court without a jury, and judgment was rendered for the plaintiff for principal, interest, and attorney's fees, and a foreclosure of the lien on the jack. There are in the record findings of fact and conclusions of law filed by the trial court, to which we refer and adopt as the facts in the case, and think that upon all the issues raised the court reached the correct conclusion, and that his findings are supported by the evidence. We find no error in any of the findings made by the court. There was no error in the refusal of the court to allow a recovery upon appellant's cross action. The findings of the court in reply to defendant's seventh and eighth requests for additional findings are not to be so construed as to allow the appellant a recovery for the amount he sues for. We have carefully examined into all the questions raised by the assignments, and believe that none are well taken. The judgment is affirmed.

ABANDONMENT.

Of homestead, see "Homestead," § 4.

ABATEMENT.

Of legacy, see "Wills," § 7.

Of nuisance, see "Nuisance," § 1.

ABATEMENT AND REVIVAL.

Election of remedy, see "Election of Reme-
dies."

§ 1. Another action pending.

Pleas setting up pending suit between the
same parties for the same cause of action held
improperly overruled. - Davidson v. Jefferson
(Tex. Civ. App.) 822.

tion.

§ 2. Death of party and revival of ac-
Where, pending an action by a landlord
against his tenant to recover advances and
rent, the tenant died and his widow and chil-
dren were made defendants, the amount of re-
covery against the widow was properly limit-
ed to the value of the crop or its proceeds re-
ceived by her from her husband or his estate.
-Leverett v. Meeks (Tex. Civ. App.) 302.

Under Rev. St. 1895, art. 3353a, recovery
may be had for physical pain and mental au-
guish suffered by the injured party up to the
time of his death.-Gulf, C. & S. F. Ry. Co. v.
Moore (Tex. Civ. App.) 559.

Under Rev. St. 1895, art. 3353a, the sur-
vival of the cause of action for personal in-
juries other than those causing death does not
depend upon the bringing of suit thereon by
the injured party in his lifetime.-Gulf, C. &
S. F. Ry. Co. v. Moore (Tex. Civ. App.) 559.

ABSENCE.

Suspension of running of statute of limitation,
see "Limitation of Actions," § 2.

ABUTTING OWNERS.

Assessments for expenses of public improve-
ments, see "Municipal Corporations," § 10.
Compensation for taking of or injury to lands
or easements for public use, see "Eminent
Domain," §§ 2, 4.

ACCEPTANCE.

Of goods sold in general, see "Sales," § 2.

ACCESSORIES.

Abatement, see "Abatement and Revival."
Accrual, see "Limitation of Actions," § 2.
Bar by former adjudication, see "Judgment,"
§ 11.

Counterclaim, see "Set-Off and Counterclaim."
Election of remedy, see "Election of Reme-
dies."

Jurisdiction of courts, see "Courts."
Laches, see "Equity," § 2.

Limitation by statutes, see "Limitation of Ac-
tions."

Pendency of action, see "Abatement and Re-
vival," § 1.

Review of proceedings, see "Appeal and Er-
ror"; "Certiorari"; "Equity," 8 5; "Excep-
tions, Bill of"; "Judgment,' 87; "Justices
of the Peace," § 3; "New Trial."
Survival, see "Abatement and Revival," § 2.
Set-off, see "Set-Off and Counterclaim."

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

§ 1.

ACCIDENT.

Accident insurance, see "Insurance," § 8.

ACCOMPLICES.

Testimony, see "Criminal Law," § 7.

68 S.W.-71

parties.

See "Brokers," § 1; "Carriers," §§ 2-8; "Cor-
porations," § 3; "Executors and Administra-
tors." § 4; "Husband and Wife," §§ 5, 6;
"Infants," § 3; "Master and Servant," § 10;
"Municipal Corporations," § 15; "Principal
and Agent," § 2.

Assignees, see "Assignments," § 3.

Heirs, see "Descent and Distribution," § 1.