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case was distinguishable from that presented in this motion to affirm on certificate. We are still of that opinion. Therefore the motion for rehearing is overruled. Motion overruled.
ty; Marshall Surratt, Judge. Action between S. W. Slayden & Co. and M. Palmo. From the judgment S. W. Slayden & Co. appeal. On motion of appellees to strike out transcript. Motion overruled. Richard I. Munroe and J. R. Downs, for the motion. Eugene Williams and Clark & Bolinger, opposed.
FISHER, C. J. On the authority of Henry v. Boulter (Tex. Civ. App.) 63 S. W. 1056, Bassett v. Mills, 89 Tex. 162, 34 S. W. 93, and United States v. Gomez, 1 Wall. 690, 17 L. Ed. 677, the motion of appellees to strike out the transcript is overruled. Motion overruled.
MISSOURI, K. & T. RY. CO. OF TEXAS v. BRYSON et al. (Court of Civil Appeals of Texas. May 24, 1905.) Appeal from District Court, Harrison County; Richard B. Levy, Judge. Action between J. M. Bryson and others and the Missouri, Kansas & Texas Railway Company of Texas. From the judgment the latter appeals. Affirmed. Rehearing denied June 28, 1905. Figures & Pruitt, for appellant. T. P. Young and P. M. Young, for appellees.
EWELL & SMITH v. JACKSON'S ADM’R. (Court of Appeals of Kentucky. Nov. 3, 1905.) Response to modifica
case. The facts in the record are sufficient to show that the appellant had not used proper diligence in presenting its answers in the jus tice's court and there defending against the claim of appellees. We find no error in the rec ord, and the judgment is affirmed.
NUNN, J. The court considered the questions involved in this case, presented in the petition for a rehearing, prior to writing the opinion, and we do not find any reason to change our conclusion. If the court erred in naming the survey of 687 acres, charged by the lower court to appellants, "as the Helton survey,” this cannot be material. It is clear that the 350 acres alleged to have been sold by Jackson to Ewell are to be deducted from the 687-acre survey charged by the lower court to appellants, and it matters not if it be called "Helton" or by some other name. Petition overruled.
S. W. SLAYDEN & CO. V. PALMO. (Court of Civil Appeals of Texas. June 28, 1905.) Appeal from District Court, McLennan Coup*Writ of error denied by Supreme Court.
END OF CASES IN VOL 88
ACCORD AND SATISFACTION.
Domain," $ 2.
Failure of a minor to reply to a proposition
ants acted held not to constitute an accord and
Certain facts held to show a bona fide dis-
full of account operated as an accord and sat-
Hurd & Co. (Mo. App.) 128.
ship," $ 4.
an and Ward,” g 2.
principal, see “Principal and Agent," § 2
ACCOUNT, ACTION ON.
In an action on account, the overruling of de-
fendant's motion for the production of plaintiff's
books held not error.-Cauthron Lumber Co. v.
Hall (Ark.) 594.
was no variance between the allegations of the
to the petition as an exhibit.-Jackson-Fox-
worth Lumber Co. v. Hutchinson County (Tex.
Civ. App.) 412.
A verified account, attached as an exhibit
“Eminent dence where it does not indicate the items
thereof nor their nature.- Pittsburg Plate Glass
Co. v. Roquemore (Tex. Civ. App.) 449.
Sze "Waters and Water Courses," $ 1.
Operation and effect of admissions as evidence,
"Criminal Law," 8 9; “Evidence," $ 4.
Bar by former adjudication, see "Judgment,"
Commencement within period of limitation, see
"Limitation of Actions," $ 1.
Counterclaim, see “Set-off and Counterclaim."
Election of remedy, see
"Election of Reme-
Jurisdiction of courts, see "Courts.”
Laches, see "Equity," $ 2.
Limitation by statute, see "Limitation of se-
Malicious actions, see “Malicious Prosecution."
* Point annotated. See syllabus.
Actions between parties in particular relations. Enforcement or foreclosure of lien, see
“Mechanics' Liens," $ 2.
Establishment and enforcement of right of
homestead, see “Homestead," $ 5.
Foreclosure of vendor's lien, see “Vendor and
Purchaser," $ 4.
“Fraudulent Conveyances," $ 2.
Particular proceedings in actions.
"Continuance" ; "Costs"; "Damages"
"Depositions”; “Evidence"; "Execution"
“Judgment"; “Judicial Sales" ; "Jury":
ing"; "Process"; "Removal of Causes";
"Judgment," $ 3.
Offer of judgment, see "Judgment," $ 2.
Verdict, see "Trial," $ 12.
"Bills and Particular remedies in or incident to actions.
“Sales," $ 6.
sale of personalty, see
Courts of limited jurisdiction in general, see
"Courts," $ 3.
Criminal prosecutions, see "Criminal Law."
Suits in justices' courts, see "Justices of the
Peace," $ 1.
Review of proceedings.
See “Appeal and Error”; “Certiorari”; “Er-
ceptions, Bill of"; "Judgment," § 5; “Jus-
tices of the Peace," § 2; "New Trial.”
$ 1. Grounds and conditions precedent.
1575, it is not available to a party as an objec.
the suit was made prior to the action, unless
v. Lakenan (Mo. Sup.) 53.
and Servant," $ 9; “Railroads, $8 5-7; Under the pleadings, an action held a case
at law and not one in equity. - Kessner v.
for the partition of certain land which the
was improper to make a further sum owing
land held by the guardian as a homestead.-
Vay v. May (Mo. Sup.) 75.
The petition in an action against a street rail-
way for injuries received by plaintiff held to
state two causes of action.-McHugh v. St.
Louis Transit Co. (Mo. Sup.) 853.
ACTION ON THE CASE.
ACT OF GOD.
predecessors in title exceeded seven years had
title by adverse possession.—Robinson v. Nord-
*Limitations do not run against a vendor in
favor of a purchaser holding under a contract of
purchase until there is an open disclaimer of the
holding under the contract, brought to the no-
tice of the vendor.-Tillar v. Clayton (Ark.)
Two years' adverse possession under tax deed
held to give title, under Kirby's Dig. 8 5001. -
Carpenter v. Smith (Ark.) 976.
*Under Kirby's Dig. $ 5061, invalidity of a
adverse possession thereunder.
Act March 18, 1899 (Acts 1899, p. 177, No.
color of title on unimproved land, held to con-
stitute such payment possession for each suc-
cessive year in which payment is made, pro-
vided it be continued for at least seven years
in succession, and not less than three after
the passage of the statute.-Price v. Greer
verse possession, so that it would date only from
recommencement of possession.--Phillips V.
Beattyville Mineral & Timber Co. (Ky.) 1058.
*Possession by bona fide purchasers and their
vendors for more than 30 years held to give per-
fect title.-Slusher v. Howard (Ky.) 1109.
In order to satisfy the five years' statute of
limitations (Rev. St. 1895, art. 3342), held that
a taxpayer held not to have paid his taxes at
v. Club Land & Cattle Co. (Tex. Civ. App.)
In order to render the five years' limitation
that payment of taxes and possession must con-
:-Wall v. Club Land & Cattle Co. Tex.
Civ. App.) 534.
§ 2. Operation and effect.
The owner of land not having possession of
and held a part thereof adversely, defendant's
possession extended to the limit of his grant.-
Ashabraner, Id. 1011.
*One entering on land on which there are
possession.—Boynton v. Ashabranner Co. (Ky.) 1038.
In particular proceedings.
Street opening proceedings,
Corporations," $ 7.
* Point annotated. See syllabus.