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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.

J. by

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.





Of condemnation proceedings, "Eminent See “Payment"; "Release.”

Domain," $ 2.
Of homestead, see "Homestead," $ 4.

Failure of a minor to reply to a proposition
for settlement of her injuries on which defend-

ants acted held not to constitute an accord and
ABATEMENT AND REVIVAL. satisfaction.-Hensler v. Stix (Mo. App.) 108.

Certain facts held to show a bona fide dis-
Election of remedy, see “Election of Reme- pute, so that acceptance of a sum tendered in

full of account operated as an accord and sat-
Judgment as bar to another action, see "Judg-isfaction.—D. N. Lightfoot & Son v. Edward
ment,” $ 8.

Hurd & Co. (Mo. App.) 128.
$ 1. Death of party and revival of ac-

Kirby's Dig. 88 6298-6300, 6314, 6315, relat-
ing to revival of actions, apply to causes pend. See “Account, Action on.”
ing in the Supreme Court on appeal.-Anglin Accounting between partners, see "Partner-
v. Cravens (Ark.) 833.

ship," $ 4.
Under Kirby's Dig. $8 6314, 6315, where Accounting by broker, see. “Brokers," $ 2.
more than a year has elapsed since the order Accounting by guardian of infant, see “Guardi-
to revive might have first been made, a motion

an and Ward,” g 2.
to dismiss the appeal must be sustained.-Ang- Made out against agent as evidence against
lin v. Cravens (Ark.) 833.

principal, see “Principal and Agent," § 2


See “Seduction."

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.
Of record on appeal or writ of error, see In an action for goods sold, held that there
“Appeal and Error,” g 8.

was no variance between the allegations of the
petition and the account which was annexed

to the petition as an exhibit.-Jackson-Fox-

worth Lumber Co. v. Hutchinson County (Tex.

Civ. App.) 412.
Assessments for expenses of public improve-
ments, see "Municipal Corporations," $ 5.

A verified account, attached as an exhibit
Compensation for taking of or injury to lands to the petition, is properly excluded from evi-
or easements for public use, see

“Eminent dence where it does not indicate the items
Domain," § 1.

thereof nor their nature.- Pittsburg Plate Glass

Co. v. Roquemore (Tex. Civ. App.) 449.

Of bill of exchange, see
"Bills and Notes," & 1

Sze "Waters and Water Courses," $ 1.

Annexation of personal to real property, see

Operation and effect of admissions as evidence,
Intermixture of goods of same kind, see “Con-

"Criminal Law," 8 9; “Evidence," $ 4.
fusion of Goods."


Bar by former adjudication, see "Judgment,"
Accident insurance, see "Insurance," 88 3,

8 8.
5, 7.

Commencement within period of limitation, see
At railroad crossing, see "Railroads," $ 6.

"Limitation of Actions," $ 1.

Counterclaim, see “Set-off and Counterclaim."
Liability of carrier for accidental shooting of

Election of remedy, see
"Carriers," 8 6.

"Election of Reme-
passenger, see


Jurisdiction of courts, see "Courts.”

Laches, see "Equity," $ 2.

Limitation by statute, see "Limitation of se-
Criminal responsibility, see "Criminal Law," tions."
8 2.

Malicious actions, see “Malicious Prosecution."

* Point annotated. See syllabus.
88 S.W.-72




Actions between parties in particular relations. Enforcement or foreclosure of lien, see

“Mechanics' Liens," $ 2.
See “Master and Servant," 88 2, 9.

Establishment and enforcement of right of
Co-tenants, see "Partition," $ 1.

homestead, see Homestead," $ 5.
Partners, see "Partnership," $ 4.

Foreclosure of vendor's lien, see “Vendor and
Actions by or against particular classes of Redemption' from mortgage, see

Purchaser," $ 4.


$ 3.
See “Brokers,” 88 24; “Building and Loan As: Reformation of written instrument, see "Ref-
sociations"; "Carriers," 88 1-8; "Clerks of ormation of Instruments.'
Courts"; "Corporations," $ 4; "Counties,” Setting aside deed, see “Deeds," $ 3.
$ 4; “Executors and Administrators," $ 4; Setting aside fraudulent conveyance,
"Husband and Wife," $ 4; “Master and Ser-

“Fraudulent Conveyances," $ 2.
vant," $ 10; “Partnership,” $8 3,4; "Princi- Setting aside will, see “Wills," 8 2.
pal and Agent," $ 2; “Railroads," 88 2, 4-9;
"Street Railroads," $ 2.

Particular proceedings in actions.
Agent, see "Principal and Agent," $ 2.


"Continuance" ; "Costs"; "Damages"
Foreign administratrix, see "Executors and

"Depositions”; “Evidence"; "Execution"
Administrators," $ 4.

“Judgment"; “Judicial Sales" ; "Jury":
Foreign corporations, see "Corporations," $ 6. "Limitation of Actions"; "Parties"; "Plead-
Sureties, see “Principal and Surety," $ 3.

ing"; "Process"; "Removal of Causes";
Taxpayers, see "Municipal Corporations," § 9.

“Trial”; “Venue.”
Telegraph company, see "Telegraphs and Tele-

Default, see
phones," $ 1.

"Judgment," $ 3.
Trustees' in bankruptcy, see "Bankruptcy,” & 2. Revival, see "Abatement and Revival," $ 1.

Offer of judgment, see "Judgment," $ 2.
Particular causes or grounds of action.

Verdict, see "Trial," $ 12.
See “Assault and Battery;" $ 1;

"Bills and Particular remedies in or incident to actions.
Notes," $ 6; "Bonds," $ 1;. "Conspiracy,” | See "Attachment”; “Garnishment”; "In-
8.1;. "Death," $ 1;. "Fraud," $ 2; “Indem-

junction"; "Receivers."
nity" : "Insurance." 8 7; “Judgment," $ 12; Seizure of goods to enforce vendor's lien on
"Libel and Slander," $ 3; "Lost


“Sales," $ 6.
ments”; “Malicious

sale of personalty, see
Prosecution," $ 3;
“Negligence," § 4; "Rape," $ 3; **Tres- Proceedings in exercise of special jurisdictions.
pass”; “Trover and Conversion,” & 2.
Breach of contract, see

Courts of limited jurisdiction in general, see
"Contracts," $ 3;

"Courts," $ 3.
"Sales," $ 6.

Criminal prosecutions, see "Criminal Law."
Breach of contract to transport passenger, see Suits in equity, see "Equity.
"Carriers," 8 5.

Suits in justices' courts, see "Justices of the
Breach of covenant, see "Covenants," $ 2.

Peace," $ 1.
Breach of warranty, see “Sales," $ 7.
Compensation of broker, see “Brokers," $ 4.

Review of proceedings.
Ejection of passenger, see "Carriers," 8 8.
Failure to deliver telegram, see “Telegraphs

See “Appeal and Error”; “Certiorari”; “Er-
and Telephones,” g 1.

ceptions, Bill of"; "Judgment," § 5; “Jus-
Failure to furnish cars, see “Carriers," $ 1.

tices of the Peace," § 2; "New Trial.”
Foreign judgment, see "Judgment," $ 12.

$ 1. Grounds and conditions precedent.
Injuries from fires caused by operation of rail- By the express provisions of Rev. St. 1899, $
road, see “Railroads," & 9.

1575, it is not available to a party as an objec.
Injuries from overflow, see "Waters and Watertion that no demand for the subject-matter of
Courses," $ 2.

the suit was made prior to the action, unless
Injuries to live stock from operation of trains, expressly set up by way of defense.-Harrison
see “Railroads," $ 8.

v. Lakenan (Mo. Sup.) 53.
Loss of cargo, see "Shipping." § 1.
Personal injuries, see "Carriers," $ 6; "Master $ 2. Nature and form.

and Servant," $ 9; “Railroads, $8 5-7; Under the pleadings, an action held a case
"Street Railroads,” $ 2.

at law and not one in equity. - Kessner v.
Price of land, see "Vendor and Purchaser,” | Phillips (Mo. Sup.) 66.

$ 4.
Recovery of land sold by vendor, see “Vendor $ 3. Joinder, splitting, consolidation,
and Purchaser," $ 4.

and severance.
Recovery of price paid for goods, see "Sales," In an action by a ward against her guardian
8 7.

for the partition of certain land which the
Services, see "Master and Servant," $ 2. guardian purchased with the ward's money, it
Wages, see "Master and Servant," $ 2.

was improper to make a further sum owing
Wrongful attachment, see "Attachment," $ 3. by the guardian to the ward a lien upon other

land held by the guardian as a homestead.-
Particular forms of action.

Vay v. May (Mo. Sup.) 75.
See “Account, Action on"; “Ejectment";

The petition in an action against a street rail-

way for injuries received by plaintiff held to
Trespass,",$1; "Trespass to Try Title" ;

state two causes of action.-McHugh v. St.
"Trover and Conversion.'

Louis Transit Co. (Mo. Sup.) 853.
Particular forms of special relief.

See “Divorce": “Injunction": "Partition,
§ 1; “Quieting Title"; "Specific Perform- See “Trespass,” g 1.

Alimony, see "Divorce," $ 3.
Cancellation of writien instrument, see "Can-

cellation of Instruments.'
Dissolution of partnership, see "Partnership,” As affecting liability of carrier, see "Carriers,"
§ 4.

$ 1.
* Point annotated. See syllabus.

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predecessors in title exceeded seven years had

title by adverse possession.—Robinson v. Nord-
Of courts in general, see “Courts," $ 1. man (Ark.) 592.
Operation and effect of former adjudication, see

*Limitations do not run against a vendor in
"Judgment,".88 8, 9.

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.)
Of loss within insurance policy, see "Insur- | 972.
ance," $ 6.

Two years' adverse possession under tax deed

held to give title, under Kirby's Dig. 8 5001. -

Carpenter v. Smith (Ark.) 976.
Of estate of decedent, see “Executors and Ad-tax title does not affecť the title acquired by

*Under Kirby's Dig. $ 5061, invalidity of a
"Guardian and Ward,” Smith (Ark.) 976.

adverse possession thereunder.
Of estate of ward, see

Carpenter V.
§ 1.
Of trust property, see “Trusts," $ 2

Act March 18, 1899 (Acts 1899, p. 177, No.
66), in relation to the payment of taxes under

color of title on unimproved land, held to con-

stitute such payment possession for each suc-

cessive year in which payment is made, pro-
See “Shipping."

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

(Ark.) 985.
As evidence in civil actions, see "Evidence," *Evidence held to show interruption of ad-
§ 4.

verse possession, so that it would date only from
As evidence in criminal prosecutions,

recommencement of possession.--Phillips V.
"Criminal Law," $ 9.

Beattyville Mineral & Timber Co. (Ky.) 1058.
Judgment on, see "Judgment," $ 2.
Of agent as binding principal, see “Principal

*Possession by bona fide purchasers and their
and Agent," $ 2.

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
Under Sayles' Ann. Civ. St. 1897, arts. 1, 2, the claimant must have paid all the taxes for all
instrument adopting child construed, and held the five years.-Wall v. Club Land & Cattle Co.
that the execution of a will disinheriting the (Tex. Civ. App.) 534.
child was binding.–Logan v. Lennix (Tex. Civ. Under Sayles' Ann. Civ. St. 1897, art. 5161,
App.) 364.

a taxpayer held not to have paid his taxes at
In the absence of an agreement on the part such times as to entitle him to take advantage
of an adopting parent to leave property to his of the five years' statute of limitations.—Wall
adopted child, the adoption does not support

v. Club Land & Cattle Co. (Tex. Civ. App.)

a claim beyond the statutory provisions.-
Logau v. Lennix (Tex. Civ. App.) 364.

In order to render the five years' limitation
under Rev. St. 1895, art. 3342, available, held

that payment of taxes and possession must con-

:-Wall v. Club Land & Cattle Co. Tex.

Civ. App.) 534.
To real property, see “Quieting Title."

§ 2. Operation and effect.

The owner of land not having possession of
any part when defendant acquired possession

and held a part thereof adversely, defendant's
See "Limitation of Actions."

possession extended to the limit of his grant.-
As source of title in action of ejectment, see Boynton v. Ashabranner (Ark.) 568; Same y.
"Ejectment," 8 2.

Ashabraner, Id. 1011.
8 1. Nature and requisites.

*One entering on land on which there are
Claim of ownership, disconnected acts of others claiming it as their own held to ac-
possession, payment of taxes, and cutting of quire no right by adverse possession beyond his
timber, held insufficient to establish title by ad- close.—Phillips v. Beattyville Mineral & Timber

possession.—Boynton v. Ashabranner Co. (Ky.) 1038.
(Ark.) 566; Same v. Ashabraner, Id. 1011.
A general statement of payment of taxes for

12 years by an adverse claimant held insuf-
cient to overcome a tax receipt for one of the See “Depositions."
years produced by the opposite party.-Boynton Of loss of instrument, see "Lost Instruments."
v. Ashabranner (Ark.) 566; Same v. Asha-
braner, Id. 1011.

In particular proceedings.
Tax receipts containing a mistaken descrip- For continuance in civil actions, Con-
tion of the land held insufficient to support a tinuance."
title by adverse possession under Kirby's Dig. For continuance in criminal prosecution; see
8 5057.-Boynton v. Ashabranner (Ark.) 566; “Criminal Law," $ 14.
Same v. Ashabraner, Id. 1011.

Street opening proceedings,

A grantee held to have acquired title by ad-

Corporations," $ 7.
verse possession.-Robinson v. Nordman (Ark.) Verification of pleading, see "Pleading," $$

6, 8.
A grantee whose adverse possession added Under the express provisions of Rev. St. 1895,
to the continuous adverse possession of his ) art. 7, subd. 2, an affidavit may be made be.

* Point annotated. See syllabus.





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