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.

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.

FISHER, C. J. No error was committed by the trial court in the judgment rendered in this 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 record, and the judgment is affirmed.

S. W. SLAYDEN & CO. v. PALMO. (Court of Civil Appeals of Texas. June 28, 1905.) Appeal from District Court, McLennan Coun*Writ of error denied by Supreme Court.

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.

EWELL & SMITH v. JACKSON'S ADM'R. (Court of Appeals of Kentucky. Nov. 3, 1905.) Response to petition for rehearing and modification. For majority opinion, see 88 S. W. 1047.

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.

§ 1. Death of party and revival of ac-
tion.

Kirby's Dig. §§ 6298-6300, 6314, 6315, relat-
ing to revival of actions, apply to causes pend-
ing in the Supreme Court on appeal.-Anglin
v. Cravens (Ark.) 833.

Under Kirby's Dig. §§ 6314, 6315, where
more than a year has elapsed since the order
to revive might have first been made, a motion
to dismiss the appeal must be sustained.-Ang-
lin v. Cravens (Ark.) 833.

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.

In an action for goods sold, held that there
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.

A verified account, attached as an exhibit
to the petition, is properly excluded from evi-
dence where it does not indicate the items
thereof nor their nature.-Pittsburg Plate Glass
Co. v. Roquemore (Tex. Civ. App.) 449.

See "Brokers," §§ 2-4; "Building and Loan As:
sociations"; "Carriers," §§ 1-8; "Clerks of
Courts"; "Corporations," § 4; "Counties,"
84; "Executors and Administrators," 84;
"Husband and Wife," § 4; "Master and Ser-
vant," § 10; "Partnership," §§ 3, 4; "Princi-
pal and Agent," § 2; "Railroads," §§ 2, 4-9;
"Street Railroads," § 2.

Agent, see "Principal and Agent," § 2.
Foreign administratrix, see "Executors and
Administrators." § 4.

Foreign corporations, see "Corporations," § 6.
Sureties, see "Principal and Surety," § 3.
Taxpayers, see "Municipal Corporations," § 9.
Telegraph company, see "Telegraphs and Tele-
phones," § 1.
Trustees in bankruptcy, see "Bankruptcy," § 2.

Particular causes or grounds of action.

See "Assault and Battery," § 1; "Bills and
Notes," § 6; "Bonds," § 1; "Conspiracy,"
§ 1; "Death," § 1; "Fraud," § 2; "Indem-
nity": "Insurance," § 7; "Judgment," § 12;
"Libel and Slander," § 3; "Lost Instru-
ments"; "Malicious Prosecution," § 3;
"Negligence," § 4; "Rape," § 3; "Tres-
pass"; "Trover and Conversion," § 2.
Breach of contract,
"Sales," § 6.

see "Contracts," § 3;

Breach of contract to transport passenger, see
"Carriers," § 5.

"Covenants," § 2.
"Sales." § 7.

Breach of covenant, see
Breach of warranty, see
Compensation of broker, see "Brokers," § 4.
"Carriers," & 8.
"Telegraphs

Ejection of passenger, see
Failure to deliver telegram, see

and Telephones." § 1.

Failure to furnish cars, see "Carriers," § 1.
Foreign judgment, see "Judgment," § 12.
Injuries from fires caused by operation of rail-
road, see "Railroads," § 9.

Injuries from overflow, see "Waters and Water
Courses," § 2.

Injuries to live stock from operation of trains,
see "Railroads," § 8.

Loss of cargo, see "Shipping." § 1.
Personal injuries, see "Carriers." § 6; "Master
and Servant," § 9; "Railroads,' §§ 5-7;
"Street Railroads," § 2.

Price of land, see "Vendor and Purchaser,"
§ 4.

Recovery of land sold by vendor, see "Vendor
and Purchaser," § 4.

"Sales,"

"Mechanics' Liens," § 2.

of lien, see
Establishment and enforcement of right of
homestead, see "Homestead," § 5.
Foreclosure of vendor's lien, see "Vendor and
Redemption' from mortgage, see "Mortgages,"
Purchaser," § 4.

§ 3.

Reformation of written instrument, see
ormation of Instruments."
Setting aside deed, see "Deeds," § 3.
Setting aside fraudulent conveyance,
"Fraudulent Conveyances," § 2.
Setting aside will, see "Wills," § 2.

"Ref-

see

Particular proceedings in actions.
See "Continuance"; "Costs"; "Damages"
"Depositions"; "Evidence"; "Execution"
"Judgment"; "Judicial Sales"; "Jury";
"Limitation of Actions"; "Parties"; "Plead-
ing"; "Process"; "Removal of Causes";
"Trial"; "Venue."

Default, see "Judgment," § 3.

Revival, see "Abatement and Revival," § 1.
Offer of judgment, see "Judgment," § 2.
Verdict, see "Trial," § 12.

Particular remedies in or incident to actions.

See "Appeal and Error"; "Certiorari"; "Ex-
ceptions, Bill of"; "Judgment," § 5; "Jus-
tices of the Peace," § 2; "New Trial.”

§ 1. Grounds and conditions precedent.
By the express provisions of Rev. St. 1899, §
1575, it is not available to a party as an objec-
tion that no demand for the subject-matter of
the suit was made prior to the action, unless
expressly set up by way of defense.-Harrison
v. Lakenan (Mo. Sup.) 53.

§ 2. Nature and form.

Under the pleadings, an action held a case
at law and not one in equity. - Kessner v.
Phillips (Mo. Sup.) 66.

§ 3. Joinder, splitting,
and severance.

consolidation,

In an action by a ward against her guardian
for the partition of certain land which the
guardian purchased with the ward's money, it
was improper to make a further sum owing

Particular forms of action.

See "Account. Action on"; "Ejectment";
"Trespass," § 1; "Trespass to Try Title";
"Trover and Conversion."

Particular forms of special relief.

See "Divorce": "Injunction": "Partition,"

land held by the guardian as a homestead.-
May 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.

ance.

Alimony, see "Divorce," § 3.

Cancellation of written instrument, see "Can-
cellation of Instruments.'

ACT OF GOD.

§ 4.

§ 1.