defense, but that he was prevented from making | tiff's benefit to recover the proceeds.-Davis v.
it by some fraud, accident, or mistake, unmixed Dickerson, 207 S. W. 436.
with negligence on his part.-Drinkard v. Jen-604 (Ark.) Judgment that drainage district
kins, 207 S. W. 353.
486 (1) (Tex.Civ.App.) A dormant judg-
ment is not void, but only voidable, and for
that reason it cannot be attacked in a collat-
eral proceeding.-Burlington State Bank
Marlin Nat. Bank, 207 S. W. 954.
As a general rule, no one has such an in-
terest in a dormant judgment which is merely
voidable that he can attack the same, except
the parties thereto or their privies.-Id.
organized under Sp. Acts 1911, p. 886, recover
from owner assessments for contemplated im-
provements, rendered in suit to enjoin construc-
tion of drainage system, did not bar proceed-
cleaning out ditches.-Rosselot v. Greene & Law-
ing under section 20 for additional levy for
rence Drainage Dist., 207 S. W. 219.
XIV. CONCLUSIVENESS OF ADJUDI-
675(1) (Tenn.) Where a bill against an
unincorporated religious association named as
defendants trustees who had gone out of of-
fice shortly before, but the association de-
fended the suit, employing counsel, held, that
the judgment was binding against the associa-
tion; the case being one of misnomer which
was waived unless raised by plea in abatement.
495(2) (Ark.) Though Kirby's Dig. § 4424,-Hunter v. Swadley, 207 S. W. 730.
provides that judgments rendered without no-
tice shall be void, a presumption of regularity
attends a judgment of a superior court of gen-
eral jurisdiction, which can be controverted
only by showing there was no notice, and that
a meritorious defense existed which could have
been asserted.-Sovereign Camp, Woodmen of
the World, v. Wilson, 207 S. W. 45.
675(1) (Tenn.) A prior grantee of a de-
fendant in ejectment was not bound by the
judgment, under Acts 1851-52, c. 152 (Thomp.
Shan. Code, § 5000), although he was present
and was allowed to control the defense as ful-
ly as if he and not his grantor had been the
defendant.-Taylor v. Blackwell, 207 S. W.
738.
699(1) (Mo.App.) Where two joint carriers
are both sued as defendants, it does not follow
that judgment acquitting one of them deprives
the other of an action against the one acquitted.
-Central Nat. Bank v. Pryor, 207 S. W. 298.
XV. LIEN.
503 (Mo.) A judgment of a court of gen-
eral jurisdiction, having jurisdiction of the
parties and subject-matter, was not void and
open to collateral attack because of failure of
petition to state a cause of action.-Cole v.
Parker-Washington Co., 207 S. W. 749, 766.
514 (Tex.Civ.App.) A judgment cannot be
questioned for fraud in its procurement in an788(1) (Tex.Civ.App.) The common-law rule
independent suit between the same parties, that a judgment lien attaches only to such estate
when the judgment was entered after due notice in land as is owned by judgment debtor at the
and upon evidence offered pro and con.-Texas time the abstract of judgment was filed, not-
& P. Ry. Co. v. Duff, 207 S. W. 580.
withstanding a prior unrecorded deed, has been
abrogated by Vernon's Sayles' Ann. Civ. St.
1914, art. 6824.-Diltz v. Dodson, 207 S. W.
356.
XIII. MERGER AND BAR OF CAUSES
OF ACTION AND DEFENSES.
(A) Judgments Operative as Bar.
552 (Ark.) A suit by a former sheriff
against a former county treasurer to recover a
payment made to defendant by plaintiff because
of a shortage in accounts is barred by a pre-
vious adjudication rendered in proceedings had
under Kirby's Dig. § 7174, between the same
parties, in which the circuit court, on a trial
de novo, found against the sheriff on the issue
of payment.-Cargill v. Matthews, 207 S. W.
225.
802 (Tex.Civ.App.) One who converted
mortgaged property to his own use, the prop-
erty being subject to prior lien in favor of
judgment creditors, is liable to such creditors
converted, not to exceed the amount of their
to the extent of the value of the property
judgment.-Burlington State Bank v. Marlin
Nat. Bank, 207 S. W. 954.
XIX. SUSPENSION, ENFORCEMENT,
AND REVIVAL.
853(1) (Tex.Civ.App.) A dormant judg-
ment is one which has not been satisfied or
566 (Tex.Civ.App.) Where a judgment in a
former partition suit expressly left the ques-
tion of title open between plaintiff and defend- extinguished by lapse of time, but which has
ant, plaintiff may maintain a subsequent suit of remained so long unexecuted that execution
trespass to try title; there being no attempt
cannot be issued upon it without first reviving
to change, alter, or set aside the judgment.lin Nat. Bank, 207 S. W. 954.
the judgment.-Burlington State Bank v. Mar-
-Burns v. Nichols, 207 S. W. 158.
(B) Causes of Action and Defenses Merg- XXII. PLEADING AND EVIDENCE OF
ed, Barred, or Concluded.
582 (Tex.Civ.App.) Where suit has been
brought and judgment obtained, the original
cause of action is merged in the judgment.-
Burlington State Bank v. Marlin Nat. Bank,
207 S. W. 954.
JUDGMENT AS ESTOPPEL OR
DEFENSE.
948 (2) (Tex.Civ.App.) A petition held
sufficient against demurrer to state a
of action on a note, though as a matter of fact
plaintiffs had previously recovered a judg
ment on such note, etc., where petition did not
mention such fact.-Burlington State Bank v.
Marlin Nat. Bank, 207 S. W. 954.
585(4) (Tex. Civ.App.) In suit upon notes for
price of auto truck, wherein buyer pleaded
breach of warranty, judgment on notes and that
buyer take nothing by his cross-action, was a de-956(1) (Tex.Civ.App.) Where judgment in
fense to buyer's subsequent action for damages
for same breach of warranty.-McCoy v. Wichita
Falls Motor Co., 207 S. W. 332.
seller's action on notes given for an auto truck
recited buyer's cross-action for damages for
breach of warranty and misrepresentations, and
that he take nothing thereby, it would be pre-
sumed that issue as to misrepresentations was
presented.-McCoy v. Wichita Falls Motor Co.,
207 S. W. 332.
590(2) (Ark.) Where a trustee had convey-
ed the trust property to a third person in
breach of his trust, the record of a former ad-
judication that the grantee was an innocent
purchaser against whom plaintiff could not re-956 (5) (Tex.Civ.App.) In bill of review,
cover was inadmissible in a suit against the seeking a revision and cancellation of a judg-
trustee for money had and received for plain- ment for personal injuries, held that issues
For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
presented had been decided in suit for damages. | 131(4) (Mo.) On voir dire examination of
-Texas & P. Ry. Co. v. Duff, 207 S. W. 580.
JUDICIAL POWER.
See Constitutional Law, 70.
JUDICIAL SALES.
See Champerty and Maintenance, 7; In-
fants. 84, 90; Municipal Corporations,
980; Partition, 106; Quieting Title,
35; Street Railroads, 55.
31(2) (Ark.) In a suit for partition, the land
in question held not "property in the custody
of the court," within the meaning of Acts 1913,
p. 319, § 2, providing that the chancellor may
confirm sales of such property in vacation.-Fra-
zier v. Frazier, 207 S. W. 215.
50(1) (Ky.) Purchaser at a judicial sale ac-
quires no better title than that possessed by
the one whose interest was sold.-Anderson v.
Daugherty, 207 S. W. 474.
JURISDICTION.
See Criminal Law, 101.
See Appeal and Error, 968, 978; Criminal
Law, 641, 858-867, 1039, 1048, 1117;
Trial, 306–314, 371.
II. RIGHT TO TRIAL BY JURY.
13(7) (Ky.) Whether the arbitrator select-
ed by the insurer acted corruptly and induced
the other members of the board so to act in
reaching and returning an appraisement and
award was a question cognizable in equity, and
was for the chancellor to hear and determine
as a question of fact, without the intervention
of a jury.-R. E. Jones & Co. v. Northern As-
sur. Co., Limited, of London, England, 207 S.
W. 459.
28(6) (Tex.Civ.App.) Notwithstanding Rev.
St. 1911, art. 4704, relating to the assessment
of damages in death actions, the court, under
article 1985, may, in a death action submitted
on special issues, determine the question of the
amount of damages, on the ground that jury
trial was waived, where the only special issue
submitted or requested on the question of dam-
ages was to the yearly earnings of deceased.
Panhandle & S. F. Ry. Co. v. Huckabee, 207 S.
W. 329.
33(2) (Tex.Civ.App.) The law exacts that a
fair and impartial jury shall pass upon the
merits of cases.-El Paso Electric Ry. Co. v.
Gonzales, 207 S. W. 162.
the panel in a murder case, it was error to re-
fuse to allow defendant's counsel to ask one
of the jurors what particular church he at-
tended, it being stated that one of the state's
important witnesses was pastor of a certain
church and that counsel's purpose was to as-
certain whether any of the jurors attended
such church.-State v. Miller, 207 S. W. 797.
JUSTICES OF THE PEACE.
See Costs, 231; Injunction, 26, 118.
IV. PROCEDURE IN CIVIL CASES.
86(1) (Mo.App.) The mere fact that de-
fendant, who with his family resided in St.
Louis, went to Chicago without apprising any
member of his family of his intention, and re-
mained there about 10 days, does not author-
ize, in an action begun in justice court, attach-
ment on the ground that he had absconded, or
absented himself from his usual place of
abode, so that ordinary process could not be
served upon him; it not appearing that an or-
dinary writ of summons could not have been
served on defendant by leaving a copy at his
usual place of abode with a member of his
family over 15.-Independent Breweries Co. v.
Lavin. 207 S. W. 851.
124(3) (Tex.Civ.App.) A justice of the peace
cannot render a judgment binding on the as-
signees of labor claims sued for in the name of
the assignors, unless the assignees are made par-
ties.-Pena v. Baker, 207 S. W. 426.
V. REVIEW OF PROCEEDINGS.
(A) Appeal and Error.
159(1) (Tex.Civ.App.) Plaintiff, who recov-
ered in justice court against one of the joint
defendants, but lost against the other, had a
right to appeal without bond to the county
court.-S. Samuels & Co. v. Morgan & Fried-
lander, 207 S. W. 338.
161(3) (Mo.App.) Under Rev. St. 1909, §§
7568, 7579, appeal from justice court by de-
fendant waives the question of defective sum-
mons, there raised on special appearance, and
amounts to a general appearance by defendant
in the circuit court.-Cudahy Packing Co. v.
Chicago & N. W. Ry. Co., 207 S. W. 70.
161(3) (Mo.App.) Under Rev. St. 1909, §§
7568, 7579, appeal by defendant from justice of
the peace to the circuit court, where he went to
trial on his motion to dismiss, then on his plea
in abatement, and then on the merits, waives
question of defect of summons, and amounts to
appearance.-Peter Hauptmann Tobacco Co. v.
Unverferth, 207 S. W. 283.
34(3) (Tex. Civ.App.) A strong preponder-
ance of evidence on one side or the other is
not sufficient to justify a trial court in denying See Conspiracy, 8, 18; Libel and Slander,
the right of trial by jury.-Drew v. American
Automobile Ins. Co., 207 S. W. 547.
In view of Const. art. 1, § 15, preserving
the right to jury trial, and Vernon's Sayles'
Ann. Civ. St. 1914, art. 2024, limiting the num-
ber of new trials, it is the province of the jury
to determine the credibility of witnesses and
the weight of testimony, and the court may not
assume its functions by deciding that testi-
mony is entitled to no credit because overborne
by contradictory testimony, or that it is so con-
tradictory to circumstances and proof as to be
improbable.-Id.
V. COMPETENCY OF JURORS, CHAL-
LENGES, AND OBJECTIONS.
131(3) (Mo.) The purpose of the exami-
nation by defendant in a murder case of the
panel on their voir dire is to develop, not only
facts which might form the basis of a chal-
lenge for cause, but also such facts as might
be useful to him in intelligently determining
his peremptory challenges.-State v. Miller,
207 S. W. 797.
LANDLORD AND TENANT.
Adverse Possession, 46; Appeal and Er-
ror, 1041, 1170; Chattel Mortgages,
262; Counties, 210; Evidence, 419;
Frauds, Statute of, 158; Husband and
Wife, 9, 125, 2481⁄2; Injunction, 128;
Insurance, 115; Limitation of Actions,
127; Mines and Minerals, 78, 81;
Negligence, 39; Pleading, 49, 69, 376,
430; Trover and Conversion, 7, 22; Ven-
dor and Purchaser, 232, 244.
I. CREATION AND EXISTENCE OF
7 (Tex.Civ.App.) The relation of landlord
and tenant rests at last upon a contract, and,
while it need not be express, there must exist
such facts as to the acts, conduct, and inten-
tion of the parties as will properly give rise to
one by implication.-Dolen v. Lobit, 207 S. W.
143, 964.
See Bail, 96; Criminal Law,
519, 723, 884, 984, 1039, 1043;
and Information, 110, 125; Innkeepers,
11.
I. OFFENSES AND RESPONSIBILITY
THEREFOR.
61 (Tex.Civ.App.) Lessee is estopped to
deny lessors' title, though the proofs show
the property belonged to the lessors' wives.-
Lovelady v. Harding, 207 S. W. 933.
66(3) (Tex. Civ.App.) Assuming
fendant, an employé of a partnership using15 (3) (Tex.Cr.App.) The fraudulent tak-
land of plaintiff with his consent without pay-
ment of rent, was a tenant of the plaintiff,
such relation was ended by dissolution of the
partnership and abandonment of the land, al-
though the employé was given fences remaining
after a prairie fire, where the land was open to
the public and unfenced for two years before
defendant reentered and fenced it.-Dolen v.
Lobit, 207 S. W. 143, 964.
ing of cotton by an employé engaged merely
in weighing the cotton and paying other em-
ployés, where the owner and employer was
absent for the day, constituted theft, and not
embezzlement.-Watkins v. State, 207 S. W.
926.
15(3) (Tex.Cr.App.) Where defendant in
prosecution for theft was sent by his em-
ployer to deliver oil, with a bill for 90 cents,
and through the storekeeper's mistake, in
thinking that the bill was for $9, was given
that amount, and kept $8.10, there was no
theft by bailee; the money not coming into
defendant's possession by virtue of a contract.
term-Campos v. State, 207 S. W. 931.
VIII. RENT AND ADVANCES.
(A) Rights and Liabilities.
written lease
200 (1) (Tex.Civ.App.) If
was abrogated by agreement substituting an-
other as tenant, then for any part of the
that the original lessee occupied under re-
entry, after the substituted tenant vacated,
the measure of recovery is not the rent stipu-
lated in lease, but the reasonable rental value,
in the absence of another contract fixing rent
for such period.-Lovelady v. Harding, 207 S.
W. 933.
230(8) (Tex.Civ.App.) The
action for rent, alleging written lease of sec-
ond and third floors of building, lease offered
in evidence in terms of second floor, is subject
to objection of fatal variance.-Lovelady v.
Harding, 207 S. W. 933.
There is no fatal variance between lease
executed by husbands alone, and petition of
husbands and wives for rent, expressly alleg
ing it was so executed, coupled with allega-
tion that it was executed on behalf of all the
plaintiffs. Id.
Where accused was sent to a store to de-
liver 90 cents worth of oil, and by mistake was
paid $9, and kept $8.10 of it, if, when receiv-
ing such money from storekeeper, he formed
the criminal design to appropriate it to his
own use, and did so appropriate it, the ap-
propriation would be theft, but if he subse-
quently formed such fraudulent purpose, he
could not be convicted under the general
charge of theft under Vernon's Ann. Pen. Code
1916, art. 1332.-Id.
II. PROSECUTION AND PUNISH-
57 (Tex.Cr.App.) In prosecution for theft
of 200 pounds of cotton by the owner's em-
ployé, evidence held sufficient to show that
defendant stole the cotton with intent to de-
prive the owner of its value and to appropri-
ate it to his own use and benefit.-Watkins v.
State, 207 S. W. 926.
231(2) (Tex.Civ.App.) To meet plea and
testimony of lessee, sued for rent, that there
an agreement acted on, that another
should be substituted in her place as tenant,65 (Ky.) Evidence held sufficient to sustain
lessors' agent for collection of rents could a conviction of grand larceny.-Taylor v. Com-
monwealth, 207 S. W. 456.
testify that he made no such agreement.-
Lovelady v. Harding, 207 S. W. 933.
IX. RE-ENTRY AND RECOVERY OF
POSSESSION BY LANDLORD.
277(1⁄2) (Tex.Civ.App.) Where a lease of
office rooms provides for re-entry without no-
tice or demand, if any part of the rent remain-
ed unpaid for two days after it is due, a les-
sor on default in payment of rent for more
than two days incurs no liability by ousting
lessee from the premises.-Henderson v. Beggs,
207 S. W. 565.
(C) Trial and Review.
68(1) (Ky.) In prosecution of defendant, a
boarding house keeper, for larceny, case held
for the jury under circumstantial evidence.--
cotton was
Williams v. Commonwealth, 207 S. W. 447.
68 (3) (Tex.Cr.App.) Where
stolen by defendant from the owner's premis
es in his temporary absence, such absence did
not change the ownership and control of the
stolen property, so as to justify a directed
verdict on the ground that the property was
not taken from the owner's possession.-Wat-
kins v. State, 207 S. W. 926.
77(4) (Tex.Cr.App.) In a prosecution for
larceny from the owner, evidence that defend-
ant, when stolen cotton was found in his pos
session, stated that he had bought it, and later
that he took it thinking it would be all right
with the owner, and that he intended to pay
for it, justified an instruction on explanation
of possession of property recently stolen.-
Watkins v. State, 207 S. W. 926.
For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER
suance of bonds, held not impliedly repealed by
article 16, § 59, a distinct provision, having a
distinct purpose, to authorize creation of cer-
tain of improvement districts dealt with by ar-
ticle 3, § 52, free from the limitation on their
taxing power imposed by that section.-Dallas
County Levee Dist. No. 2 v. Looney, 207 S. W.
ion labor, did not attempt to state a cause of
action for libel as such.-Id.
86(2) (Tex.Civ.App.) Where alleged slan-
derous words are susceptible of an innocent as
well as a defamatory meaning, plaintiff should
allege use of words in a defamatory sense, and
also that words conveyed defamatory meaning
to hearers.-Providence-Washington Ins. Co. v.
Owens, 207 S. W. 666.
The Canales Act, Acts 35th Leg. (4th Called
Sess.) c. 25, making Const. art. 16, § 59, effec-
tive by providing for creation of conservation
districts, and providing for levy of taxes by dis-112(1) (Tex. Civ.App.) In action against in-
tricts created under it on ad valorem plan, is surance company for resulting tie-up of plain-
not violative of article 16, § 59, conservation tiff's shipment because of alleged slanderous
amendment, requiring that taxes for district in- statements, evidence held to warrant finding that
debtedness authorized shall be equally distribut- defendants' agent did not intend to state, and
ed.-Id.
financial backer did not understand, that no re-
insurance had been
Washington Ins. Co. v. Owens, 207 S. W. 666.
obtained.-Providence-
The Canales Act, Acts 35th Leg. (4th Called
Sess.) c. 25, making Const. art. 16, § 59, effec-
tive by providing for creation of conservation
districts, is not unconstitutional because per-
mitting taxation of other than real property
within levee district to pay cost of improve-
ment.-Id.
The Laney Act, Acts 35th Leg. (4th Called
Sess.) c. 44, providing for creation of conserva-
tion districts under Const. art. 16, § 59, did
not, by implication, repeal the Canales Act,
Acts 35th Leg. (4th Called Sess.) c. 25, making
Const. art. 16, § 59, effective by providing for
creation of conservation districts.-Id.
LIBEL AND SLANDER.
See Appeal and Error, 1050; Evidence,
271, 318; Principal and Agent, 124;
nesses, 395, 414.
119 (Tex.Civ.App.) In action for slander,
damages cannot be recovered for mental dis-
fect upon his mind and feelings of alleged slan-
tress, not the direct result and proximate ef-
derous statement.-Providence-Washington Ins.
Co. v. Owens, 207 S. W. 666.
(E) Trial, Judgment, and Review.
123(1) (Tex.Civ.App.) In action for slan-
der, evidence held to justify submission to jury
of whether alleged defamatory remarks were
made.-Providence-Washington Ins. Co. V.
Owens, 207 S. W. 666.
Wit-125 (Tex.Civ.App.) In action for slander
resulting in tie-up of plaintiff's shipment, be-
cause of alleged statements by defendant in-
surance company that certificates covering
shipment were unauthorized and insurance
tify submission of special issue of whether
had not been reinsured, evidence held to jus-
financial backer refused to accept certificates
regardless of alleged statements.-Providence-
Washington Ins. Co. v. Owens, 207 S. W. 666.
I. WORDS AND ACTS ACTIONABLE,
AND LIABILITY THEREFOR.
6(1) (Tex. Civ.App.) Defamatory words to
be "libelous per se" must be of such a nature
that the court can presume as a matter of law
that they will tend to disgrace and degrade the
party, or hold him up to public hatred, con-
tempt, or ridicule, or cause him to be shunned
and avoided.-Providence-Washington Ins. Co.
v. Owens, 207 S. W. 666.
6(2) (Tex.Civ.App.) Where alleged slander-
ous words charged plaintiff, who was holder of
blank policy, with issuing unauthorized certif-
icates, plaintiff was required to prove special
damages; such words not being defamatory as
a matter of law, as charging an act involving
moral turpitude, reflecting on business integri-
ty, or calculated to impair business standing.-
Providence-Washington Ins. Co. v. Owens, 207
S. W. 666.
9(1) (Tex.Civ.App.) Where alleged slander-
ous words charged plaintiff, who was holder of
blank policy, with issuing unauthorized certifi-
cates, plaintiff was required to prove special
damages; such words not being defamatory as
a matter of law, as charging an act involving
moral turpitude, reflecting on business integri-
ty, or calculated to impair business standing.
-Providence-Washington Ins. Co. v. Owens,
207 S. W. 666.
19 (Tex.Civ.App.) Alleged defamatory lan-
guage must be construed as a whole.-Provi-
dence-Washington Ins. Co. v. Owens, 207 S.
W. 666.
(B) Parties, Preliminary Proceedings, and
Pleading.
See Intoxicating Liquors, 108; Pleading,
403.
See Appeal and Error, 171, 359; Chattel
Mortgages, 136, 157, 177. 262. 277;
Fraudulent Conveyances, 222; Husband
and Wife, 273; Judgment, 788, 802:
Landlord and Tenant, 254; Mechanics'
Liens: Mortgages, 28, 151;
Partition,
92. 97; Pledges, 4, 22, 25; Receivers,
117, 118, 128; Subrogation, 31; Tax-
ation. 501-507; Vendor and Purchaser,
254.
7 (Tex.Civ.App.) An executory agreement in
writing to give a lien on land is sufficient to cre-
ate a lien in equity on such land, though mort-
gage or lien is itself never executed, under the
maxim that equity regards that as done which
ought to be done.-Luse v. Rea, 207 S. W. 942.
LIMITATION OF ACTIONS.
See Adverse Possession; Trespass to Try Title,
4.
II. COMPUTATION OF PERIOD OF
LIMITATION.
(A) Accrual of Right of Action or De-
fense.
80 (Mo.App.) A petition seeking to state a
cause of action for unlawful conspiracy by de-
fendants, as members of labor organizations, to
injure plaintiff in his moving picture business, 47(2) (Ark.) Where title to land conveyed
alleging that their pickets urged plaintiff's pa- with covenant of warranty is in the government,
trons not to patronize his theater because he covenant is deemed broken as soon as made.
was unfair to union labor, did not attempt to and the right of action, contrary to the ordinary
state a cause of action for slander as such.-rule, accrues at once so as to start the running
Root v. Anderson, 207 S. W. 255.
of limitations.-Quinn v. Lee Wilson & Co., 207
S. W. 211.
The further allegation charging the distribu-
tion of circulars, publicly and privately, near
theater, stating that plaintiff was unfair to un-
Where unsurveyed lands which were within
the boundary lines of a nonnavigable lake as
meandered were conveyed with covenants of
warranty by defendants, who took under pat-
ents to parts of sections surrounding the mean-
dered lines of the lake, and the Land Office
then disclaimed title in the government, held,
that defendants had such prima facie title that
the covenant of warranty cannot be deemed to
have been broken when made, so as to start
limitations and preclude recovery because of
the bar of limitations, where the government
later asserted title to the lands.-Id.
(C) Personal Disabilities and Privileges.
72(3) (Tex.Civ.App.) Limitations held not
to run during the minority of legatees claiming
under the will of a grantor, who during life re-
tained control, etc., of the deed under which
the grantee therein named claimed.-Eckert v.
Stewart, 207 S. W. 317.
(F) Ignorance, Mistake, Trust, Fraud, and
Concealment of Cause of Action.
note to sellers' creditors, and suit by a creditor
was not barred, although he could not maintain
suit on debt; a bar by statute not paying the
debt.-Warren v. Parlin-Orendorff Implement
Co., 207 S. W. 586.
A pledgee of property may sell or sue for con-
version, although debt which it was given to se-
cure is barred.-Id.
V. PLEADING, EVIDENCE, TRIAL,
AND REVIEW.
180(5) (Tex.Civ.App.) In suit to establish
plaintiff's and interveners' interest in a note,
exception, to the effect that cause of action as-
serted by plaintiff creditor showed that cause of
action was barred, was properly overruled,
where claims of interveners, other creditors, was
not barred.-Warren v. Parlin-Orendorff Imple-
ment Co., 207 S. W. 586.
192(3) (Tex.Civ.App.) In action against
county judge and sureties on his bond to recov-
er money due plaintiff county, a demurrer to
petition because action was barred by limita-
95(1) (Tex.Civ.App.) Assignee of judgment tions was properly sustained, where supplemen-
being subrogated to the original debt in case
tal petition in avoidance failed to show defend-
the judgment, which was based on a record ant's fraudulent concealment of cause of action
showing proper service, were invalid, the stat-preventing bringing of an action, in view of
ute of limitations would not run against him, as Rev. St. 1911, art. 1427, 1453, relating to
to the original debt, until he had knowledge judge's statements, report to county clerk, and
of invalidity of the judgment because a judg- examinations.-Marion County v. Rowell, 207
ment debtor had not been served with citation. S. W. 983.
-Miller v. Guaranty Trust & Banking Co., 207
S. W. 642.
(H) Commencement of Action or Other
Proceeding. -
118(2) (Tex.Com.App.) Merely filing suit did
not arrest the running of the statute, where
the suit was practically abandoned by failure
to prosecute.-Raley v. D. Sullivan & Co., 207
S. W. 906.
127 (2) (Tex. Civ.App.) A petition which as
against a general demurrer is insufficient to
state a cause of action is sufficient to stop the
running of limitations if the defects therein
are afterwards cured by an amended pleading,
even though such pleading is filed after limi-
tations have run.-Henderson v. Beggs, 207 S.
W. 565.
195(5) (Tex.Com.App.) Where the holder of
a vendor's lien note claimed that the fraudulent
concealment by the grantor of the land of the
fact of his ownership stopped the running of
limitations in his favor, the holder of the note
has the burden of showing the fraudulent con-
cealment, his ignorance of the facts, and that
he could not by reasonable diligence have dis-
covered the fraud.-Raley v. D. Sullivan & Co.,
207 S. W. 906.
197(2) (Tex.Com.App.) Evidence held insuf-
ficient to show such a fraudulent concealment
by the grantor of land who had not recorded
his conveyance as to prevent the running of
limitations in his favor as against one holding
a vendor's lien note executed by a prior grant-
or.-Raley v. D. Sullivan & Co., 207 S. W.
906.
127(6) (Tex.) In action by widow for her- 199(1) (Mo.App.) Whether the first years of
self and children to recover for negligent death an account were barred depended upon proof as
of her husband, amendment in behalf of a per- to whether it was an open running account, and
sonal representative of deceased, alleging that whether all the items constituted one demand.
deceased met his death while engaged in inter- and if an issue of fact was raised thereon, the
state commerce, would not introduce a new or question was for the jury.-Shock v. Price, 207
different cause of action barred by limitations, S. W. 834.
since amendment would relate back to original
action, which was not barred.-Pope v. Kansas
City, M. & O. Ry. Co. of Texas, 207 S. W. 514.
127(6) (Tex.) In action for death of her See Intoxicating Liquors.
husband, amended petition, whereby wife as ad-
ministratrix was substituted for former plaintiff
and whereby she expressly alleged that defend-
ant was engaged, and deceased was employed,
in interstate commerce, at date of fatal injuries,
held not such departure from original petition
as would prevent amendment from relating back
to filing of original petition.-Bird v. Ft. Worth
& R. G. Ry. Co., 207 S. W. 518.
127(8) (Tex.Civ.App.) In an action by a for-
mer lessee against his lessor for conversion of
personal property alleged to have been commit-
ted by lessor, an amendment to the complaint
that the acts were committed by lessor's agent
was not barred by limitations, although the stat-
utory period had elapsed at time of amend-
ment.-Henderson v. Beggs, 207 S. W. 565.
IV. OPERATION AND EFFECT OF
BAR BY LIMITATION.
4 (Tex.Civ.App.) One who purchased a note
long after maturity, and after suit was begun
thereon, would be a pendente lite purchaser, and
lis pendens would apply to her.-Warren v. Par-
lin-Orendorff Implement Co., 207 S. W. 586.
LOGS AND LOGGING.
See Adverse Possession, 24, 103; Home-
stead. 117; Tenancy in Common, ~15;
Trespass, 19.
5 (Tex.Civ.App.) Though standing timber is
generally regarded as part of the realty, the
owner by contract can constructively cause a
severance, and for purposes of mortgage or sale
convert it into personalty.-Downey v. Dowell,
207 S. W. 585.
167(1) (Tex.Civ.App.) Note, together with
contract of sale, whereby sellers warranted title
and agreed that proceeds of note received from
buyers should be applied to any and all debts
against property, amounted to an assignment of See Master and Servant, 286, 288.
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