Volume 53 — Texas Reports

Tried below before the Hon. W. H. Burkhart. Suit by Douglass Harris, as administrator of the estate of John O. Whitfield, deceased, against J. H. Catlin and P. H. Swearingen, as administrator of the estate of Sarah S. Kirby, in trespass to try title to about seven hundred acres of land. The petition was filed the 14th of April, 1874. In December, 1871, Swearingen disclaimed.

Tried below before the Hon. William H. Stewart. Suit by Wilson Davis against League & Lufkin, alleging that defendants employed him as drummer for their mercantile house on the 1st of May, 1876, for one year, to commence 1st of May, 1876, and to end 1st of May, 1877, at a salary of $3,000 for the year.

Tried below before the Hon. William H. Burkhart. ■Suit by Laura Y. McNeel against A. P. McCormick, in his representative capacity as administrator of the estate of J. G. McNeel, Sr., .to establish against the estate a promissory note, dated December 28,1870, executed by J. Gr.

<p>Appeal from Victoria. Tried below before the Hon. H. Clay Pleasants.</p> <p>The case is sufficiently stated in the opinion.</p>

<p>1. Distinguished—Trespass to try title.—See opinion fora discussion of the distinction between the action of ejectment at common law and the statutory action of trespass to try title.</p> <p>2. Trespass to try title.—The statute permitting a second suit in trespass to try title should be strictly construed.</p> <p>3. Trespass to try title—Second action—Disputed boundary.—Though the location of a disputed line between adjacent surveys may be determined in an action of trespass to try title, yet, when the sole object of the suit is to determine the location of the line, and there is no question as to the title to either survey, the parties, under the former statute, would be entitled to hut one adjudication on the question.</p>

Error from Galveston. Tried, below before the Hon. William H. Stewart. Suit of trespass to try title, brought by F. A. Glass against Adolph Klein and Emily V. Klein, his wife, to recover lot number 3, block 15, and improvements thereon, in the city of Galveston, and for damages. Defendants answered by general demurrer, general denial, and pleas of not guilty. The court overruled the demurrer, and there was a trial by jury. Verdict and judgment for plaintiff for the property.

Tried below before the Hon. James Masterson. Suit by James Halloren, appellee, to recover damages from the International and Great Northern Railroad Company, appellant, for injuries received by Mm while a passenger on its railroad between Palestine and Crocket.

Error from Galveston; Tried below before the Hon. William H. Stewart. W. R. Evans brought suit September 17,1873, against J. M. Brandon et al., and asked judgment for damages alleged to 'have been sustained by him on account of certain wrongful acts alleged to have been committed by defendants.

Tried below before the Hon. William H. Stewart. Suit by William J. Hutchins, appellee, upon a policy of insurance issued by the Texas Banking and Insurance Company, appellant, on the 14th of November, 1871, “to indemnity Ahrenbeck Brothers during one year thereafter against loss by tire, to the amount of $4,000, as follows: On their two-story frame shingle-roof building, $800’; on their linter, huller, and shafting, $600; on their boiler and engine, $1,000; on their presses,…

Tried below before the Hon. James Masterson. Suit in trespass to try title, brought by Sarah Jacobs, appellant, against J. H. McClintock and Mildred McClintock, to recover lot six and half of lot seven, in block one hundred and twenty-six, on the south side of Buffalo Bayou, in the city of Houston. The original petition was filed July 28, 1875.

Error from Galveston. Tried below before the Hon. A. P. McCormick. Suit originally brought December 11, 1869, by A. H. Alford against Huffman, Musick & Co., sequestering their stock of goods, and to enforce a lien on the same, which he claimed under a deed of trust. Huffman, Musick & Co. bought out the stock of A. N. Alford, who was in the business, on August 16, 1869, of a wholesale grocer.

<p>Appeal from Harris. Tried below before the Hon. James Masterson.</p> <p>Suit by Paul Bremond, brought on the 3d day of December, A. D. 1875, against the Houston & Great Northern Railroad Company, the International & Great Northern Railroad Company, and against W. E. Dodge, Jacob S. Wetmore, Wm. M. Rice, C. Ennis, G. A, Grow, W. J. Hutchins, W. W. Phelps and O. E. Noble, seeking a recovery of sixty thousand dollars as his interest in the stock of the Houston & Great Northern Railroad Company.</p> <p>He alleged that in 1870 he subscribed for §100,000 stock in the Houston & Great Northern Railroad Company, paid on it all installments ever demanded of him, aggregating §40,000 paid up to 24th of November, 1871.</p> <p>He alleged that the company was incorporated October 22, 1866, and that the individual defendants were its directors on the 1st day of. January, 1874, and the company was, on that day, consolidated with the International Railroad Company, under the name of the “ International & Great Northern Railroad Company,” and that said directors, without being properly authorized, transferred all of the assets, franchises and effects of his company to the new company, having constituted themselves directors in the new company.</p> <p>He alleged this transfer and consolidation to be a conversion of his property; that it was procured by the directors by breach of trust, faith and confidence, and that the assets were received by the consolidated company in collusion with them.</p> <p>He alleged that the company had large assets; that his interest was worth §50,000; and claimed the recovery back of the installments paid and interest thereon, or the value of his stock and interest in the company, from the defendants, all of whom, he alleged, fraudulently and collusively united to destroy and convert his property against his repeated protests.</p> <p>Defendants answered with:</p> <p>1. General demurrer.</p> <p>2. General denial.</p> <p>3. Admitted the consolidation, but justified the same on the following grounds, viz.:</p> <p>That in 1871, the directors of the Houston & Great Northern Railroad Company purchased the property franchises of the Houston Tap & Brazoria Railroad Company, which was an incorporation under the laws of Texas; that the purchase was approved by the stockholders in the company, including plaintiff, and that in the charter of the “ Tap ” was a provision that it might consolidate with any other company, by a vote of two-thirds of its stockholders.</p> <p>That on the 8th of Hay, 1873, the legislature of Texas passed an act consolidating the Houston & Great Northern Railroad Company with the Houston Tap & Brazoria Railroad Company, by which it granted to the former all the franchises and privileges of the latter; that in the charter of the latter was a provision authorizing its consolidation with any other company. This, they claimed, passed to and was bestowed on the Houston & Great Northern Railroad Company by this act.</p> <p>4. They pleaded that the consolidation was effected by a vote of more than two-thirds of the stockholders, at a special meeting called for that purpose, September 27, 1873, and attached the proceedings of the meeting, showing the vote, and the articles showing the terms of the consolidation, which they justify, and plead that it has been ratified by the legislature.</p> <p>5. They pleaded that as far back as February, 1872, articles of agreement to consolidate were in existence, and had been ratified by the. stockholders, of the same purport as those of the actual consolidation, and they exhibited them, and that from that date on the two companies were operated as one consolidated company.</p> <p>That plaintiff, knowing these things, and taking no steps to prevent it, was estopped to complain of them.</p> <p>A jury was waived, cause submitted to the court, and judgment for appellee against appellants, for $43,182.30, who gave notice of appeal.</p> <p>The appellants severed in their assignments, and the directors, Wm. E. Dodge, J. S. Wetmore, Cornelius Ennis, Moses Taylor, Wm. M. Rice and Galusha A. Grow, assigned errors, apparent from the opinion.</p> <p>The Houston & Great Northern Railroad Company was incorporated by. act of the legislature of Texas, on the 22d of October, 1866, for the purpose of constructing a railroad from Houston to Red river, passing as near Montgomery, Huntsville, Crockett, Rusk and Tyler as practicable.</p> <p>No section of the charter contained authority to consolidate.</p> <p>It was agreed that the Houston & Great Northern Railroad Company consolidated with the International Railroad Company, and the consolidated company was called the International & Great Northern Railroad Company, and that “from about the 1st of January, 1874, the consolidation, merge and mingling, has been perfect as one road,” and that “ the road’s assets, franchises and effects, and - capital stock of the two companies, were from that time claimed, owned and used by the consolidated company.”</p> <p>It was further agreed that Paul Bremond, in 1870, subscribed for one thousand shares of one hundred dollars each, in the stock of the Houston & Great Northern Railroad Company, and paid all calls made on him therefor, amounting to $40,000 “paid up,” by the 24th day of November, 1871.</p> <p>Bremond protested against the consolidation repeatedly, verbally and by letter.</p> <p>The International Railroad Company was an incorporation under act of the legislature of Texas, of 5th of August, 1870, “ and it was agreed that the only section of its charter, referring to the subject matter of this suit,” is section 14, which does not seem to give that company the power to consolidate.</p> <p>The directors of the Houston & Great Northern Railroad in 1872 and 1873, and at time of consolidation, were W. E. Dodge, Wm. M. Rice, G. A. Grow, Moses Taylor, Jacob S. Wetmore, C. Ennis, W. J. Hutchins, W. W. Phelps and C. E. Noble, until his resignation in September, 1873.</p> <p>At a meeting of the board of directors, on the 19th of February, 1872, in Hew York city, at which appellants Taylor, Dodge, Wetmore and Rice were present, there was adopted an agreement to consolidate the Houston & Great Northern Railroad Company with the International Railroad Company, and the officers were directed to execute the same, when the International should adopt them.</p> <p>The articles of agreement began by suggesting the expediency of getting further legislative enactment to authorize consolidation, and postponed the consummation of it until such legislation could be obtained, or the impossibility of obtaining it ascertained; “but in the meantime, the interest of the two companies shall be considered one interest, and managed in view to such consolidation.”</p> <p>From that date the administration of the two companies should be one, each board to retain its own existence, the direction of the business of the two companies to be in the hands of a joint board.</p> <p>The basis of consolidation was, that the stock of each company was to be called in and cancelled, and $5,000,000 of stock of the consolidated company issued to represent property of every description belonging to the joint companies, and-divided by giving to the stockholders of the International twenty-three thousand four hundred and thirty shares, and to the Houston & Great Northern Railroad Company twenty-six thousand five hundred and seventy shares.</p> <p>From that date the earnings of the two companies should be considered as belonging to the joint companies, and the expenses as joint expenses, but the accounts and management of the funds should be directed as theretofore by the officers of the respective companies, until permanent consolidation was effected.</p> <p>This agreement was signed by J. Sandford Barnes, president of the International, and defendant Grow, as president of the Houston & Great Northern Railroad Company.</p> <p>The agreement was adopted, subject to the rejection of their stockholders, by a three-fourths vote.</p> <p>Defendant Grow, in behalf of defendants, testified he was the president of both of the companies in the years 1872 and 1873, and up to the time of consolidation, and was president of the consolidated company from its existence till July, 1874. He never heard any talk of consolidation until he went to New York, immediately before the meeting of February 19, 1872.</p> <p>The agreement of the 19th of February, 1872, was signed by him as president of the Houston & Great Northern Railroad Company, by direction and order of the board of directors. The articles in effect were an agreement for pooling the earnings of the two roads, and providing for operating them as one road, expenses to be joint expenses, receipts to be joint receipts, with one set of officers so as to save expenses of two. This agreement was entered into by the directors of the Houston & Great Northern Railroad Company, at a directors’ meeting in the city of New York. Separate accounts were, however, to be kept by each road, until the two roads were actually consolidated, and the accounts were so kept. So soon as the agreement was executed, it was shown to the stockholders present, and to those in New York, for their approval. Nothing was done under the agreement until the assent to it by the stockholders, as reported to the stockholders’ meeting in December, 1872. .He showed the agreement to- Mr. Bremond, and after reading it through, he expressed his disapproval and refused to give his assent. He had afterwards different conversations with Bremond, and he in all of them expressed his opposition to the consolidation. The two roads were run and operated under this agreement from about April 1, 1872, till September 27, 1873: “By changing the line of the road so as to intersect the International at or near Palestine, we cut off competition of the Trinity boats, and by making this agreement, competition between the two roads was prevented; and by using fifty miles of the track of the International we were enabled to reach Tyler much earlier, and saved three-fourths of a million of dollars in outlay. Many of the stockholders were common to both roads, and others thought consolidation better to avoid expense and competition, and because of the lack of power to make a legal consolidation, they entered into this pooling business.”</p> <p>On all these considerations, the directors of the Houston & Great Northern Railroad Company thought it wise, and thinking that they had no power to consolidate made this arrangement, intending to consolidate when they could.</p> <p>Grow further testified that “ at the time of the agreement by the directors, of February 19, 1872, to consolidate the Houston & Great Northern Railroad Company, we had run a line east of the line to Palestine, and this line was changed by the directors with the view of consolidating with the International, which, for reasons here given, they thought desirable. We built the road to Palestine before submitting the articles of agreement to consolidate, made by the directors to a stockholders’ meeting; never reported it to a stockholders’ meeting until December, 1872, and the road was then built to Palestine. If consolidation was had, it was better to build to Palestine. If it had not been consolidated, that eastern line would have been built.”</p> <p>On the 29th of August, 1872, this board of directors, acting with the directors of the International Railroad Company, constituting a “joint board,” decided to issue bonds to §10,000 per mile, the principal and interest of each company to be guaranteed by the other company.</p> <p>On July 15, 1873, the board of directors, present defendants Grow, Dodge, Rice, Ennis and Wetmore, passed a resolution accepting an act of the legislature of Texas, of Hay 8, 1873, entitled “ An act to consolidate the Houston Tap & Brazoria Railway, the Huntsville Branch Railway, and Victoria & Columbia Railway with the Houston & Great Northern Railroad.”</p> <p>At the same meeting, the directors drafted and approved articles of consolidation of the capital stock and franchises of the Houston & Great Northern Railroad Company, with the capital stock and franchises of the International Railroad Company, subject to the ratification of the stockholders. They gave to the consolidated company the name of International & Great Northern Railroad Company, and conveyed to and vested in that company all the debts, effects, franchises, etc., of the two companies.</p> <p>At the same meeting, they appointed three of their number, defendants Dodge, Taylor and Rice, a committee to name the members of the board of directors of this new company, who, on September 16, 1873, reported to the board of directors the names of all the board of the Houston and Great Northern Railroad Company, themselves included, as a part of the board of the new company.</p> <p>On the 2d of September, 1873, the board of directors called a special meeting of the stockholders of the Houston & Great Northern Railroad Company to convene September 27, 1873, to consider the proposition of consolidating said road with the “International,” under authority of the act of the legislature of May 8, 1873.</p> <p>At this special meeting of the stockholders defendant Grow presided, and out of the sixty thousand shares of the company, there were present forty-four thousand five hundred and forty-seven, of which all hut twenty-five voted for the consolidation, merging the Houston & Great Northern Railroad Company with the International, and vesting all its assets in the new company. Bremond sent his protest to the meeting. At the conclusion it was resolved that until the organization of the new board the control and management of the two companies were continued as at that time. The defendants were named as a part of the new board.</p> <p>At the annual meeting of the stockholders, December 22, 1873, the proceedings of the special meeting of September 27, 1873, were approved, and the articles of consolidation ordered printed, and it was again resolved that the management of the companies shall continue as at present, until the organization of the new board.</p> <p>At the time the articles were made by the directors, on July 15, 1873, defendant Grow was president of both companies.</p> <p>The basis of this consolidation of July, 1873, was, that the assets of the two companies should be represented by fifty-five thousand shares, thirty thousand of which the stockholders of the Houston & Great Northern Railroad Company were to get, and twenty-five thousand the stockholders of the “ International.”</p> <p>It was agreed that the defendant-directors were the directors of the Houston & Great Northern Railroad at and up to the consolidation, and that they were, a part of the board of the consolidated company, which, after consolidation, as directors of the consolidated company, took possession of the assets, franchises and effects, and managed and controlled both roads and their assets as one company, called the “International & Great Northern Railroad Company,” and that this was fully consummated on January 1, 1874.</p> <p>On the 21st of July 1874, the board of directors of the International & Great Northern Railroad Company resolved that the §5,500,000 of the capital stock of the consolidated company be executed, issued and distributed to the several stockholders of the two companies, at par, in exchange for the stock in the respective companies, on the basis of the agreement of February 19, 1872, instead of the agreement of July 15, 1873, voted on and passed by the stockholders as the basis of consolidation. The latter dividing the stock in the proportion of twenty-five thousand to thirty thousand, the former in the proportion of twenty-three thousand four hundred and thirty to twenty-six thousand five hundred and seventy.</p> <p>The record does not contain any evidence of Bremond’s protest against consolidation with the Houston Tap & Brazoria Railroad Company.</p> <p>The action of the court below in precluding defendants from showing the real value of the assets of the Houston & Great Northern Railroad Company, is apparent from the opinion.</p>

Error from Waller. Tried below before the Hon. Wm. Burkhart. The statement of the nature and result of the suit made by plaintiff, and not controverted, is substantially as follows, viz.: B. Loggins and B. T. Loggins, his son, brought suit against E. Blanc and E. P. Alsbury, and against Leander Cannon and Fen Cannon, as partners, doing business under the name of Cannon & Co., and against Leon Blum and Sylvain Blum.

Tried below before the Hon. Wm. H. Stewart. Suit by Michael Nolan against the Galveston City Railroad Company for injuries to himself and to his dray, caused by alleged imperfections in defendant’s railroad track and roadbed, over which plaintiff drove his dray loaded with whisky.

Error from Harris. Tried below before the Hon. James Masterson. Suit begun June 27, 1873, by W. T. Wasson, appellee, against Wm. R. Baker and Thomas M. Shirley, to recover title to, or the value of, ten shares of stock in the Houston & Texas Central Railway Company. The plaintiff alleged that defendants had converted and claimed his stock in 1871, and that they had thereby damaged him five thousand dollars, which he claimed to be the value of his stock.

Error from Galveston. Tried below before the Hon. A. P. McCormick.

Error from Harris. Tried below before the Hon. Jame Masterson. The facts necessary to a proper understanding of the opinion will be found contained in it.

Tried below before the Hon. Wm. H. Stewart. Suit by Alex. K. Ladd, appellant, a cotton buyer, against The Southern Cotton Press and Manufacturing Company, a corporation under the laws of Texas, carrying on the business of receiving, storing and compressing cotton, to recover back certain moneys paid on cotton entrusted to them.

Tried below before the Hon. Joseph Bledsoe. On the first day of March, 1876, M. L. Crawford filed his petition in the district court of Collin county, against W. E. Bonner and M. J. P. and W. C. Sickles, seeking to recover certain lands therein described, and set out his claim of title from B. W. Musgrove, through a deed of trust and sale by order of the district court for probate matters.

Tried below before the Hon. James Masterson. Suit brought by D. E. Kennedy, appellee, against William R. Baker, appellant, for three bonds, executed by the Houston & Texas Central Railway Company to bearer, each for the sum of $1,000; and asking that his title to the bonds be established, and for possession, or in the alternative for their value.

<p>Appeal from Harris. Tried below before the Hon. James Masterson.</p> <p>The opinion states the facts.</p>

Error from Montague. Tried below before the Hon. J. A. Carroll. On the 11th day of August, 1877, W. C. O. Driscal brought trespass to try title against the defendants in error, in the district court of Montague county, to recover one thousand nine hundred arid thirty acres of land, a part of the F. Escobar survey.

<p>1. Reconvention — Practice.—As a general rule when a defendant reconvenes, the plaintiff will not permitted to take a voluntary nonsuit.</p> <p>2. Same. — A motion to set aside a voluntary nonsuit filed by a defendant’s attorney, who had filed before nonsuit a plea in reconvention, should not prevail when no sufficient reason is shown in the motion why they were not present and did not object when the nonsuit was applied for, and where the motion fails to show that there was merit in the plea in re convention.1</p>

<p>Appeal from Lamar. Tried below before the Hon. R. R. Gaines.</p> <p>Suit by appellees, Moore & Ownby, against Fred. W. Miner, on the following instrument of writing, to wit:</p> <p>“§625.56. Paris, Texas, June 1, 1874.</p> <p>“Three months after date, I promise to pay Moore & Ownby the sum of six hundred and twenty-five and 56-100 dollars with interest at the rate of eighteen per cent, per annum, from date until paid. The same being in payment for material and work expended upon the same furnished by said Moore & Ownby to me, and by me used in repairing and improving the house and lot in the city of Paris, in and upon which I now live. Bounded on the south by Burnett street, on the west by Busk street, on the north by Pine Bluff street, and on the east by the lots, I. T. Gaines, -- Evans and Dr. J. B. Ryan. It is further agreed and understood by me, that this shall be a mechanic’s lien upon said house and lot; the better to secure said Moore & Ownby in the payment of the above specified amount, to be duly recorded in the clerk’s office of Lamar county, Texas, under the law regulating mechanic’s lien.</p> <p>“Given under my hand the day and date above written.</p> <p>“(Signed) Fred. W. Miner.”</p> <p>The contract was recorded as required by the statute, and the materials were furnished at the date of the contract.</p> <p>The facts showed that the premises specified were at the time the instrument was executed, and had been for many years, the homestead of Fred. W. Miner and his wife.</p> <p>By an amended answer, defendant alleged that his wife had never consented to the creation of the lien, and prayed for the protection of the homestead from forced sale.</p> <p>Judgment for Moore & Ownby enforcing the lien.</p>

Tried below before the Hon. R. R. Gaines. Suit in trespass to try title, brought by appellants Wallace & Co. against appellees, on the 6th day of February, 1874, for the recovery of one hundred and sixty acres of land in Lamar county, which was deeded to S. B. Maxey, trustee, for J. K. P. Campbell, January 30, 1872, by H. R. Ryan.

Tried below before the Hon. R. R. Gaines. The material facts in this case, as disclosed by the record, may be thus briefly stated: In the spring of 1851, appellee Slaughter, plaintiff below, and one J. S. Noble, then resident citizens of Sabine county, entered into a contract, whether in writing or not does not appear, by which Noble was to locate the headright certificate of Slaughter for one-third of a league of land, in consideration of which Noble was to receive…

Tried below before the Hon. Joseph Bledsoe. Suit in trespass to try title, brought by the appellant, F. B. Cameron, against appellee, Amelia Romele, on the 17th day of April, A. D. 1878.

Wise. Tried below before the Hon. J. M. Lindsey. Suit brought in the district court of Wise county, November 11, 1874, by appellees, Ashbell & Simpson, against the appellant, H. C. Ferguson, to recover a balance of $171.40, alleged to be due on an open account for work done and materials furnished by appellees as mechanics, in the erection of a dwelling house for appellant, upon twenty acres of land, and to foreclose their mechanic’s lien on the house and land.

<p>1. Practice—Pleading.—The plaintiff moved to strike out defendant's special exceptions, embraced in his third amended answer to plaintiff's original petition, on the ground that they were not filed in due order of pleading, and were filed after plea to the merits. The motion was sustained. On appeal, held, that since the previous answers were not contained in the record, this court could not determine whether they were answers of law, which might be amended before plea to the merits, or answers of fact, which would preclude subsequent exceptions, and the presumption would therefore control in favor of the correctness of the judgment of the district court.</p> <p>2. Report of auditor.— An auditor’s report, with reference to matters not properly arising under the pleadings of the parties, should to that extent be excluded from the consideration of the jury.</p> <p>3. Settlement of accounts—Presumption.—The presumption is that a settlement of accounts embraced all prior transactions between the parties except when it is sought to be set aside under appropriate allegations of fraud, accident or mistake.</p> <p>4. Practice—Auditor’s report.— On the coming in of an auditor’s report, the defendant, gave plaintiff notice to the effect that he would, on the trial, offer evidence to attack and defeat so many items of the report as were allowed in favor of plaintiff, and so much of the same as disallowed certain items claimed by defendants, specifying their several amounts. Reid, that the notice should, on exceptions, have been held defective as being too general in its terms.</p> <p>5. Charge of court—Practice.—It is the duty of the court, in the charge to the jury, to evolve from the pleading the true issues arising thereon, and to submit the same to the jury, instead of leaving them to decide for themselves, from the legal effect of the pleadings, what those issues are.</p>

Tried below before the Hon. W. A. Blackburn. Suit in trespass to try title to six hundred and forty acres of land in Williamson county. The suit was brought June 25, 1878, by William Weiss and Lou E. Weiss, his wife, against William G. McDaniel, his wife Susan A. McDaniel, and J. W. McDaniel. There was no service had on J. W. McDaniel, and the suit as to him was dismissed.

Tried below before the Hon. Geo. H. Noonan. Suit by Marx & Kempner on January 1, 1879, for debt against J. Abramson, appellee. Plaintiff gave bond, and an attachment was issued on a petition which alleged “ that there is justly due and owing unto Marx & Kempner, on said promissory notes, at least the sum of $1,717.78. Some of said notes are due and some are not.” There was no separate affidavit, but the allegations of the petition were sworn to.

Tried below before the Hon. E. B. Turner. Suit by commission merchants Moody & Jemison, against John Eagle, to recover a balance of $2,079.45 alleged to be due them for moneys advanced upon cotton shipments by him to them during the cotton season of 1876-77.

Error from Bexar. Tried below before the Hon. George H. Noonan. Suit by appellees Brownson & Co. upon a promissory note made by Wm. P. Graves, Louisa Graves, R. L. Graves, E. G. Graves and Sam.

Tried below before the Hon. E. B. Turner. Suit brought August 17, 1875, by appellee Zimpelman and W. W. Briggs, in trespass to try title against the appellees, Bobb & Taylor, for 1,712|- acres of the William Lewis, Sr., league and labor of land, in Travis county. Afterwards, during the pendency of this suit, Briggs died; and his wife, who had administered on his estate in Texas, made herself a party plaintiff.

Tried below before the Hon. E. B. Turner. The nature and result of the suit below is stated in the opinion. Plaintiff assigned errors as follows, viz.: 1. The court erred in not rendering judgment for plaintiff and perpetuating the injunction. 2. In rendering judgment for defendant dissolving the injunction. 3. The judgment is against the law and the evidence. Title and possession of the property was admitted to be in plaintiff.

Tried below before the Hon. E. B. Turner. The character of the suit and issues of law involved are apparent from the petition.

Tried below before the Hon. L. C. Alexander. Action of trespass to try title, brought by appellants Balie Peyton et al. against Henry Barton, appellee, and a number of other defendants. Henry Barton set up title in himself in severalty to a part of the land in controversy, and pleaded statute of limitation of three, five and ten years.

Error from Ellis. Tried below before the Hon. Geo. N. Aldridge.

<p>1. Service of process — Statutes construed.— In a suit against a railway corporation, service of process was made in August, 1874, under the provisions of the act of February 7, 1854 (Pasch. Dig., art. 4888), “by leaving with the within named defendant, the H. & T. C. R. R. Co., at their chief office in Houston,’’ a true copy of the citation and the accompanying certified copy of plaintiff's petition. On the proposition that a motion to quash the service should have prevailed, held —</p> <p>1. The second section of the act of March 21, 1874, entitled “An act to fix the venue in certain cases,” and the second section of the act of April 17, 1874, entitled “An act to confer jurisdiction in certain cases,” did not repeal by implication the provisions of art. 4888, Pasch. Dig., but were intended to be cumulative.</p> <p>2. The motion to quash was properly overruled.</p> <p>2. Evidence—Damages—Injury from malice of a fellow servant. In a suit for damages for personal injuries, brought by a brakeman against a railway company, in which the unskilfulness and incompetency of the engineer were charged as causes of the injury, the court admitted in evidence the declarations of the engineer to the plaintiff, to the effect that he would as soon run over him as not. Held —</p> <p>1. The evidence was admissible, as a circumstance showing the want of care on the part of the company in the selection of him as its engineer, but it should have been so restricted by appropriate instructions to the jury.</p> <p>2. The personal malice indicated by the declaration, if the cause of the injury, would not render the company liable for actual damages thus inflicted on a fellow servant, and the jury should have been so instructed.</p> <p>3. Measure of damages.— In a suit for damages by an employe of a railway company for injuries sustained, which permanently disabled him, the jury were instructed that, if they found for plaintiff, to find no greater sum than a sum which, put at interest, would produce annually a sum equal to the difference between what plaintiff could earn before his injury, and what his ability would be restricted to earning, in consequence of the injury. Held, error.</p> <p>4. Negligence.— If a railway company is not guilty of negligence in the selection of an engineer, it is not liable to his fellow servant for injuries resulting to such fellow servant from the want of proper care on the part of the engineer.</p>

Tried below before the Hon. A. J. Hood. Suit was instituted August 19, 1879, and this, as finally tried, was by P. F. Brennan and sundry other citizens of the city of Weatherford, in the county of Parker, as plaintiffs, against that city, and H. N. Bradshaw as its assessor and collector of taxes. Judgment below was rendered, sustaining general and special demurrers to the petition, from which this appeal is taken. The material allegations in the petition are: 1.

<p>Appeal from. Medina. Tried below before the Hon. Thos. M. Paschal.</p> <p>The opinion states the case.</p>

Tried below before the Hon. J. P. Richardson. Suit brought by B. M. Odum, appellee, against appellant, on January 25, 1873, to recover damages sustained by him as the owner of lots in the city of Austin, in consequence of the appropriation and occupancy of Pine street, in front of his premises, by appellant, for the purpose of building and operating its railroad.

<p>1. Constitutional law — Eminent domain — Private property taken for public use.— Section 130 of the act of March 15, 1875,-provides in effect that any city that may adopt that act as its charter, desiring to appropriate the land of an individual within its corporate limits for the purpose of a street, in case it cannot agree with the owner upon the price of the land to be taken, may appoint three disinterested freeholders of said city to assess the damages which the land owner may sustain on account of such appropriation, who shall meet, and, after being duly sworn to make a just and true appraisement, and after hearing the parties, shall estimate the damages which the land owner will sustain by reason of such appropriation, and report to the mayor and aldermen of the city, who may adopt or reject the same. No appeal was given from their decision. Held—</p> <p>1. Though the interests of individual members of the corporation selected to estimate the damages might be so remote as not to disqualify them to act when properly appointed, yet they should be selected under a rule which would be fair and impartial alike to both parties. Neither party should have the exclusive right to select the appraisers.</p> <p>2. Though in taking private property for public use, the party whose property is taken is not entitled, as a matter of right, to a trial by jury, unless the right be given in express terms bylaw; yet the proceeding is judicial in its character, and should be before an impartial tribunal, under the rights and privileges which attend judicial investigations.</p> <p>3. The section is unconstitutional.</p>

Tried below before the Hon. J. P. Richardson. John O. Ford brought this suit March 11, 1875, against appellant, alleging that appellant is a common carrier, whose legal residence is in Harris county, and who has an agent in Travis county; that on March 14, 1874, plaintiff was a passenger of defendant, having paid his fare to Waco; that when less than ten miles from Houston, defendant illegally ejected plaintiff from its cars, and refused to carry plaintiff any further, and…

Tried below before the Hon. E. B. Turner. Judgment was rendered at the spring term, 1878, of the district court of Williamson county, in favor of M. D. Miller and against Negbaur & Robins, defendants, for the sum of $1,382.93, and against David Freeman, the appellant, as garnishee for a like sum. Freeman sued out injunction to stay execution on the judgment, and prayed for a new trial.

Tried below before the Hon. D. M. Prendergast. Suit in trespass to try title, brought by Adaline Strong, widow of Charles Strong, who died in the year 1870, devising to his wife all of his Texas lands. She alleged seizin and ouster by appellants, and also five years’ peaceable possession, etc. Appellants plead not guilty and the three and five years’ statutes of limitation.

Error from Limestone. Tried, below before the Hon. D. M. Prendergast. Suit by Wm.

Tried below before the Hon. E. B. Turner. The case is stated in the opinion. Separate briefs were filed on the motion to dismiss, accompanied with ably written arguments by several of the counsel. The questions raised on the motion to dismiss being discussed in the final opinion, the propositions of counsel on the motion and on the final hearing have been consolidated for convenience, instead of being published, as written, in separate briefs.

Tried below before the Hon. E. B. Turner. Samuel D. Wheat, as the administrator of Samuel Wheat, Sr., filed his suit in the district court of Bell county, August 20, 1873, against William Potter, alleging that Wheat, Sr., sold and conveyed to Potter a certain tract of land, on the 19th of September, 1864, the metes and bounds of which were set forth in the petition; that as the consideration, Potter executed an instrument in writing to Wheat, by which he agreed with Wheat to…

Tried below before the Hon. L. W. Moore. Suit by Robert H. Bunton, in trespass to try title to 452 acres of land out of the F. Castillo 1,240 acres surveyed in Caldwell county; the land described in his petition and claimed by him reaching to and being bounded on the northeast by the northeast line of the Castillo survey, which is identical with the southwest line of the Gideon Pace league, which line is also identical in part with the northeast line of the Pablo Martinez…

Tried below before the Hon. Spencer Ford. Suit brought by B. M. Johnson, guardian of W. M. Wilcox, a minor heir of C. G. Wilcox, deceased, against W. M. Wilcox, administrator of the estate of C. G. Wilcox. W. M. Wilcox was appointed and qualified as administrator of this estate, by the county court of Milam county, Texas, on the 30th day of March, 1868.

Tried below before the Hon. D. M. Prendergast. M. E. McLaren, defendant in error, brought suit in the district court for Bosque county against W. E. Rogers, Christian Cook, George Minicks, J. M. Hancock and Hawk.

<p>1. Statutes construed—Clerk’s costs.—Subsequent to the adoption of the Code of Procedure, and on the 22d of April, 1879, the legislature passed “An act to amend chapter two of title fifteen, and chapter one of title sixteen, in the Code of Criminal Procedure, of an act entitled an act to adopt and establish a Penal Code, and a Code of Criminal Procedure, for the state of Texas,” in which it is provided as follows: “The district or county attorney shall be entitled to ten per cent, on all fines, forfeitures or money collected for the state or county, upon judgments recovered by him, and the clerk of the court in which such judgments are rendered shall be entitled to five per cent, of the amount of said judgments, to be paid out of the money when collected.” Held,</p> <p>1. If the power of the legislature thus to pass the amendment should be conceded, the act, considered with reference to its caption, did not provide for fees of the clerk in civil causes.</p> <p>2. The phrase in the act, “judgments recovered,” applies appropriately to judgments in scire facias cases, as forfeited bail bonds and recognizances.</p> <p>3. The fees of clerks in civil causes were already fully provided for, and there is nothing in the act to indicate the legislative intention to make it cumulative.</p>

Tried below before the Hon. George H. Aldridge. Suit brought by J. L. Grissom to recover an undivided one-half of the land described in his petition, claiming the same as heir of and purchaser from the other heirs of Moses S. Grissom, deceased. The defendant, Ira Green, answered by general demurrer and plea of not guilty. Green claimed title under a deed from Rebecca Grissom, the surviving wife of Moses S. Grissom, deceased.

Error from Wise. Tried below before the Hon. A. J. Hood. G. B. Pickett brought suit against J. W. Booth, G. P. Jones and L. A. F. Jones, in the district court of Wise county, to revive a judgment by scire facias against them. He alleged that on the 16th day of April, 1875, he recovered a judgment against them for $656.26, and attached a copy thereof to his petition, referring to the same.

Error from Dallas. Tried below before the Hon. Zemri Hunt. Suit brought by E. P. Bryan and others on the 21st day of May, A. D. 1874, in trespass to try title, against defendants in error, to recover possession of a league and labor of land, situated in the. county of Dallas, setting out the boundary thereof, and claiming title to and possession of the same on the-day of--, A. D. 1871.

Error from Tarrant. Tried below before the Hon. J. A. Carroll. Samuel Evans and W. A. Huffman, the defendants in error, on the 12th day of March, 1878, filed in the district court of Tarrant county a petition for the revival of a dormant judgment rendered in that court in their favor against A. Fitzgerald, plaintiff in error, on the 15th day of March, 1876, for a sum of money specified in that judgment.

Tried below before the Hon. H. Barksdale. The character of the suit is stated in the opinion. The plaintiffs read in evidence certified copies from the general land office of the following documents: First. Of duplicate bounty warrant certificate No. 313, issued to Peter Rouche by W. S. Hotchkiss, commissioner of claims, February 24, 1860, for 1,280 acres of land, with indorsements thereon. Second.

Tried below before the Hon. Zimri Hunt. Hendricks & Smith brought this suit on the 11th day of December, 1875, in trespass to try title, against appellants, to recover possession of the Peter Rouche 415 acres survey of land, situated in Ellis county, and claiming title to the same, on the 1st day of November, 1875, when defendants entered and dispossessed them, and continue to withhold it from them. The appellants presented two issues: First. Plea of not guilty. Second.

<p>Appeal from Travis. Tried below before the Hon. E. B. Turner.</p> <p>One J. McGowen died on the 11th day of March, 1877, in the city of Austin. George B. Zimpelman was appointed, first, temporary administrator, on the 21st of March, 1877, and at the June term of the county court, 1877, was appointed permanent administrator of his estate, and had proceeded to the discharge of the duties of his appointment.</p> <p>■ On the 2d of October, 1878, more than eighteen months after the death of McGowen, appellant Mary McGowen filed her petition in the district court of Travis county, alleging that she was, on 21st day of March, 1877 (the date of the appointment of appellee as temporary administrator), the surviving wife of John McGowen, and in her own right, and as ¿nly heir-at-law, the owner of the property mentioned in her petition.</p> <p>October 17, 1879, appellant, by attorney, filed a first supplemental petition; and on the same day appellee filed an answer in the nature of a plea to the jurisdiction of the court, and general answer; alleging at the date of the death of J. McGowen he had no permanent home or residence; that he did not keep house, but boarded from place to place as inclination or convenience suggested; that at the time of his death he was in, possession of personal property which was wasting and perishable in its kind; that by his death that property was left without any one having charge or care of the same; that appellee accepted an appointment as temporary administrator, by the county judge of Travis county, and took charge and possession of the property; that due notice was given as required by law, after which he was appointed administrator and had proceeded in the administration of the property under the orders, supervision and direction of the probate court of Travis county; that the administration was still open; and that if the appellant was ever the wife of J. McGowen, which was not admitted, as appellee had no personal knowledge on that subject, she had abandoned him, and lived separate and apart from him, and had not performed the duties of a wife for more than four years next before his death.</p> <p>Appellant excepted to this plea and answer. Exceptions overruled by the court, and the case was submitted on the facts as stated in the plea of the appellee. Plea sustained and cause dismissed.</p>

Error from Guadalupe. Tried below before the Hon. Everett Lewis. Held: and that the remainder be on time to mature when the original purchase money notes become due. There is no statement of facts. E. H. Patterson alone prosecuted a writ of error, and assigned the following errors: “1.

<p>1. Citation—Practice.— Service was made upon several defendants who were made parties by supplemental petition, under citations which described the copies of the petition which the sheriff was commanded to serve, as being against the original defendant and those made defendants by the supplemental petition. The return of the sheriff showed that the defendants were served with the accompanying certified copies of petition, but did not show in terms that each defendant was served with a copy of the original and supplemental petitions. Ho motion to quash service, or other objection, was made in the court below. Held —</p> <p>1. That in support of the judgment, in view of the case presented by the record, it will be presumed that defendants were properly cited.</p> <p>2. Dismissing as to dependants not served. — See statement of case for facts, under which it was held that the judgment was not affected by an order dismissing the suit as to parties not served.</p> <p>3. Parties—Practice.—Whether the fact that the institution of a suit by husband and wife, for the recovery of community property, would be erroneous or not, when no injury thereby is shown by a defendant against whom they recovered judgment, it will not be sufficient to authorize a reversal when the question is raised for the first time in the supreme court.</p> <p>4. Same. — A judgment recovered in such a suit would be binding on the husband.</p> <p>5. Description. — See statement of case for description of a tract of land as set forth in a petition to foreclose a vendor’s lien thereon, held sufficiently certain.</p>

Tried below before D. E. Barnett, Esq., special judge. Suit by S. E. Doss, begun. August 24, 1874, against W. T. Robinson et al., in which he alleged the ownership of land certificates and surveys thereunder; that the defendants had entered upon and ejected him from the land, claiming the same under a patent to a league and labor granted to Philip A. Sublett, assignee of John Barnett.

<p>Appeal from Harris. Tried below before the Hon. James Masterson.</p> <p>Suit brought by Louisa McDonald, whose petition contained the following allegations of fact, substantially:</p> <p>1. That the Buffalo Bayou, Brazos & Colorado Railway was, prior to the 11th day of June, 1868, indebted to the estate which appellee represents.</p> <p>2. That the company, its road-bed, track, franchises and chartered powers and privileges, were sold in July, 1868, under an execution, and in July, 1870, under deed of trust.</p> <p>3. That on the 2d of December, 1870, appellee obtained judgment on said indebtedness in the district court of Harris county, Texas, against the trustees of the creditors and stockholders of the sold out Buffalo Bayou, Brazos & Colorado Railway in their capacity as such.</p> <p>4. That execution issued within a year on that judgment, and was returned no property found to satisfy the same, and that there is no property subject to levy and sale under execution to satisfy the judgment.</p> <p>5. That the defendant, Galveston, Harrisburg & San Antonio Railway Company, holds the legal title to certain lands in Harris county, wherein said trustees, in their capacity as such, have an interest of one-half, and that the company is indebted to said trustees in their trust capacity, under an agreement in a trust conveyance executed by the Buffalo Bayou, Brazos & Colorado Railway Company on the 11th day of June, 1868, which agreement was attached to plaintiff’s pleadings and made a part thereof.</p> <p>6. That her judgment is a lien on the land; and that the land is in law and equity liable to the payment of the judgment, and prays that said land be subjected and sold to the payment of said judgment, and that the indebtedness of the Galveston, Harrisburg & San Antonio Railway Company be also subjected to the payment of her judgment, and for general relief, etc.</p> <p>The trustees of the sold out company were also made parties defendant.</p> <p>The defendants answered separately by general demurrer and general denial and made no other defense.</p> <p>The court overruled the general demurrer, and on the trial the defendant, appellant, admitted that there was due from it, under the agreement of the 11th of June, 1868, to the trustees of the creditors and stockholders of the sold out company, an amount equal to the principal and interest of plaintiff’s judgment sued on in this suit. There was a verdict for plaintiff, and judgment that plaintiff recover of appellant and the trustees, in their capacity as such, $10,976.45 —the amount of judgment and interest; that said judgment was a lien on one-half of the described property in plaintiff’s pleadings, that an order of sale issue to sell the same, and that execution issue against appellant for any unpaid balance.</p> <p>Appellant filed a motion for a new trial:</p> <p>1. Because the court erred in overruling the demurrer of defendant.</p> <p>2. Because verdict and judgment are contrary to the law and the evidence.</p> <p>This motion was overruled by the court.</p> <p>The errors assigned were as follows:</p> <p>■ 1. Because the court erred in overruling the demurrer of defendant..</p> <p>2. The verdict and judgment are contrary to the law and the evidence; because both upon the petition and the evidence it appears that the plaintiff has no cause of action against defendant, and the court should have dismissed the same at plaintiff’s cost.</p> <p>3. The court erred in overruling defendant’s motion for a new trial.</p>

Error from Presidio. Tried below before the Hon. Allen Blacker. The appellant rendered 358 sections of land in Presidio county, in May, 1878, for state and county taxes of that year, to the then tax assessor of said county, at the valuation of §35,800, which rendering and assessment, the appellant alleged in an application for injunction, were made in conformity with law regulating the rendering of lands by the owner for taxes.

Tried below before the Hon. Geo. H. Noonan. Suit by J. M. Brownson, a banker, of Victoria, Texas, against J. S. Lockwood & Manning, bankers, of San Antonio, Texas, to recover the amount of a draft drawn by H. E. Drum & Bro. on J. S. Lockwood & Manning, the appellants, in favor of J. M. Brownson, the appellee. On the 29th day of April, 1875, J. S. Lockwood & Manning wrote the following letter to H. E. Drum & Bro., viz.: San Antonio, Texas, April 29, 1875. Messrs.

Tried below before the Hon. X. B. Saunders. The following agreed case was filed in this cause: Appellee James M. Anderson was plaintiff below, and instituted this suit to recover possession of the lot of land in controversy, alleging that A. M. Veal, on the 21st day of May, 1861, filed his petition in the district court of McLennan county, state of Texas, on three promissory notes, executed by William W. Williamson to said Veal, and made William W. Williamson and his son…

Tried below before the Hon. D. M. Prendergast. The appellee, Mrs. R. J. Roland, brought this suit against the appellant, F. W. Carter, in the district court of Bosque county, on the 21st day of May, A. D. 1875, to recover a one-half interest in and to one two-flue boiler, one thirty-six inch Coleman corn mill, one thirty-inch breast post flour mill, and one flour belt, together with all the fixtures and appurtenances thereunto belonging, situated in the town of Iredell,…

Error from Lamar. Tried below before the Hon. R. R. Gaines. Suit brought by plaintiffs in error May 17, 1875, against Jasper Grain, Silas Grain, J. C. Schenck, W. B. Wright and H. D. McDonald, to cancel a note executed by plaintiffs December 10, 1874, to Jasper Grain and Silas Grain, or order, for $787.50, due December 25, 1875, drawing ten per cent, interest from date; which note plaintiffs alleged was procured by fraud, and the consideration had wholly failed, because the…

Tried below before the Hon. L. C. Alexander. The opinion: sufficiently states the case, with reference to the point decided.

Tried below before the Hon. R. R. Gaines. The character of the suit is apparent from the opinion. The court charged that the evidence introduced by defendant did not sustain the plea of usury, and refused to charge that if the jury found upon calculation that the amount stipulated for in the note, by way of interest, amounts to more than twelve per cent, per annum upon the sum actually borrowed, then the same would be usurious.

Tried below before the Hon. L. C. Alexander. Kaufman & Runge brought suit on the 8th of August, 1878, in debt on an open account against B. Alexander & Bro. to recover the sum of §2,693.76, alleged to be due them from defendants as agents of plaintiffs, for bagging, twine and grip cotton ties, shipped and consigned to defendants, to be by them sold on commission for plaintiffs, pursuant to a contract whereby plaintiffs had obligated themselves to ship such goods for sale…

Tried below before the Hon. I. B. McFarlane. Suit by appellant Bassett for an undivided half interest in a lot in the city of Brenham, to recover damages and for partition. The cause was submitted to the court below as an agreed case, stipulating that the judgment should be for the plaintiff or defendants, according as the court should hold the law to be for the one or the other.

Tried below before the Hon. John C. Robertson. On tho 18th of February, 1879, A. A. Copeland, as the assignee of M. C. Chiles, filed a suit in the district court of Smith county, Texas, against J. W. Eicks and J. C. Moore, for the value of goods to the amount of $1,165, for the interest thereon from the 2d day of January, 1879, and for $3,000 damages.

Tried below before the Hon. John C. Robertson. Suit December 16, 1878, by Henry Gillum, for the use of Richard Lloyd, on two promissory notes dated November 1, 1875, given by him in partitioning the Jose Maria league and labor of land between himself, Richard Lloyd, Henry Gillum and others named in the agreement of partition, and to foreclose the vendor’s lien arising out of and created by the agreement of partition on the portion of land partitioned in said agreement to J.…

Tried below before the Hon. Peyton F. Edwards. Suit brought March 21,1879, by appellee, as plaintiff in the district court, against the appellant and W. P. Savage, to foreclose a lien on a tract of land conveyed by W. S. Coker and others to W. P. Savage, and conveyed by him to his wife, the appellant.

Tried below before the Hon. R. S. Walker. Suit by Mary E. Dismukes, wife of George Dismukes, alleging that her husband refused to join her, brought October 13, 1877, against the appellant and her husband, in trespass to try title, to recover one thousand eight hundred and ninety-one acres of the Barnett league, and six hundred and six acres of the Adams league, claiming it as separate property.

<p>Appeal from Cherokee. Tried below before the Hon. Peyton F. Edwards.</p> <p>The character of the case is apparent from the opinion.</p>

<p>Error from Marion. Tried below before the Hon. B. T. Estes.</p>

Tried below before the Hon. John C. Robertson. Suit by the Texas Land Company against T. J. Turman to quiet title, and for possession of a house and lot described in plaintiff’s petition, and to enjoin and restrain T. J. Turman and Dallas Lankford, a justice of the peace, from issuing or having issued any writ of restitution for the premises under a judgment before him, rendered on the 18th day of February, 1879, in favor of Turman and against Catharine Wilson.

Tried below before the Hon. Green J. Clark. A number of propositions were argued by counsel not necessary in view of the opinion to notice, nor would a full statement of the case make the opinion clearer.

<p>1. Homestead—Forced sale.—No forced sale of the homestead can be made, since the adoption of the constitution of 1876, for work done and material furnished in constructing improvements on it, unless the contract therefor is in writing, and the consent of the wife given thereto, under the same formalities required in making a conveyance of the homestead.</p> <p>2. Designation of homestead.—The ordinary mode of designating a homestead is by occupancy. The necessity of legislation on this subject suggested.</p> <p>3. Homestead.—To impress the character of a homestead upon property where there has been no previous occupancy, there should at least be a present bona fide intention to dedicate it as a heme, coupled with such acts of preparation and subsequent early use as a homestead as would reasonably amount to notice of dedication, and thus prevent that from being used as an instrument of fraud which was designed as a shield of protection.</p>

Tried below before the Hon. A. J. Booty. Suit in trespass to try title. A statement of the evidence which was held insufficient to Warrant the verdict and judgment in this case would not make more clear the legal principles announced, and the conclusion necessary to sustain the judgment, which the evidence failed to establish, is apparent from the opinion itself. Appellee claimed under one Pearce, acting as agent, but without authority to convey title.

<p>1. Limitation—Bankruptcy.— The statute of limitations ceased to run against a claim provable in bankruptcy when it was offered for proof, if not when the adjudication in bankruptcy was had; and so long as the right to prove continued, the right to amend a defective proof existed.</p> <p>2. Bankruptcy—Limitation.—Proof of debt in bankruptcy is analogous to the institution of a suit upon the claim, the proceedings in which, though so defective that they may be subject to demurrer, will nevertheless stop the running of the statute of limitations.</p> <p>8. Limitation.— Proof of a debt secured by mortgage, though formal, was defective in a bankrupt court, when it was offered for proof before limitation had run against it. No objection was made to the sufficiency of the proof. The claim was withdrawn by the permission of the court, and with the approval, consent and express agreement of the debtor, that the lien might be enforced in a state court. Held —</p> <p>1. The defective proof of debt in the bankrupt court stopped the running of the statute of limitations.</p> <p>2. The agreement, to which the bankrupt was a party, to withdraw the claim and prosecute it in a state court, and the attempt under it to collect the debt, could not result in subjecting the claim to the bar of limitation.</p>