cannot be presumed that plaintiff did not plead
an assignment of the account to him from his
dissolved firm.-Davis v. Sorrenson (Tex. Civ.
App.) 209.
cannot be considered.-Gulf, C. & S. F. Ry.
Co. v. Pendery (Tex. Civ. App.) 213.
Where several assignments of errors are
stated together with one proposition under all,
Question whether an answer on appeal from and other statements to support the several as-
a justice court, pleading certain facts as an off-signments separately stated in one part of de-
set, set up a different defense from that plead- fendant's brief, such part will be disregarded.
ed in the justice court. - Snelling v. Koerner-Hearn v. Bitterman (Tex. Civ. App.) 158.
(Tex. Civ. App.) 887.
for want of an appeal bond, evidence that the
On motion to dismiss an appeal by a city
city had reorganized, and that no bond was re-
quired in such case under Rev. St. art. 499, is
admissible.-City of Victoria v. Jessel (Tex. Civ.
App.) 159.
An action may be maintained on an appeal
bond conditioned that appellant shall "pros-
ecute his appeal with effect," where the appel-
lant does not file a transcript within four years
after taking the appeal.-Michael v. Ball (Tex.
Civ. App.) 948.
Though a bond on appeal from a joint judg
ment against two fails to bind one party, it is
good as to the other.-Missouri, K. & T. Ry.
Co. v. Mosty (Tex. Civ. App.) 1057.
Where the judgment is for plaintiff with
costs, errors in his cost bond are not ground for
reversal. Gipson v. Williams (Tex. Civ. App.)
A motion for leave to file a new bond will be
denied where the appeal has been dismissed be
cause of insufficient bond, appellant taking no
notice of the motion therefor, and the time for
submission of the case having passed.-Cowper-
thwaite v. Fulton (Tex. Civ. App.) 588.
Where an appeal bond is insufficient, the
court may refuse to dismiss and give the appel-
lants time to file a new bond.-Riverside Lum-
ber Co. v. Lee (Tex. Civ. App.) 161.
Case in which it was proper to make an ap-
peal bond by one defendant payable to the oth-
er two defendants, who did not appeal, as well
as to plaintiff.-Stafford v. Blum (Tex. Civ.
App.) 12.
Assignment of errors.
An assignment of error accompanied by nei-
ther proposition nor statement will not be con-
sidered on appeal.-Johnson v. White (Tex. Civ.
App.) 174.
Where the instructions are not given, an as-
signment that the court erred in refusing cer-
tain instructions is too general.-Sanger v. Noo-
nan (Tex. Civ. App.) 1056.
Assignments of error must be separately pre-
sented in the brief.-Houston & T. C. Ry. Co.
v. Guisar (Tex. Civ. App.) 1045.
Where a ruling as to the effect of certain ev-
idence has not been assigned as a ground for
new trial, the sufficiency of such evidence to sus-
tain the judgment will not be considered on
appeal.-International & G. N. R. Co. v. Doug-
las (Tex. Civ. App.) 793.
An assignment of error based on the overrul-
ing of a motion for a new trial should state
which of the several grounds of the motion is
referred to.-City of Bonham v. Crider (Tex.
Civ. App.) 419.
When an assignment of error that the judg-
ment is against the weight of the evidence is
Creek more (Tex. Civ. App.) 148.
not presented by a motion for a new trial, it
will not be considered on appeal.-Daniels v.
A statement of facts filed after adjournment
of court, without any order therefor, is no part
of the record.-Marsalis v. Garrison (Tex. Civ.
App.) 929.
filed in time, the parties supposing it was in
Question whether a bill of exceptions was
time, but it being after the time allowed.-
Fulkerson v. Murdock (Mo.) 555.
ground on which an objection to evidence was
Where the bill of exceptions fails to show the
sustained, its exclusion cannot be reviewed.-
Ware v. Shafer (Tex. Civ. App.) 764.
An objection to testimony will not be consid-
ered where the testimony is not set forth in a
statement of facts.-Galveston, H. & S. A. Ry.
Co. v. Knippa (Tex. Civ. App.) 730.
Findings of facts cannot be reviewed when
part of the evidence is omitted from the record.
-Wentzville Tobacco Co. v. Walker (Mo.) 639.
Assignments of error to the exclusion of evi-
dence cannot be considered where no bills of
exceptions were reserved.-Durham v. Atwell
(Tex. Civ. App.) 316.
Where the statement of facts is not signed
by the judge, sufficiency of the evidence can-
not be reviewed. City of Victoria v. Jessel
(Tex. Civ. App.) 159.
An agreed statement of facts approved by the
court will not be stricken out because ques-
tions and answers are inserted to show the
evasive nature of the testimony of witnesses.-
Feist v. Boothe (Tex. Civ. App.) 33.
Briefs.
the court cannot be waived by agreement of
The form of briefs prescribed by the rules of
parties. Galveston, H. & S. A. Ry. Co. v.
Crawford (Tex. Civ. App.) 822; Same v. Nor-
ris, Id.
Case in which a brief was struck, it being
very indistinctly typewritten, and contained
enough matter to fill 20 pages of foolscap.-
Heath v. Hall (Tex. Civ. App.) 160.
An appeal by one of two defendants from a
justice's judgment annuls the judgment ap-
pealed from.-Missouri, K. & T. Ry. Co. v.
Mosty (Tex. Civ. App.) 1057.
An execution may be issued on a judgment
from which an appeal is pending, where the
ground of appeal is that the judgment is not
for a larger amount.-O'Connor v. Henderson
Bridge Co. (Ky.) 983; Henderson Bridge Co. v.
O'Connor, Id.
An assignment that the court erred in overrul- Where, after judgment for plaintiff in eject-
ing exceptions will not be noticed where the rec- ment, defendant sues to set aside such judg-
ord does not show that they were acted on.-ment, an appeal of the latter suit does not bar
Hopson v. Schoelkopf (Tex. Civ. App.) 283. an appeal in the former suit.-Morrison v. Beck-
An assignment that the court erred in not fil-ham (Ky.) 868.
ing conclusions of law and fact as requested will
be disregarded, where bill of exceptions does
not show such request.-Hopson v. Schoelkopf
(Tex. Civ. App.) 283.
An assignment of error not supported by ei-
ther proposition or statement from the record
In an action to rescind a sale of land on the
ground that the vendor had only a life estate,
while he represented that he owned the fee, the
title of the alleged remainder-men will not be
passed on, on the plaintiff's appeal, when they
did not appeal from a finding that the grantor
owned the fee.-Simmang v. Harris (Tex. Civ.
App.) 786.
A case will only be considered on appeal in
the light in which it is presented in the record
and by the briefs.-Durrell v. Farwell (Tex.
Civ. App.) 795.
Where defendant objects to the amendment
of the complaint, he cannot on appeal object to
the failure to amend.-Sanger v. Noonan (Tex.
Civ. App.) 1056.
Binding effect of decision on facts on a former
appeal, the evidence being somewhat different.
-Walker v. Cole (Tex. Civ. App.) 882.
Where a motion for a new trial on the ground
that the verdict was against the law and evi-
dence was granted, a judgment rendered on
such new trial will not be reversed because the
grounds of the motion were too indefinite.-
Louisville & N. R. Co. v. Coniff's Adm'r (Ky.)
865.
A judgment for plaintiff will not be disturbed
because a previous verdict for defendant was set
aside and a new trial granted, unless the grant
of such new trial involves an abuse of discre-
tion.-Louisville & N. R. Co. v. Coniff's Adm'r
(Ky.) 865.
The denial of an application for continuance
because of an amendment in the pleadings will
not be disturbed, in the absence of facts show-
ing that the amendment involved a material
change.-Tittle v. Vanleer (Tex. Civ. App.) 736.
Under Rev. St. 1889, § 2302, failure to ex-
cept to denial of a new trial debars plaintiff
from presenting for review any ruling at the
trial.-Danforth v. Lindell Ry. Co. (Mo.) 715.
Where no exceptions are taken to rulings
sustaining exceptions to the report of the referee,
the ruling cannot be reviewed.-Wentzville To-
bacco Co. v. Walker (Mo.) 639.
A ruling on a motion for new trial cannot be
reviewed where no exception is taken.-Wentz-
ville Tobacco Co. v. Walker (Mo.) 639.
Where, in action to collect a personal tax,
the only evidence introduced was the tax bill,
which was incompetent, the judgment will be
reversed, though no objection was raised be-
low.-State ex rel. Wyatt v. Hoyt (Mo.) 382.
A case will not be reversed on the ground
that at a former trial defendant was allowed a
continuance after plaintiff had put in his evi-
dence.-Daniels v. Creek more (Tex. Civ. App.)
Where the record in a suit for a specific
performance fails to show that defendant's of-
fer was accepted by plaintiff so as to consti-
tute a contract, a decree for defendant will not
be reversed.-Kipp v. Rabb (Tex. Civ. App.)
154.
Error assigned on rulings not disclosed by the
record will not be considered. — Johnson
White (Tex. Civ. App.) 174.
Review Presumptions.
In the absence of a statement of facts it will
be presumed that the amount in question is
within the jurisdiction of the court.-Simmons
v. Rhodes (Tex. Civ. App.) 903.
Where a case is tried without a jury, it will
be presumed that irrevelant testimony was dis-
regarded. Wren v. Kiedel (Tex. Civ. App.)
848.
In the absence of a statement of facts, it will
be presumed that all necessary evidence was be-
fore the court.-Lessing v. Gilbert (Tex. Civ.
App.) 751.
Presumption as to the jurisdiction of the
justice court to which a case was removed
from the district court.-Gibbs v. Petree (Tex.
Civ. App.) 685.
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Where the record recites that evidence was
excluded on a certain ground, it will be pre-
sumed that it was excluded on such ground, un-
less there is something to show another valid
ground for its exclusion.-Openheimer 7. Rob-
inson (Tex. Sup.) 95.
Weight of evidence.
In equity cases the facts are open to review
on appeal.-Likins v. Likins (Mo.) 531.
A case tried by the court will not be reversed
for admission of improper testimony.-Knippa
v. Umlang (Tex. Civ. App.) 915.
Where, in a case tried without a jury, no con-
clusions of fact are filed, if there is evidence to
support any theory that will sustain the judg
ment, it will not be disturbed.-Walker v. Cole
(Tex. Civ. App.) 852.
Findings of fact by the trial court, if sup-
ported by the evidence, or if there is no state-
ment of facts, will not be disturbed.-Smith v.
Anderson (Tex. Civ. App.) 775.
When a case was tried by the court, a judg
ment will not be reversed because incompe-
tent testimony was admitted, if there was com-
petent testimony to sustain it.-San Antonio St.
Ry. Co. v. Muth (Tex. Civ. App.) 752.
On appeal in equity, where the evidence is
conflicting, the court will give great weight to
the findings of the trial judge.-Taylor v. Crock-
ett (Mo.) 620.
Where the evidence is conflicting, an order
granting a new trial will not be reversed.-First
Nat. Bank v. Wood (Mo.) 554.
A judgment will not be reversed because ex-
cessive to the amount of five dollars, where no
objection was raised below.-Simmons v. Rhodes
(Tex. Civ. App.) 903.
Error in rendering judgment against infants
where no defense was made, and no report of
the guardian filed, will not be considered unless
raised below.-Morrison v. Beckham (Ky.) 868.
Where the record shows no action on appel-
lants's exceptions, it will be presumed they
were waived.-Yoakum v. Kroeger (Tex. Civ.
App.) 953.
Where defendant has answered plaintiff's mo-
tion papers, and gone to trial, he cannot, on
appeal, object to the form of procedure.-Nichols
v. Stevens (Mo.) 613.
The objection that there was no proof of the
loss of a deed as a basis for the introduction
of a copy thereof cannot be taken for the
first time on appeal.-Brown v. Oldham (Mo.)
409.
Objection to the manner in which the part-
nership is pleaded cannot be first made on ap-
peal.-Gulf, C. & S. F. Ry. Co. v. Wilbanks
(Tex. Civ. App.) 302.
It cannot be first objected on appeal that
plaintiff should have sued "as" administrator,
instead of simply denominating himself "ad-
ministrator," or that he should have proferred
his letters of administration.-Texarkana Gas
& Electric Light Co. v. Orr (Ark.) 66.
Error is regarded as prejudicial unless af-
firmatively shown to be harmless.-Haynes v.
Town of Trenton (Mo.) 622.
Where on trial to the court improper evi-
dence is admitted, but the judge certifies that
he did not consider it, the judgment will not be
reversed.-Eckford v. Perry (Tex. Civ. App.)
Rendering a judgment for plaintiff for a less
amount than the verdict entitled him to is not
prejudicial to defendant. - Gipson v. Williams
(Tex. Civ. App.) 824.
Error in admitting evidence of an admitted
fact is not prejudicial.-Ware v. Shafer (Tex.
Civ. App.) 764.
The withdrawal of the question of tender of
a sum less than the amount of the judgment
rendered is harmless.-Mills v. Haas (Tex.
Civ. App.) 674.
A ruling denying a motion for an election be-
tween counts is harmless, where plaintiff dis-
misses as to one of the counts.-Gardner v.
Crenshaw (Mo.) 612.
Error in admitting evidence of a fact which
has already been proved by evidence not ob-
jected to is not ground for reversal.-Texas &
P. Ry. Co. v. Gay (Tex. Civ. App.) 742.
Admission of incompetent evidence is not
ground for reversal, where the preponderance
of evidence in support of the verdict is so great
that the incompetent could not have affected
the verdict.-Jackson v. Cable (Tex. Civ. App.)
201.
The erroneous admission of evidence on
trial before a court without
ground for reversal, when the court bases its
a jury is not
decision on facts shown by other evidence.-
Lowdon v. Fisk (Tex. Civ. App.) 180.
Mandate and proceedings below.
with directions to modify the judgment in a
specified manner, the court cannot reopen the
Where a cause is reversed and remanded,
judgment to adjudicate rights accruing pend-
ing appeal.-Young v. Thrasher (Mo.) 326.
event plaintiffs are entitled to a part of their
Where the supreme court decides that in any
claim, the amount of which is undisputed, judg
derson Bridge Co. (Ky.) 251; Henderson Bridge
ment therefor should be entered on return of
Co. v. O'Connor, Id.
the case to the lower court.-O'Connor v. Hen-
An interlocutory ruling will not be reviewed
after the trial.-Marshall v. Spillane (Tex. Civ.
on appeal where a bill of exceptions thereto is
App.) 162.
not filed during the term, and within 10 days
prosecution, the sureties are
Where an appeal is dismissed for want of
(Tex. Civ. App.) 315.
judgment, with interest and costs, though the
liable for the
principal is insolvent.-Clancey V. Johnson
Question whether a judgment of the court
street assessment,
of civil appeals, modifying a judgment of the
amount or of the same nature," so that judg-
trial court in a suit to foreclose the lien of a
was one "for the same
ment could be rendered against appellant and
Sup.) 88.
his sureties. - Connor v. City of Paris (Tex.
rected before costs have attached on appeal,
Where error in writing a judgment is cor-
the costs will be taxed against appellants in
been rendered by default.
(Tex. Civ. App.) 180.
case of affirmance, the judgment not having
Lowdon v. Fisk
tion by reason of residence in another state, and
risdiction waives his immunity from jurisdic-
A defendant's appearance to plead to the ju-
service outside of Texas, and perfects such
762.
service. - Penfield v. Harris (Tex. Civ. App.)
Application of Payments.
In an action for libel, where the complaint
avers that the resulting damage is existing, the
fact that evidence was admitted, without ob-
jection, of damages accruing after the suit was
begun, is not ground for reversal.-Coles v. See "Payment."
Thompson (Tex. Civ. App.) 46.
The supreme court will not render an erro- See "Criminal Law"; "Trial."
neous judgment because errors have not been
assigned.-Connor v. City of Paris (Tex. Sup.)
Where there are no assignments of error,
and no error of law in the record, the judgment
will be affirmed.-Garza v. Sullivan (Tex. Civ.
App.) 1032.
Where the abstract shows that the motion in
arrest of judgment and for new trial was filed
too late, the court will affirm the judgment.-
Cornwell v. Wulff (Mo.) 659.
The court on appeal may determine the
amount of excess in a judgment for personal
injuries, and allow a remittitur.-Nicholds v.
Crystal Plate Glass Co. (Mo.) 516.
Where the damages assessed are excessive,
the court may compel a remittitur as condition
of affirmance.-Burdict v. Missouri Pac. Ry.
Co. (Mo.) 453.
In the absence of a statement of findings of
fact or bills of exception, judgment will be af-
firmed.-Cravens v. Bower (Tex. Civ. App.) 422.
Where an executor, in consideration of a stay
of execution, agrees not to prosecute an appeal,
a subsequent appeal will be dismissed.-Johnson
v. Halley (Tex. Civ. App.) 750.
ASSAULT AND BATTERY.
with whom his son
On the trial of a father for assault on one
fore the fight is immaterial.-Sturdivant v.
words between the son and his antagonist be-
was fighting, evidence of
State (Ark.) 6.
For public improvements, see "Municipal Corpo-
Of taxes, see "Taxation."
rations.'
is void.-Williams v. Ford (Tex. Civ. App.) 723.
An assignment by a public officer of his fees
torney for collection, and to take out fees due
him, it is an equitable valid assignment, valid
Where proofs of debt are placed with an at-
as against subsequent garnishment. - Milmo
Nat. Bank v. Convery (Tex. Civ. App.) 828.
Delivery of a check against a general deposit it is not mentioned therein.-City Nat. Bank ♥.
is not an assignment pro tanto of the fund.- Merchants' Nat. Bank (Tex. Civ. App.) 848.
Akin v. Jones (Tenn.) 669.
Whether an order by a creditor on a debtor's
agent was intended as an assignment, and was
so accepted, is for the jury.-Collins & Arm-
strong Co. v. United States Ins. Co. (Tex. Civ.
App.) 147.
On assignment by a creditor of a part of a
debt by notice to an agent of the debtor, it is
not necessary that the agent agree to it "as
agent."-Collins & Armstrong Co. v. United
States Ins. Co. (Tex. Civ. App.) 147.
ASSIGNMENT FOR BENEFIT
OF CREDITORS.
See, also, "Fraudulent Conveyances."
Question whether several interdependent deeds
of trust, passing title to all a debtor's property
subject to execution, constitute a general as-
signment.-City Nat. Bank v. Merchants' Nat.
Bank (Tex. Civ. App.) 848.
The assent of creditors named in a deed of
trust is necessary before the deed can affect
the rights of other creditors.-Hamilton-Brown
Shoe Co. v. Mayo (Tex. Civ. App.) 781.
The burden of proving that a trust deed is a
general assignment is on the parties claiming it
to be such.-Collins v. Sanger (Tex. Civ. App.)
500.
An instrument conveying property to a trustee
to be sold for the benefit of certain creditors,
and directing the surplus to be returned to the
grantor, is not a general assignment.-Collins v.
Sanger (Tex. Civ. App.) 500.
Question whether creditors of an insolvent
corporation suing to set aside its preferential
deed of trust must have previously recovered
judgment against the corporation.-Lyons-
Thomas Hardware Co. v. Perry Stove Manuf'g
Co. (Tex. Sup.) 100.
Right of one who has joined in an action to
set aside a trust deed and for the appoint-
ment of a receiver to withdraw and prosecute
his original suit against the trustee, to recover
the assets of insolvent corporation.-Lyons-
Thomas Hardware Co. v. Perry Stove Manuf'g
Co. (Tex. Sup.) 100.
Sufficiency of complaint in action against a
preferred creditor to compel him to pay into
court money wrongfully paid him by a trustee
for the benefit of creditors, the facts being_es-
pecially within the creditor's knowledge.-Ly-
ons-Thomas Hardware Co. v. Perry Stove Man-
uf'g Co. (Tex. Sup.) 100.
delivered is not supported by proof that plain-
A complaint for checks and money sold and
tiff agreed to honor defendant's checks and or-
ders, and that the account was shown defend-
ant, and he promised to pay it, leaving the
checks with plaintiff.-Riverside Lumber Co. v.
Lee (Tex. Civ. App.) 161.
Evidence supporting a judgment on an ac-
count for goods sold, defendant having made
part payments thereon without objection. —
Wren v. Kiedel (Tex. Civ. App.) 848.
Assumption of Risks.
Bill of sale and pledge of certain property by
an insolvent considered, and held not to consti- See "Master and Servant."
tute an assignment.-Wood v. Adler-Goldman
Commission Co. (Ark.) 490.
The statutory provision that a deed of assign-
ment for the benefit of creditors shall be ac-
knowledged is directory merely.-Tittle v. Van-
leer (Tex. Civ. App.) 736.
A general assignment by a firm is not invalid
for failure to convey the individual property of
the members, if in fact they have none.-Ham-
ilton-Brown Shoe Co. v. Mayo (Tex. Civ. App.)
781.
A trustee for creditors to whom possession of
the property conveyed is given by the trust deed
may sue to recover the property if attached, or
its value.-Hamilton-Brown Shoe Co. v. Mayo
(Tex. Civ. App.) 781.
Where there are no subscribing witnesses to
an assignment for creditors, the testimony of a
beneficiary therein is admissible to prove its
execution.-Tittle v. Vanleer (Tex. Civ. App.)
See, also, "Execution"; "Exemptions”; “Gar-
nishment."
is subject to the mortgage, it cannot be attached
Though property attached to the homestead
to the mortgage debt.-McNeil v. Moore (Tex.
Civ. App.) 163.
Though title to property attached to the
homestead may remain in the seller until paid
for, it cannot be attached for the claim of any
other creditor.-McNeil v. Moore (Tex. Civ.
App.) 163.
An affidavit that the affiant "has good reason
to believe, and does believe, that the defendant
is not a resident of this state," is sufficient.-
Tufts v. Volkening (Mo.) 522.
The fact that land attached is in another
county, where persons claiming a homestead
Power of court to order one of several pre-ercising jurisdiction over the land and the par-
right live, will not prevent the court from ex-
ferred creditors of a corporation to return mon-
ey received by him under the trust deed creat-
ing the preference.-Lyons-Thomas Hardware
Co. v. Perry Stove Manuf'g Co. (Tex. Sup.)
100.
An attaching creditor is not entitled to a pref-
erence over accepting creditors named in a deed
of trust, though other creditors whose names
come first on the list have not accepted.-Ham-
ilton-Brown Shoe Co. v. Mayo (Tex. Civ. App.)
781.
Admissibility of verified claims offered by an
intervening creditor in a suit by an assignee
against a sheriff for the conversion of proper-
ty assigned.-Tittle v. Vanleer (Tex. Civ. App.)
736.
A lot belonging to the debtor, claimed to be
exempt as a business homestead, if not in fact
exempt, passes by a general assignment, though
ties. Canadian & American Mortgage Trust
Co. v. Kyser (Tex. Civ. App.) 280.
The interest of a person in shares of stock
may be attached, though they stand on the
books in the name of another.-Tufts v. Volken-
ing (Mo.) 522.
An attachment can run into any county in
the state where defendant has property.-
Gibbs v. Petree (Tex. Civ. App.) 685.
An attachment regular when sued out is not
rendered nugatory by a reduction of the de-
mand on which it is based without change
in its character.-Gibbs v. Petree (Tex. Civ.
App.) 685.
Where an application for a receiver of a debt-
or's property is pending in one court, and a tem-
porary injunction has issued to restrain a dis-
position thereof, the property cannot be seized
by attachment issued out of another court.-
City Nat. Bank v. Merchants' Nat. Bank (Tex.
Civ. App.) 848.
A range levy upon partnership cattle for the
debt of one of the partners does not deprive the
other partners of their possession and control.-
Donald v. Carpenter (Tex. Civ. App.) 1053.
Where an attachment is levied upon live stock
running on a range, under Rev. St. art. 2293,
the owner retains control of the stock for the
purpose of attending thereto, and, if he is neg-
ligent in that respect, he cannot hold the officer
or plaintiff in attachment liable. - Donald v.
Carpenter (Tex. Civ. App.) 1053.
Where a grantee under a deed of trust exe-
cuted by an insolvent grantor to secure a debt
enters into possession, attaching creditors can-
not recover the same without paying the debt.
-Compton v. Seley (Tex. Civ. App.) 1077.
An order for the publication of notice to a
nonresident defendant can be made before his
property has been seized.-Tufts v. Volkening
(Mo.) 522.
In an action aided by attachment, plaintiff
may make persons claiming homestead rights
in the land attached parties. - Canadian &
American Mortgage Trust Co. v. Kyser (Tex.
Civ. App.) 280.
Where a person when he places a writ in the
hands of an officer tells him not to serve it
unless some other person gets out an attach-
ment, another writ placed in the officer's hands
before such order is countermanded has pri-
ority.-Florsheim Bros. Dry-Goods Co. v. Geo.
Taylor Commission Co. (Ark.) 79.
Where goods are seized and possession there-
of taken by an attaching creditor, a trustee un-
der a deed of trust subsequently executed can-
not maintain a suit to determine the right of
property. Saunders v. Ireland (Tex. Civ. App.)
$80.
Where no fraud or collusion is alleged, one
claiming property as against an attaching credit-
or cannot question the validity of the debt on
which the attachment is based. - Saunders v.
Ireland (Tex. Civ. App.) 880.
Right of subsequent attaching creditor to ob-
ject that a judgment foreclosing the lien of a
prior attachment was entered by confession be-
fore the return day of the writ.-Meier v. Waco
State Bank (Tex. Civ. App.) 881.
The fact that the court rendered a personal
judgment against a nonresident not served did
not affect so much of the judgment as de-
termined the amount due, and directed a sale
of the attached property.-Barelli v. Wagner
(Tex. Civ. App.) 17.
Where no issue is made as to the value of at-
tached property, in the absence of other testi-
mony, a sheriff's assessment may be regarded
as stating its true value.-Saunders v. Ireland
(Tex. Civ. App.) 880.
Where in an action for wrongful attachment,
defendant pleads as set-off a judgment in the
attachment suit, plaintiff may show it has been
paid.-Imperial Roller Milling Co. v. First Nat.
Bank (Tex. Civ. App.) 49.
Where defendant had attached plaintiff's mill
and certain personalty, plaintiff not having been
deprived of the use of the mill, its value is im-
seizure of the personalty.-Imperial Roller Mill-
material on the question of damages for the
ing Co. v. First Nat. Bank (Tex. Civ. App.1
Argument of counsel, see "Criminal Law."
Award.
See "Arbitration and Award."
Sickness of principal pleaded and proved is a
good defense in an action to forfeit bail bond.
Strey v. State (Tex. Cr. App.) 137.
hands it to the secretary of the corporation to
Where the mortgagee of corporate property
sell for the former's benefit, the secretary is
liable to the mortgagee for the proceeds of sale,
though the corporation owe him for salary.-
Stafford v. Blum (Tex. Civ. App.) 12.
See "Assignment for Benefit of Creditors."
Jurisdiction of state court, see "Courts."
BANKS AND BANKING.
insolvent depositor, whose note it had been com-
Liability of bank to garnishing creditor of an
pelled to pay as indorser.-Rosenberg v. First
Nat. Bank (Tex. Civ. App.) 897.
The payee of a draft sent to a bank for col-
lection, and which is paid by a check of the
bank, which is afterwards dishonored, has no
claim on the assets of the bank as a trust fund.
-Akin v. Jones (Tenn.) 669.
Presumption that when plaintiffs placed in
defendant bank drafts on persons to whom they
themselves, and not to the persons from whom
had sold cotton they were to be credited to
they bought the cotton.-Farmers' & Merchants'
Bank v. Slayden (Tex. Civ. App.) 424.
Evidence on question whether drafts deposit-
Where attachment was sued out by an attored to their own credit, or to that of persons
ed by plaintiffs with defendants were so deposit-
ney, exemplary damages cannot be recovered, from whom they had bought the cotton, of
without proof that the plaintiffs in attachment which the drafts were the proceeds.-Farmers'
knew of the attorney's malice, and ratified his & Merchants' Bank v. Slayden (Tex. Civ. App.)
acts.-Strauss v. Dundon (Tex. Civ. App.) 503.
Attorney's fees are not recoverable as dam-
ages for wrongful attachment.-Strauss v. Dun-
don (Tex. Civ. App.) 503.
Best and Secondary Evidence.
In an action for wrongful attachment,
charge that, in determining whether a levy was
excessive, the value of the property levied on is
not to be considered, is not sufficiently erro- See "Evidence."
neous to require reversal,-Baines v. Jemison
(Tex. Civ. App.) 182.
Where an attachment is unlawful. damages
may be recovered therefor, though there were
grounds for attachment.-McNeil v. Moore
(Tex. Civ. App.) 163.
The venue of the offense is in the county
where the marriage occurs.-Brown v. State
(Tex. Cr. App.) 137.
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