"The ruling of the court in the giving of instructions to the jury shall be regarded as approved unless excepted to, as provided for in the foregoing articles."

[2] The appellant assigns error, criticising an instruction given by the court to the jury; but the presentation of the objection, and the exception to the charge of the court, is not adequately preserved in the record. There are written objections in the record to the general charge of the court, which were evidently called to the attention of the court at some time, but when presented-whether before or after the main charge by the court was delivered to the jury-is not shown. The indorsement of the trial court is:

"Approved and ordered filed as a part of the record of this case."

Although previously decided, this court, in the case of Gulf, Texas & Western Railway Co. v. G. L. Culver, 168 S. W. 514, May 30, 1914, not yet officially reported, took occasion to fully review this same matter. In the case of St. Louis & Southwestern Railway Co. of Texas v. Wadsack, 166 S. W. 43, the Texarkana Court of Civil Appeals presents the same construction.

[3] The appellant also assigns error as to the action of the trial court in submitting to the jury a certain special charge requested by the plaintiff. They object to the particular special charge, for reasons not necessary to enumerate, but the time of the presentation of the objections is likewise not exhibited in this record. We think the ThirtyThird Legislature, in its amendment relating to the time and manner of submitting instructions to the jury, and providing for objections and exceptions thereto, equally intended, with reference to special instructions submitted by a litigant and given to the jury by the trial court, that the opposite party should present objections and preserve exceptions exhibiting the presentation of same before the special charge was read to the jury in the same manner and to the same effect as objections and exceptions to the general charge. The same reasons and the same policy are equally applicable to the presentation of objections to the court before he reads the special charge to the jury as to the presentation of objections to the general charge. The special charge is as much the court's charge, after having been approved, as his general charge, and the error in same, if any, if conceived to exist by opposing counsel, when presented to him for examination and objection in accordance with article 1973, Rev. St., should be pointed out to the trial court in equally the same manner as to the

Appellants assign error:

"That the testimony shows that the only depreciation in the market value of the horses was the sum of $25 to two horses, which were injured."

A careful consideration of this record, regarding the matter exclusively as a jury question, destroys this objection, and the judgment of the trial court is in all things affirmed.

(Nos. 671, 676.) Amarillo.

COLLIER et al. v. SMITH.
(Court of Civil Appeals of Texas.
June 13, 1914. On Motion for Re-
hearing, Oct. 10, 1914.)

1. APPEAL AND ERROR (§ 395*)—PERFECTION— BONDS.

Where appellants, special agents for the commissioner of insurance and banking, were enholders of an insolvent state bank, the fact that joined from realizing upon the liability of stockappellants, who were personally enjoined, filed a personal bond, although, as agents of the commissioner, they could appeal under Rev. St. 1911, art. 2105, without bond, is no ground for dismissal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2058, 2064-2070, 2085, 2086, 3127; Dec. Dig. § 395.*]

2. INJUNCTION (§ 145*)-PROCEEDINGS—AFFIDAVITS SUFFICIENCY.

that no injunction shall be granted unless the Under Rev. St. 1911, art. 4649, providing applicant shall present his petition verified by his affidavit, an affidavit attached to a petition for an injunction reciting that the affiant on oath stated he believed the facts alleged in the petition to be true, is not sufficient, where the grounds of belief were not stated, and the facts alleged were not sworn to in such an unequivocal manner that an indictment for perjury

would lie.

4. APPEAL AND ERROR (§ 100*)-DECISIONS REVIEWABLE-CONSTRUCTION OF ORDERS.

Where the first order granting plaintiff a temporary writ restrained defendants from suing plaintiff or other stockholders of an inliability, an order entered upon motion to dissolvent bank to recover upon their stockholders' solve the temporary injunction which restrained defendants from levying and collecting upon the should appear to the court that such procedure individual liability of stockholders until it was reasonably necessary to discharge the liabilities of the bank is a distinct order, and may be appealed from, even though no appeal will lie from an order denying a motion to dissolve a temporary injunction.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 670-680; Dec. Dig. § 100.*]

from doing alleged unlawful acts. We see no reason why they may not also join in the appeal as individuals. In doing so it certainly would not dismiss the appeal. This ground of the motion is overruled.

[2] The affidavit attached to plaintiff's petition, which petition is in both records, is as follows:

"Before me, the undersigned authority, on this day personally appeared E. L. Smith, who, being by me duly sworn, deposes and states on oath that he believes the facts therein contained

to be true."

Under Revised Civil Statutes 1911, art. 4649, we think this affidavit is insufficient. This article provided that no injunction shall be granted unless the applicant shall present his petition to the judge, verified by his affidavit. The test of an affidavit, as laid down by the Commission of Appeals, is that the affidavit of the facts sworn to be so direct and unequivocal as that an indictment for perjury would lie if the oath is falsely made. Whitemore & Co. v. Wilson, 1 Posey, Unrep. Cas. 213. In 1 Ruling Case Law, p. 770, § 15, it is said:

"An affidavit should always be made by one having actual knowledge of the facts, if possible, and its allegations should be full, certain, and

exact;

*

*

a bare statement of one's belief being absolutely immaterial unless the case is one where an affidavit as to belief only is required."

Page 772, § 18:

"Affidavits upon information and belief should allege facts definitely and also set forth the sources of the affiant's information and the grounds of his belief, to enable the judicial mind to determine whether the belief is well or illy founded. Inasmuch as affidavit upon information and belief cannot supply the place of positive allegation, affidavits of this nature cannot ordinarily be used except when authorized by statute."

In our opinion, the affidavit is wholly insufficient. Smith v. Banks, 152 S. W. 449; Ross v. Veltmann, 161 S. W. 1073.

[3] Since the affidavit is a defect which may be amended, we will not rest the decision of the case upon this assignment.

[4] An analysis of the first order providing for the issuance of the temporary writ exhibits that the defendants, the commissioner of banking and his special agent, were not restrained from levying or assessing the stock of the individual stockholders of the bank, and the proceedings upon the hearing of the motion to dissolve is in reality a first dispensation of that character of relief. The first order for the temporary writ, as stated, restrained the defendants "from suing or bringing suits against this plaintiff and the other stockholders," of the bank. The subsequent order, at the hearing upon the motion to dissolve not only restrained the defendants from levying any assessments on the stock of the individual stockholders of said bank, but also restrained them from collecting any assessments which had been previously levied as a condition to collecting the same. The first order did not enjoin the defendants from

levying the assessments and collecting the same, by personal solicitation or otherwise by said defendants, outside of court. The first order did restrain the defendants "from suing or bringing suits against this plaintiff and the other stockholders of said institution.” But the second order restrained them from "levying and collecting such assess

ment of the individual liability of said stockholders upon their stock "until such time as it may be made to appear to the court that it shall be reasonably necessary to discharge the liabilities of said bank. The operative effect of the last order is to prevent the levy of assessments upon the stock and of collecting any such assessments, except by presentation of appropriate reasons, based upon the necessity of a discharge of the liabilities of said bank, addressed to the judicial determination of the court; in other words, it means that if, in this proceeding, or in any independent proceeding, the commissioner of banking files a petition or other appropriate pleading, making an exhibition of a certain predicate, with reference to the assets and liabilities of the bank, as a prerequisite to the necessity of a discharge of the liabilities of said bank, and the court determines that those reasons are sufficient, the levy, the assessments, and the collection of such assessments may then be made by said officer, and not until then. It is difficult to apply a judicial scalpel and cut in twain that which is new and that which is old, but the granting of the relief in the case in the subsequent order at the hearing upon the motion for dissolution is so changed, in substance and in effect, effectuating such a preponderating influence upon the affairs of the bank, different from that first granted in chambers, upon the application, in the first order of the court, that we are prone to say that this is such a new order, granting, in substance, such different relief, that the statute permitting appeals grants the jurisdiction to this court for the purpose of reviewing this matter. We concede, of course, on account of the phraseology of this statute, as has been often decided, that an appeal will not lie from an order to dissolve a temporary injunction. The operative effect of this order is to constitute a prerequisite showing to the district court, based upon certain grounds, a condition precedent to the right of collecting, or attempting to collect, any money due by said stockholders, which compels the commissioner of banking to go to court, which is a restraint in its injunctive features, commanding and requiring the things to be done, different from any relief theretofore prayed for, so that the substance of the relief and the nature and character of the restraint is new and independent.

In the cause of Baumberger v. Allen, 101 Tex. p. 356, 107 S. W. 526, the Supreme Court of this state, speaking through Justice Brown, inferentially held that, if the continuation of

[5, 6] Upon the merits of this appeal we think the order at the hearing upon the motion to dissolve, granting the relief, is improper for the following reason: Without setting out specific provisions of the national bank act, and detailing analogous provisions of the state act, in regard to state banks, however, upon an inspection of same, we think it was the purpose of the Legislature of this state, to a considerable extent, to follow the trend of the national act, unnecessary to particularize, except to say that section 5234 of the national act (U. S. Comp. St. 1901, p. 3507) provided, among other provisions, that the federal Comptroller (where a national bank is in the hands of a receiver) "may, if necessary to pay the debts of such association (meaning a national bank), enforce the individual liability of the stockholders," and that article 459 of the Acts of the 31st Legislature, 2d Ex. Sess. c. 15, prescribes that "the commissioner may, if necessary to pay the debts of such state bank, enforce the individual liability of the stockholders."

In the case of Kennedy v. Gibson, 75 U. S. (8 Wall.) page 505, 19 L. Ed. bottom page 478, the Supreme Court of the United States said: "It is for the Comptroller to decide when it is necessary to institute proceedings against the stockholders to enforce their personal liability, and whether the whole or a part, and, if only a part, how much, shall be collected. These questions are referred to his judgment and discretion, and his determination is conclusive. The stockholders cannot controvert it. It is not to be questioned in the litigation that may ensue. He may make it at such time as he may deem proper, and upon such data as shall be satisfactory to him. This action (making the assessment) on his part is indispensable, whenever the personal liability of the stockholders is sought to be enforced, and must precede the institution of the suit by the receiver. It would be attended with injurious consequences to forbid action against the stockholders until the precise amount necessary to be collected shall be formally ascertained. This would greatly protract the final settlement, and might be attended with large losses by insolvency and otherwise, in the intervening time. The amount must depend in part upon the solvency of the debtors and the validity of the claims. Time will be consumed in the application of these tests, and the results in many cases cannot be foreseen.

*

A speedy adjustment is necessary to the efficiency and utility of the law; the interest of the creditors require it, and it was the obvious policy and purpose of Congress to give it. If too much be collected, it is provided by the statute that any surplus which may remain after satisfying all demands against the association shall be paid over to the stockholders. It is better they should pay more than may prove to be needed than that the evils of delay should be encountered."

The Supreme Court of the United States has uninterruptedly, without the necessity of citations, adhered to the rule announced in the Kennedy-Gibson Case; and when the Legislature of this state adopted the act of

The orders of the trial court in both cases, 671 and 676, are vacated and set aside, with the further order that the appellee pay all costs of both appeals.

On Motion for Rehearing.

The appellee presents the case of Cheney v. Scharmann, 145 App. Div. 456, 129 N. Y. Supp. p. 994, decided by one of the Supreme Courts of New York, as in conflict with the ruling announced by this court in construing our banking law, as to the power of the commissioner to make and maintain an assessment against the stockholders of a state bank while the bank is in the process of administration and liquidation. The similarity of the New York statute, with the construction of the New York court upon the same, makes the opposition of the two rulings clear cut; but the settled construction of the United States Supreme Court, noted in our main opinion, according to our view, is so much more compatible with a wise public policy as to the administrative features of the law, operating upon a bank in the settlement of its affairs in the hands of the government, that this court has not the slightest hesitancy in refusing to follow the New York court, thereby adopting the principles of the federal Supreme Court as to the meaning, policy, and purpose of the law. If the law is a borrowed law upon the main features affecting the issue involved, the argument in reality should be ended; the construction of the Supreme Court of the United States is a part of the law. As to the power of our banking commissioner, in comparison with the power of the federal Comptroller in charge of a national bank, authorizing him to enforce the additional liability of a stockholder, when necessary to pay the debts of the corporation, the law is identical, and also embraced in a section of our banking act containing other provisions upon other matters, in substance the same as the federal act; and we believe it is indisputable that this act was borrowed from the federal law.

[7] It is also clear that, as to the immedi