corporation court. The appeal bond was sufficient, and the appeal should not have been dismissed. See Thielen v. State (just decided) 65 S. W. 533. The judgment is reversed, and the cause remanded.

CROSBY v. STATE. (Court of Criminal Appeals of Texas. Nov. 27, 1901.) Appeal from district court, Galveston county; A. C. Allen, Judge. C. Crosby was convicted in the corporation court of the city of Galveston of carrying a pistol. From a judgment of the district court dismissing his appeal he appeals. Reversed. Wilford H. Smith, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted in the corporation court of the city of Galveston of carrying a pistol, and prosecuted his ap peal to the criminal district court of Galveston county, where, upon motion, the appeal was dismissed on account of the insufficiency of the appeal bond. The defect claimed to exist is found in the fact that the bond does not give the number of the case. The bond is sufficient in every other way. This same character of bond is held to be good in Thielen v. State (just decided) 65 S. W. 533. The judgment is accordingly reversed, and the cause remanded.

GROCE v. STATE. (Court of Criminal Appeals of Texas. Nov. 27, 1901.) Appeal from district court, Harris county; A. C. Allen, Judge. Will Groce was convicted of murder in the first degree, and appeals. Affirmed. Robt. A. John, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life. In the motion for new trial appellant contends the court erred in failing to instruct the jury covering the condition and darkness of the night and the recognition of a person at that time of night." The record does not contain a statement of facts, and we are unable to say whether this criticism of the failure of the court to so charge is error. It is also asserted in the motion: "There was newly-discovered evidence material to him, while the jury was deliberating on the case.' This is simply a ground of the motion. There is no affidavit filed showing anything in regard to the matter, and not a word of testimony in the record on the question. It is also contended the evidence is insufficient. The statement of facts is not in the transcript. No error appearing in the record, the judgment is affirmed.

HARMON v. STATE. (Court of Criminal Appeals of Texas. Nov. 13, 1901.) Appeal from Bowie county court; A. S. Watlington, Judge. Curt Harmon was convicted of aggravated assault, and appeals. Afirmed. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of an aggravated assault, and his punishment assessed at a fine of $25. There is neither statement of facts, bill of exceptions, nor motion for new trial in the record. The indictment is in the usual form, and the charge of the court is applicable to a state of facts provable under the indictment. No error appearing in the record, the judgment is aflirmed.

Ex parte HERD.1 (Court of Criminal Appeals of Texas. Nov. 20, 1901.) Appeal from district court, Bosque county; Wm. Poindexter, Judge. Habeas corpus by Ed Herd for release on bail from imprisonment on the charge

1 Rehearing denied December 11, 1901.

of murder. From a judgment refusing to grant a release on bail, he appeals, Reversed. Ramsey & Odell, J. A. Gillitte, and Wm. H. Knight, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J. This is an appeal from a habeas corpus proceeding, on a charge of murder, in which applicant was refused bail in the court below. We have carefully examined the record, and in our opinion appellant is entitled to bail, and the amount thereof is fixed at the sum of $3,000, and upon appellant entering into same, conditioned and in the terms of the law, he will be released from jail. The judgment is accordingly reversed, and bail fixed at $3,000.

IVEY v. STATE. (Court of Criminal Appeals of Texas. Nov. 20, 1901.) Appeal from district court, Smith county; J. G. Russell, Judge. Richard Ivey was convicted of burglary, and he appeals. Affirmed. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of burglary, and his punishment assessed at two years' coufinement in the state penitentiary. The record does not contain a statement of the facts or bill of exceptions. The only ground of the motion for new trial contends the evidence is not sufficient to support the verdict. Without the evidence, this matter cannot be reviewed. The judgment is affirmed.

LOVE v. STATE. (Court of Criminal Appeals of Texas. Nov. 27, 1901.) Appeal from district court, Galveston county; A. C. Allen, Judge. Will Love was convicted in the corporation court of the city of Galveston of disturbing the peace. From a judgment of the district court dismissing his appeal, he appeals. Reversed. Wilford H. Smith, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant, having been convicted in the corporation court of the city of Galveston of disturbing the peace, and fined $25, prosecuted an appeal to the criminal district court of Galveston county, where, upon motion, the appeal was dismissed because the appeal bond failed to state the number of the case. This was See Thielen v. State (just decided), 65 S. W. 533. The judgment is accordingly reversed, and the cause remanded.

error.

MAYS v. STATE. (Court of Criminal Appeals of Texas. Dec. 11, 1901.) Appeal from district court, Lamar county; Ben. T. Denton, Judge. Curly Mays was convicted of burglary, and appeals. Affirmed. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J. Appellant was convicted of burglary, and his punishment assessed at four years' confinement in the penitentiary. There is neither a statement of facts nor bill of exceptions in the record. The trial appears to have been properly conducted on a sufficient indictment and a correct charge of the court. There being no error in the record, the judgment is affirmed.

CAMPBELL et ux. v. CROWLEY et al. (Court of Civil Appeals of Texas. Dec. 14, 1901) Appeal from district court, Dallas county; Richard Morgan, Judge. Action by Squire Campbell and wife against J. L. Crowley and others for the recovery of certain real estate. From a judgment for defendants, plaintiffs appeal. Affirmed. C. W. Starling and G. W. Irish, for appellants. W. L. Hall and Alexander & Thompson, for appellees.

RAINEY, C. J. This is the second appeal of this case, and for a statement of the case

reference is made to our former decision. 56 S. W. 373.

Conclusions of Fact.

as

Acting under the advice of T. F. Montgomery, a broker, appellants Campbell and wife executed a deed to their homestead, the premises in controversy, to B. F. Crowley. The consideration expressed was a note executed by Crowley for $2,000, and a lien was reserved in said deed to secure said note. The transaction was simulated, being made for the purpose of enabling appellants to borrow money. Appellants, through said Montgomery, sold said note to appellee, H. P. Farris, who paid a valuable consideration therefor without any knowledge of the simulated character of the transaction. After negotiating the note aforesaid, said Crowley reconveyed said land to Squire Campbell in pursuance of an understanding between them when the original deed was executed. Subsequently a new obligation was entered into, extending the time of payment of the $2,000 note, and a deed of trust executed to secure its payment. Default having been made in the payment as stipulated, the deed of trust was foreclosed, and Montgomery became the purchaser thereof, who on the same day conveyed the premises to J. L. Crowley in consideration of a note made payable to said Farris to cover the amount due him. Said J. L. Crowley knew the simulated character of the transaction.

Conclusions of Law.

The controlling issue in this case is whether or not Montgomery was the agent of Farris, such as bound Farris by the knowledge of Moutgomery of the simulated character of the conveyance executed by appellants? While the transaction as between appellants and B. F. Crowley was void, yet as to Farris appellants are estopped, unless Farris had notice of its simulated character. It is only sought to charge Farris with notice through Montgomery as his agent. The issue as to such agency was submitted to the jury, and they found that Montgomery was the agent of appellants in the transaction. The evidence was sufficient to sustain the finding. This being so, it disposes of the controversy as to the land being subject to the payment of Farris' claim. Various assignments are made to the special issues submitted, and the failure to submit others by the court; but the questions raised are all subsidiary to the controlling issue mentioned, and, that having been found against appellants, the other issues become immaterial, and the judgment is affirmed. Affirmed.

COWEN V. FIRST NAT. BANK OF BROWNSVILLE. (Court of Civil Appeals of Texas. Nov. 1, 1901.) Action by Louis W. R. Cowen against the First National Bank of Brownsville. Judgment for defendant, and plaintiff appeals. Motion for rehearing granted in accordance with the answer of the supreme court to certified questions. Judgment below reversed. For the opinion of the supreme court, see 63 S. W. 532.

GARRETT, C. J. The controlling questions in this case were certified to the supreme court, and were answered in an opinion filed June 10, 1901. 63 S. W. 532. The decision of the su

preme court requires us to grant the appellant's motion for rehearing; and, it appearing from the undisputed facts in the record that judgment should have been rendered for the appellant on the trial below, judgment will be here rendered in his favor against the appellees for the amount of the certificates of deposit, with interest thereon and all costs both of the court below and of the appeal. Reversed and rendered.

LAZARUS v. SUPER et al. (Court of Civil Appeals of Texas. Oct. 30, 1901.) Appeal from McLennan county court; J. W. Cocke, Special Judge. Action between H. Lazarus and D. Super & Sons. From a judgment in favor of the latter, the former appeals. Affirmed. Jas. E. Yeager, for appellant. Lindsey & Smith, for appellee.

KEY, J. We have carefully considered all the questions presented in appellant's brief, and conclude that no error is shown. Judgment affirmed.

NEW YORK & T. S. S. CO. v. BELL et al. (Court of Civil Appeals of Texas. Nov. 20, 1901.) Appeal from district court, Travis county; F. G. Morris, Judge. Action between the New York & Texas Steamship Company and Bell & Raudolph. From a judgment in favor of Bell & Randolph, the New York & Texas Steamship Company appeals. Affirmed. Fiset & Miller and Terry, Ballinger, Smith & Lee, for appellant. West & Cochran, for appellees.

FISHER, C. J. There is evidence in the record which supports the conclusion reached by the trial court; and we are of opinion, also, that the evidence is sufficient to acquit the railway company of negligence. It cannot be said upon this point that the evidence is conclusive; but it is sufficient to make a prima facie case negativing the existence of negligence upon the part of the railway company. We find no error in the record, and the judgment is affirmed. Affirmed.

SAN ANTONIO & A. P. R. CO. v. SCHROEDER. (Court of Civil Appeals of Texas. Nov. 20, 1901.) Appeal from district court, Lee county, Ed. R. Sinks, Judge. Suit for an injunction by the San Antonio & Aransas Pass Railway Company against August Schroeder. From a decree dissolving a temporary injunetion, plaintiff appeals. Affirmed. Morrison & Wallace, Eason & Eason, and Robson & Duncan, for appellant. August Schroeder in pro. per.

FISHER, C. J. This is an injunction suit by the railway company against the appellee to restrain the execution of a judgment rendered in the justice's court, precinct No. 1, of Lee county. Temporary injunction was granted, but upon final hearing it was dissolved. The findings of fact and conclusions of law of the trial court are fully set out in the record, and are adopted by this court. We find no error in the record, and the judgment is affirmed. Affirmed.

ABANDONMENT.

ACCESSORIES.

§ 1.

Of homestead, see "Homestead," § 6. Property dedicated to public use, see "Dedication," § 2.

ABATEMENT AND REVIVAL.

Judgment as bar to another action, see "Judgment," § 8.

1. Death of party and revival of action.

Where one of two joint trespassers died pending the action, the survivor cannot complain that the action was not revived against the representative of his deceased codefendant.Duis v. Fisher (Ky.) 337.

2. Waiver of grounds of abatement and time and manner of pleading in general.

Defendants, by pleading to the merits after their plea to the jurisdiction was adjudged to be insufficient, held not to waive that plea.Emmons v. Lexington & Carter County Min. Co. (Ky.) 593.

ABDUCTION.

See "Seduction."

ABETTORS.

Criminal responsibility, see "Criminal Law," § 2.

ABSTRACTS OF TITLE.

Sufficiency of showing as to title to support contract for conveyance of realty, see "Vendor and Purchaser," § 2.

ABUTTING OWNERS.

Assessments for expenses of public improvements, see "Municipal Corporations," § 5. Compensation for taking of or injury to lands or easements for public use, see "Eminent Domain," §§ 1, 3. Rights in streets in cities, see "Municipal Corporations," § 7.

ACCEPTANCE.

Of dedication, see "Dedication," § 1.
Of goods sold in general, see "Sales," § 2.

ACCEPTANCE OF BENEFITS.

As bar to right to have judgment set aside, see "Judgment," § 6.

ACCESSION.

82; "Homicide," § 1.

Where an account stated by one bank against another embraced the amount of a note for which both parties, under a mistake of law, erroneously supposed the debtor bank to be liable, equity will grant relief; the creditor bank not having altered its position after the debtor's acceptance of the account.-Louisville Banking Co. v. Asher (Ky.) 133.

Where a contract for public works stipulated that the commissioner should determine the

"Fixtures."

65 S.W.-72

payment of the same and receipted in full, it