author: DAVIDSON, J.

text:
    OFFRICHT v. STATE.
    (No. 3486.)
    (Court of Criminal Appeals of Texas.
    March 31, 1915.)
    1. Larceny <@=>15 — Theft by Bailee — Elements.
    To constitute theft by bailee, there must be a contract of hiring, borrowing, or some other bailment as a predicate.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 39-42; Dec. Dig. <@=>15.]
    2. Larceny <@=>36 — Theet by Conversion-Complaint and Information — Requisites.
    A complaint and information, which alleges that accused having possession of $3 of the property of prosecutor, by virtue of an attempted purchase of merchandise by the • prosecutor from accused, in -which accused took possession of the money, that there was a misunderstanding as to the price to be paid, that all of the merchandise was surrendered to accused, who converted the money to his own use, with intent to deprive prosecutor thereof, do not charge a contract of bailment and are insufficient to charge theft by bailee.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 96; Dec. Dig. <&wkey;36.] '
    3. Lament <&wkey;55 — Theet by Bailee — Evidence.
    Evidence heldI not to show a theft by bailee.
    [Ed. Note. — For. other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169: Dec. Dig. &wkey;55J
    Appeal from Hunt County Court; H. O. Norwood, Judge.
    Paul Offrieht was convicted of theft by bailee, and he appeals.
    Reversed, and cause remanded.
    Neyland & Neyland, of Greenville, for appellant. <0. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of theft by bailment under the following complaint and information; the two instruments being the same, only the charging part from the complaint is copied. It charges that appellant — >

“did * * * then and there, having possession of $3 in lawful money of the United States, of the value of $3, then and there the property'of James Stacy, by virtue of an attempted purchase and sale of merchandise by the said James Stacy from the said Paul Offrieht, in which the. said Paul Offrieht took possession of the said money on said sale and trade, where there was a misunderstanding as to the price to be paid for the goods, and that all of said goods were then surrendered to the said Paul Offrieht by the said James Stacy, and the said Paul Off-rieht refused to return the said $3 to the said James Stacy, and did then and there unlawfully, and without the consent of the said James Stacy, the owner thereof, fraudulently convert said $3 to his (the said Paul Offrieht) own use and benefit, and with the intent then and there to deprive the said James Stacy, the owner thereof, of the value of the same, against the peace and'dignity of the state.”

In order to convict appellant of theft by conversion, there must be a contract of hiring, borrowing, or some other bailment as a predicate. Motion was made to quash the complaint'and information because they did not so charge. We are of opinion this contention is correct. The complaint and information neither charged directly or indirectly a bailment, nor did they charge a contract of hiring or borrowing; in fact, both instruments charged that the money passed from Stacy to appellant on a sale and purchase, which resulted in trouble between them, and sale passed out or was practically rescinded. This was not a bailment, did not create any character of agency, nor is any fact set up which would create a bailment. ‘ Quite a number of .'objections and contentions are urged against the conviction.

The bills of exception are seven in number. It is not the purpose of this opinion to review these exceptions. Some of them are well taken. They are not noticed, because the evidence does not show a theft by conversion.

The state’s case may be stated from the testimony of James Stacy, the alleged injured party. His residence was in Hopkins county, but he and his brother had been in Baylor county during the months of October, November, and December, picking cotton, and were on their, return by way of Commerce to their home. They stopped in Greenville on the 18th day of December, went into appellant’s store, and looked at and priced some clothing. Stacy, after examining through the stock, found a suit of clothes which pleased him. It was marked $10.48. He offered appellant $7.50 for the suit. ’The appellant insisted, however, on $8.50 for the suit. He says that after quite a while defendant agreed to take $8 for the suit. He and his brother left the store; after walking around the town, returned to appellant’s store and told him that he would take the suit at $8 if he would have the pants cut to fit. The pants were not hemmed, but were stitched around the bottom. The defendant agreed to have the pants made to fit, and did so. Stacy then asked appellant to throw in a belt, which he did. He also bought a suit of underwear, for which he was to pay 75 cents. He put on the underclothing and the suit and pulled out his money. in payment and passed it to appellant, consisting of a $5 bill, a $1 bill, and $3 in silver. This made $9. Appellant contended his price was $8.50 for the suit and 75 cents for the underwear, which made $9.25. Stacy contended that he was to get the suit for $8, underclothing at 75 cents, and that appellant owed him 25 cents. Stacy says upon this disagreement he pulled off the clothes, and appellant handed him back $6, retaining $3 of the money. Stacy says:

“We argued for a while, and I picked up the two bills, the $5 bill and the $1 bill, and told him that the clothes were not mine, took the clothes and underwear off, and laid them on the counter, and put on my old clothes, and asked him for the $3 back which he had picked up, and defendant said, ‘No, you don’t get it back. I will have to charge you the $3 for my time, and because I had to cut the pants off.’ ”

Appellant refused to return the $3. Subsequently appellant did tender him back $2 of the money.

Without going into detail on the state’s side of the ease, the above sufficiently shows the incriminating evidence, if there be any.

The defendant’s case is made by his testimony and that of two of his clerks. It is sufficient to take the defendant’s statement as to his side of the matter. I-Ie agreed substantially with the witness Stacy as to the trade, but disagreed with him as to the amount agreed upon; his contention being that it was $8.50 for the suit and 75 cents for the underwear, making $9.25. Stacy went away and came back in appellant’s absence, but his clerk Germany called his attention to the fact that Stacy wanted the suit, and ha went back to where Stacy was and had the pants cut to suit Stacy, and on the request or demand of Stacy threw in a belt The reason for cutting the pants was they were too long for Stacy. Stacy put on the clothes, but when they had a difference as to the price Stacy pulled off the clothes and placed them on the counter. He agrees that he kept $3, thinking that he had a right to do so under the circumstances, because he had been damaged, he thought, that much, as the suit of clothes had been placed in a position by the peculiar length of the pants that he could not sell them or it would be a difficult matter; the length of the pants being cut down to 30 inches, which was an unusual size. He says after looking into the matter he thought perhaps he had not been damaged as much as $3, and tendered back to Stacy $2, retaining one. However, the $2 was tendered back after the criminal prosecution was instituted. He testified also that he acted in good faith with Stacy and believed honestly he had the legal right to charge him up with the damage to the suit of clothes, and because he believed that Stacy was trying to make him sell him the suit of clothes at a price that he had never agreed to take. He is sustained in this by the testimony of Max Uniee and Will Germany. Under the facts, we are of opinion that theft by conversion is not shown.

The judgment is reversed, and the cause remanded.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    BARKER v. STATE.
    (No. 3475.)
    (Court of Criminal Appeals of Texas.
    March 31, 1915.)
    1. Criminal Law <&wkey;815 — Accomplices — Who Are — Evidence.
    Where there was evidence that accused, charged with receiving stolen goods, was informed of the intended larceny, and that his horse and the horse of a witness were hitched to a hack and turned over to negroes, that accused and the witness remained together, and that during the night the negroes came back and said to accused, in the presence of the witness, that they had some stuff from a third person, and that the same was brought into the house in the presence of the witness, there was evidence that the witness was an accomplice, and refusal to submit that issue to the jury was reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1922, 1986; Dec. Dig. <S=> 815-.]
    2. Receiving Stolen Goods <&wkey;8 — Evidence —Admissibility.
    On a trial for receiving stolen goods, stolen from a house which was burglarized, the state may show that, on information received, officers found a toy in the trunk of the wife of accused, and prove that the toy was one taken from the house burglarized on the night of the burglary; but the state may not, to aid the testimony on that issue, prove that a third person had told the officers that they would find the toy, nor give in evidence the search they made of accused’s dwelling to find the toy, where the officers made the search without informing any one that they were in search of the toy.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 15-18; Dee. Dig. &wkey;>8.]
    Appeal from District Court, Williamson County; C. A. Wilcox, Judge.
    Joe Barker was convicted of crime, and he appeals.
    Reversed and remanded.
    Ramsey, Black & Ramsey, of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of receiving and concealing stolen property, knowing it was stolen, and his punishment assessed at two years’ confinement in the penitentiary.

The state’s evidence would show that H. M. Davis, Johnny Davis, and Earl Decherd conceived the idea of burglarizing the house of Mrs. Nannie Dieckman, located at Elgin, in Bastrop county. And the record clearly discloses that her house was broken into, and the property alleged to have been stolen was stolen therefrom. H. M. Davis says that, after he and Johnny Davis and Earl Decherd had agreed to burglarize the house, he went back to Coupland, in Williamson county, and told appellant, Barker, about the matter, and asked him if he wanted the things they were going to steal, and appellant replied that he did. He says he told appellant then to send a hack to Elgin that night by some negroes on Barker’s place after the things. He says he then went back to Elgin, and that night three negroes came to Elgin in a hack; that Johnny Davis went up and opened the house of Mrs. Dieckman, and he (H. M. Davis) and Earl Decherd and the negroes went up there, burglarized the house, and placed the stolen articles in the hack. The negroes then drove off in the hack, and he and Decherd went to bed in a room over a saloon. The next day he (Davis) went on the train to Taylor, and, Mrs. Barker coming to Taylor from Hutto, he and Mrs. Barker drove out to appellant’s house in a buggy brought to Taylor by a negro for Mrs. Barker, and that when he got to appellant’s house he saw the stolen property there in the house, and that it remained there until the next day, when Barker (appellant) moved it to a vacant house on the farm, and then aft-erwards told him he had sent it to his mother-in-law’s, at Hutto.

If, as H. M. Davis says, appellant was told about the Mrs. Dieckman’s house going to be burglarized, it appears from the record that he then went to Coupland; that while at Coupland Hugo Franze says that some of the negroes living on the Barker farm wanted a hack, saying they were going to Manor; ■ that he and appellant were in the pool hall; that the negroes did not have the money to pay for it, and wanted appellant to stand for it, and appellant told him to let the ne-groes have the hack. This brings us to one of the most serious questions in the case.

Appellant had only one horse there at Coupland. Haller Ford, who lived in about 400 yards of appellant, was there in Coup-'land, and also had a horse. Appellant’s horse and Ford’s horse were hitched to the hack, and appellant, Ford, and the negroes got in the hack and drove to appellant’s house, when he and Ford got out, and the negroes were told to take the horses to the barn, some SOO yards distant, and feed them; Appellant and Ford went to bed, and, according to the record, that night about 2 o’clock they were awakened by some one calling appellant. Ford says appellant complained of being sick was the reason he stayed with him that night, and when they were awakened that night he opened the door, and three of the negroes living on Barker’s place were there, and said they were cold; that at appellant’s request he made a fire, and appellant told the negroes to come in and warm; that when the negroes came in the house they told appellant they “had some stuff from Elgin,” and appellant told them to bring it in; that the negroes brought in some chairs, rugs, quilts, silverware, glassware, and other things; that appellant told him there was some wine in an adjoining room, and asked him to go and get it and give it to the negroes. They both then went to bed, and Ford left the next morning, and says he has never seen any of the things since then. Ford’s testimony would show that he knew nothing about the burglary going to take place, and that he stayed with appellant that night because appellant complained of being sick (Mrs. Barker being absent), and that he was a mere innocent “bystander.”

Appellant’s contention is that the facts and circumstances in the case raise the issue that Haller Ford was an accomplice if he was guilty of receiving and concealing stolen property, and that the court erred in not giving his special charge submitting that issue to the jury.

As before said, if we accept Haller Ford’s testimony as true, it would show him, while present when the stolen goods were received, co be merely an innocent spectator. On the other hand, if the state was prosecuting him for being a principal in the commission of the offense (if appellant was guilty of receiving and concealing stolen property), what would the evidence disclose? It would show that Haller Ford was with appellant when the hack was secured from Franze by the negroes; that his horse and appellant’s horse were hitched to the hack; that he and appellant drove the hack to appellant’s house, when it was turned over to the negroes; that he and appellant went to bed together, and that night about 2 o’clock the negroes came back to this house, when Haller Ford got up, made a fire, and opened the door for the negroes to come in. The negroes then said to appellant, in his (Ford’s) presence, that “they had some stuff from Elgin; that it was from a widow woman’s place in El-gin ;” that it was then brought in in his presence, and he saw what it was; that at appellant’s request he got. some wine and gave it to the negroes.

Now, if Haller Ford was being prosecuted jointly with Barker for receiving the stolen property, and, under a -proper charge, on this evidence was found guilty, would we hold, as a matter of law, that the facts and circumstances were insufficient to sustain a conviction? If so, then perhaps the testimony does not raise the issue of whether or not Haller Ford was an accomplice. If, on the other hand, we would sustain such a verdict, if found by a jury, then the facts and circumstances clearly raise the issue of whether or not he was an innocent bystander, or whether he was a guilty participant, if Barker is guilty. We are of the opinion that the facts and circumstances raise the issue, and the court should have given the charge requested by appellant submitting the question to the jury of whether or not Haller Ford was an accomplice. To our minds it is hardly reasonable to believe that a sane man, knowing that a burglary was going to be committed that night, and the stolen property brought to his house, would invite a friend to go home with him, sleep with him in the same bed, and, when the thieves brought the property in the dead hours of night, ask the friend to make a fire, turn on the lights, and then open the door and tell the thieves to bring in the stolen property, and receive it in his presence. The most natural thing to our minds, would have been for him, under such circumstances, to have tried to keep his friend from seeing the stolen property. Instead of asking his friend to get up, make a fire, and open the door and tell the thieves to come in, if his friend knew nothing, he would have asked his friend to lie still, and would have gone to the door and told them that Haller Ford was there in the room, and it would not do to bring the stolen articles m there — to carry them some where else.

Another bill, we think, presents error. It appears that some 12 months after the robbery the officers were informed by Earl Deeherd that a little Teddy bear had been stolen from Mrs. Dieckman’s on the night of the burglary, and that there was a little Teddy bear at the home of appellant. W. O. Rutherford testified that he had a talk with Earl Decherd, and then went to Taylor, where he was joined by Sheriff Allen and his deputy, Mr. Grimes. He says they got a search warrant and went to appellant’s farm. They met appellant on his way to the field, and said nothing to him, but went on to the Rouse, and when they got to the house no one was there except Mrs. Barker and a negro woman, who was ironing. They said nothing to Mrs. Barker about their mission, but at once began to search the premises. He then testifies:

“We went there to look and search for a particular thing. We went in the house and made a search. The first place I looked was in a safe. We did not find what we were looking for. I looked into a closet where they kept some dishes, back in the corner of the kitchen. Then I left the kitchen and went into a bedroom, in the front room, and I looked into a washstand. That was the third place I looked. Then I looked between the mattress and the bed springs. Then I looked in a trunk; was the last place I looked. With reference to the article now handed me, I have seen it before; I found that in the bottom of the trunk. (The article referred to is a china ‘Teddy beár’ about four inches in height, a portion of the bottom of the same having been broken.) I took this ‘Teddy bear’ from there to Elgin. I carried it to the justice of the peace first and turned it over to him, and then I showed it to Mrs. Dieekman.”

In regard to this “Teddy hear,” Mrs. Dieck-man testified that' she had one something like it; that it set on a dish, and was the same size as this one; that it is the same kind of ware and similar in color; that she could not see any difference in this one and the one she had.

When the “Teddy bear” was introduced in evidence, appellant called Miss Effie Loden, who testified that she was a cousin of appellant, and that she owned one just like it, and had given- it to Mrs. Minnie Barker, wife of appellant, explaining the circumstances. Mrs. Lucy Barker testified that she was the wife of a brother of appellant, and that she was present when Miss Loden had given appellant’s wife a “Teddy bear” like the one introduced in evidence, and that she had aft-erwards seen it at.her home. The wife of appellant, Mrs. Minnie Barker, also testified that the “Teddy bear” had been given her by Miss Loden, and the “Teddy bear” taken out of her trunk by Mr. Rutherford was the one given to her by Miss Loden. It is thus seen that the issue was sharply drawn as to whether or not the “Teddy bear” Mr. Rutherford got out of the trunk of appellant’s wife was the “Teddy bear” stolen from Mrs. Dieekman, or the one given to Mrs. Barker by Miss Loden — the state contending that it was the one stolen from Mrs. Dieekman on the night of the burglary, and, if this was true, it would be a strong circumstance to show that appellant had received the stolen goods; appellant, on the other hand, contending that the toy was given to his wife by Miss Loden. With this issue in the case, appellant objected to the state being permitted to prove by Mr. Rutherford that he talked with Earl Decherd, and then he and Decherd and Sheriff Allen and Deputy Sheriff Grimes went to Barker’s house in search for a particular thing; that they looked in the safe, in the closet, in the kitchen, in the washstand, between the mattress and bed springs, and then in the trunk, where he found the “Teddy bear”; that he took it and showed it to Mrs. Dieekman, making it plain that the “Teddy bear” was the particular thing he went to appellant’s house to look for after his talk with Decherd.

This testimony necessarily conveyed to the jury the idea that Earl Decherd had told him he would find a “Teddy bear” at the home of appellant, and that it was the one stolen by himself and the two Davis men and the three negroes from the house of Mrs. Dieck-man. Earl Decherd was not called as a witness by the state. The state had not undertaken to prove by the other confessed thief, who was introduced as a witness (H. M. Davis) that a “Teddy bear” was taken by them and carried to appellant’s house, but indirectly it was proven by Mr. Rutherford that he had been rso informed by Earl Decherd, and he took him and went to appellant’s house and searched until he found a “Teddy bear,” and he carried it and showed it to Mrs. Dieqkman. This is the necessary and legitimate conclusion from his testimony. It was permissible for the state to show that the officers had been informed that a “Teddy bear” had been stolen from Mrs. Dieekman, and that such an article had been found at the'residence of appellant, and to properly identify the toy introduced in evidence as the one found at appellant’s house, and then to prove by a'dmissible testimony that it was the toy taken from Mrs. Diecliman’s house, if it could do so, but it was improper to permit the state to introduce those inadmissible matters to prove that fact. It was unnecessary for the officer to detail what a minute search he made,- but he could and should have been permitted to say that he found it in the trunk where he said he found it. 1-Iis .minute description of the search made by him, when he had not called on appellant or Mrs. Barker to know if they had a “Teddy bear” in the house, conveyed the impression that he thought they were trying to conceal it, when there is no other testimony in the record to show such to be the fact. If the testimony clearly showed this to be one of the stolen articles, such testimony would not be so hurtful, but this is a contested issue; Mrs. Barker explaining where she got the toy, and why she had put it in the trunk. She testifies that Earl Decherd had been at her house during the year between the time the burglary occurred and the time the search was made, and thus had an opportunity to see the “Teddy bear” at her house. We think on another trial the state should be restricted to proof that upon information received they had found the “Teddy bear” at Mr. Barker’s in his wife’s trunk; then prove the identity of the one introduced in evidence as the one found; then legitimate proof as to whether or not it was the one taken from Mrs. Dieckman’s on the night of the burglary; and the state should not be permitted to aid the testimony on that issue by getting in evidence indirectly that Earl Dech-era had told the officers they would find the “Teddy bear” taken from Mrs. Dieckman’s at the home of appellant, nor give in evidence the minute search that had to be made to find the “Teddy bear” that was found, when no demand had been made on appellant or his wife to know if they had such an article in their house. If they, had informed them, or either of them, they were in search of a china “Teddy bear,” it might have been produced at once, and, if so, the fact it was in a trunk would not have been a circumstance against them.

The other questions in the record we do not deem it necessary to discuss.

The judgment is reversed, and the cause remanded.
      <&wkey;For other oases see same topic and KEY-NUMBER in. all Key-Numbered Digests and Indexes


text:
    MARSHALL v. STATE.
    (No. 3482.)
    (Court of Criminal Appeals of Texas.
    March 31, 1915.)
    1. Criminal Law <&wkey;Bill — Bill of Exceptions bt Btstandees.
    When not contested by affidavits, as authorized by statute, a bystander’s bill, prepared under Rev. St. 1911, art. 2067, imports absolute verity, and cannot be questioned otherwise.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. „<&wkey;> 1111.]
    2. Homicide <&wkey;163 — Evidence — Character of Accused.
    In a prosecution for murder, evidence that six or seven years before the killing, at a time when accused did not know deceased, accused became intoxicated at a picnic and had to be restrained, is inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-326; Dec. Dig. &wkey;163.]
    3. Criminal Law <&wkey;722 — Trial—Argument og Counsel.
    In a prosecution for murder, where accused did not put in issue his reputation for peace and quiet, argument by the state that, had accused dared to place his reputation for peace and quiet in issue, it could have been shown that it was bad, was prejudicial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1674; Dec. Dig. <®=j722.]
    4. Criminal Law <&wkey;789 — Instructions — Reasonable Doubt.
    The instructions need not define the term “reasonable doubt.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 1880, 1904-1922, 1960, 1967; Dec. Dig. &wkey;789.]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Bluett Marshall was convicted of murder, and he appeals.
    Reversed and remanded.
    W. J. Townsend, Jr., of Lufkin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at ten years’ confinement in the state penitentiary, from which judgment he prosecutes this appeal.

We do not deem it necessary to discuss those bills of exception which contended that the court erred in overruling his application' for a. continuance, and in' refusing to grant a new trial on account of newly discovered testimony. The testimony will not be Dewly discovered on another trial, and if he desires the attendance of the witnesses on account of whose absence he sought a continuance, and those whom he says will testify to matters of which he was unaware, he can secure their attendance on another trial by proper diligence.

The most serious matter complained of in the record is presented in a bystander’s bill. It is made to appear that the court refused to approve the bill as presented to him, without qualifying same. This bill, as qualified, appellant refused to accept, and proved up his bill by three witnesses, under article 2067, Revised Statutes. The trial judge did not, as the law provides, when counsel would not agree to the correlations or qualifications, make out and file a bill setting forth the matter as viewed by the judge, but all we have in the record is the bill as proven up by appellant. The district attorney did not controvert this bill by filing controverting affidavits in the court below, so the bill is before us uncontested. It is true the district attorney has written a letter to the Assistant Attorney General, which was filed with the papers, in which he contends that the bill does not correctly quote his language, but this we cannot consider. The law (article 2067) has provided the way in which such contest must be made; and, as-no contesting affidavits were filed, we must take the bill as presented in this record as correctly presenting the matter. In the bill it is shown that during the closing argument of the district attorney he said:

“It is passing strange that in every murder case the defendant invariably brings in testimony and attacks the reputation of the deceased for peace and violence, and in this case they have thus attacked the dead man’s reputation. Under the law, the state cannot put in a defendant’s reputation by evidence before the jury, unless the defendant himself invites it by attempting to show a good reputation for peace and violence, which this defendant has not undertook to do, and he dare not do it, for we would be able to show that his reputation for peace and violence was not good but bad, and the jury already had enough before them about his being drunk and being tied to a tree at a picnic where his neighbors had assembled together to enjoy the day among themselves to let the jury know that the defendant’s reputation for peace and violence is not good but bad.”

While it is true that defendant took the stand as a witness, he did not put in issue his reputation as a peaceable and law-abiding citizen. It is contended that, as there was evidence in the record that on a prior occasion at a picnic he was drunk and was tied to a tree, this furnished some basis for the remark used. Unfortunately for the state’s contention, however, the record discloses that, while the district attorney did attempt to get such testimony admitted, yet appellant’s objection thereto was properly sustained by the court, and such facts were not admitted in evidence. At the time of this alleged occurrence, appellant was not even acquainted with deceased; it was some seven years prior to this difficulty; and even if he was drunk on that occasion and was tied to a tree by the sheriff, if such testimony had been admitted on the trial of the case, over objection of appellant, it would have been in and of itself such error that would necessitate a reversal of the case, under the evidence before us. This question is discussed very thoroughly in Wright v. State, 63 Tex. Cr. R. 429, 140 S. W. 1105, and it is held that such testimony is inadmissible, and on another trial there should be no effort made to get such evidence before the jury. Appellant was on trial charged with killing Virgil Westmoreland. Any and all facts and circumstances connected with that affair, or that would shed light on the action of the parties, should be admitted, but acts of improper conduct on the part of appellant, if he was guilty thereof, which involved no moral turpitude, and in which deceased was in no way connected, should not be sought to be injected in the trial. But, had such evidence been in the record, it would not have justified the district attorney in saying that:

“If the defendant had placed his reputation for peace and violence in issue, which he dare not do, he (the district attorney) would, be able to show that his reputation for peace and, violence ■was not good but bad.”

Had the state offered sworn testimony that the reputation of the appellant in that respect was bad, when- he had 'not put his reputation in issue, the court would not have admitted it, and, if sworn testimony would not be admissible, certainly the district attorney ought not be permitted to state to the jury, in his closing argument, that he could have proven his reputation was bad if he had been permitted to do so.

In Johnson v. State, 17 Tex. App. 573, the court held in an opinion by Judge White:

“It was error to permit the prosecution to investigate defendant’s general reputation as a ‘law-abiding man’ when he had not put it as such in issue.”

In Guajardo v. State, 24 Tex. App. 605, 7 S. W. 331, Judge Hurt says the admitting of such testimony, when defendant has not placed his reputation in issue, whether intended or not, is “an outrage upon the rights of the accused.”

In Felsenthal v. State, 30 Tex. App. 675, 18 S. W. 644, Judge White reiterates the rule:

“Until the defendant in a criminal case has himself put his character in issue, the state has no right to introduce testimony showing his bad character.”

The citation of authorities could be continued down to the present day, and it has been uniformly held that evidence of reputation of bad character for peace is inadmissible, unless it is an issue in the case under some of the well-known rules of law. When the remarks of counsel dehors the record will and when they will not be ground for reversal of a case is ably discussed by Judge Ramsey in the case of Davis v. State, 54 Tex. Cr. R. 248, 114 S. W. 366, and the authorities reviewed, and it may be said to be there correctly held that when counsel in their argument states and discusses some fact which had not been proven, and which it would not have been permissible to have been proven, which is calculated to be hurtful and harmful to the person on trial, the case should be reversed.

In the American & English Encyclopedia of Law, vol. 5, p. 352, it is said:

“The court should not tolerate argument of counsel outside of the evidence impeaching or fortifying the character or credibility of a defendant or witness in a case”

—citing authorities from almost every state in the Union, among them being the Davis Oase, supra, and other cases from this court, and cases rendered by the Supreme Court and the Courts of Civil Appeal.

The complaint that the court erred in submitting the issue of murder in his charge is without merit. The evidence offered in behalf of the state authorizes a submission of that issue, and would sustain such a verdict, if the jury so finds. Neither was it incumbent on the court to define the meaning of the words “reasonable doubt.” It has been frequently held that the language of the statute needs no amplification or attempt on the part of the court to enlarge or explain them. Thompson v. State, 37 Tex. Cr. R. 227, 38 S. W. 785, 39 S. W. 298; Hurley v. State, 35 Tex. Cr. R. 282, 33 S. W. 354; Fury v. State, 8 Tex. App. 471; Massey v. State, 1 Tex. App. 564; and other cases cited in section 934, White’s Ann. Procedure.

The other bills in the record in our opinion present no error, but, on account of the errors hereinbefore pointed out, the judgment is reversed, and the cause remanded.
      ®=»For other cases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes


text:
    CARNEY v. STATE.
    (No. 3490.)
    (Court of Criminal Appeals of Texas.
    March 31, 1915.)
    1. Highways <&wkey;164^-Prosecution for Obstruction — Issues and Variance.
    In a prosecution on a complaint and information charging the obstruction of an avenue extending north and south on the east side of an addition to a town, and known as G. avenue, by erecting a fence across it, where the only witness testified that the avenue obstructed ran east and west, and where the maps in evidence did not show any such avenue in the addition, the proof did not correspond with the allegations.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 447-455; Dec. Dig. <&wkey;>164.]

      2. Cbiminal Law <&wkey;800 — Obstruction of
    Highways — Instructions—Willfulness.
    In a prosecution for unlawfully and willfully obstructing a public street, where it appeared that defendant stated that he did not wish to do anything in respect to closing certain lands, except what was agreeable to the commissioners’ court, and that he would remove any fence that they did not want where he had placed it, the charge, especially where there was an issue of willfulness, should have defined the word “wilh ful.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1808-1810, 1812; Dec. Dig. <&wkey;800.]
    3. Highways <&wkey;164—Prosecution for Obstruction — Evidence.
    In such prosecution, where it appeared that, on defendant’s request, the commissioners’ court permitted him to close certain lands which he said were on the east side of a depot, a letter to defendant from the county judge, to the effect that the request had been granted as to the lots east of the depot, where the obstruction was placed, was admissible on the issue of willfulness.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 447-455; Dec. Dig. <&wkey;164.]
    Appeal from Haskell County Court; A. J. Smith, Judge.
    T. G. Carney was convicted of obstructing a highway, and he appeals.
    Reversed and remanded.
    James A. Stephens, of Benjamin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The complaint and information charge appellant with obstructing and injuring and causing to be obstructed and injured a certain public road and highway, then and there situated, to wit, that part of road precinct No. 43, known as the street and avenue extending north and south on the east side of the Carney addition to the town of O’Brien, and known as Garfield avenue, by then and there erecting and causing to be erected a fence across said street and avenue. The second count charges appellant unlawfully and willfully obstructed and injured and did cause to be obstructed and injured a certain public street in the unincorporated town of O’Brien, Tex., and known as Garfield avenue, in the Carney addition to said town of O’Brien, by then and there erecting and causing to be erected a fence across said street.

The only witness who testified to the obstruction was I. P. Dunn. He says that the street or highway that was obstructed ran east and west, which he called Garfield avenue. The allegation is that Garfield avenue ran north and south. The evidence for the state does not sustain the allegation of the complaint and information. The whole contention in the case on the facts was whether or not Garfield avenue was obstructed. •There was no contention, by pleading or otherwise, that any other part of the town of O’Brien was obstructed by appellant. Dunn says:

If Garfield avenue ran north and south, “then I might be mistaken about that fence being across the avenue; but I think it runs east and west, right in front of my lots, this street that Mr. Carney fenced. No, I did not see him fencing any street running north and south, but the fence that he put across Garfield avenue runs north and south. I did not see him fencing a street running north and south.”

The original map of the town of Carney was introduced, and it shows that Garfield avenue on that map, as laid out, runs north and south through the town. Dunn’s property was on block No. 77 of the town, but this map does not show such block, and in fact in the recorded Carney addition such a street as Garfield avenue does not appear, and from it it seems no such street as Garfield avenue is in the Carney addition to the town of Carney, or O’Brien, 'as it is now called. On the original map of the town the Garfield avenue was marked as running north and south instead of east and west, and on the original map the Garfield avenue, as was then marked out, runs on the outer edge of the town and does not touch block No. 79 at any point. Dunn said he owned two lots on block No. 77, and 'he testified, from the map shown him, his lots did not touch Garfield avenue at any point. The map,- as recorded in the deed records of the county showing the Carney addition, which for “brevity” was “not included in the transcript,” as stated in the statement of facts, but “for the purposes of this record it is agreed that this map of this addition does not show any such street, alley, or highway in the Carney addition to the town of Carney or O’Brien, by the name of Garfield avenue.” In another, map, however, it was shown that there was a Garfield avenue marked on the map, but it ran north and south, and block No. 77, on which Dunn says his two lots were, is not shown on the map. This would dispose of the- case on the ground that the facts do not correspond with the allegations.

The county judge Smith was introduced, and it is shown that on request of appellant the commissioners’ court, after investigating the matter, agreed that appellant might close certain lands, which he said were on the east of the depot, when he wrote to Carney ; that the letter should have referred to the west side instead of the east side; and that appellant stated, while seeking to get permission to close certain lands, that he did not wish to do anything concerning the matter, except what was agreeable to the commissioners’ court, and that he would remove any fence that they did not want placed where he would place it or had placed it. This letter, it seems, is included in connection with an objection to the charge, properly taken, that the court did not define the word “willful.” The word willful was not defined in the charge. This, under the authorities, was necessary, and especially where there was an issue on the question of willfulness. The letter of the county judge was not introduced in evidence, and the question was raised in regard to that matter in motion for new trial. That letter is in the following language, omitting everything except the contents of the letter, which was directed to appellant and signed by A. J. Smith, who was county judge. He says:

“Dear Friend: I have been in bed sick for several days is why I have failed to answer your letter, but your request was granted at the last meeting of the commissioners’ court as far as the lots east of the railroad, as Mr. Menefee said you only showed him those east of the road, so far as that goes you can fence them up. I will get the orders all prepared and recorded but as far as the lots west of the railroad they did not pass any order to that effect. But if I can do you any good in the matter further let me know.
“Yours truly, A. J. Smith.”

The obstruction, if any was placed across the street or highway, was on the east of the railroad, and not on the west. While not perhaps sufficiently presented in the record, the letter and its contents should have been admitted. Upon another trial, if one is had, this letter is clearly introducible. The county judge states in his testimony that he intended to write about the west side, hut the letter shows that he wrote about the east side of the railroad.' This was directly applicable to that part of the allegation which charged him with willfully obstructing the street. It is shown that the commissioners’ court entered the order authorizing appellant to close the street after investigating the matter.

For the reasons indicated, the judgment is reversed, and the cause remanded.
      oilier oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=»Eor other cases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    McMAHAN v. McMAHAN et al.
    (No. 7262.)

    (Court of Civil Appeals of Texas. Dallas.
    March 13, 1915.
    Rehearing Denied April 10, 1915.)
    1. Executors and Administrators <&wkey;7 — Independent Administration.
    An executor, acting under an independent administration, is free from the control of the probate court.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 19, 20; Dec. Dig. <&wkey;7.]
    2. Executors and Administrators <@=7 — Independent Administration — Statute.
    To create an independent administration under Rev. St. 1911, art. 3362, the intent of the testator must govern, and the language of the will must clearly evidence such intention.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 19, 20; Dec. Dig. <&wkey;7.]
    3. Executors and Administrators &wkey;>7 — Independent Administration — Creation.
    Where a will provided that the executors should act without bond and have power to do all things in settling up the estate, including the power to sell real estate, and should hold the property together and maintain testator’s minor children, an independent administration was not created, and the probate court had jurisdiction of proceedings involved in the administration.
    [Ed. Note. — For other cases, see Executors, and Administrators, Cent. Dig. §§ 19, 20; Dec. Dig. <&wkey;7.]
    4. Courts <&wkey;472 — State Courts — Texas — County Courts.
    The county court has exclusive jurisdiction in proceedings to recover the homestead or allowance in lieu thereof, and also to partition and distribute real estate.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 442, 451, 459, 465, 619, 1199-1202, 1204^-1224, 1247-1259; Dec. Dig. &wkey;472.]
    5. Courts <&wkey;163 — State Courts — Texas — County Courts.
    Const. art. 5, § 8, igives the district courts-exclusive jurisdiction of all suits for the trial of title to land and the enforcement of liens-thereon. A widow, who contested her husbandjs will, which devised to her no part of the estate,, and asserted an interest in his realty and personalty, entered into a compromise agreement whereby, in consideration of a cash payment, she conveyed to the executors her claimed interest in the realty and personalty. Held, that the county court was without jurisdiction of a suit to set aside the compromise agreement, as-it involved setting aside a conveyance of an interest in land.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 410, 411, 443, 479, 1294; Dec. Dig. &wkey; 163.]
    Appeal from District Court, Hill County; Tom L. McCullough, Presiding Judge.
    Action by Nora M. McMahan against E. K. McMahan and others, begun in county court, and appealed to district court. From a judgment for defendants, plaintiff appeals.
    Corrected and affirmed.
    N. J. Smith, of Hillsboro, and Stanley Boykin, of Ft. Worth, for appellant. R. M. Vaughan, of Hillsboro, for appellees.

       Writ of error pending in Supreme Court.

   RASBURY, J.

This case originated in the county court, and was thence appealed to the-district court, where exceptions were sustained to the appellant’s petition and the suit dismissed. Due to such action in the district court, brevity will be attained and the issues better understood by stating, first, the substance of the facts constituting appellant’s cause of action, as disclosed by her-original petition and the supplement thereto, the essential portions of which, in our own language, are as follows: Appellant was the-second wife of A. H. McMahan, who died in August, 1910, possessed of an estate of the-value of about $100,000, and “who left surviving him appellant, his widow, and six children, the appellees, all the issue of his first marriage. By a will executed before Mc-Mahan’s marriage with appellant, he bequeathed his entire estate to his children, naming three of his children (appellees) Emmett, Waul, and Earl executors under the will. The will was offered for probate, which appellant contested on the ground that the will offered had been revoked by a subsequent one which had been lost or destroyed. The will was admitted to probate in the county court. An appeal was taken to the-district court. There was trial before jury, resulting in a disagreement. After the mistrial in the district court, and on March 4, 1911, a compromise settlement of their differences was had between appellant and ap-pellees, by which appellant received from the estate $2,600, and executed an agreement in writing by which, in consideration of the payment of the sum named, she agreed that the will should be probated and relinquished, as well her entire interest in the estate of her deceased husband, including any allowance for a year’s support and maintenance, her homestead rights, and any allowance in lieu thereof, or other exemptions, and on said March 4, 1911, the will was admitted to probate in the district court of Hill county. The will so admitted to probate is as follows:

“Whitney, Texas, July 6, 1909.
“Being on the eve of leaving for California and knowing that I may possibly never return, I make this, my last will and testament revoking any previous will or declaration that I may have made. In case of my death I direct that Emmett, tWaul and Earl shall take charge of everything belonging to me or their mother as fully as I could do, without bond of any sort, and manage as to them seems best, with power to sell real estate. I direct that it be held together, and the proceeds be used for the maintenance of Lewis, Oliver, Walter and Lena, till the boys shall attain to their majority, at which time X want first — that they shall deed to Lena, in fee simple, a small home, such as the one now occupied by O. B. Carver, and that she receive in addition thereto, one thousand dollars. After paying my debts then divide the remainder among you, one-sixth to each of you; out of the insurance money liquidate the annuity to Hu Gilbert of twelve thousand dollars — remember the Dickinson property belongs one-half to me, the other to Josie’s children, one share, Warren Gilbert, one share, Sallie’s boy, one and one-half shares, making the other half of seven shares.
“The Beaumont property owes me first about five hundred dollars, paid out for taxes, and lawyers’ fees — after which is owned by Warren, Josie’s children, Frank one-eighth, Sallie’s boys one-eighth and the balance to me — understand that the way I own these shares in these properties is, that I bought and .paid for these other interests, John’s, Lee’s and Hardie’s. Now, finally I say to you be.men in every sense of the word, never too proud to right a wrong, never too cowardly to submit to oppression. If you accept a trust have the courage to execute it. Never forget to be gentlemen and believe that God is over all — expect that I will have accident insurance and inquire.
“Good-bye. Your father, A. G. McMahan.”

On December 17, 1912, 21 months after the will was admitted to probate, appellant filed in the county court of Hill county an application for an allowance out of the estate of her deceased husband, for a year’s support and maintenance, and an allowance in lieu of exempt property which she did not receive and in lieu of a homestead, reciting that while her husband left a homestead which they were occupying at his death, the same could not be set aside to her, for the reason that it was the community property of deceased and his first wife, who died intestate. Such allowances as a whole would reasonably have been $6,500. The compromise settlement by the allegations of the application was fraudulently obtained and signed by appellant in ignorance of her rights. She did not discover the fraud until shortly before filing her application. By supplemental petition appellant admitted the execution of the agreement of compromise, which was pleaded in hsec verba, by appellees. The agreement, which takes the form of a conveyance of real estate and is acknowledged in the manner provided for acknowledging deeds, is lengthy, and we will not attempt to state it in full. It recites the will and its offer for probate and appellant’s contest thereof, and that in said contest she claimed of the estate of the deceased one-third of his personal property and an estate for life in one-third of all lands owned by the deceased, as well as an allowance of $1,000 for a year’s support and maintenance, the use of certain property belonging to said estate exempt by law, and the family homestead, or an allowance of $5,000 in lieu thereof. The agreement further recites the trial of the contest in the county court, resulting in judgment sustaining the will, appeal to the district court, where the case was then pending, and an agreement with the executors. The instrument concludes with the recitation that, in consideration of the payment to appellant of $2,633.33 by the executors and the payment of the costs of the litigation, appellant does “bargain, grant, sell and convey” to the executors all of her “right, title, interest and claim of whatever character, kind, quality or quantity, in and to all or any portion of the real and personal property constituting the estate of the said McMahan, deceased, owned and possessed by him at his death, * * * including my claim for a year’s allowance for support and maintenance, homestead claim and claim for exemption, * * * and here withdraw any ánd all contest heretofore filed by me against admitting to probate the above described instrument as the last will and testament of the said McMahan.” This grant was followed by the usual habendum, which in turn was succeeded by special warranty of title, and the execution of which, as we have said, was acknowledged in the manner and form provided for the acknowledgment of deeds. Upon the facts alleged by the pleading stated the district judge sustained a general demurrer and certain special exceptions, all of which challenged the jurisdiction of the county court.

The first ground urged in support of the action of the court is that the will created an independent administration. In that connection it is settled law that an executor, acting under an independent administration, is, in the settlement of his testator’s estate, free from the control of the probate court. Runnels v. Runnels, 27 Tex. 516; Holmes v. Johns, 56 Tex. 52; Jerrard v. McKenzie, 61 Tex. 40; Haby v. Fuos, 25 S. W. 1122; Roy v. Whitaker, 92 Tex. 355, 48 S. W. 896, 49 S. W. 367; Bente v. Sullivan, 52 Tex. Civ. App. 454, 115 S. W. 350. Tlie question then arises, under the issue raised, did the will of McMahan create an independent administration? We conclude that it did not. The will directs that the testator’s three sons “shall take charge of everything belonging” to the estate as completely as the testator could do and manage the same as they deemed best, coupled with the “power to sell real estate,” and shall do the things enumerated, “without bond of any sort.” Much has been written upon the issue here involved, from which may be deduced as applicable to the present case the general rule: (1) That the intention of the testator, ascertained from the entire instrument, shall govern; and (2) that it is essential that the language used by the testator as the basis for creating an independent administration under authority of the statute (R. S. 1911, art. 3362) must clearly evidence such intention; and (3) when the language relied on is in that respect doubtful, the doubt should be resolved in favor of the jurisdiction of the probate court. Hughes v. Mulanax, 105 Tex. 576, 153 S. W. 299, and cases cited. In consonance with the general rules stated it has been held that a direction by the testator in his will that bond should not be required of his executors, but silent as to the mode of otherwise administering his estate, did not establish an independent administration. Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486; Gray v. Russell, 41 Tex. Civ. App. 526, 91 S. W. 235. A provision in a will that the executor shall act as such “without bond * * * and have power to 'do all things in settling up” the estate as direct-ed was held insufficient to deprive the probate court of its supervisory jurisdiction, since that court would still have power to pass upon and allow claims, direct their payment, approve final settlements, and distribute the estate. Berry v. Hindman, 129 S. W. 1181. The case cited also holds that authority to sell all or any portion of the estate does not create an independent administration, as does also the case of Allen v. Reilly, 131 S. W. 1152. No more than is contained in the cases cited is found in the will under consideration, and we can add nothing by way of emphasis to the discussion, except to say that if it had been the desire of the testator to deprive the probate court of all character of supervision, the testator would, in his own words, have made that desire as clear as he did the fact that his three sons should act as executors without the necessity of giving bond. The direction to sell property, in our opinion, throws no additional light on the testator’s intention, nor is it persuasive of an intention to create an independent administration, since the executors are directed to hold the estate together and use the proceeds for the maintenance of certain of his children until they attain majority, at which time a portion thereof shall be set aside to Lena, a beneficiary, and that then the same, after paying his debts, shall be divided equally among all his children. These provisions, to be sure, contemplate that it may be necessary to sell portions of the estate, notably to maintain the minor children and pay his debts, but it is equally clear that such provision cannot be used as a basis for the conclusion that such sales should not be made in the manner provided by law. To so hold would be to in-graft upon the direction to sell a further direction not fairly deducible from the language. We accordingly conclude that want of jurisdiction of the probate court cannot be sustained on the ground that the will created an independent administration.

It is next urged, in support of the action of the district judge in the respect stated, that the county court, where the proceeding originated, was also without jurisdiction of the subject-matter of the proceeding, for the reason that one of the purposes of the suit was to cancel for fraud an instrument conveying title to land. The conveyance sought to be canceled did convey an interest in land, and that fact is, in effect, conceded by counsel for appellant, but it is urged that, the primary purpose of the application being to recover certain allowances, etc., surrendered by the fraud of appellees, she was entitled to cancel the agreement incidental to such primary purpose. We think not. When unmixed with other issues, the county court, pending administration, unquestionably has exclusive jurisdiction in proceedings to recover the homestead, or allowances in lieu thereof, etc., and to partition and distribute the estate. McCorkle v. McCorkle, 25 Tex. Civ. App. 149, 60 S. W. 434. Incidentally a different rule prevails when the adminis-' tration is independent as noted in the first division of this opinion. Here, however, an entirely dissimilar situation is presented. During the progress of the contest of the testator’s will, which devised no portion of the testator’s estate to appellant, and in which appellant, as the testator’s surviving wife, asserted an interest in the realty, personalty, and claimed certain statutory allowances, a compromise was reached, by which appellant, in consideration of $2,-633.3314 conveyed to the executors of the estate her claimed interest in the realty and personalty and released her claim for the allowances. The instrument stands as a whole until canceled and, if canceled, must be canceled as a; whole, from which it certainly follows that to cancel it is to set aside a conveyance of interest in lands. While the relief sought ultimately is something which may be properly done by the probate court, yet before that court may exercise its authority over the ultimate object, it must first do that which it may, in no event, lawfully •undertake to do, since “all suits for the trial of title to lands, and for the enforcement of liens thereon,” are, by article 5, § 8, of the ■Constitution, exclusively cognizable in the ■district courts. The bare language of the constitutional provision ought to afford sufficient authority for denying the county court .jurisdiction of this proceeding, in view of the terms and provisions of the instrument ■sought to be canceled, but if judicial construction, based upon fact cases, can add force to the constitutional provision, decisions that are analogous may be found. It has been held, where one heir, who claimed to have .acquired the title of another heir to certain of the lands of the estate pending administration and which the other heir disputed, that the probate court could not adjudicate the merits of the titles asserted by the respective claimants. Altgelt v. McManus, 30 Tex. Civ. App. 382, 70 S. W. 460. We can see little, if any, distinction between the authority of the probate court to determine the merits of titles claimed by certain heirs to property in process of administration and the authority of that tribunal to determine that a title acquired by one heir from another while the estate is in process of administration is not a good title because secured by fraud. It has been determined that the county court is without jurisdiction to entertain a suit by a surviving wife to cancel for fraud a post-nuptial agreement relating to the lands of the deceased, even though the estate of her deceased husband should, at the time of the filing of such suit, be in process of administration in the county court. Groesbeck v. Groesbeck, 78 Tex. 664, 14 S. W. 792. If postnuptial agreements with reference to •or conveyances of lands may not be canceled for fraud in the county court while the •estate is in course of administration, it is '■equally clear that those made during the progress of the administration stands on no different footing. We are further of opinion that this controversy is not controlled by those cases which permit the county court to incidentally inquire into the status of the title to lands in order to determine the right to recover in a cause of action dependent upon ownership of land, of which City of Victoria v. Schott, 9 Tex. Civ. App. 332, 29 S. W. 681, is typical. As said in the case cited, ■such incidental inquiry into ownership ‘‘does not adjudicate or settle the title to the land, nor the right to recover it.” It will not be •denied that if the conveyance under discussion was canceled, it would hardly, be less than an adjudication of appellant’s “right to recover” the interest in the land therein conveyed upon propen pleading. We conclude that the county court was without jurisdiction to entertain this proceeding, and that the district court properly refused to entertain the same.

Our attention has been called to the fact that in the trial court there were two judgments entered, from one of which it may be Inferred that there was an adjudication upon the merits of the issues presented by appellant’s application. The judgment in that respect is erroneous, and said judgment in that respect is corrected and reformed so as to provide that the case is dismissed from the district court of Hill county, and, as corrected, said judgment is affirmed.
      «©E^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    ROBINSON v. LEVERMANN et al.
    (No. 7294.)
    (Court of Civil Appeals of Texas. Dallas.
    March 20, 1915.
    On Motion for Rehearing, April 10, 1915.)
    1. Monopolies <@=312— Trusts — Agreement in Restraint of Trade.
    A sale by a firm of its stock to two competitors, with agreement that the sellers will not engage in such business in such city so long as the buyers are there engaged therein, is “a combination of capital, skill or acts by two or more” to create, or tendng to create, restrictions in trade, denounced by Rev. St. 1911, art. 7796, as an illegal trust, so that the provision against re-engaging in business cannot be enforced.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. <@=312.]
    On Motion for Rehearing.
    2. Injunction <@=3260 — Wrongful Injunction — Damages—Recovery.
    Defendant in an injunction suit, reconvening, and alleging wrongful and malicious procuring of issuance of the writ, and damages, is entitled to trial of the issue of damages; plaintiff not being entitled to injunction.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 608; Dec. Dig. <©=3260.]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Action by A. W. Levermann and others against E. C. Robinson. Judgment for plaintiffs, and defendant appeals.
    Reversed and rendered in part, and remanded in part.
    McClellan & Prince, of Corsicana, for appellant. R. B. Molloy and Richard Mays, both of Corsicana, for appellees.
   TALBOT, J.

The appellant, E. C. Robinson, J. E. Robinson, J. D. Robinson, and J. B. Robinson, composing the firm of Robinson Paint Company, and the appellees, A. W. Levermann and Ashmore Bros., a firm composed of L. W. Ashmore and L. J. Ashmore, were engaged in the business of selling paints, wall paper, oils, varnishes, etc., and contracting for and painting and papering houses in the city of Corsi-cana, Tex. The business of the said Lever-mann and of the said two firms was wholly separate and independent of each other, and carried on in separate places of business; each owner being an active competitor of the other. In August, 1909, while so engaged in business, the appellees, acting together, bought out the Robinson Paint Company, including the good will of the firm; the transaction being evidenced by a written contract and bill of sale. The entire stock of goods belonging to the Robinson Paint Company was not sold and transferred to the said Lever-mann and Ashmore Bros., but $800 worth of the same was excepted from the sale and set aside for appellant, E. 0. Robinson, who received no part of the purchase money paid for the goods received by A. W. Levermann and Ashmore Bros.; the said goods set aside for him being accepted by him as his interest in the partnership assets. Upon receiving the goods set aside for him, the appellant, in accordance with the agreement entered into between the Robinson Paint Company and the said A. W. Levermann and Ashmore Bros., removed them out of the city of Cor-sicana to be disposed of elsewhere. In making the purchase of the goods delivered to A. W. Levermann and Ashmore Bros., it was agreed that the said Levermann should receive one half of the same and Ashmore Bros, the other half, and in accordance with such agreement the goods were so divided between them, and each paid for one-half of the goods so received. The goods received by A. W. Levermann were then removed to his store, and the goods received by Ashmore Bros, were taken to their store, and the Robinson Paint Company went out of business and gave up the storehouse occupied by them. In the contract and bill of sale evidencing the terms of the sale of the goods by the firm of Robinson Paint Company to Levermann and Ashmore Bros., said firm, and each individual composing the same, agreed not to engage again in the city of Corsicana in the same line of business in which they had formerly been engaged in, so long as appellees, A. W. Lever-mann and Ashmore Bros., or either of them, were engaged in such business in said city. On November 26, 1910, the appellees, A. W. Levermann and Ashmore Bros., brought this suit in the district court of Navarro county against the appellant, alleging, in substance, the facts above stated, and charged that appellant had returned to Corsicana, and, in disregard of the contract entered into for the sale of the goods to them, resumed the business of contracting for and painting houses; that he was soliciting and advertising for the same character of business that appellees were engaged in, and was preparing to establish in the city of Corsicana the business of selling paints, oils, etc., and of painting residences and other buildings, to the damage of appellees in the sum of $1,000. They prayed for a temporary injunction restraining appellant from engaging in said business, and that it be perpetuated upon final hearing. The appellant answered, setting up by demurrer and pleas three defenses, but, in the view we take of the case, it becomes necessary to state only one of them, namely:

“That the contract and bill of sale upon which this suit is founded was illegal and void, because violative of the statute of Texas against trust and conspiracies in trade.”

The case was tried before a jury, and under peremptory instruction of the court a verdict in favor of appellees “for injunction” was returned, and judgment entered perpetuating the same. From this judgment appellant prosecutes this appeal.

Appellant contends that the contract upon which appellees’ alleged cause of action is predicated is contrary to public policy, illegal, and void, “because in contravention of article 7797 et seq. of the Revised Statutes of Texas, denouncing trust and conspiracies against trade.” The question is raised by assignments of error complaining of the court’s action in overruling his general demurrer to appellees’ petition, in permitting appellees to introduce in evidence the contract sued on, in refusing -to instruct the jury, as requested by appellant’s special charge No. 1, that said contract was void, and not enforceable either in law or equity, and charging the jury peremptorily to find for plaintiffs “for injunction.” Article 7796 of the Revised Statutes of this state defines a “trust” to be “a combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons, or either two or more of them for either, any or all of the purposes” named therein; and in Gates v. Hooper, 90 Tex. 563, 39 S. W. 1079 our Supreme Court, in construing such a definition of a “trust,” held that the word “combination,” as used therein, meant union or association, and that, if there be no union or association by two or more of their “capital, skill or acts,” there can be no combination, and hence no trust. So, consistent with this holding of the Supreme Court, it is the settled law of our state that, if one merchant or person buys the goods of another with the agreement that the seller shall not, for a limited time and in a limited territory, engage in a like business as that in which the buyer is engaged, the agreement, if reasonable, is not such a one as is denounced by the anti-trust statute of this state, and unenforceable. If, however, the restraint placed upon trade by the contract be of such magnitude as to injuriously affect the interest of the public, the contract will be held to be contrary to public policy, although limited as to time and place. Anderson v. Rowland, 44 S. W. 911; Insurance Co. v. State, 86 Tex. 263, 24 S. W. 397, 22 L. R. A. 483; Gates v. Hooper, supra; Malakoff Gin. Co. v. Riddlesperger, 133 S. W. 519. Do the facts alleged and proved in the case at bar disclose such a combination of the “capital, skill or acts” of the appellees as brings the transaction in question and contract resulting therefrom under the condemnation of the statute? The whole case is before us upon the pleadings and facts, and the question arises, as above shown, by assignments of error complaining of the overruling of appellant’s general demurrer to appellees’ petition and the refusal of the trial court to give a special charge requested by appellant to the effect that the contract sued on was absolutely void, and hence to return a verdict in appellant’s favor. In addition to a very full statement of the terms of the contract in the petition, the contract itself was attached to and made a part thereof, and we are inclined to think the facts disclosed show the contract to be violative of our anti-trust law, and therefore that appellant’s general demurrer should have been sustained. But, however this may be, it is clear, we think, that the trial court should have held, as a matter of law arising upon the pleadings and undisputed evidence, that the contract sought to be enforced was in contravention of' the statute of the state prohibiting combinations in restraint of trade, and instructed a verdict for appellant as requested by him. Among other things, this statute denounces and prohibits the combination of the capital, skill, or acts of two or more persons having for its purpose restrictions in the free pursuit of any business authorized or permitted by the laws of this state, the prevention or lessening of competition in the sale of merchandise, or the inducement of another to “abstain from engaging in or continuing business partially or entirely within this state or any portion thereof.” Such a combination being absolutely prohibited, its consummation would be unlawful, and, being unlawful, it would be immaterial as to whether it was reasonable or as to how it affected the public. The object of the statute is to prohibit any combination having for its purpose the doing of the things mentioned, and other things specified, “without regard to the intention of the parties, or the immediate effect of the combination on trade, and commerce, as the power arising from such combination was believed to be dangerous to public interest. Therefore the Legislature did not attempt to regulate such combinations, but prohibited them entirely.” Comer v. Burton-Lingo Co., 24 Tex. Civ. App. 251, 58 S. W. 969; Crandall v. Scott, 161 S. W. 925. The view that the purpose of the statute was to denounce such a combination as illegal, without reference to the intent of the parties to prevent competition, etc., and without reference to the actual effect thereof, is sustained by the following authorities cited by appellant: Star Mill & E. Co. v. Ft. Worth Grain & E. Co., 146 S. W. 604; State v. Racine Sattley Co., 134 S. W. 400. Adhering to the foregoing interpretation and views of the statute, which we believe to be correct, and giving effect to the uncontroverted evidence in the record that should control our action, it must be held that we have in the case at bar the combination contemplated and prohibited. The contract made the basis of the suit and the testimony to which we have referred shows that the appellees, A. W. Lev-ermann and Ashmore Bros., representing separate and distinct business concerns and competitors of the Robinson Paint Company, by a union of acts and of a part of their capital, bought the goods of the said Robinson Paint Company, and secured thereby an agreement that said company and each member thereof would abstain from engaging, in the city of Corsicana, in the business they had formerly conducted there, and in which appellees were then engaged, so long as ap-pellees were engaged in such business in said city. The testimony of A. W. Levermann and L. W. Ashmore, the only member of the firm who testified on the subject, is to the same effect; and, while they stated that one of the members of the firm of the Robinson Paint Company initiated the negotiations that resulted in the sale of the goods and contract in question, and that it was not their “purpose, acting together, or in combination, to get rid of the Robinson Paint Company in order to restrict trade and competition,” they further testified, in substance, that Robinson Paint Company were active competitors of theirs, and that after the negotiations started they got together and agreed to buy the stock, each to take one-half of the same, and each to contribute and pay one-half of the purchase price, and that the thus combined capital used in the purchase made amounted to over $1,300; that “one of the considerations of the trade was that they (Robinson Paint Company) would go. out of business and stay out of business,” and that appellees certainly would not have bought their stock if the Robinson Paint Company had not agreed to go out of business ; that after the contract was executed the first thing they did was to set aside $800 worth of the stock for appellant, and the remainder of the goods was' divided as invoiced and carried to the respective stores of appellees; and that each of them paid therefor on a basis of one-half each. There was further testimony to the effect that upon the execution of the contract in question, and in compliance with its terms, the storehouse of Robinson Paint Company was closed, and the goods set aside for appellant removed from the city of Corsicana, but that appellant had since returned to said city, and, in violation of the contract, was engaging or threatening to engage in the same line of business the Robinson Paint Company had formerly engaged in; that in so engaging in that business he was competing with appellees, and that, because of such violation of the contract and competition, appellees wanted to “stop him,” and to that end filed this suit. In view of this testimony and all the facts and circumstances in evidence, we cannot see how the conclusion that appellees voluntarily became associates, and, as such, combined their capital and acts to eliminate the Robinson Paint Company as competitors, can be escaped. That they did not intend to violate the anti-trust law of the state, or that the agreement did not, in fact, materially lessen competition in their line of business, is, as we have seen, unimportant in determining the question. The statute is not subject to the construction that the intent of the parties to prevent competition, or that the contract should actually have that effect, was a material element or factor in rendering a violation of its provisions unlawful. Its purpose was to condemn and declare as illegal any such contract, regardless of the intent of the parties or its actual effect.

It follows that, in our opinion, the contract sued on was illegal and void, and that the judgment of the district court should have been for appellant. It is therefore ordered that said judgment be reversed, and that judgment be here rendered in favor of appellant dissolving the injunction issued herein; that appellees take nothing by their suit, and pay all costs.

On Motion for Rehearing.

Nothing new is presented in appellees’ motion for a rehearing, and, believing the question discussed in our original opinion has been correctly decided, said motion will be overruled.

Appellees’ motion for a modification of our findings of fact and for additional findings will also be overruled. Our findings and deductions drawn from the evidence are clearly authorized and supported by the record. The statement of appellees to the effect that certain language of the opinion handed down by this court indicates or may be construed as a holding that appellant was not a party to the contract involved in the suit is not justified, we think, by anything said in the opinion. That appellant was a party to, and actually signed, said contract is unquestionably true, and seems not to be denied by him.

The motion of appellant to reform the judgment rendered by this court will be sustained. Appellant reconvened in the suit, alleging, in substance, that appellees wrongfully and maliciously procured the issuance of the writ of injunction herein, and prayed for damages, actual and exemplary, in the sum of $10,500. The trial court refused to submit any issue of damages to the jury, and appellant assigned as error on this appeal such refusal. We think appellant is entitled to have a trial on the question of damages alleged to have been suffered as a consequence of the suing out and service of the injunctioni in this cause, and the judgment heretofore ■ rendered will be reformed, and the judgment of the district court reversed, and here rendered in favor of appellant dissolving the injunction issued herein; that appellees take nothing by their suit, and pay costs, and the cause will be remanded to the court below solely for the purpose of a trial on the question of damages alleged to have been suffered by appellant in his plea in reconvention.

Appellant’s motions for rehearing and additional findings are overruled, and the judgment of the court below is reversed, and judgment here rendered in part, and the cause reversed and remanded in part.

Reversed and rendered in part, and reversed and remanded in part.
      <S=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUEF, C. J.

text:
    HAWKINS v. FIRST NAT. BANK OF CANYON, TEXAS.
    (No. 737.)

    (Court of Civil Appeals of Texas. Amarillo.
    March 6, 1915.
    Rehearing Denied April 3, 1915.)
    1. SEQUESTRATION @=12 — AFFIDAVIT— SUFFICIENCY.
    While the affidavit for sequestration should state the amount still unsatisfied, and t'he date when due, yet, as attorney’s fees are contingent in their nature and are dependent upon the court for their final ascertainment, a judgment in sequestration proceedings is not bad because the affidavit did not state the amount of attorney’s fees claimed.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 11-16; Dec. Dig. @=12.]
    2. Principal and Agent @=119 — Authority —Presumption.
    On motion to quash a sequestration, the court will presume the authority of plaintiff’s agent who signed the bond; an attack on his authority being required to be by plea.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 391-401; Dec. Dig. @=
    3. Evidence @=>83 — Presumptions — Official Acts.
    There is a presumption that the sheriff who served a writ of sequestration did his duty and took the property mentioned in the writ.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 105; Dec. Dig. @=>83.]
    4. Sequestration @=17 — Writ — Service — “Around.”
    A chattel mortgage on sheep described them as all branded “O around the hip bone.” The sheriff’s return on the writ of sequestration recited a levy upon certain sheep branded “O” with a paint brand on either hip or side. Held that, as defendant did not claim the wrong sheep had been levied upon, the writ could not be quashed on the ground that there was a variance between the mortgage and the return, for the term “around” might be construed to mean “in the vicinity of the hip bone,” instead of encircling it.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 35-37; Dec. Dig. @=17.
    For other definitions, see Words and Phrases, Second Series, Around.]
    5. Sequestration @=20 — Sureties—Liability.
    A surety on a replevin bond given in sequestration proceedings must leave the conduct of the case to his principal, and is liable only for the forthcoming of the property replevined.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 42-49; Dec. Dig. @=20.]
    6. Appeal and Error @=880 — Error Affecting Coparty — Surety.
    A judgment in sequestration will not be reversed as ajgainst the principal for error against the surety on his replevin bond who did not appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3584-3590; Dec. Dig. @= 880.]
    7. Banks and Banking @=116 — Notice to Bank — Knowledge of President.
    Knowledge of the president of a bank that a note given by defendant was a mere aceom-modation note for the president’s own debt due the bank is not imputable to the bank so as to operate as a defense, for the president in such case was acting adversely toward the institution.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 282-287; Dec. Dig. <@=^116.]
    Error from District Court, Randall County; Jas. N. Browning, Judge.
    Action by the First National Bank of Canyon, Texas, against H. H. Hawkins. There was a judgment for plaintiff, and defendant brings error.
    Affirmed.
    Carl Gilliland, of Hereford, for plaintiff in error. Turner & Rollins, of Amarillo, and Rector D. Lester, of Canyon, for defendant in error.

       Writ of error pending in Supreme Court.

   HUEF, C. J.

The defendant in error, the First National Bank of Canyon, instituted this suit against plaintiff in error, H. H. Hawkins, on a note for $2,070.40, with 10 per cent, interest from date and 10 per cent, attorney’s fees. The note is alleged to have been dated August 9, 1913, and due 45 days from date. Interest is alleged to have been paid up to November 9, 1913. The suit is also to foreclose a chattel mortgage on 1,000 head of grown sheep and 700 head of spring lambs, all branded O around the hip bone and in various marks, located about 16 miles west from Hereford on a place known as the Bob Mount place. Defendant in error sued out a writ of sequestration, making affidavit and bond, and caused a writ of sequestration to be issued thereon, which was placed in the hands of the sheriff of Deaf Smith county, who executed the same on the 22d day of November, 1913, by sequestrating as the property of PI. H. Hawkins:

“520 ewe sheep, branded O, paint brand on either hip or side, each valued at $2.00 per head, or a total of $1,040.00; also 304 ewe sheep branded O paint brand, on either right hip or side, each valued by me at $2.00 per head, or a total of $728.00; also 276 lambs branded O on either right hip or side, paint brand, valued by me at $2.00 per head, or a total of $552.00; also 46 lambs, branded O on either right hip or side, paint brand, valued by me at $2.00 per head or a total of $92.00; also 25 buck sheep, 23 of which are branded W O on right side, paint brand, and three of which branded on back near hip paint brand, valued at $10.00 per head or a total of $250.00. The total value of all property levied on is $2,-662.00.”

The plaintiff in error answered by exceptions and by certain other pleas not necessary at this time to set out. He also moved to quash the sequestration proceedings. There is no statement of facts in the record, and the case is here alone upon the pleadings, exceptions, sequestration proceedings, judgments of the court, and assignments of error.

The first assignment of error is presented as a fundamental error, on the ground, as we gather, that the judgment is for the principal, interest, and attorney’s fees foreclosing the mortgage lien on the sheep seized under the writ of sequestration, and that the affidavit for the writ only gave the principal and interest of the note sued on and does not set up the attorney’s fees. If the above assignment presents error, we do not think it is such fundamental error as can be reached by assignments presented for the first time in this court. The affidavit for sequestration is required to state the amount still unsatisfied and the date when due. Attorney’s fees are contingent in their nature and depend upon the judgment of the court for their final ascertainment, and it appears for that reason the affidavit need not set ouSt attorney’s fees. Aultman v. Smyth, 43 S. W. 932; Bank v. Robinson, 104 Tex. 166, 135 S. W. 372. It has been held in this state that the affidavit in sequestration and in an attachment, if it states an amount less than the amount claimed in the petition, furnishes no grounds to quash the proceedings. Aultman v. Smyth, supra; Evans v. Lawson, 64 Tex. page 201. We therefore think the judgment could be rendered for the attorney’s fees sued for and set out in the petition, even though the affidavit only set out the debt actually due at the time of making it. Certainly there was no fundamental error in the judgment.

By his second assignment of error, plaintiff in error alleges error in the action of the court in refusing to sustain his motion to quash the sequestration proceedings. The fifth proposition thereunder is that the bond for sequestration is defective, in that it does not purport to have been signed by the principal or by any person having authority to execute it for the bank. The bond is signed, “The First National Bank of Canyon, by L. T. Lester, Pt.” It has long been the rule in this state, where the bond purports to be the act of the plaintiff by an agent, his authority will be presumed on the motion to quash. If it is intended to question the agent’s authority, it must be done by a plea to that effect. The agent’s authority is a matter of evidence aliunde and forms no part of the bond, and upon a motion to quash the court will presume the authority of the agent. Messner v. Hutchins, 17 Tex. page 602; Wright v. Smith, 19 Tex. 297; Bank v. Cupp, 59 Tex. 270.

The plaintiff in error further sought to quash the return of the sheriff on the writ of sequestration because the brands on the sheep are described as being on the animals •at - a different place to that called for in the mortgage as set out by the petition, affidavit, and writ, and there is such variance that the return should be quashed. As the propositions are presented, we are left to surmise the position of the respective parties and the grounds upon which the court acted in overruling the motion. The brand set out in the petition is described as being O around the hip bone; the return of the officer shows the brand to be O on either side or hip. Plaintiff in error contends the brand described in the petition, etc., is a circle around the hip bone. It is suggested by defendant in error that the instruments do not necessarily mean . that such brand encircled the hip bone and that the meaning of “around” is “near,” or “in the neighborhood of.” As copied in the record, the brand is not designated as a circle, but it appears to be the letter O. In the condition of the record we are not able to say that the brand means the encircling of the hip bone. It is as consistent to interpret its meaning that the brand was near to the hip bone on the animal. If such is the meaning, the brands set out are not necessarily at variance with the writ, affidavit, and petition. The writ of sequestration is required by statute, and in this case it does so, to command the officer to take into his possession the property “describing the same as it is described in the affidavit.” The statute does not prescribe the form for the return. The presumption is that the officer did his duty and seized the property mentioned in the writ, unless it shall affirmatively appear therefrom that he did not do so. The description in the return and the writ in this case are not such that we are able to say the sheriff did not levy on the animals mortgaged, or described in the affidavit.

“The discrepancies between the description of the sheep in the return of the sheriff and those described in the petition and writ are not so radical as to place the court in a position, on a motion to quash without proof, to say that they were different animals.” Halbert v. San Saba, etc., 34 S. W. 636.

In so far as the record shows in this case, plaintiff in error admitted that the sheriff levied on the proper animals. He does not assail the levy as being on animals not mortgaged or ordered seized. It has been held in this state, where there is a question whether the brand set out in the writ and affidavit and the one on the animal in controversy is in fact the same brand named in the writ, that the question is properly one for the jury as to whether there is a substantial misdescription. Mills v. Hackett, 65 Tex. 580. The judgment of the court practical!y finds that the description is the same. It forecloses the lien on the sheep as described in the petition and recites the fact that the sheriff levied on certain sheep, describing them, as described in the return of the sheriff, and that they were replevined and decrees a judgment for their value against the obli-gors in the replevin bond, if the sheep were not returned to the plaintiff. We think the judgment clearly establishes that the proper sheep were levied upon and that there was no misdescription in the return. Under the record as made, we cannot hold as a matter of law there was such misdescription requiring the return to be quashed. If the proper sheep were seized, then there was no injury shown. The judgment concludes the question as to a proper seizure and description in so far as plaintiff in error is concerned. Cheatham v. Riddle, 8 Tex. 162; Trammell v. Trammell, 20 Tex. 416. In the absence of a specific direction by statute, requiring that the return shall describe the property as described in the writ of affidavit, we do not feel warranted in holding that the return should be quashed when the description is not exactly the same. If the statutes so required, the mortgagee could easily perpetrate a fraud. The return in this case shows that the brands were paint brands. The shearing would destroy the brands, thereby destroy the mortgage, and this could be done even after the writ is issued and before the levy. The purpose is to seize the animals mortgaged and described in the writ, and, when this is done, the mandates of the writ have been met. It makes no difference how many other marks have been added; if it shall appear upon a trial the proper animals have been seized, the lien will be enforced. If other property was seized, plaintiff in error should have shown it. In this case the record stands as a confession on the part of plaintiff in error that the proper animals were seized. There was no issue presented that the wrong sheep were seized and described in the return.

The general rule is that sureties upon a replevin bond in sequestration proceedings must leave the conduct of the case to their principal and abide the judgment rendered in the case for the reason that is precisely what they undertook to do by the bond. Wandelohr v. Grayson, etc., 102 Tex. 20, 108 S. W. 1154, 112 S. W. 1046. In addition to the general rule above stated, in answer to plaintiff in error’s sixth proposition, it is sufficient, we think, to say the sureties on the replevin bond are not complaining in this court. Plaintiff in error alone appeals, and, as above suggested, it appears from the record before us the proper animals were seized and the lien properly foreclosed against them. This is not a case in which the return was quashed; if it had been and properly quashed, the sureties would have been released. Mitchell v. Bloom, 91 Tex. 634, 45 S. W. 558. The sureties agreed that the property should be forthcoming to abide the decision of the court. The decision of the court was that the proper animals were seized, and, as seen, there was no issue made in the court below that they were not, and, as said in Cheatham v. Riddle, supra, even though there was error in overruling the motion to quash the sequestration, “the ruling of the court upon it cannot now be material, only in so far as respects the sureties on the bond given by the defendant for the forthcoming of the property to abide the judgment of the court. The sureties have not appealed, and an error in the judgment as to them will not authorize a reversal of the judgment against the principal.”

For the reasons above stated, plaintiff in error’s se'cond assignment will be overruled.

By tbe third and fourth assignments, plaintiff in error urges error in the action of the court in sustaining special exceptions to his answer. The answer in effect alleged that L. T. Lester was the president of the defendant in error bank, and that he and plaintiff in error entered into an agreement. The answer set out the agreement, which by its terms constitutes a partnership between Lester and plaintiff in error in the sheep business. It is shown thereby that Lester was to loan the partnership the sum of $1,-500, or was to furnish $1,500. This sum, finally included with the amount of $245, which plaintiff in error owed the bank, was placed in the note sued on and was made payable to the defendant in error bank. It is alleged substantially that this sum sued for except the sum of $245 was money owing by Lester and that the note was a mere accommodation note on the part of plaintiff in error. The answer charges no notice to the bank of any such arrangements between plaintiff in error and Lester further than that Lester was the president of the bank when the note was executed. We think the answer in this case discloses the fact that, if Lester took the note in question to evidence a debt that he himself was owing the bank, in such case his interest would be adverse to that of the bank. The general rule that notice to the agent is notice to the principal does not apply when the agent himself is adversely interested to the interest of his principal. We think, under the conditions alleged, it was necessary for plaintiff in error to have further alleged that the bank had notice of the arrangements between him and Lester from some other source than notice to Lester. Teagarden v. Godley Lumber Co., 105 Tex. 616, 154 S. W. 973; La Brie v. Cartwright, 55 Tex. Civ. App. 144, 118 S. W. 785.

We believe the trial court properly sustained the exception of the defendant in error to the answer. We find no reversible error in the action of the court, and the case will be affirmed.
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