of a writ of sequestration. The petition is as follows:

"Your petitioner, Frank C. Wedig, a resident citizen of the county of Travis and state of Texas, who will hereinafter be styled plaintiff, brings this suit and files this petition against P. L. Meyer, a resident citizen of the county of Travis and state of Texas, and the San Antonio Brewing Association, a private corporation created under the laws of the state of Texas, having its principal office in the city of San Antonio, in the county of Bexar, in the state of Texas, its president being C. Kohler, who resides in said last-named county and state, and having a duly-authorized agent in the city of Austin, in said county of Travis, such agent being the said defendant P. L. Meyer, who will hereinafter be styled defendants; and for cause of action plaintiff alleges:

"(1) That on or about the 21st day of June, 1899, plaintiff was engaged in the business and occupation of a retail liquor dealer in the city of Austin, in the county of Travis and state of Texas, and as such dealer, and as part of his stock in trade, and as necessary for the transaction of his said business, had and owned certain fixtures and furniture of the reasonable and just value of thirteen hundred and fifty dollars, and consisting in part of the following articles: One counter, one back shelf, one mirror, one show case, four electric fans complete, four wine rooms, one storeroom, one iron safe, one partition, four tables, eighteen chairs, one foot railing, lot of glassware and lot of silverplated bar spoons and bar utensils, all of which said articles were used in the business and occupation of plaintiff as a retail liquor Idealer in that certain storeroom and building situated at No. 701 Congress avenue, on corner of East Seventh street, in the city of Austin, aforesaid, on or about the 21st day of June, 1899, and for more than twenty months prior thereto.

"(2) That on the 12th day of November, 1897, the plaintiff being indebted to the defendant the San Antonio Brewing Association in the sum of fifteen hundred dollars, this plaintiff executed his promissory note in said sum of money due one day after date, with interest from date at the rate of seven per cent. per annum, to the said San Antonio Brewing Association.

"(3) That on said 12th day of November, 1897, in order to secure the just and full payment of the aforesaid promissory note for fifteen hundred dollars and interest, plaintiff herein made, executed, and delivered to the defendant the San Antonio Brewing Association a chattel mortgage, a copy of which is hereto annexed,-Exhibit A,-and prayed to be taken and considered as a part of this petition, whereby plaintiff conveyed to the defendant as a security the personal property, with some others, which is herein before described, and which was then situated in the aforesaid building and saloon situated at No.

701 Congress avenue, aforesaid; which said chattel mortgage, among other things, stipulated that the plaintiff promised to pay off the note secured by mortgage at the rate of not less than fifty dollars per month from date.

"(4) That on or about the 1st day of July, 1898, plaintiff, for valuable consideration, made, executed, and delivered to defendant the San Antonio Brewing Association his certain promissory note for the sum of six hundred dollars, due one day after date.

"(5) That on or about the 16th day of July, 1898, in order to secure the full payment of the aforesaid note for six hundred dollars and interest, plaintiff herein made, executed, and delivered unto the defendant the San An tonio Brewing Association a certain chattel mortgage (a copy of which is herein annexed marked 'Exhibit B,' and prayed to be taken and considered as a part of this petition), whereby plaintiff mortgaged to defendant the San Antonio Brewing Association those certain retail liquor dealer licenses for state, county, and city which were used in plaintiff's said place of business, as hereinbefore described, as well as all other personal property which was then or might be thereafter placed therein.

"(6) That on or about the 21st day of June, 1899, defendant the San Antonio Brewing Association filed suit in the county court of Travis county, Texas (cause No. 3,219). against the plaintiff for balance due on the two aforesaid promissory notes, and to foreclose its lien on the personal property set out and described in the two aforesaid chattel mortgages, alleging a balance to be due on same of the sum of eight hundred and eight dollars, together with interest and attorney's fees, which allegation so contained in said suit plaintiff now avers not to be the truth, said plaintiff herein not being at that time indebted to the said San Antonio Brewing Association in any such amount, although he admits that he was at the date of the filing of said suit indebted to said brewing association in some sum, but he denies that the same amounted to the sum of eight hundred dollars, but that such indebtedness, if any, did not and does not amount to near as much.

"(7) That on the said 21st day of June, 1899, the defendant the San Antonio Brewing Association, conspiring and confederating with the said defendant P. L. Meyer to injure plaintiff, and to destroy his business, credit, and reputation, procured the said defendant P. L. Meyer to make and file his, the said P. L. Meyer's, affidavit for a writ of sequestration in said cause against this plaintiff, in which said affidavit he, the said P. L. Meyer, did swear that the said sum of eight hundred and eight dollars, with interest and attorney's fees, was due and owing to the said San Antonio Brewing Association by this plaintiff; that the said association had a lien or mortgage on the aforesaid personal

property to secure the same; and that the San Antonio Brewing Association was enti tled to the possession of said personal property, and that it feared that this plaintiff, who was in possession of said property, would injure, ill treat, waste, or destroy such property during the pendency of such suit; and further set up and alleged in said affidavit that the value of the property on which said lien was claimed to exist to be the sum of five hundred and twenty-nine dollars; and this plaintiff now alleges that said affidavit was untrue and false in these particulars, viz.: That he was indebted to said association in the sum of eight hundred and eight dollars, exclusive of interest and attorney's fees, the truth being, as plaintiff here alleges, that there was due, if anything, a very small sum, upon the said two notes and chattel mortgages, and that the value of the personal property mortgaged to said association by this plaintiff was on the said 21st day of June, 1899, the sum of thirteen hundred and fifty dollars; and plaintiff alleges that the statement in said affidavit contained that this plaintiff would injure, ill treat, waste, or destroy such personal property included in said two mortgages during the pendency of said suit in the county court of Travis county was utterly false; and plaintiff further alleges that said statement in said affidavit was made by both of said defendants with full knowledge of its falsity, and with intent on the part of both of said defendants to injure this plaintiff in his business, reputation, and credit.

"(8) That on the said 21st day of June, 1899, in said cause No. 3,219, the said San Antonio Brewing Association also filed in said cause its bond, with security in the sum of eleven hundred dollars, and thereupon was issued in said cause upon its demand a writ of sequestration directed to the sheriff or any constable of Travis county, directing him to take into his possession the personal property described in the chattel mortgage dated the 12th day of November, 1897, which said writ was duly executed by the sheriff of Travis county on the 21st day of June, 1899, by seizing the before-described personal property, and taking it out of the possession of this plaintiff, and which said personal property was afterwards, on July 4, 1899, replevied by the defendant the San Antonio Brewing Association, and the same is now in its possession, and being used by it for its use and benefit.

"(9) That this plaintiff alleges that by reason of the aforesaid wrongful issuance and levy of said writ of sequestration and the seizure of the aforesaid personal property he has been deprived of the use and benefit of same, wherefor and whereby he has been prevented from carrying on his occupation and trade as a liquor dealer, to his actual damage five thousand dollars.

"(10) That this plaintiff alleges that he has been a resident of the city of Austin, afore

said, for more than twenty years, has been during all of said period actively engaged in business, and during all said time enjoyed a good reputation for honesty and fair dealing, and had up to said 21st day of June, 1899, and the issuance and levy of said writ of sequestration, a good credit and standing among business men and the commercial world generally; but that since the said levy and the seizure of said personal property his said credit and commercial standing has been among his neighbors, friends, and the commercial world specially and generally seriously impaired and destroyed by reason of the levy and seizure aforesaid, and his ability to pursue his said occupation of saloon keeper and liquor dealer totally destroyed.

"(11) That the said defendants caused the issuance and levy of the aforesaid writ of sequestration maliciously, and without probable cause, and with the intent on the part of both of them to injure plaintiff in his business, credit, and reputation, whereby he says he is entitled to a judgment for punitory and exemplary damages against both of said defendants in the sum of ten thousand dollars, in which sum, in addition to his actual damages, he alleges he has been damaged and injured.

"(12) That by reason of the levy of said writ of sequestration wrongfully and without probable cause upon the said personal property of plaintiff, and his dispossession of the same, and by all the facts and circumstances as alleged hereinbefore by plaintiff, he has been actually damaged and injured by defendants in the sum of five thousand dollars, for which sum he now prays judgment against both of said defendants.

"Premises considered, plaintiff prays for process pursuant to law, and that on final trial of this cause he may have judgment against defendants, the San Antonio Brewing Association and P. L. Meyer, for the sum of five thousand dollars actual damages, and for the further sum of ten thousand dollars as exemplary or punitory damages, for costs, and for general and special relief," etc.

Exhibit A, referred to in the petition, and attached thereto, is as follows:

"Exhibit A. The State of Texas, County of Travis. Know all men by these presents, that I, Frank C. Wedig, of the state of Texas and county of Travis, for and in consideration of one dollar to me in hand paid, and the further consideration hereinafter set forth, have sold, transferred, and delivered, and by these presents do sell, transfer, and deliver, unto the San Antonio Brewing Association, also of the state and county aforesaid, all and singular the following personal property, being in the state of Texas, county of Travis, and in the city of Austin, and particularly described as follows, to wit: My state, county, and city R. L. D. licenses; my entire bar fixtures, consisting of 1 counter, 1 back shelf, 1 mirror show case, 4 electric fans in complete running order, 4 wine

rooms, 1 storeroom, 1 safe, 1 clock, 1 partition, 4 tables, 18 chairs, 1 foot railing in front of my counter; also my entire glassware now in use in my place of business situated in the house 104 E. 7th, cor. Congress Ave., in the city of Austin and state of Texas. It is agreed by the San Antonio Brewing Assn. and Frank Wedig that the latter promises to pay the note secured by this mortgage at the rate of not less than fifty dollars per month from date, and all personal and license now in or hereafter contained in said premises. The title to said property I warrant to the said San Antonio Brewing Association against any and all persons whomsoever lawfully claiming or to claim the same. This conveyance is intended as a mortgage, however, for the purpose of securing the San Antonio Association in the payment of a certain note for the sum of fifteen hundred dollars, payable one day after date, at interest thereon at the rate of 7 per cent. per annum, together with an attorney's fee of ten per cent. if not paid at maturity, as well as all indebtedness now due or to become due by the said Frank Wedig to the San Antonio Brewing Association. Should the said Frank Wedig pay off and discharge the said note according to its terms, reading, and tenor, as well as all his indebtedness, then this instrument shall become null and void. But should the said Frank Wedig fail to pay off and discharge the said note or the indebtedness, or any part, then, in that event, the said San Antonio Brewing Association, through its authorized agent, may take possession of the said property, and sell the same at public or private sale, as to them may seem best, with or without notice, and the proceeds thereof to apply first to the expenses incurred in executing this trust, and next towards the payment of said note and indebted, and the remainder, if any, to pay over to Frank Wedig, his heirs and assigns. In testimony whereof, witness our hands at Austin, Texas, this the 12th day of November, A. D. 1897. Frank C. Wedig. Witness: P. L. Meyer. H. F. Kaufman." The Exhibit B, also attached to the petltion, is:

"Exhibit B. The State of Texas, County of Travis. Know all men by these presents, that I, Frank C. Wedig, of the state of Texas and county of Travis, for and in consideration of one dollar to me in hand paid, and the further consideration hereinafter set forth, have sold, transferred, and delivered, and by these presents do sell, transfer, and deliver unto the San Antonio Brewing Assn., also of the state and county aforesaid, all and singular the following personal property being in the state of Texas, county of Travis, and in the city of Austin, and particularly described as follows, to wit: My retail liquor dealer's licenses, consisting of state, county, and city, now in use in my place of business situated at 1st floor, 104 East 7th,

cor. Congress Ave., Austin, Texas, and all personal property and license now in or hereafter contained in said premises; the title to which said property I warrant to the said San Antonio Brewing Association against any and all persons whomsoever lawfully claiming or to claim the same. The conveyance is intended as a mortgage, however, for the purpose of securing the San Antonio Brewing Association in the payment of a certain note for the sum of six hundred dollars, payable one day after date, date July, 1898, with interest thereon at the rate of per annum, together with an attorney's fee of ten per cent. if not paid at maturity, as well as all other indebtedness now due or hereafter to become due by the said Frank C. Wedig to the said San Antonio Brewing Association. Should the said Frank C. Wedig pay off and discharge the said note according to its terms, reading, and tenor, as well as all other indebtedness, then this instrument shall become null and void; but should the said Frank C. Wedig fail to pay off and discharge the said note or the indebtedness, or any part, then, in that event, the said San Antonio Brewing Association, through its duly-authorized agents, may take possession of said property, and sell the same at public or private sale, as to them may seem best, with or without notice, and the proceeds thereof to apply first to the expenses incurred in executing this trust, and next towards the payment of said note and indebtedness, and the remainder, if any, to pay over to his heirs and assigns. In testimony whereof, witness our hands at Austin, Texas, this 16th day of July, A. D. 1898. Frank C. Wedig. Witness: P. L. Meyer."

The court below sustained a general demurrer to the petition, and, plaintiff declining to amend, the court dismissed the suit, from which order this appeal is taken. '

Ben P. Rogers and Fred Carleton, for appellant. Upson & Newton, Fred C. Von Rosenberg, and Hogg & Robertson, for appellees.

COLLARD, J. (after stating the facts). It will be seen by the terms of the mortgages that the brewing company, defendant, had the right to take possession of the property, and sell it, to pay the debt secured thereby, or any part of the debt. The petition shows that the debt had not been paid in full, and the right to take the property into possession cannot be questioned. The exercise of that right and securing it by process of the court could not be ground for damages. Harling v. Creech, 88 Tex. 300, 31 S. W. 357. Defendant is only charged with doing an act which the contract declared it could do, and it is difficult to see how it would render itself liable for doing it. No conversion of the property is alleged, and, of course, if it should be converted by defendant, it would be liable for its value, less the amount due by plain

PLEADING-AMENDMENT-NEW CAUSE OF ACTION-EXECUTORS-EXECUTION - ENFORCEMENT-DUE COURSE OF ADMINISTRATIONTRIAL CALLING CASES ON CALENDAR-APPEAL-PRESUMPTIONS.

1. Defendant having filed a general denial on the appearance day, the appearance docket was called for defaults, and the cases preceding that of defendant were called, and either continued, set, or passed by the court, to be again called; and a second call of the docket was had for trials, and, defendant's case being reached, it was postponed on account of the absence of defendant's counsel until afternoon, when it was taken up and tried, defendant's counsel being absent. Held, that the trial was not prematurely had.

2. A petition set out that plaintiff's husband had deposited with defendant an insurance policy to secure an indebtedness, which defendant collected, and retained more than enough to pay the debt, and appropriated the excess, and the petition gave the name of the insurer. Held, that an amendment correcting the name of the insurer did not set up a new cause of action, requiring defendant to be cited to answer; the suit not being founded on the policy.

3. A petition alleging that defendant qualified as executrix, and by the terms of the will was appointed independent executrix, not being excepted to for failing to show whether she had qualified as a regular or independent executrix, authorized proof that the estate was being administered under Rev. St. art. 1995, authorizing settlement of a testate's estate independently of the probate court; and hence, on proof of such fact, it was proper to award execution against defendant as executrix of the estate, and it would not have been proper to certify the judgment to the probate court for payment in due course of administration.

4. A petition alleging that defendant qualified as executrix, and by the terms of the will was appointed independent executrix, it must be presumed, in the absence of a statement of facts in the record, that the proof showed that defendant had qualified and was acting as such independent executrix.

Appeal from district court, Travis county; R. E. Brooks, Judge.

Action by Lucy M. Mabry against Amanda M. Ellis. Judgment for plaintiff. ant appeals. Affirmed.

Defend

Eugene Williams, for appellant. Hogg & Robertson, for appellee.

KEY, J. Appellee, Mrs. Lucy M. Mabry, sued appellant, Mrs. Amanda M. Ellis, individually and as executrix of the estate of L. A. Ellis, deceased. A judgment was rendered for the plaintiff for $959.55, and the defendant has appealed. There is no statement of facts in the record. The defendant filed a general denial on May 2, 1900, and

the case was tried in her absence and the absence of her counsel on May 8, 1900; the same being appearance day of that term of the court. The record shows that after the call of the appearance docket for defaults the docket was again called regularly for trials, and when this case was reached it was postponed until 2 o'clock p. m. of the same day to await the arrival of appellant's counsel. Appellant's counsel did not appear, and at 2 o'clock the case was taken up and tried in his absence. It was also shown that there were a number of cases preceding this case on the docket of the district court, which had not been tried at the time this case was taken up and tried. The bill of exceptions states that all these cases had been called and continued or postponed, but that the orders to that effect had not been entered on the docket in a number of said cases at the time this case was tried and at the time appellant's motion for a new trial was heard. It is distinctly stated, however, in the bill that the cases preceding this had been called, and either continued, set, or passed by the court, to be again called, and that this case was regularly reached and called for trial in its order and proper place, when it was tried and disposed of. The motion for new trial was filed May 10, 1900. Under the facts above recited, there is no merit in the contention that the case was prematurely tried. It was regularly reached on the call of the trial docket, and, though it was appearance day and appellant had filed an answer, appellee had the right to demand a trial; and the court committed no error in trying and disposing of the case at the time stated.

The suit was brought to recover a sum of money collected by appellant upon a life insurance policy payable to appellee upon the death of her husband, W. H. Mabry. The petition alleged that W. H. Mabry, being indebted to L. A. Ellis, deposited with him the insurance policy to secure such indebteduess, and the appellant, having collected the amount due on the policy, had retained more than enough to pay the indebtedness of W. H. Mabry, and had appropriated such excess. The plaintiff's original petition described the insurance policy as having been issued by the Equitable Assurance Society of New York. On May 7, 1900, after appellant had filed her answer, appellee filed an amended original petition, in which the policy is described as issued by the Equitable Life Assurance Society of the United States. Appellant was not cited to answer the amended petition, and it is contended that no judgment should have been rendered thereon, because it sets up a new cause of action. We cannot sustain this contention. The gist of the plaintiff's action was money alleged to have been collected and wrongfully appropriated by the defendant. The suit was not founded upon the insurance policy, and the correction by the amended petition of the description of the policy did not set up a new cause of action.

It is further contended that error was committed by the trial court in directing execution to issue against appellant as executrix of the estate of L. A. Ellis, the contention being that the judgment should have been certified to the probate court for payment in due order of administration of the estate. Appellee's petition discloses the fact that L. A. Ellis left a will, and avers that by the terms thereof appellant was made the independent executrix of said will; that the latter had been duly probated, and appellant had qualified as executrix of the estate, and was still acting as such. It is provided by statute that when a will has been probated its provisions and directions shall be executed, unless the same are annulled or suspended by order of the court probating the same in a proceeding instituted for that purpose by some person interested in the estate. Article 1991, Rev. St. And it is further provided that any person capable of making a will may so provide in his will that no other action shall be had in the county court in relation to the settlement of his estate than the probating and recording of his will, and the return of an inventory, appraisement, and list of claims of his estate. Article 1995, Id. Though not so designated by statute, an executor acting under such a will as is referred to in article 1995 is, in legal phraseology, termed an "independent executor." Dwyer v. Kalteyer, 68 Tex. 554, 5 S. W. 75; Roberts v. Connellee, 71 Tex. 14, 8 S. W. 626. At any rate, whatever designation may be given to such executor, it is well settled that when he has been so appointed, and the requirements of article 1995 complied with, the probate court has no further jurisdiction over the estate, so long as he continues to discharge the trust. Holmes v. Johns, 56 Tex. 41; Bennett v. Kiber, 76 Tex. 385, 13 S. W. 220. It is true, the petition in this case does not allege that appellant qualified as independent executrix, but it does allege that she qualified as executrix of the estate, and that by the terms of the will she was appointed independent executrix. The petition may have been subject to a special exception because it did not show whether appellant had qualified as a regular or independent executrix of the estate; but the general averment, not excepted to, that she was the qualified and acting executrix of the estate, authorized proof of the fact that the estate was being administered under article 1995, and independent of the probate court, and upon proof of such fact it was proper to award execution against appellant as executrix of the estate, and it would not have been proper to certify the judgment to the probate court. In the absence of a statement of facts, it must be presumed that the proof showed that appellant had qualified and was acting as the independent executrix of the estate.

Some other points are made in appellant's brief, which have been duly considered, but it is not believed that reversible error is

shown. It is not believed, however, that this is such a case as to authorize compliance with appellee's request for 10 per cent. damages for delay. No reversible error having been pointed out, the judgment will be affirmed. Affirmed.

BLACKWELL et al. v. COLEMAN COUNTY. (Court of Civil Appeals of Texas. Jan. 30, 1901.)

TRIAL-BURDEN OF PROOF-RIGHT TO OPEN AND CLOSE.

In an action on a note for the purchase price of land, defendants having admitted plaintiff's cause of action, except in so far as it might be defeated by the defense of a failure of consideration, in that the title to the land sold was not in plaintiff, the burden of proof was on defendants, and they were entitled to open and close the case.

Error from district court, Coleman county; J. O. Woodward, Judge.

Action by Coleman county against W. N. Blackwell and others. From a judgment in plaintiff's favor, defendants bring error. Reversed.

Jenkins & McCartney and T. J. White, for plaintiffs in error. J. R. Baker, J. O. B. Miller, and Sims & Snodgrass, for defendant in

error.

FISHER, C. J. At a previous day of this term we certified a certain question in this case to the supreme court, which they have answered. 59 S. W. 530. The opinion of that court fully explains the question certified and the answer given. The ruling there made, in our opinion, necessarily requires a reversal of the judgment of the trial court; for the testimony of the surveyor, which the supreme court held to be inadmissible, was of a character that evidently had some influence upon the minds of the jury in reaching a verdict. We also agree with appellants in their contention that their admission of the plaintiff's cause of action entitled them to open and conclude. The appellants, in effect, admitted the plaintiff's cause of action, except in so far as it might be defeated by the defense interposed; that is, a failure of consideration of the notes sued upon, arising or growing out of the alleged vacancy existing at the time that the land was sold by Coleman county to the appellants. The burden of proof as to these issues rests upon the appellants. If these facts are not true, the plaintiff is entitled to recover. If they are true, the appellants are entitled to recover to the extent of the loss sustained by them. We cannot say that we entirely approve the exact language of the trial court in submitting the issues to the jury; but the general charge, in our opinion, did embrace all the issues that should have been submitted. In a case of this character it is only necessary for the court to leave the jury free by the charge to select which of the two