600

I'EDERAL REPOR'tE:B,

vol. 49.

'e& al. fl. ARMSTRONG.

FAmIERs' &MERCHAN'l'B' SUTlll BANK

(Circutt Court of Appeaz", Bfzth. Cwcu(t. October

0. 189L)

1. Cmcurr CollBTQP ApPBALS-CBRTIJ'YING, QAU8B TO BOPRBM:B COUlJ,T. , Where a pending appeal in the supreme court and a oause, before the oirouit coun of appeals can, by reason of the,ir ooul1ection, be heard together and the and perhaps thq circuit ar", under Aot Cong. Maroli 8, 18lh, disqualified to ,pa"S8 0,J1 the CBSEl from h, heard the, same or similar questions in the court below, it is a proper of discretion to certify the to the supreme court, under section 6 of that act. t. ' Under Aot Congo March 8, 1891, § 6, prOViding for the certification of questions by ,the ilh'0Wt court of appeals to the supreme court for h18tructions, the matter of sending' uptbe whole is left with the supreme court. ,
   

Gtanted.

the Case to the'Supreme Court of the United . '/ ' Willmm Worthington, for motion. John Herron, opposing; ,Before'BltOWN, Circuit ,Justice, JAcKsON, Circuit Judge, and SAGB, , ., "

BR()'WN(Citeult Justice, (orally.)' In this case a motion was ma.neto certify the Case to the stipreme the The sixth section 6f"tlle a.ct establishing the circuit court of appeals provided: of appealsmay,at'any timeioorti'fy to the supreID8 "The, court of ,tbe iUn1ted States any questioDsor propositions of law concerning w.hich itdesiree the instruction its proper decision." We think that, in view of the fact that the distriCt judge who is assigned' to :hold the court of appeals is'disqualified to pass ripon thequestioDs involved in this Mae by reason of having heard them in the oourtbelow, andthattbecircuit judge also'is perhaps disqualified under the terms of the act, by reason of having decided a similar questioniJianother case, and in view of the further fact that there is a case al1'eadY'pending on appeal, in the supremecburt of the United States, which is incidentally connected with this case, and that these may probably be argued together,we: think the questions arising in this Mse ElMuid :De' certified to the supreme court. Thela'w' pro\'ides that,:incase there are questions or propositions of Jaw ooncernittg which thiS:'court desires, instructioos,'the court may cer;' ,tif)" the 'case; and tbat,upon such: certifying beingmade,the court "may , give its instructioilS on the "questions and propositions certified to it, which shall be binding upon the circuit coui'tof appeals in,such case, or it may require that the whole record and canse may be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the Bame manner as if it had been brought there for review by writ of error or appeal." That would seem to leave the mat;. ter of sending up the whole record to the supreme court.

WEBB ,.HAYNER.

(Dl.sWlct Oourt, W. D. Te:J:CU' Harch 19, 1899.)

1.

EOMESTEAD-WllAT CoNSTITU'lES-BUSIN1!ISS PREMISES.

Ii.

S.

Urider Const. Tex. art. 16, S 51, an urban homestead may include not only a house and lot used as a family residenoe, but also other lots contiguous thereto, which are used by the head of tbe family for business purposes, provided that both togetber do not exceed $5,000 in value, exolusive of improvements. MiUer v. 56 T.ex. 550, followed. Under sections 50, 51, snch homestead is exempt from jUdicial sale to pay debts incurred in the purchase of merchandise.

Under the Texas constitution, a designation of business premises as a homestead is. sUlllciently shown by a bill which alleges that plainti1l "purcbased said property for the purpose of using the same as a place to carryon his said business, and with .the fixed intention of designating and using the same as bIs busineSB. homestead, and that on the day he acquired title he took possession, and has since continuously used tbe premises as his place of business. Miller v. Menke, 56 Tex. 550, followed.
SAME-SALB OIr BOMESTEAD':"'!NroNCTION.

f.

Equity will enjoin the forced sale ofa homestead to pay debts, since luoh sale, though lUvalid, would create a cloud upon the title.

In Equity. Suit by Joseph W. Webb and wife against Hayner & Co. and Paul Fricke to enjoin the sale of a homestead. Heard on demurrer to the bill. Overruled. Ge,orge F.Pendexter, for complainants. Jame8 B. Goff, for defendants. Before MAXEY, Dietrict Judge.
MAxEY, District Judge. This bill of injunction ill brought to restrain Hayner & Co. and Paul Fricke, marShal of this district, from selling a house and .lot claimed by complainanta as a business homestead. Defendanta demur on several grounds, but at the argument only the following were relied upon: (1) "That said bill discloses no equity,and seta forth··no facts whiCh, if true, would entitle the plaintiffs to the re,lief sought."· (2) "That it appears from the averments in said bill contained that, if the same are true, plaintiffs have a full and adequate remedy at law." (3) "That said bill sets forth no facts constituting a designation of the land therein described as a homestead." It is alleged in the bill that the husband, Joseph W. Webb, has during the past 10 years been a married man, and the head of a family, a citizen of Travis county, and continuously during the period aforesaid has been engaged in the mercantile business as a member of the firm of John A. Webb & Bro. The bill then proceeds as follows: "Your orator would further show that heretofOre, to-wit, on November 9, 1881, he acquired by purchase a legal and equitable title to certain real estate in the city of Austin, Travis county, Texas. fully described as follows, towit: Ten feet 01f of the east side of lot No. three, and twenty-nine and a .half feet off of the west side of lot No. four. Said lots adjoin each other, and are situated in block No. 68, in said city of Austin; together with the 'improvements ·thereon situated, consisting of a two-story brick store-house. Third. Your orator would further show that he purchased said property for