The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1881-11-24
Synopsis of tho Opinions of the Commits
sioners of Appeals.

Weems VS.. Miles & Rainer; from Dallas
county. Though both parties be residents
of another State, an affidavit for garnish-
ment that sets up the fact that the detcHd-
ant has property in any county in this
State, and the issuance and service of the
writ, will give to the courts of that county
jurisdiction to hear and determine the
cause Suit can be maintained against an
executor under will which gives
control of the estate Independent
of the probate court and execution
will run against the estate in his possession.
The statute requiring that the executor
shall not be required to plead to any suit
until the expiration of one year from the
which may be waived, and if he appears
and answers before the expiration OF that
tim, he thereby valves the privilege. AT
firmed. Watts, commissioner.
Hall VS.. Person; from Lamar county.
The general rule in this State in suits for
the breach of warranty IN the sale of lands
is that judgment of II court of competent
jurisdiction, not appealed from, establish
ing superior outstanding title, is of itself
sufficient evidence of eviction. And gener
ally the measure of damages is the pur-
chase money and interest, but when the
suit is against remote warrantor the
plaintiff can only recover the amount fthe
purchase money that he paid
his immediate vendor, with interest, but
never to exceed the amount Of purchase
money received by his remote Wafrantor
Recitals in the deed from the vendor to the
vendee as to the amount offJurc hase-money
is prima iacic evidence that the amount
stated was the true consideration, but such
rocitalS are no evidence Of what the vender
paid for theldnd. Watts, commissioner.
Schneider & Davis VS.. Billiard ct al; from
Ellis county. This was statutory pro-
ceeding in punishment wherein the issue
under the answer of the garnishees was
whether the goods in their possession was
the property of NJ. and subject to the debts
of his creditors. In contemplation of law,
in proceeding of this character, the prop
erty was as to his creditors, the property
of H., if he had transferred and conveyed it
to garnishees under circumstances which
rendered such sale and transfer fraudulent
as to his creditors. The cause was submit
ted to the Judge, and his determination of
the facts is as Conclusive as the verdict of
jury. Affirmed. Walker, commissioner.
Lizzie Campbell VS.. Houston & Texas
Central railroad from Ellis county. The
charge Of the court must in all cases cor
respond with the allegata and probate.
There was not in this case the least evil
dence of any act of commission or omission
on the part of the agents of the defendant
whereupon to charge that the injury re-
suited either from its act of unlawful COM
mission, wilful omission or from gross neg
ligence or malice. The existence of some
one, or kindred of these elements must be
shown in order to warrant q recovery. The
petition made no allegation charging that
the homicide was committed by thewiliul
act or omission of the officers or agents of
Een ,,..l
that exemplary damages could be recovered,
and a charge thereon was probably refused.
Weller, commissioner.
Jones VS.. Smith; from Robertson county.
In a suit to subject the property OF a sole
legatee to an amount paid by plaintiff on a
valid incumbrance on that property, the
executor of an Independent will is not
NECESSARY party The validity Of the sher-
IFS deed to the intervenor, Smith, was di-
rcctly involved IN tho litigation between
W. and. Jones-Smith having purchased at
Sherif's sale under a valid judgment and
conveyed with warranty to W, The Sheriff's
sale proving invalid for misdiscription,
Smiths interest In the subiect-matter of
the litigation between w. and Jones is APP
parent, and entitled him 10 intervene. II
for any reason, a Sheriff7s sale upon valid
Judgment is Intellectual, the purchaser, be-
comes subrogated TO the lien Of the original
judgment which his money went to dis
charge. See 40 Tex. 255; 81 Tex. 37l. AZ
firmed. Watts, commissioner.
Howard vs.. Cross and wife; from 2 irnett
county. Whenever homestead right
to land has attached TO the husband
the wife acquires homestead right IN il
also, and 10 thir acquisition, her actual
presence is not necessary, and her right
having once attached, she can only be di-
vested in manner prescribed by the COnsti-
tution-by her deed with her privy &C
Acknowledgement, or by abandonment under
circumstances which would Justify thee
clusion that she had abandoned It. False
representations Of the husband cannot di-
vest her Of her right. Charge Of the court
conforming 20 these principles, and evil
dence ofdesignAtion and acquisition being
complete, the judgment is aligned. Quiz
nan, commissioner. Watts, commissioner
disepufe