The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-05-25

sence OF proof of a confirmation or its
| equivalent, the agreement should be an
nulled, and the decree vacated. Re
| versed and remanded.-Watts, C.
/ Douglass VS.. Mundine ct al; appeal
from Lee eounty.-Mh here the Judgment
Is based upon one issue, and error was
committed on another which was imma-
| terial to the issue found on. the error is
lmmaterial. though the debtor be in
| default in payment, the creditor cannot,
without incurring liability, infict loss
upon the debtor, through his negligence
| and fault. Though collateral notes
constitute the only available property OF
the debtor from which he could pay, the
creditor cannot impose loss by his negli-
gence without incurriDg liability. Az
firmed.-Watts, G.
| Taylor VS.. McNutt appeal from Wash
| ington county.-There are exceptions TO
the general rule that the court must in
struct upon the legal effect of written
evidence. When the effect of the writ
Ing would depend also upon extrlnsic
facts, the court should charge upon the
legal effect Of the instrument in manner
to meet properly the various phases pre-
sented by the eXtrinsic evidence adduced.
Counsel should be confined in argument
to the issues made by the pleadings and 10
| which the evidence Is directed. Re-
versed and remanded.---Watts,C C.
Dunn VS.. Stalworth ct al; appeal from
| Falls county.-lf the description of the
| land is so vague and indefinite in the
| grant as TO fail to identify the land IN
tended to be conveyed, the grant will be
| held void. But when the calls in the grant
include matter which will identity the
land intended, the grant Is not void. A
copy OF field notes, made in English. when
surveyed lin 1S35) is admissible to aid in
establishing the survey upon the ground.
A charge on Limitation is essential when
| the party asserting limitation had actual
possession Of part OF the land in conflict,
| cultivating and using IL, ana claiming
| under prior grant and deeds emanating
from such grant. Affirmed.-Watts,C y.
Greenwood VS.. Pierce; appeal from
Caldwell county Where a lot was pur-
| chased, with reference to a map, and the
purchaser was induced to buy upon the
representations of the vendor, that road
and depots would be constructed thereon,
as plated on the map, such represents
tions become obligatory upon the vendor;
and the measure OF damages, In resulting
litigation, will be the difference between
the contract price and the actual value of
| the property. Averment OF incorpora-
tion is essential to raise the presumption
| that the corporation existed. Reversed
and remanded.-Watts, c.
Coombs VS.. Thomas; appeal from
Dallas county.-That married
| woman's deed does not show
that she acknowledged IL TO be her act,
that 1t failed to show her delivery ofthe
| deed, or that the officers certificate failed
| TO declare delivery by her, are objec-
tions untenable. [4G Tex. 294; 50 Tex.
567l. Likewise is the objection unten-
able, that the acknowledgment fails 10
show privy examinations. Reversed and
remanded.-Walker, p. @.
Dallas Compress company VIZ. Bryan ct
| al; appeal from Dallas county. The
pleadings alleging that Il. was president
| OF the company, citation upon him was
sufficient. A defendants name being
properly given, IL is not necessary that IL
appear that he was served in person with
a copy of writ and petition. Superadded
description is surplasage and will not VI
tiate decree. 70 constitute a legal basis
therefor, the judgment mutt conform TO
the allegations In the petition. Judg-
ment by default admits every averment
except the amount of damages. a Tex.
3Sl; IL Ib. Is; % Ib. S7.] Reversed and re-
manded.-Walker,P p. q.
Anthony ct al VS.. Morrison appeal
from Fannin cOunty.-Article Z, Il. D.,
prescribing that the continuance OF au
administrators successor Is the same as
that in respect to defendants death be-
fore verdict, the rule of procedure IL
the same in both class OF defendants.
The retirement of former administrator
mnst be suggested and entered on the
minutes of the court, before the new ad-
ministrat0r can appear and be made
party. A suit and verdict being against
the estate, no judgment personal against
the executrix to be enforced against the
estate, is enforcible. A demand is not
necessary to begin the operation OF the
statute 0flimiJati0n, and q charge that it
is is error. Reversed and remanded.
walker, z. G.
Busby 81 Scroggins VS.. Davis ct al; from
Ellis county.-A second application for
continuance to procure the testimony OF
L ahnyuinU nlll0annA-
was properly overruled. And besides,
the object being TO show purchase OF
the land with Confederate money, the
evidence sought was not material. The
record fails to show the plaintiffs grounds
of objection to the inventory of the estate
of Busby as evidence, but their written
argument states them: Because the In
ventOry was not signed and sworn 10 by
Mrs. B.; because no order of court ap-
pointing appraisers appears; because the
inventory was not recorded, and hence
the sale by the wife was void. Applica-
tion of the wife for appointment of ap-
praisers bears date August 30, 1858; IL
shows that she sought to qualify as the
survivor of the community, under the act
Of August 20, 1856, and that the inventory
was sworn to by two of the appraisers
whose appointment was prayed for, Oct0-
Der 10, 1858, their report reciting their
appointment by the court. Held, under
Green vs.. Grissom, SO Texas, 432, that
the proceedings were not absolutely void,
and hence not open to collateral attack.
[47 Texas, 173; IA Ib. 532.] Where
question of fact has been passed upon by
the court Tor jury, such finding, IL not
against a preponderance of evidence, will
not be disturbed. Afiirmed.-Delaney,
Commissioner.
Andrews VS.. Long & Cox; from Cooke
county.-This court will not consider
statement of facts which has not lseen
approved by the trial judge. i he 'eyi-
dence in this case failing to show
that the plaintiffs really ordered or
kept in store any machinery ex-
pressly for the defendant, The court did
not err in excluding evidence Ito
prove the amount of freight paid by plain
tiffs, storage and the decline in prices.
The evidence shows the practice of the
plaintiffs to keep machinery In store,
baslng their purchases on orders re-
ceived; that certain machinery was sold
on commission, and WAS ordered by them
when orders were received either posi-
tive or conditional. In this case they
ordered machinery which they expected
to sell to defendant, but actually sold to
other parties. And it does not appear
that they had, when this suit was filed,
any goods, purchased upon receiving de-
PENDANTS order, or that they had sold any
at loss. Under these circumstances no
cause Of action, under our law, accrued.
Affirmed.-Delaney, @.
Kemp ct al VS.. Green; appeal fro.n Dallas
county.-In the absence Of both state
ment OF facts and an assignment of error,
this court can only inquire whether the
i pleadings will sustain the Judgment.
This suit was filed against *. alone, but
both X. and M, as guardian OF the minor
M, answered, and the judgment Is joint
| against X. and M. guardian. The judg-
ment against M. is erroneous, and neces-
/ siEates a reversal as to both. There was
no entry Of former judgment, and
whether or not the court could, under the
circumstances, enter judgment nunc pro
| tune admits OF doubt. See Pasc. Dig.
40, 81, 1915; 40 Tex 500.1 Reversed and
emanded.-Delaney, g.
Harston VS.. Ryan appeal from Clay
/ county.--This was a controversy over the
/ purely on questions OF fact. The
| evidence discloses on the part OF
| of r., who was defendent below, sale
| OF the mules to one X. under such ar
rangement as TO retain lien, or by some
/ character of reservation to place the
mules In the hands of X: and prevent sale
until r. should collect the price. II. pur-
| chased the animals from X. subsequent
| to assignment of X. Held. that R.'s as
signment was in direct violation Of the
statute OF frauds, and will not be en-
forced by the courts. [Pasc. Dig. 3SI6,
last clausel.' Reversed and remanded.
Delaney, @.
Commissioner OF Appeals.
Morris ct al VS.. Guide appeal from
/ Travis county.--Though the assignment
OF errors DO not conform TO statute, sug-