The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-05-25

he Jury has found for defendant. Wien !
UCn occurs the court determines G5 iHu.-
ar Of Law whether the matters constitute
n obstacle to The recovery Of plaintiii or
.Ot Courts should grant new TRIALS or ar
est judgments where plcaiings do not sus.
ain the verdict. IT, vs. alleged, plalntiii
vas non COmpJs mCntls at the time tue
agreement was executed and the decree
Sas rendered in the absence Of proof OF q
or something of that kind, lac
should be entitled to have the agreement
and the decree vacated. Reversed
and remunded. Watts, c.
J. 5 Douglass vs.. H. NJ. Mundine ct ali
from Lee county. Where case is decided
on one issue and error was committed on
another, which was lmmdterial to me issue
found on, the error is i'm" rial. be-
cause a debtor is in deiay Al paying a
note, the creditor, without, urt iiaDh-
ity, cannot inhiCC loss upo. le deOtor
through his negligence and fault. Wren
collateral notes constitute the ayaiIab.e
property of the debtor, from which he cou.d
pay the debt and without them he might
not be able, it is unjust to hold that, OelhS
unable to liquidate such without tnese COZ
lQterals, that the creditor could, by his
negligence, impose such u loss without m
curing liability for the same. Affirmed.
Watts, C.. -
G. III. Taylor VS.. Hamilton McNutt; from
Washington county. The general rule that
il is the duty of the court to give lnstruc'
tions on the legal effect OF written evidence
has Its exceptions. When the effect oil the
writing depends also upon e&trlnslc iacts
and circumstances, it becomes the duty oil
the court to submit to the jury such In
slructions upon the legal effect Of the lnstru'
ment as would meet the various phases
presented by the eXLrnsic evidence when
it submits to their consideration the instru-
ment together with the attending Iacts ana
circumstances adduced in evidence. Couii-
sci should be confined in their argument TO
the Issues made by the pleadings, and to
which evidence had been adduced lie
yersed and remanded. Watts, c.
George Dunn VS.. Stallworth ct al; from
Fails county, If the description OF land
given in the grant is SO vagge and lhuen-
mite that il cannot be aSceuained nom II
what land is intended to be conveyed, then
the grant will be deemed null ana heIa
void. But where in the calls OF the grant
any matter is given by which the lahu IN;
tended to be conveyed can be found ana
identified, then the grant is not void. A
copy OF field notes made in English az the
time of the survey lin 1850 is admissible to
aid in establishing the survey upon the
ground. Where the party asserting me
limitation had the actual possession OF part
of the land i'll conflict, cultlyatlng anu US
ing the same and claiming. under prlor
rraut and deeds emanating under the
grant, a charge on the limitation Is neces-
sary Affirmed. Watts, e. >,
Greenwood VS.. Pierce; from Caldweh
county. Where lot was sold with refer
ence to a map and the representations that
A road would be constructed ana uepots
erected as thereon delineated, ana the pur-
chaser Was thereby induced to make inc
purchase, then these representations are
obligatory upon the seller, ana laiiurs Oh
compliance Herewith is detrimental 10 the
seller. The measure OF damages IN suEli
eases would be the difference between inc
contract price and the actual value OF the
nrnnertv. Ayerments of Incorporation
muet be made in order to give rise 10 the
presumption that such was corporation
Reversed and remauded. Watts, c. =,
.Coombes VS.. Thomas ct all from Dallas
county. The objections TO the deea mace
by a married woman that IT does not snow
t6at she acknowledged the deed to be hef
net and that il failed to show the delivery
of the deed by her, ora declaration by the
officer I, at said deed was delivered by her,
are ,Intpnable. (4G Tex. l0t, 50 Tex. ,5GIDunoT
il The ground that it failed 10 snow any
priyy EXAMINATION Of the wife by the ON
Ger taking her acknowledgement, wei
taken. Reversed ami remanded' WALKER
p. c. -. D.. -,
Dallas Compress company, VS., Bryan et
al. from Dallas county. 1t being alleged
in The petition that X, V. Tompkins was
the president of the Dallas Compress com.
nsny. the service of citation made
iIn,,l him, as such is in accordance
with the statute. acts. 1874, p. 81. a
defendants name being properly given 1t
is not necessary that 1t should snow IN 81
the defendant was served in person Win q
COPY of the writ and petition as the statute
| ri "A
cree being mere surplusage, will not Vlilhte
such, The Judgment must conform 10 the
Allegations in the petition in order to con
stitute a legal basis on which 70 predicate
IN q Tex 3O5; 20 Tex, 1881 The alteration
made must not admit oil any mistaken luel-
rtv, or it cannot be held imm Iterial; w
Tex, 1851 Judgment by default admits
every nyerment III the petition except Tue
amount OF damages. "A Tex, ISL; ii lex,
Is; % Tex, 81 Reversed ana remAhueu'
MARY Il. Anthony ct al. VS.. Gwynn Nor
ri. M from Fapnin county. The
manner prescribed by article Z
Pas, Dig for continuing the al
ministratur's successor being the same as
thai provided IN respect To defendants uy-
ing before verdict, the same rule oil pro
ceedng must be observed III regard 70 Ooth
Glasses of defendants Suggestion Of the re-
&
such, before verdict, must be entered on
the record in open court before the newly
..I..i.lgl administrators can voluntarily
spufpr and make themselves parties. a
.uit being brought ana verdict rendered
or4lust AN estate, personal judgment
against the eXeculr ix to be enforced against
the estate cannot be rendered or enforced,
q rexas. 3O5; p Texas, 80; IL Texas, o'oi Az
rexas 80. 10 Texas, 49, A charge that the
s,atu of Limitation did not commence to
ran against any portion of the money re-
criyed from time to time by Roberts unless
a demand was made by Morrison and pay
ment refused by Roberts, is erroneous. A
demand is not necessary 70 put the statute
5r limitations ia motion. q Texas, l5l) Re
vrrs,d and rcnianded. Walker, p. c..
Bailey d scroggins DAVE et az IRON
Ellis county. a second application fof
contiuuance 10 procure testimony OF the
same witness, unless due diligence IL shown,
10 unteuable. Again, the evidence was lsi-
material, ne IL was intended to show the
nurcha,e of the land with Confederate mon
ev. The record fails TO show the grounds
III objection to the inventory OF the estsiei
As evidence. The written argument o.
w.s moi signed aud sworn TO by the execu-
trix 81 No order Of court appointing ap-
,,rg,isers appears. 80. The Inventory was
i,.,t re- ,rdei, aud hence the sale by the vile
as void. Applica ion Of the appointment
OF appraisers i dated August 30, 1875, show
M the wife sought to, qualify as survivor
III the community under The act of August
1i. 1856. The inventory vas sworn 20 ~
40 OF the appraisers. whose appoint
ue1t was prayed for October -, 1913,
tii,ir report reciting their appointment.
Had. ne proceedings ere not Absolutely
v.,A aud ar not open H. collateral attack.
81 r,Tas. I73: "A III 532 % Texas, 49,
,5esti,a ueiug determined BY q court Tor
f1ryl. Guding thereon. II not sgainst
..r,'-,ouiersnce Il evidence, viii not be dis
4 gfb.G. AfiEmcd. Delaney, C..
Andrew. ". Long & Coz; from Cooke
county. A Statement Of facts not approved
~ the trial judge VII not Dc conslael 81.
- evidence failing 70 shOg that the
f,,siutif oriefed OF Kept IN store any good.
!. rr,rssslv far defendant, evidence OF
- 4 frei.ttt Mid hv i,lnirfff storage