The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-03-30
oOUnr DrcisiUas.



Texas n New Orleans railway company
W. John II. Butor, error from Harris county.
A ralrond is highway, and especially so
far as the acquisition of the rlght.ol.way
is concerned, for upon no other theory
could the right Of eminent domain be con.
fcrrod upon u railroad corporation, and In
this respect the doctrine Of dedication, or
rather of estoppel IN pals would apply TO
the nght-of-way for railroad the same as
to any other public highway. A dedication
need not be by deed or evidenced by con-
tinued use, but is sufficient If there was an
unequivocal act or declaration of the owner
to dedicate the land and that others acted
upon the faith Of such declaration. Re-
yersed and remanded. Opinion of Wattl,
c., adopted.
Indianola railroad company VS.. ].
Il. Fryer; from Calhoun county.
Fryer instituted this suit against appellant
January %, 1872, on contract Tor work
done aud labor performed for said compa-
ny. BY amendment filed June s, 1874,
Fryer alleged the consolidation of appel
liant with the San Antonio IL Mexican Gulf
railway, by act of the legislature of August
4, 1870. Held, by this act appellant ceased its
corporate existence, and if appellee had any
dation, such claim accrued against the con-
solidated company, and released the appel
liant for whatever claim Fryer had against
this appellant. If it constituted g liability
against the same it could have been en-
forced against the consolidated company,
as it had succeeded to all the rights and as
sumed all the liabilities, of the extinct cor
poration. Reversed and, dismissed. Opin-
ion of Watts, c., adopted.
Robert Il. Russell vs. John G. King
error from Orange county. The
taking of deposition being departure
from the common law rules of evidence
the statutory provisions permitting and
regulatingi it must be fully and fairly, If
not strictly complied with, and if this be
not done such testimony should be exclu-
ded. If the question itself is illegal, the
failure of a witness to answer it is no such
error as would warrant suppression OF the
deposition. The supreme court will not
revise the ruling of the court below upon
the admissibility of evidence, where it does
not appear that objection was taken to any
particular evinence when it was offered.
Affirmed. Opinion OF Walker, p. C.
NC. Wellborn VS.. Odd Fellows Build
ing and Exchange association of Texas;
from Harris county. The mere deposit of
money by the husband TO the account and
credit of his wife cannot of itself
be deemed circumstance sub
fciently explicit as to determine conclu-
sively that such act was intended as a gift
to the wife, and that it would have the eff
feet as to third persons to alter its character
as community into that Of separate prop
erty. Property conveyed by deed to the
wife, pending marriage, is presumed to be
community property, in tie absence OF
evidence that it was paid for out of the sep
arate estate of the wife. A transfer by the
l., 30 h. O. &c r,syI,f nf nnp
munity property can only be done by acts
so explicit as to leave no doubts of his in
tention. Transactions of this character will
be subjected by the courts to the most rgd
scrutiny and will not be sustained unless
upon the clearest proof OF their validity.
Affirmed. Opinion of Walker,p c., adopted.
Gas above opinion will not be reported, at
orneys will do well to retain these synopses)
w. L. Watson VS.. John Minis from -
county. Appellant gave his note in
1874 for $500, with 20 per cent. interest,
when the law contained no restriction on
the rate allowable. In 1873 a payment of
$500 was made, but that left a, balance OF
$500 still due. The new note given was for
$500, with 20 per cent. INTEREST," the law at
that time forbidding a greater rate than Il
per cent. Held the last note is not mere
renewal or continuation of the original
note, and we are satisfied the parties were
not at liberty to make..a first contract, COM
pounding the interest at a rate which at the
time was usurious. Reversed and re-
manded. Gould, C. j.
Lundy Cornish VS.. Rebecca Cornish (;
from Freestone county. Our statutes do
not give parties to divorce suits the right to
testify in their own behalf. Such
an innovation upon sound publ C
policy and the salutary. principles of the
common law could only be permitted where
the statutes were very clear and explicit.
Affirmed. Bonner, j.
r. H. Coleman ct al. vs. G. l.. Thurmond;
from Victoria county. Possession in order
TO give title to street under the statute,
must be both under claim of deed and ad.
verse. In this case Thurmond had nc, deed
to the street, but simply to the farm lots
O. and p, between which it run. Hence,
one of the essential requisites of the statute
and decisions of this court was wanting,and
appellee cannot claim under the hye-years
limitation. Reversed and dismissed Bon
ner, !. :,
Ball, Hutchings q Co. VS.. Carrie LEVEL;
from Galveston county. The material ques-
ton in this case is, did the court below err
in making the allowance of $4,000 in lieu oil
a homestead, and in ordering other prop
erty upon which Ball, Hutchings d Co. had
lieu by trust deed to be Sold
TO raise the amount of this allowance
Held, the evident intention and object OF
home for the family, and under our statute
this exemption does not cease with the
death OF the husband, but If it were the
separate property even, it still remains the
homestead of the family so long as IL IN
fact continues to be used as such, and 1t is
the duty ofthe court to set it aside as such.
1--WE arc Of opinion that the statute did not
intend to include a case like the present,
where the widow and children already have
a homestead, and which was the homestead
of the family during the lifetime Ga
the husband and at his DEATH" The IN
tention of the legislature was to provide
out of the assets of the deceased a home
stead for the family, if they had none,
and not an allowance in lieu of that
which already existed" "The property
now sought to be sold to make up the allow
ance in lieu ofthe homestead, was encum,
bered by deceased husband by trnst deed
to b., II. & Co., and that at time when he
was in possession of the family homestead,
and under the circumstances to subject TINS
property for an allowance in lieu Of this
still existing homestead and practically to
defeat this express lien upon il would be a
peryersion ofthe statute, and shock the
moral sense OF mankind as being against
the common dictates Of justice and equity.
Reversed and reformed. Bonner. ]. Judge
Stayton delivered an oral opinion IN this
case dissenting.)
Female diseases, brought on by impru-
dence. exposure, or the use of improper
medicines, are quickly relieved with browns