The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-05-08
THE COURTS.
synopsis OF Decisions by the Courts OF asst
Mountaineering to the Public-InvGlu-
able to the wida-Awake Lawyer.

synopsis OF Decisions by the Courts OF asst
notwithstanding to the Pubiic-Invalu-
able to the wida-Awake Lawyer.
Wise VS.. the State of Texas; from Travis
county. Opinion by Walker, p. j., adopted.
This case presents the same question as the
case of Butler VS.. the State, already decided,
the judgment in that case differing from
that in this, only in that IL is rendered
against certain surelies OF Menared on an
official bond of the characters to that sued
on in this case, but OF different date, and
accordingly the opinion in the case cited
applies herein. Affirmed.
Foot VS.. Powell, iron Ellis county.
Opinion by Watts, adopted. IL is neces-
sary "a clothe property with the homestead
character, that the owner should intend 1t
as such; but intention, unaided by some
use OF the property as a homestead does not
have that effect; the two must concur, the
intention and use are Indispensable. Even
II appellant had moved upon the land after
the levy was made, and had continued that
occupancy until this suit was instituted,
such occupancy would not have affected to
defeat the title of the purchaser at the
sheriirs sale. Affirmed.
Butler vs.. the State of Texas: from
Travis county. Opinion by Walker, p. L.,
adopted. AS appellants answer showed no
plea OF personal privilege, or the like, and
the petition showed on its face that the suit
was brought in Travis county, wherein suits
OF this character are authorized to be insti.
tuted, the first assignment and the only one
noticed, the others being considered waived
by rule %, supreme court, is untenable.
The statute In force February, 1873 regula.
ting bonds of tax officers (Acts eth Leg
icluinra 1871 ~ AZ,
the sheriff to net by deputy in the collection
of taxes. The bond sued on purported ia
be gwen as deputy sheriff to collect taxes,
and apparently IN conformity with the law.
The statute contemplated that the bond
should he treated as an obligation TO the
state, wholly and distinct from the sheriff 4
bond ny collector of taxes, and was intended
as Il separate security to the state Tor the
performance of the duties OF collector of
taxes by the dputy. The sheriff, therefore
was not necessary party. Affirmed.
Houston Il Texas Central railway VS.. Mar
celIes; from Grayson county. Opinion BY
Walker, p. j.. adopted. A verdict is not
wrong because IL is not in accordance with
AN erroneous charge, and II judgment will
not he reversed because 1t is not. (2S Tex,
10 Texas, 80, The sole question pre-.
sened by the second assignment of error is,
Is there sufficient evidence to support the
verdict This Court will not reverse. even
II the court is not well satisfied that the yer.
dict is right, or where it might, upon the
evidence, have come to different conclu.
sion, or because the verdict might appear TO
be founded on slight evidence % Texas, 80
Unless 1t appears that there has been n
manifest error in relusiDga anew trial the SUI
prcme court will not reverse Is Texas, 33ll
The servant who has charge OF the construc-
ton and repairs of the machinery used IL
not, in the master absence, to be deemed
fellow servant with servant who is EN-.
ployed in connection with its running
operations; Thompson on Negotiations;
page, 1882, ana authorities cited; II Wal
lace, 553, 80 Barb, l5I. There was sufli.
cient evidence to support the verdict. AZ
iirmed.
Parker County VS.. Couis IL Co.; from Par
kor county. Opinion by Walker, y.
Adopted. The act of August 18Th, 1870
did not alter the law as IL had before ex.
listed, so far AS it related to the jurisdiction
over the county courts over the settlement
OF county accounts, or rs to the manner In
Each of these acts (lSiS and 500 provide
specially that the county court may issue
writs and process through the clerk of the
court and the seal of the court shall be
affixed to such acts. The scrip issued is
neither writ nor process, but il is county
indebtedness, Held, the want of the seal
OF the county court on the Instruments sued
on, did not render them invalid. The fact
thai tue warrants issued by the clerk and
not the presiding Judge upon an order after
approval, by the county court were duly
registered as the law requires, did not pre-
clude the county from aiterward attacking
their validity, and such warrants not being
negotiable paper, any innocent third party
had no more protection than the Original
owner. The word draft" as used, meaning
nothing more than II order on the county
treasurer. The approval by the county
court did not preclude them from being at
tackled as fraudulent and void. Reversed
and remandcd.
Randall vs.. Smith, from Dallas county;
Opinion by Watts, adopted. WhiletHe
special instructions asked aud refused are
not literally correct yet they sufficiently
called the attention of the court to the err.
ror In its charge and required its correc-
ton. The issue presented was as to
whether there had been such material
change in the contract rs would release the
surety, and the court erred in failing to in
struct the Jury as to what constituted a
material change. A surety is discharged
~ valid agreement made without his
consent. varying the original contract in
any material particular, whether the
charge he to his benefit or prejudice: (j7
Texas, 367.) The increased value of the
material to be used, and the cohseurent
increase In the value OF the building and
The Increased labor and expense, and the
consequent injury is a sufficient consde-
ration to sustain an agreement as is AS
serted by appellant, changing the original
contract; y Texas, i76) Reversed and re-
handed.
International & Great Northern road
vs.. Graves; from Bexar county,
Opinion by Stayton, ]. A person
IN attempting to cross railway track at a
crossing, or elsewhere, must use due care
toayoid danger, and il he fails and his own
negligence Is the proxinate cause OF the in
JURY, he cannot recover, although the rail
way company may not have given the re.
quired signals to indicate the approach of
the train. A person approaching the rail
road crossing has the right to expect that
the railway company will give the required
signals, and if, relying on this, without
knowledge or means of knowledge of the
approaching train, he is injured by the
failure OF the prescribed duty of the rail.
way employees, he is entitled to recovery:
Wnlle Tue seCOnu CuarEe asked did not aC-
curatelv present the law, it called the at
tention of the court to the error in its
charge which II should have corrected,
The whole question of negligence on the
part OF defendant or plaintiff is for the Jury
to.decide. Reversed and remanded.
International & Great Northern Railway
vs.. Benito ct al from BeXar county. Opin.
ion by Stayton, ]. When II statute pro.
vides tribunal and mode of procedure by
which property may be condemned to a
public use, such tribunal has exclusive
jurisdiction, and the person or corporation
10 whom the statute gives the right to ins,i.
tute proceeding to condemn the land can
not resort to any other. Here the statute
gives the right to condemn land to the rail
road company seeking 1t, and to no other
person (Revised Statutes, ilS2), and If the
company fail to avail itself of this right.
and without the consent of the owner
enters upon his land, such owner is entitled
to resort to any court having jurisdiction
by reason OF the amount Of damage claimed
Getting numerous authorities). A recovery
of the valHe of the land taken, without a
decree vesting the right of way in the de
lendant would be a bar to another action
IN oal al ha nr,.,,nal IA,