The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-05-17
THE HIGHER COURTS
,se,rate aud Reliable Synopsis OF
Cases Passed On
u, the Courts Of Last Resort at
Austin.
L0ts of Legal Lore in Concise Shape
SUPREME COURT.

Houston & Texas Central Railway VS.
Green. from Comanche county; opinion by
s,uton. i. Suit by appellee for failure to
ceIyer certain articles for overcharge in
f,s,sht and for labor performed. Salt wa
h,oneht upon an account sworn to under
I,,,re . 1855, Revised Statutes. AS to a
mart Of the items there was no proof except
10 affidavit to the account. Objection
sa ssm,de aud oyerruled. Held, error. The
;'sr,s were not such as could he established
NV snex.parte affidavit. The evidence was
Insufficient TO sustain the item OF over
charge IN frei lights as well as to the alleged
damaging OF the canvass, etc. Reversed
and remanded.
Schneider aud wife vs.. Habenicht, from
Gillespie county, Opinion by Stayton, j,
The district Judge being disqualified, and
inc parties having failed to agree upon a
speca Judge, these facts were certified to
the . vernon, and Mr.. IL. was by h,m ap-
min cd to try the case. Mr.. Ii. qualified.
Ala SUBSEQUENT term the district jadge OK
changed districts with Z. When this case
wa, cali d appellants objected to trying the
case before Judge F., whereupon the case
was passed, and the remaining business be-
ipg disposed OF, Juuge z. left, and without
direction Mr.. II. tried the case.
THIS record is assigned as error.
Held untenable, for had it been
regular for Judge L. to try the case, no
objection being made, the objection now
comes too late. Had the direct witness
been present and testified to everything to
which she could testify under the last an-
swer, the result could not have been
changed, therefore the court did not err in
rfaslng the continuance. There was no
error committed in refusing the special in
slructi on asked. Affirmed.
Mynatt vs.. Hudson ct al, from Erath
county. Opinion by Stayton, j. There
being no sufficient evidence IN the record
that appellant had any knowledge of the bill
OF sale under which Hudson claimed tine
cattle, nor that he ever did any act or Mt
tered word which could be construed into
all aCqueisCenCe III the act OF his son signing
his name TO the blll OF sale. The charge OF
the court upon these iacts was error. AS
between Hudson aud appeIiant's sou there
Is no doubt but that the bill of sale was
understood to be but ii mortgage only. Re.
vslsed ana remained.
Bray vs.. Cram, from Lamar county,
OPINION Ut Watts al ppted. Parol evil
dance Is not admissible to coDtradlct or
vary the effect oi a contract in writing.
PnOr and COnttmporaneous verbal agree
ments are considered AS merge 1
In he written contract entered into be-
tween the parties. The evidence admitted
respecting the application OF the payment,
made in cotton, and the charge OF the
court upon the saue, uiu not infringe
either upon the one or the other OF these
principles. The bidder has the right in
making payment To his creditor, to direct
now such payment snail be appropriated,
A direction as 10 Tue moue OF app ication oil
apaymeht may De ihi plieu rom circum-
stances. W., sec; Z1o). An agreement
before pay MENTOR even lhe expression u
WISH oy the ueotor as 10 now payment
snatI DO applieu' VIII amount To a Ill
recUoh 10 mat elect. ANY acts which
manifest ID the creator TUE intent oil The
ueoIor 10 make particular appropriation
VI pay "ent are sutlcie't 40 TO appro'
pirate II. (l2th New Jersey Equity, 253
where partial payment is made by
ueo'or w creultor VINO hV,us more man
que cia'ti against nun ana there mas been
no ac'ual appropriation Oh Tue pay ent at
UT before the payment the creditor may
Apply IL as ne pleases' IL there aye circum.
sa1ces winch wouiI render the exercise oil
suon ulsCreiloii on .lie creators part uh-
reasonable anu when would enable nm To
rue , Is otmtr wise. (2) Texas, ~; lillnuls,
im, ~ Wisconsin, $40; Of Georgia, la
Aiiiriheu'
wilson VS.. Moore " Partain, from Quad
alupe county, OPINION by Delaney, J"
ssuopteu' Tue only question raised Is rs u
limitations; one OF Inc INKS III appellants
u,alni VI tltie pelns conveyance OF com,
nuuity properly ny surviving husband
al.er lhe wiie's death, the limitation OF
w au'ee years does not apply. liS Iexas oil
"a, "a ieAas o. Alter carefully computing
.ue 'iihe ana applying the law applicable,
NV ieaIheu JuuRe Concluues tnat MARY
Moort, tnougn barred as to the one-loourth
She Inherited FROM her mother is still en-
n.leu 90 oheha OF the interest which be-
TUnseu 10 her deceased sister, Margaret
ElIeh larlalh Is entitled to the one'lourth
Interest OF her deceased sister, Margaret.
reversed ana remanded.
N'nca'u W. Jones; rom Fannln comfy
opinion oI watts, j., adopted. One oil the
essential registers OF the certificate OF the
separate Acknowledgements OF married
monah, under The law IN force III 1900, Is
anat IL must be attested by the seal OF Vie
Sourl. Inc deed OF a married woman To
nei separate property is void, unless her
prior examination is taken IN substantial
A WIN VIZ ototu'e' w ieA 'i'}
"A compliance with the requirements %
.ne statutes is indispensable to the allevia
.'oh oil the wltes separate estate, or OF hel
homestead. (2S Tex 533). The deed OF d
married woman is not complete, SO as TO
convey Title to land. without the certificate
VI PriVy examination and acknow ledgmen
a. a. prescribed by the statute as Tex, 622)
me necessity for the certificate being AT
,ached by the official seal OF the authority
taxing the same, is recognized, GO Ten.
IoO ID Tex 90 Faint " depend alon,
upon the strcistn If his own lI,le tor n re
ccovery. and The >yluenCe not sustaining
the Judgment, it is reversed and re
IN 'rded.
Bistrop county, Opinion by Delany, /.
adopted. The mower of sale contained II
the m )rtgage being power COMPLIED Will
an Interest II has been generally considered