The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1883-04-05
THE HIGHER COURTS.
GALVESTON TERM 1851
Synopsis of Opinions or the Supreme
COurt.

by writing our court reporter at Galveston.
County of Harris VS.. Taylor & Ca
bel; from Harris county.-The court
properly assumed rs an admitted fact
that appellees purchased their proper
ty with reference to the city maps,
calling for the street upon which they
front. The court correctly informed
the jury that the block in question
was public square. Parol evidence
was also properly admitted to go to
the jury, showing the purpose and in
tentiOn of the donor in making the
dedication. "The county having ac-
copied the block for the purpose of
erecting a courthouse thereon, it was
eStopped from using this property for
a different purpose, and such as OBJ
viously tended to the injury of those
who had purchased lots upon the faith
of such dedication" 40 Texas, 349.
Affirmed.-West, j.
Hill VS.. Frost; from Fort Bend
cOunty.-Had Mrs. Hill agreed to as
sumo the debt in question, conditional
that her son be discharged, it would
be an original undertaking, and
whether verbal or written, would
bind her. If the promise is merely
collateral and auxiliary to the
original debt it would be nothing
more than a verbal agreement to pay
the debt of another and is within the
statute. The agreement to take the
case out of the statute must be in
writing, founded on valuable con-
sideration. Mrs. Hill having told ap-
pellee not to bother her son; that she
would pay the debt at a future day.
The promise was collateral to the eX-
listing liability. "a Tex, 1856. Re-
versed and remanded.-West,J.
Parker VS.. Bains; from Fort Bend
county.-The act of the constitution
closing the land office took effect i'm
mediately on its passage, November
Ii, 1885. II Texas 3S1, II Texas 800. !
The BrOOkshice grant, by reason of
its date, was void upon its face, and
actual possession under such grant
will not be sufficient to support the
plea of limitations under certain cir
cumstanceS-the period of three years
as sufficient to support the lease.
[21 Texas, no; % Texas, 80; q Texas,
1854; % Texas, l. The case Of Peyton
VS.. Barton l53 Texas 2ySl did not
overrule Jones VS.. Menard / Texas,
I'll; nor did it announce an entirely
new or different rule, or is it in con-
tlict with Hays VS.. Berrera. I26 Tex,
g. They only hold that under the
agreed facts of the case, there being
no actual possession of the part of the
land in conflict with the older grant,
that the possession of the party not
actually residing on the land within
the limits of the conflict, though it
was within the limits of the bounda-
ries named in the deed, did not
amount to a disseizin of the true
owner. Reversed and remanded.-
West, j.
Timmons and wife VS.. Bonner &
Long; appeal from Cherokee county.
This is a suit upon the bond of a
guardian. Appellant recovered a
judgment against Reed, the former
guardian of Mrs. Timmons, for assets
of her estate coming into the hands
of said Reed. This suit was then
brought against the appellees, who
were sureties upon the bond of Reed.
AppelleeS moved to transfer tho cause
from the probate branch of the cOun-
ty court to the civil docket. This mo-
ton was Overruled. In the district
court upon appeal the same motion
was made and overruled, and the ac-
| ton of the court is the sole error re-
| lied on for reversal. Held, the court
erred. While articles 2695 and 1886 OF
the revised statutes are broad enough
| to give to the probate court jurisdic-
ton to try suits on the bonds of guar.
dians, yet in this particular they are
in conflict with section 16, article 3 OF
the constitution, they are, therefore
invalid, and the probate court having
no jurisdiction of the case, it is re-
versed and remanded.-StaytOn, j.
Galveston, Houston and San Anto,
Mo railway VS.. Drew; from Harris
county.-The only question here pre-
scented is whether or not the master is
liable for the injury to an emplOye
| from the use of defective machinery
of which the employee had not full
notice as well as the danger conse-
quent upon its use, when the EN-.
ploye is directed to use it and simply
protests against the service and YET
performs it. The general rule is, one
entering an employment, attended
with risk of injury of which he has
notice, cannot recover, if by exposure
to such risk he is injured. This rule
applies, where injury is received from
the use OF defective implements OIL
machinery of which the servant has
notice. Reversed and rendered.
Stayton, j.
Galveston, Houston and San Anto
Mo railway VS.. Hume ct al; from
| Harris county.-Where q third party
is indebted to the judgment debtor
or has in possession property or effects
| of the debtor, the law affords an ade
| quate remedy by writ of garnish.
ment. The statutory remedy by gar.
nishment is legal one, and embraces
only such rights, credits or effects as
are of legal nature, and which are
not encountered as are trust estates
and when so encountered a proceed
ing in equity would be the remedy
SO Texas, $40: 81 Mo-, 267; ) Ala.
| 442. This case does not materially
Tex, $40. Afiirmed.-WeSt,J j.
| Williams ct al VS.. Nolan; from Fort
| Bend cOunty.-This is an action tC
correct Il judgment rendered in 1880
The correction sought is not cOrrec.
ton of a mere technical error OF
mistake apparent of record, but is an
action to vacate part of the jUdg-
ment after the term. Held, In the
absence of fraud, Misrepresentation
or other wrong doing on the part OF
appellee the court would not have
authority to do so unless all the par.
ties to the first judgment were not
made parties to this, such not being
done the court rightly refused to cor.
rect the judgment. Held, also, Ap-
pellants cannot claim the benefits OF
one part of the Judgment and repu'
date the balance. Affirmed.-Stay-
| ton, j.
Coddington ct al VS.. Wells ct al
| from Grimes cOuntv.-In this case
where note for alarge part of the pur.
chase money had been paid in cash and
the balance unaccounted for, leaving
the inference either that it had been
paid or transferred and a Judgment
obtained on the balance with fore.
closure of lien on the property, and
no reason is shown why such judg-
ment has not been enforced, and nc
offer is made to return a part of the
purchase money already paid. nor any
opportunity given defendants to pay
the balance due and perfect theiI
title, the plaintiff should not be al.
lowed to reScind the contract and re-
cover the land. Af1irmed.-Willie, G. j
Foley VS.. Kennedy; from Harris
county.-When charge in the main
is correct so far as it went, and no
additional instructions are asked, the
case will not be renewed. because the
court failed to give all the law appli-