The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-12-09
THE u,GaeR COURTS.
SUPREME COURT.

given 10 secure q debt Which its makers
owed appellee and it carried with it all
the incidentsof such a mort gageiw neither
expressed or not. 1t does not have on
its face a"y evidence whatever that it
was intended to operate as an assign
ment for the beneti of creditors under
the act of March "a, 1879. That act IN no
manner 'nterpOses with the right of a
debtor 10 give preference to one or more
creditors, and The sole prohibition TO the
giving OF surh preference contained in
that act relates TO preferences attempted
to be given assignments made under
its provisions. That the instrument
contained provision that the
residue of the property mOrtgaged re.
naming AFTER Sutliciency thereof had
been sold to pay the debt que appellees
and the necessary costs of care and sale
should be delivered to the makers of the
mortgage, or To such person as they
shouid direct, in no way impaired its
yalidatv. Affirmed.
Texas Il Pacific railway vs.. Wright;
IRON Kaufman county. Opinion by Will
lie, c. j. The charge complained of in
the first assignment is in the language
OF Art. 4,252, Rev. Stats. While IL may
be unreasonable TO require railroad
company to ring u bell or blow whistle
eighty rods from II street crossing in a
city where the streets are not that dis
tance apart, as il may be impossible Tor
these signals to be given at that dis
lance, when the train starts only few
feet from the crossing, yet the statute
sufficiently protects the company by re-
leasln,, il from liability when the dam
age does not arise through a failure to
give the proper signals. After recitinu
the general rule furnished by stature as
to ringing The bell or sounding the
whistle, the court told the Jury, In eff
feet, that unless the injury occurred by
reason OF failure to give these signals.
Inc company would not he liable, and
lurther, that the uere failure to give the
signal furnished by statute, would not
OF itself make the company liable for
damages, but the jury must be satisfied
that the injury was caused by such neg
lect, and that The injured parry acted
VITA proper care and prudence, such as
q prudent man would observe under
similar circumstances. This was cor
rect as applied TO tho facts. Affirmed.
Taylor VS.. Carter; from Van ZDudt
county. Opinion 10y West. !. The only
orror relied on was an alleged material
variance between the locus in qul, as
set out III the pleading5 of defendant in
error and as described in the final dc
cree. Hold: The variance il not NJ
material as 10 require n reversal or re
formation Of the Judgment. The third
Inc OF the survey is given In the plead.
lngs as l3O vlras in length; in the iud.-
mcut the distance is called 100 yarns
but both of them called for the same
point or corner, and that well known
corner. Another line Of the tract I'M the
pieadlngs Is said to he lO3 vnras in
length; IN the decree is said TO be 7S3
var ~ long. BO;h lines ca!l to terminate
at the same corner, and that a
well known and established corner.
L ere ~ no difference in the views
heIi expressed and those enunciat Il in
lhr0cNniOrtOn VS.. Davenport (55 Texas,
-3bl, In that case the variance between
tie pleadlngs aud the final Judgment
was very material indeed. Ia fact, the
Judgment described Il different tract of
land and located in different place
from that described in the pleadings.
Su IN - not the case here. Affirmed,
Lane az johnson W. Herndon, from
Sul.h county, Conclusions of Watts.
j., adopted. Suit by appellants against
appellee 10 Recover actual and exem-
plary damages Tor wrongfully and ma
IclouSly causing an execution agaius [
Lame to be levied on certain propert,
belonging 10 Johnson and Mrs. Lane,
anu for wrongfully and maliciouslv
CAUSING the same u be sold by the Uii-
teu States marshal under the execution
as tho property OF Lane. when ie
well knew the same belonged To John
son aud Mrs. Lane, and that by reason
thereof the property as entirely lost
" them. Appellee answered that he
was acting rs attorney at law, and i'm all
that no did In the matter he acted i'm
good faith and for the purpose of pro-
tecllng tho rights of his client, aud de-
nled the charge OF malice. 4 trial re-
"a isI Il "a a.
PENDANT. Held: Correct. Affirmed.
Wallace vs.. the City of Dallas: from
Dallas county. Conclusions of Watts,
j., adopted. Plaintiff owned "A lot on
whlrh was II stOre-hUuse, in the Corpor-
ate limits of Dallas, which storc-honso
AT the Zine of the injury was used as a
place OF business. hy tenant, under "A
lease from plaintiff. The city council
ordered The grade raised on The
street on which the To- abutted.
The natural often adjacent to
the lot which carried away the water
was filed up and another ditch CON
structed in Is stead. When graded the
street was higher in front of PLAINTIFFS
honso than the flow thereof. Thc now
ditch made was not as large and did not
nave The capacity thHt Inc former ma
had. \ hoHNy rain falling and the ~ ~
ditch not being large enough to u,py
away the water, plaintir'S house was
overlooked, but IT. wuuld nul nave been
had no raised the now Ol his house nc
cordlng 10 the grade. Judgmeu for the
defendant. Held corr ct. Affirmed.
McrcnsutS' Insurance COMPANY ".
Dwyer; from Washington county. Con
illusions of Watts, J., adopted Appellee
oNSn0llY brought this suit against an.
pclNni to recover the amount due ON 4
policy OF Insurance by virtue OF re-
newal thereof for $j.CuD. After tins
case was reversed by the Conn
mission of Appeals on former an
peal. appellant substituted all his former
pleading hy rupleadcr, wherein he
asserted in addition 20 his former obi
cations, aud by way of replication to
appellants answer, that after tho loss
had occurred, the secretary of tho com
pany, after having investigated the fire
aud bong informed OF all the facts, To
obtain Indulgence promised 10 paw the
amount Of tue policy. APPELLANT eN-
cepted 10 this upon tho ground that it
was the assertion Of Il new cause of
action which was barred 10y limitation.
Ihe exception was OVcrrulod. Among
the octnhscs asserted by appellant was
one that appellee, without tho knowl-
edge or consent of appo liant, allowed a
ten-pin alley 10 be erected ON his lot,
auJacent TO the insured property, which
Increased the risk aud thereby rendered
the policy void Appellee replied,
denying that the risk was thCrclv
increased, aud claiming that before the
alley was erected he procured the writ
ten permission OF appellants agent Ia
erect same, judgment for appellee for
IN , lace of the policy with interest; he d
correct. Affirmed.
Clark ct nj. vs.. MunfNrd; from Dallas
county. Conclusions OF Watts, /.
Adopted. This In an action by appollt q
for the recovery of damages accrGing ON
account of ~ breach of warranty la the
snlo of lands. Appellee alleges that
they purchased the land from appel
lants' ancestor \ tract of land, which, Il
was cleimod, was decided " the vendor
by one Mrs. Akins. WIN Mns a mnrrirn