Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-03-08
THE HIGH COURTS.
Syllabus of Opinions Rendered at '"'
Galveston Term, lSai'
COURT OF APrEALs'

~
| promising to pay to the appeliees q
! uiu of money, to which WAS appenueu
| an authorization to empower ANY
| licensed attorney, in the event OF non
| payment at maturity, to accept SCI
vice for appellants, and appear III
conrt and confess judgment oponf
! This being done, on the maturity OF
! The note, by O. s. Eaton, Esq, uhuer
| the authority named, the courV en
tered up Judgment, etc. The note anu
authority were signed by appel lants i'll
their firm name. II Is commended thaV,
while the warrant of attorney might
authorize the attorney to waive ser
vice and confess judgment so ny W
hind the firm, it could not authorile u
Judgment against appellants IN thelI
| individual capacity. 1T is general
rule, that the defendant may accept
service of any process, or waive tie
issuance of service thereof by q Writ
| ten memorandum signed by nm OF
his duly authorized agent or attorney,
and filed among the papers OF Uhe
case and such waiver or acceptance
| shall have the same force and effect, as !
| the citation had been issued and served
rs required by law. The note III TINS
case was executed by the firm conf
noaed of the two Leedeckers, and crea-
led an obligation both against the iirm
and I'D individuals composing IT.,
and was NOT oniy -
charge upon the partnership property
Int upon the individual property OF
each member. But one member oil Il
firm has no authority TO bind his CO.
partner by confession Of Judgment
without consent. This being the case,
that is, that partner cannot bind MS
| co-parlner in Il direct manner ny con-
fgasion of Judgment, lac must be helu
| TO he unable TO do so in an indirect
manner. In the absence of contrary
proof however, upon the face oil sdci
a paper as this--the same being signed
! in the firm name-the presumption OBJ
tains that, If the co'partners are not
present at the signing Of the instrt-
ment, it was so signed by the consent
of all the parties interested, and hence
| the presumption in favor of the judg-
ment must obtain. In this view OF
the case, the other questions involved
| became immaterial. Rehearing reius-
ed. Wilson, judge.
Arnold and Sigh, executors VS..
| Mary Dean. from Galveston county.-lt
| is IA settled general rule, that the per-
sOnal estate Of the testatOr Is the
primary fund to be resorted to for the
payment OF legacies, as also OF debts.
| Doubtful words i'm IA viii are not 10
have the effect of eXempting the tes-
tator's personal property from the pay
ment Of legacies, or charging them on
real estate. Especially is this the rule
where the real estate sought to be sub
ected to legacics has already been
specially and Enthusiastically made the
subject of special legacy, and the
mode and time of its disposition eX-
pressly provided in the will. The
rule is laid down by in Redlieid on
wills. Vol. ., p. Dos. There is no
statement Of facts in the record, nor
does the transcript bring up the judges
conclusions of law and fact. AS far
as disclosed the judgement was con-
sistent with the intention of the testa-
tor. and il is affirmed. West, justice.
Galveston, Harrisburg q San Anto-
MO railway company VS.. J. *. David.
son. from Colorado county.-rhis was
an action against the appellants for
damages for Injuries. The charge Of
the court, in so far rs it assumed the
existence of an issue in the case, was
a charge upon the weight of evidence,
and was erroneous. This error was
not cured by IL subsequent charge
which stated n proposition of law,
correct in the abstract. y charge
which asserts in effect that it was
negligence ON the part of the COM
| pany's porter to close the car doors
without giving notice and warning,
was error. Likewise the charge was
erroneous, in the use of the phrase,
! forcibly closed the door. Reversed
and remanded. West, Justice.
j. w. Dallas VS.. G.. G. * S. II.
railway, from Washington county,
The road being in course of construc-
ton at the time the injury was re.
ceived, the plaintiff below, showing
that his contract was to perform such
duties as he WAS required 10y the chief
of construction or his subordinates TO
perform, and that both he and the en-
rireer OF the wrecked Train had a corr
mon superior, and further, that the
work at which the plaintiff was en-.
gagged when injured was closely con-
nected with the work of construction,
the Jury was justified in holding in this
case, that the appellant was q co en-
ploye with the engineer ofthe wrecked
train. He was engaged at the time
of his Injury in special service of the
company. The charge Of the court,
harm onizing with these facts, made
by the evidence, was not error. The
general rule on the subject involved, is
that master is not liable to his ser.
want Tor damages resulting from the
negligence OF his fellow servants in the
course of their common employment,
unless the servant causing the injury
was incompetent TO discbnrge hia i,ltv