The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-10-26

SUPREME COURT.

In an action Of tresspass to try title
The husband can protect his possession
under his wifs's claim as we'll with
out her as party to the suit as with
her. and that without prejudicing her
rights by sny Judgment that might DO
Wondered sgains. him in such suit
The right OF homestead 10 lie areat-
ure OF constitutional and stntute law,
and the equitable defense OF Stats do
mand can afford nc defense tn the
purely ieesi right Of homestead.
The findings of law aud
fact where the case is
tried without u fury, take the place
Of the charge of the court and verdict
Of she Jury. And as when the COURTS
failure 10 charge upon an issue Is not
called TO its attention by special
charge asked, so tho failure to find
upon an issue involved in the plead
ihgs and evideuce cannot be made q
ground oferror, when the party hsa
not requested finding upon 1t. y
Tne' defendant pleaded improve
there WAS no evidence of the value of
and tho court properly failed To allow
him the benefit Of such improvements.
Affirmed.
Crescent Insurance company Va. w.
Il. Camp. from Cherokee county. Opin.
ion by Robertson, !. Allegations that
the Insurance company were fully ad-
viHed Of the circumstances attending
the fire, and had refused To adjust tho
loss and would not recognize The con-
tract, will not amount to All allegation
Of proof of loss or Of o waiver of the
Same. Proof Of loss may be waived
expressly or by acts which fairly inn
ply that the condition in the policy
will not be insisted on. But in the alb.
sence Of allegations that proof of loss
had been waived, the facts alleged
must admit Of no other conclusion.
In petition can only be cured by an
amendment; the supplement IL con-
fined TO the avoidance OF matters sot
mp In the answer. Under
the conditions Of tho policy the COM
pany has the right Of an examination
Of tho insured undor oath, and the pro-
ducti0n OF his books, vouchers. etc.
deprive tho company OF the benefit OF
gk4O V<AehhAhosiOh Va eho AhSoAcN
The policy of Insurance provides that
elf the interest Of the insured In the
property be any other than the entire,
unconditional and sole ownership OF
the property, for the use and benefit OF
the assured, 1t must BIO 30 expressed
In the written portion OF the
policy, otherwise the policy will
DO void. The stock OF
merchandise covered by tho policy
was the stock formerly owned by Ell.
lenstoin (tho ,nsureO and ono CAMS
burg, deceased. Ellenstoin was tho
surviving partner and administrator
OF Ganisburg. He was not aa either
the sole and unconditional owner for
his own use and benefit OF oil the stock
insured. Such condition 10 founded
ON reason and supported by authority,
and tho parties will DO bound by It,.
Reversed and remundeG.
Leon IL II. Blnm ct al, VS.. Black,
Oppenheimer & o., from Smith
county, Stayton,.j. The statement Of
facts In this case was stricken out at q
former day of this term, and there is
but one assigned error that can he con-
siderod without the statement OF facts.
A party complaining of the
exclusion of testimony must show
INV Nv "oo PioooOAJ PiNJuHiNSa shVtS
by, and In many cases this cannot be-
shown without a statement of facts.
Affirmed.
International d Groat Northern
company We. Lydia r. Gilbert
from Gregg county, Willie G. J. A
person who gets upon q wrong passen-
ger train through mistake Is neverthe-
less passenger upon such train, aud
the relation OF passenger and carrier
exists between him and the company.
The plaintiffs case Is q stronger one.
She was on the wrong train not solely
Through her own mistake, but also
from tho negligence OF the conductor,
to whom she had shown her ticket and
asked II she was on the right
train, and he replied: "Keep your
seat." The plaintiff, her sister and
Two Young children were put of the
train In the night, in river bottom,
and at q place whore no one resided
save some negroes, and she was per-
fectly justified In returning ON foot to
1I0ngview, whore sho know sho could
find safety. Under the circumstances
of the case the Injuries complained of
wero the iproximato result OF the
wants. The verdict, which was for
be disturbed. Affirmed.
International Il Great Northern Rail
road company ys. A. o. Irvine, from
Wood county. StaytoD, j. Ia an &C.
ton to recover damages for personal
injuries, 1t Is competent for tho injured
person 70 show that no was compelled
to dissolve q partnership on account of
such injuries Tor tho purpose OF show
Ing the extent OF the Injuries COM
planned OF. III the defendant accepted
the fare CT plaintiff and allowed him
to ride on q freight train, ho was a
passenger on such train within the
meaning of tho law, and tho defendant
was bound by the same degree OF care
~ though 1t were q passenger train, is
q correct charge OF the law In such
assignment OF error is too
general and will not DO con.
adhered: "Thc court erred in not CIV
ing special charges asked by defend.
ant, from to IL inclusive" AS Is also
the following: "The court erred in
refusing deiendauts motion for new
trial on all tho grounds In said motion,
and especially on the grounds In said
motion numbered from TO IL, inclu-
aive.n 1t IL only In
cases IN WniCn tho pfopon-
peranco OF tho evidence seems
70 DO against tho verdict or
whore there is good reason to believe
that the party complaining may have
becn injured thereby, that cause will
DO reversed on account OF improper
language used by counsel to the jury.
Affirmed.
George Kirschbaum vs.. l.. b. Harris;
from Camp county. Willie, @. "The
court erred In overriding motion for
now trisl,n Is On assignment OF errors
too general to DO considered. Even II
the court look to the motion for new
Trial, II too will DO found to DO too gem
erAl. There IRE no fundamental errors
In the record, and the Judgment 10
affirmed.
COURT OF ArrEALs.
+. L. Tally Va. the State, from Cass
county; Wilson l., whether o
road which had been used as public
road for Ii years, and which had On
0vorseer and handu appointed TO do IL
by order OF the commissioners court,
A