Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-03-14
COMMISSION OF APPEALS.

synOpses of n cisIons Rendered at the Pres
ent ta'vss On lifting.
Correspondence OF the Gazette.
GALVESTON, TEX, March l2-Commission OF
appeals: Aeker, P. j.. i; Collard and Hobby, A. J.
The Galveston and San Antonio Railway Stock
Association VS. George w. West; Lavaca county
Affirmed Acker, P. ]. Upon the trial appel
liant, plaintiff below, offered to prove by deposit
ton that certain assessment was made by
authority of an order of the board of directors.
Upon objection it was excluded as secondary
evidence. Article Sol. R. S., makes the records
of corporations, or copies thereof, authenticated
by the president and secretary under the cor
porate seal, competent evidence. There was no
attempt to show the destruction or any other
explanation of the non production of the record
as predicate Tor the introduction of secondary
evidence, and the court did not err in excluding
the latter. The other assignment of error is too
general to be considered.
r. c. Dausby VS.. Freiberg. Klein & Co., Gal
weston county. Revers ed and remsnded.. Acker,
P. j. The agreement sued on was to quote
from Ramsdell VS.. EIgerton, 90 Mass. 236, "a
secret agreement, made at the time of the
slgLment and repugnant to its terms. BY the
assignment the creditor professed TO unite with
other creditors in dischaTging the common
debtor, on receiving an equal distribution of his
property. This was wholly counteracted by the
secret agreement. 1t was an unwarrantable CO.
ercion upon the debtor and fraud upon the
other creditors, and so was Void The Ian
guage thus quoted expresses our views Of the
law governing the disposition of this case. See
also Willis Bro. VS.. Morris, 63 Tex ass;
Story's Eq. Juris. S37S; GREENWOOD on Pub. Pol
icy, l46, IA and I4S.
H. B. Clafin & Co., Intervenors, VS.. Anna
PielfeT; Galveston county. Reversed and re-
manded, Acker, P. j. Profits on investments
OF wife, s separate estate are community prop
erty and liable TO the husbands debts. [Cleve-
land VS.. Cole, So Tex, 404; Epperson VS.. Jones,
Id, 425; Smith vs.. Bailey, &c lex, 553; Middle
brook VS.. ZSpp, % Tex, 70. If such profits be
mixed with the wife's senarate estate. it is
incumbent on the wife to show how much
ia ned its character OF separate estate. and if
any part Of the estate has und rgone mutations
to trace and identity it by satisfactory evidence.
Minnie F. Ward ct al. vs.. ]. E. Billups ct
al. Reversed and remanded. Collard, A. J.
An execution under an order of sale cannot issue
the order OF sale IS disposed OF. No title can
pass by suuh p oceedIng, lSeeligson VS.. Col
Inns, 81 Tex, Bis; High on Iniunctions, section
l4.i4 and l447.
International and Great Northern railway
company VS.. J. T. Dyer; Galveston county.
Affirmed. COllard, A. j.. Parties a suit are
not bound to plead their evidence The court
properly refused to charge the Jury to the con-
ditiOn of plaintiffs mule, since there was no
evidence 10 show that her condition contributed
in any way to the accident. The charge OF the
court upon contributory negligence, with the
definition OF contrlbutory neglig ence, was COM
pleJe.
Galveston, Harrisburg and San Antonio rail-
way company VS.. John Kutac ct ell; Colorado
county. Reversed and remanded. Hobby, A.
j. The result in the case before us Is this: If
ordinary negligence was shown, no recovery
could be had for that alone; if gross negligence
shown, there charge on that SD bect
TO authorize recovery. For the reason given
in Railway vs.. Hawks II S. w. Rep, 37S, |, the
charge given was erroneous, and authorizing
recovery for ordinary negligence, when the law
authorized it only upon the ground of gross
nee ligence.