Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-01
THE HIGHER COURTS
synopsss OF Decisions Rendered at tho Present
= Austin Sitting.

Synopses Of Decisions Rendered at tho Present
e Austin Sitting.
Cesgsspondence ofthe Gazette.
khUsrE, Tex, May SO.-GuH, Colorado and
n Santa Fe railway company VS.. W. T. Hudson,
from johnson county; opinion by Stayton, G. J.
Appellee stopped with drove of cattle for the
night about half mile from appellants road on
the highway. During the night storm came
up, the cattle stampeded ran, notwithstanding
all efforts on the part of appellee's servants, to
appellants road. The road was not fenced and
= number OF the cattle were killed and wounded
by passing train. The defendant tried to prove
that an ordinary wire fence would not have
checked the stampeded cattle. Held: This
evidence was properly rejected. The clear
meaning of the statute is that
the railroad shall be liable for the
stock injured or killed by the cars, unless the
company proves that the road was fenced; in
which event plaintiff shall not recover. unless
the injury resulted from want of ordinary care
| not here be considered. Ii would be incompe-
tent for the road to show whether or not the IN
jury would have occurred had the road been
fen ced. All instructions 10 the effect that If the
| road had used ordinary care, it would not be
liable, were properly refused. The road being
unfenced, the company was liable, as ordinary
care does not then exist. 1t was claimed that
some Of the injured cattle died afterwards for
want of proper care given them by appellee; on
on defendant. The judgment under the evidence
is not excessive. Affirmed.
Mary E. and D. @. Freeman rs. Harvey HaW-
kins ct AL, from Denton county; opinion by
Stayton. c. j. Suit by appellants for the re-
covery OF tract of land patented to James
Rose; appellants claim under Lewis and Mar
garet Rose, father and mother Of James, who
| died without issue. Defendants claimed under
| some other woman as the mother of James
| Rose. Ii the court had found in favor of the
latter claim the finding would have been con-
| elusive of the case. but, it not appearing from
4 he RI NJ Was %
| questions raised viii have to be considered.
The court admitted in evidence
against aSa APP Ma4s RoBnson By defanIs
for the land in controversy on citation by publi-
| Mary E. Freeman before her marriage, bnt at
the institution Of the suit she was Mrs. Free
man. This judgment should have been ex-
cluded On her marriage the law conferred on
! Mary E. Robinson the name Of her husband, and
| a citation by publication requiring Mary e.
Robinson to appear was not suthclent to give the
| court jurisdiction to render Judgment that
| would bind Mary E. Freeman. It might have
been different if she had been served personally.
| answer and Judgment In suit brought by Lewis
| and Margaret Rose against Thomas Collin en-
tirely different from the matters involved IN this
| case. The averments in that suit were essen
tally self-serying and could not be offered for
the purpose stated, and the court correctly ex-
cluded this as evidence. Starkie on Evid. 4S9,
Wharton Eyid. 2lO.l Reversed and re-
John Allen ct al. vs. III. KoeoseI ct al, from
land here in controversy lies between . slough
and the Gaudalupe river, and plaintiffs claim
under grant which calls for the river. but de-
PENDANTS claim that the slough instead Of the
river was measured by the surveyor. The strip
Ihetween the slough and the river was located
kfdpon wild certificate by one Saunders. The
sinstruztsut offered By defendants to prove lmi-
tatis(f showed priyity between Saunders and
TI1fe. 1t was clear agreement, showing that
f4ele held under Saunders and justified the
Charge Of the court TO that effect. The court
also charged the jury that in determining the
extent OF the grant they must find the lines as
run by the surveyor, II they along the river
to find for plaintiff, If along the slough, for de-
ftndant, aithough The river was called for IN the
SAINT. This charge was correct. Affirmed.
Llauc county vs.. ". T. Moore, Jr., from
Ilano county; opinion by Henry. j. Llano
county for building courthouse issued bonds,
cold them, deposited the money in bank at
Austin and as the contractor earned the money
the county Judge drew on said deposit. Appel
lee the then county treasurer had no connection
with said money at any time.
And when he went out OF Office
he made Eettlemert with the county