Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-02-28
COMMISSION OF APPEALS.
Synopsis Of Decisions Rendered at the Present
CalV 'StOn sitting.
COMMISSION OF APPEALS.

HJHOsSlS OF GeciSkonS hPnuereu dt CH0 fFeSen6
GALVESTON sitting.
COMMISSION OF APPEALS.
Correspondence of the Gazette.
Commission of Appeals. Acker, P. J. Collard
and Hobby, i. J.
GALVESTON. TEX, Feb. 26.-J. B. Walker
vs.. J. NJ. Noen, ct al: Angelina
county. Affirmed. Acker, P. J. Walker
sued a due bill, signed by Coy s. Lampley,
testifying that defendant had assumed payment
ment of it. This defendant denied. and the
court held that they had never assumed such
payment. No other conclusion was possible
from the evidence.
B. T. Halconb ct al. VS.. D. R. stubblefeld;
Houston county. Affirmed. Acker, P. J. APP
pellee recovered damages in a suit against Hal
comb, sheriff, and the sureties his official
bond for wrongful seizure of saw-mill machinery
under an execution against Collins and Gregg.
The appellants commended that only the interest
of Gregg was levied >upon. The court properly
admitted the testimony of plaintiff as to the val
ne of the of machinery when in operation.
1t was proper charge to the jury, that the sher-
if's return on the execution was conclusive.
The Yellow Pine Lumber Company VS.. D. R.
Carroll; Tyler county. Trespass to try title.
Affirmed. Acker. P. J. The issues were the
same as to both tracts and as to all parties, and
the petition was not multifarlous. 1t is urged
that the court erred in giving interest on the
damages agreed upon for timber cut from the
land ana appropriated by appellant. The agree
nent as 10 damages an ADMISSION or Inability
to the extent named, which plaintiff was en-
titled to have paid to him when the suit was in
Etituted.
George Bell ct al. vs.. Boyd & Boyd; Goliad
county Second appeal. Affirmed. Collard,
A. j. On the former appeal II was held that be-
cause Van Dohlen's liability was severed, he
was benefited by the change of his liability in
the last note as Joint obligor with the princi-
pal, and that such benefit was good consideTa-
Plaintiffs could maintain their suit against his
estate. Where a co-surety pays off and
extinguishes the original obligation by his in
dividual note he would be entitled TO contribu
ton, but he would not be entitled where the
original obligation is paid and discharged by a
new note Of the principal and of the sureties.
White vs.. Cotton, 81 Ind, 312, and others. It
is the duty of the court below TO find the facts
proved, and we cannot say that Its findings are
incorrect.
NJ Hooks vs.. Charles Fitzenricter; Hardin
county. Exemplary damages. Affirmed. Hobby,
a. j. There was no error in sustaining de-
fendant's exception to PLAINTIFFS petition.
Plaintiff claimed $500 exemplary damages; less
than 500 actual damages. 1t was not, there
fore within the jurisd ction of the court unless
the averments were sufficient TO entitle plaintiff
10 exemplary damages. THE allowance OF ex-
emplary damages for breach OF contract. is de-
parture from the true principle OF the law OF
damages" Houston and Texas Central Rail
way Company VS.. Shirley, q Texas, 49, The
allegations upon which exemplary damages are
sought should show that the manner IN which
the breach was committed amounted to a tort,
for which an action for exemplary damages,
independent of any right to recover actual dam
ages would be. The averments in the petition
before us are not sufficient for that purpose.
J. NJ. Noel VS.. w. G. Denman; Angelina
county. Reversed and remanded. Hobby, A. J.
The court did not err in allowing jury at a SUBJ
sequent term when none had been demanded at
q prior term. Defendant plea TO the lurls die
ton was defective IN not alleging positively that
defendant did not reside III Angelina county.
lCrawford vs.. CSruthers, 66 Tex. 1879. It is
within the discretion of judge to allow the jury
to separate after giving them the proper admon-
ishments. The testimony OF witness 10 the effect
that he heard William Noel say that he had told
hat he duo nm
alright is incompetent as hearsay. 1t is not
within the scope of authority of the ordinary
clerks and statesmen TO negotiate and execute
bills and notes in the names of their principals.
friedman on Com paper, 5 IS, note !, P. a.