Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-10-15
Commission OF Appeals.

Gulf, Colorado and Santa Fe Railway
| Company VS.. j. Zimmerman ( Co. ct al
from johnson. Suit by appelees for the
! value of certain cotton alleged to have
been burned through the negligence OF ap,
| pellant. I. 4 common carrier can provide
in his contract of shipment that he shall
| have the benefit of any insurance effected
upon the goods to be transported, and if
the owner has received from the insurance
company the amount of the loss, he will be
preciuded by such stipulation IRON recov-
| ering against the carrier i63 lex, 1871, but
il IS not the less 10 be doubted that
after proof of the loss due to such negli-
gence of the carrier, it is incumbent on him
TO establish the conditions which shield
him from liability. The insurance policy
stipulated that it should not cover losses
caused by the carriers negligence and for
which the carrier would be liable at COM
mon law. The court found that appellees
had not received compensation for the loss
from the insurance company. and this lind
ing is supported by the evidence. At
flmed. Tarlton, j.
5. d. Burchard vs.. Rush Record; from
Archer. Suit by appellant to foreclose
vendors lien. l. \ plea in abatement comes
too late, and is not in due order of pleading
if filed after the pleas in bar ?. The suf-
fciencY of 4 plea in abatement must be
tested by its own averments, and unless
they exclude every exception, which under
the law would confer jurisdiction, the plea
is fatally defective if called in question by
exceptions. - Tex. 6lS; So Tex, 376; 60
Tex, 40. 3. Where vendee OF land has
knowledge of the fact that his vendor has
not paid for the land, and that third party
holds lien against his vendor for the un-
paid purchase money, the fact that the
third party subsequently forecloses his
lien against the vendor, cannot avail the
vendee aforesaid in a suit, to foreclose by
his vendor Affirmed. Mari, J.
Eliza Ralston ct al. VS.. Charles Skenet
st~nf: from Clay. Trespass to try title /.
eSppclees do not hold the land under their
ancestor, NJ. B. Skenett, but by the state
which donated it to them. The covenant of
the ancestor to warrant the title to certifi-
cate No. Sc, which was issued without
authority oflaw, to said ancestor, to Robbins
& Co, and their assigns, as against him.
self and his heirs, will not operate as a
rebutter to the claim of appellees. .. A
cross assignment OF error as to a party
who has not appealed, can not be con-
sidered Affirmed. Garrett, p. ].
W. &. Conner ct al. VS.. L. Fl. Saunders;
from Grayson. /. The allegations of appel
lees petition show that ne was injured,
either on account of the negligence of the
defendant company in not providing suit
able machinery or appliances, etc, or on
account OF the negligent omission of Brown
(ogsof defendants) to perform some duty
asspecified in the petition, incum bent on
? him Held: Such negligence as alleged in
appellee's petition does not amount to a
''trespass" under Art. 119S, Revised Stat
utes. To constitute ''trespass'; as here
used, the act must be ''wiilfully'' done
something more than negligence must be
shown, or the act will not be ''trespass -
1t follows that, appellants not being citi-
zens of Grayson county, their plea to the
jurisdiction was well taken. Reversed and
remande6. Mari. j.
George W. Baylor and wife VS.. Charles
&epf and wife; from Ell Paso. Suit by ap-
s4sGlees to recover land. l. This court will
not reverse because of a conflict in the testi-
mony. , The court charged that if the jury
found for plaintiffs they would also find for
them the value of the use and occupation of
their part of the premises from the time of
plaintiffs entry. Held: error. Plaintiff,
Mrs. Hopf occupied the Land as home
three years before her marriage and only