Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-04-23


Erroneous The charge is upon the weight
of evidence. because il informs the jury
thai the law presumeS negligence from the
happening of ain unusual occurrence pro-
dGcing the injury. Il was equivalent TO
charging that plaintiff could recover if col
lisisns between trains We're unusual occur
rsnces. unless il was shown the accident
,ctlld not have been averted by the greatest
Fare. Reversed and rcmanded. Stayton,
c. J.
Sidney Thomas VS.. junction City hTiga-
ton Company; from kimble. Suit by ap-
pcllaut 10 restrain appellee from erecting a
dam across LlanO river to connect with his
farm on the south side Before this suit
was instituted appellee had sued out an III
junction and appellant answered and asked
for damages against appellee because OF the
keeping and maintaining the dam by the
latter Injunction was granted and dam
ages refused. Subsequently the dam was
partly washed away and this suit was
brought to restrain appellces from repair
ing same. Held: The former action BY
appellee for an injunction restraining ap-
peiIant from Interfering with the dam. and
5ts,r answer of appellant in said suit asking
ssFamages, Is conclusive of appellants claim
Tor an injunction, on any ground now
claimed. In the former suit appellant was
cujOined from interfering with the dam
and his prayer for damages was refused.
This judgment precIudes the appellant from
claiming that the only right appellee then
had was a mere license revocable at the will
IF appellant Under the allegations Of his
petition appellant IS entitled 10 no relief.
Affirmed. Stayton. {. j.
Cotter. Truelove & Co. VS.. o. f. Parks ct
az from johnson. l. In his original petit
SEn Appellee Parks alleged that Cotter,
Guelove X Go. had on deposit large sum
ri money belonging 10 appellee, and that
through the Joint wrong Of Cotter, Tluelove
& Co. and the former partner of appellee,
Boehman, the said money was miSapprO-
priated by them and lost TO appellee. The
amendment set up that instead of the whole
amount having been misappropriated by all
Of the defendants. S223.9 of said sum had
in fact never been paid out rs claimed by
COttcr. Trueloye x Co. and that the latter
were separately liable for said SUN. Held:
The amendment did not set up new cause
of action. and consequently the cause of
action was not barred. > The amendment
set up a separate demand OF 239l from
COJter TrUclOVc u Co. out OF the original
demand. and continuing TO assert against
Appellants COtter e. Al. The balance of the
'oliginal demand, the court did not err i'll
holding that il had Jurisdiction Of he sepa-
rate demand fors223gl ,. Appellants can
not complain of separate VerdictS as 10
Cottcr et al. and as to Boehman, because
then. liabilities are separated and dis
tinguished in the Judgment as in the YER
dic,. Affirmed Henry. j.
d b Cirigsby q al vs. NJ 4. May ct al
from Dallas. !. By agreement of both par
rs submissions may be set aside and briefs
filed for either party. Per culiUm.
D. Paden vs.. Nj < X Bmscoe; from
Milan. / Both parties consenting former
submission viii be SET aside, briefs allowed
filed and cause Iesubmitted. SO ordered.
Per curiam.
COMMISSION OF APPEALS
Hon. Edwin Hobby. p Wv. E. Collard and
d. =. Mari. associate judges.
Jennie McDougall ct al vs. Il. II. Brad
ford e. al: from Denton. !. Where mar
ried man purchased land and before the
land Is paid for his wife died. and after
subsequent marriage the land is paid for,
IN the absence of proof, such d payment will
not be presumed TO have been made out of
the community funds of the last marriage.
80 Tex. 81 , Under the law as it ex-
listed at the date of the death Of Hiatt in
So, and as it existed al the time of the
order setting aside the homestead to his
widow and minor children. the estate being
insolvent. the benehciaries of the home
stead took the absolute title TO the same,
free from distribution among others inter
ested in the estate. Il Tex. lS9; y Tex,
GG5: 60 Tex. 3l9; 76 Ten GA Reversed
and reminded. Collard. J.
Walter Gresham ct al. vs.. Margaret
Chambers: from Coleman. Trespass TO
Ivy title. / The court erred in exclud-
ing the deed executed in 1851, from Isaac
Wilbarger and wife (the latter being ap-
pelleei TO Bartlett Sims. II conveys the
entire Barker league. 1t does not purport
10 convey an Indefinite portion of 4
larger survey. 1t is therefore not a de-
scription Of an uncertain part or subd-
vision Of larger tract. The name OF the
headlight and grantee is given, the 10
caiity and quality of land conveyed. The
deed is rot void for want of description
II Tex. 1851. The deed, as well as the
evidence in support of it, should have been
admitted , The charge of the court was
erroneous in that it failed to instruct the
jury as 10 the issue as TO whether there
was sale of the certificate TO Bartlett
Sims by appellee. The evidence clearly