The Texas Republican. [volume] (Marshall, Tex.) 1849-1869, 1850-07-13
pECuloNy or THE SUPREME COURT.
MsIs Hns III PsNiesncr " IN Sssssi veisM Z
Tssss RsYsrssj


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Dsesnbss xsen, 1oaA
81. When, under eestaln eireunoeaaces.
the legal power sxists IN Z eeeTt = Do ~
act, and there IL nothing In ths record bow.
ing that /, WAS not Rightly exercised. il will
be presumed that the eoStt, ia doang such
act was right 10 maintain Judgment By
default, the person must act forth : cause
IF action, with substantial accuracy. and
sufficient certainty 10 inform tie court
what Judgment, TO render, without looking
for information TO proofs not within the she
cations. Facts proved, but not alleged,
cannot constitute the basis OF an adjudica-
ton. A decree for title to lands must b.
based upon material allegations OF facts.
otherwise il c.nno, he supported. A Pc
ti,on for conveyance OF lands onght 20
contain description by which to identity
it, snd aver that they have been patented,
or lha, the defendants have obtained and
are able to make title. He'll 4 Jones' Y.
.jdcLson.
~, Ii debt pleaded in set Of was sub.
sisiing and not barred at the commence.
men, Of the suit, and was then dne the dc.
PENDANTS from the plaintiff. i, would avail as
such. although it may have been barred
when the Plea was filed. A DEL, alleged
10 be due on given day. without an aver.
men, thu, il was evideuced by = contract
in writing. does not carry interest, and
n judgment, for interest is error. Where
charges were asked OF the court, and were
Gled Oh the ,lial, and ere marked "gsr,n.'
or refused" bu, no, signed by the Judge,
they are properly parts OF the record; and
though not technically bills OF cep'ion,
whould nevertheless present the points for
review ~ error apparent on the record. II
a, the date %, the xccrual OF the plaintiffs
account, the defendants account is NOT
barred By the statute OF limitation, i. would
be applied TO the ex,inguisbnent of the
Plaintiffs debt. and in thi, WAY plaintiffs
account 10 that extent be ex'ingulshed be,
fore the bar inierposcd. There Is nothing
in our statute OF set off, that would restrain
or forbid this construction OF the effect OF
natural debts IN catineuish each other,
where there has been running account.
y, this rule, the two debts are rccprocai!y
ex,nguishcd MS soon ~ they Simultaneous
ly exist Co3k 4. Adriance Y. HeGrfei.
% To constitute bill of exceptions
signed by the bv.standers. under section
lOl Of the act to regulate proceedings IN
the dirt let Court, see laws, voL p. 35I.
il should be shown. ls,. That il had been
presented to the Judge on the Trial, that
he refused TO sign 1t accompanied 10y HIS
certificate oil the cause OF such reioal.
I'd The certificate OF the by.standers
should show upon it, face that the persons
signing It were BY ISLANDERS, and present
when the disputed lac, arose, and should
be given at the time OF the occurrence.
3. The permission OF the Judge is neees-
sarv Tor the fling of such certificate, II
the Judge Will not permit II to be i.td, NJ.
idayi,s ARE 10 be furnished ou each side.
from which the cour, will decide ON the
disputed 'aei for the Judge nisht well
refuse if he did no, believe j, 10 be true.
Uoesioa v. Jones.
"a. Uw,er the frs. section Of the act
concerning proceedings in the District
Court, passed on the 10th March, 1915,
under which a party is ruled to give sccu-
rity for costs, the plaiu;il is no. bound to
pay more than his own costs i! he sue.
cecds 10 lis suit. This statute WAS no, in-
tended to do more than charge the plain.
,i for such costs AS may have been IN
cured in his behalf, and that in the event
oil no, being able TO make the costs NJ.
Judged to him from the defendant, be
would be liable Tor SO much as \ liberal
construction Of the act may ctob ace of
such costs Cleveland v. Henderson.
25 The rule in actions upon contracts
is, that it any part Of the contract proved
should vary materially from that which is
stated IN the ulea6in2s, the variance viii be
fatal Tor contract Is an entire Thing, and
indhislble. j, IS never necessary to set
forth al the parts OF a con'rac, which con.
sists of several disiine. promises; il is suf
iicient 10 state the act 10 be done. and the
time, manner, and circumstances attending
lis performance, and with oil the PROPOSE
tons stated the proof must agree. a de-
scrip,ion according to It's substance and Ell
feet i, sufficient. And when the dec'aYn
ton avowcd that n note was payable ,e u
or order. and alleged an endorsement ~
PAYABLE To { OF oider, and on pvdus ton
of the note the endorsement was pay 10
I, II was bsii tiGt there WIS no variance
in substance. for bv the endorsemcr, il was
payable as alleged. Aud where the dec
larniion Was on note promising ~ lsy u
sum of money and interest, and the proof
was OF note entitled in cause, With
promise to pay the deb, and costs, il was
held sufficient, interest being legal conse-
quence of the promise, and the legal slsc,
being the kame, whether interest WAS spe.
Gifted in the note OF not. An allegation
tina, a note wa. payable to A, when OH
oyer !, appeared 10 be in fact payable to
4, or bearer, Is not such va'iaree NJ is
fatal Redundancy ii proof will not Vi.
tate, nor VIII an instrument he excluded
merely because it may contain something
more than is alleged. when not inconsist.
en-, with the allegation. Bacon + kicbery
v. Rarieso~.
~. IL the absence Of any special con.
,rac, upon the hire Of negro. ~ y who
shall pay tho physicians hill. il WA held
that the hner Is liable. The hircr Is for The
time the cwncr OF the slave. by he hiring.
the property is so completely changed thst
the negro could not h. taken in exessttpn
Tor debt Of tho owner. until ths ssp1sa.
ton OF the time, fer which h was hired.
unless the lien had attached besoss tho
transfer Of possession by hiring The sgtnt
who made The contract tos ~ hi'tne !.
A .>>I~. 1890.