The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1880-03-30

Opinion by Clark, u, Az u former day OF
this term the judgment In this case was At
hnned without written opinion, there being
no statement Of facts, and tho only COM
plant upon tho part OF appellant being that
tho indictment WA Detective for numerous
reasons assigned, Our examination OF the
indictment revealed perfect indictment for
tho particular species Of burglary charged,
Appellant moves for rehearng and insists
that the indictment Ia void because II does
not conclude "againat tho peace and dignity
of the State" The constitutional conclusion
fully appears In tho indictment Oyerruled,
N. V, LacroiI w. ID, j. Evans. Appeal
from Galveston, Opinion by Clark, j, Up
on compliance by party 10 civil action
with liz regulations prescribed by law, no Is
entitled 10 withdraw from the consideration
of tho court tho Issues Of facts arising In the
case, and 10 have them determined by u jury
of tho country This right Ia guaranteed
him by tho constitution, and cannot be do
foated IN tho absence Of unmstaknblo
waiver, Mere absence from the courtroom
of himself or bis attorney whom tho case ia
reached and called for trial, cannot, standing
alone BIO construed M such waiver, for this
oilon happens through nadyerlanco, acct
dent or misfortune, which ought not 10 work
u forfeiture Of jury trial, Upon tho election
Of party and his compliance with the law,
tho case Is transferred from tho docket the
cases upon which may DO determined by the
Judge alone, 10 a separate docket kept exclu-
syoly for those cases upon which Jury must
pass, and when the case Is regularly reached,
neither tho Judge nor tho opposite party have
authority 10 dispense with Jury, without the
assent or tho party originally demanding IL.
Tho trial may proceed without delay, but II
must be In the mode prescribed by law, after
tho election Of the other party, and his ab-
senco cannot effect the procedure. The means
which may prompt him to demand II jury lie
within his own bosom, and may apply TO the |
case as well In his absence as In his presence |
for aught the court may know Having paid |
for tho privilege IL cannot DO denied him. |
Reversed and remanded.
II. Walters Va q, ii & San Antonio rail
road. Error from Gonzales. An acceptance
Of draft or bill of exchange, in the absence
Of statutory prohibition, may be verbal as
well as written, and the former mode of ac-
coptance does not come within the statute of
frauds. And the effect of an accept
,ncc, whether oral or in writing, is TO consli-
.uto the acceptor tho principal debtor, and to
make him party TO the bill, his obligation
)elng coexistont with tho bill itself Il Dan
Neg, Int 1906. In suit upon bill against
/ verbal acceptor il would seem to follow
rom these principles, taken in connection
With our law of limitation, that the
mere fact that the acceptance was
,erbal will not entitlo a party to avail
himself of tho shorter period Of Limitation,
,ut having become party to the con.
nt hu 10 ant in n mn nl | 4
" law, his right under the law of limitation
must be estimated strictly by the law as APP
'licablo TO the written contract, lfan action
pon that is barred, the acceptor is relieved {
rom judgment against HIM otherwise, not 0
The statute in force at the time this suit was
instituted ". d., art. 1904, has been several
lines before our Supreme court, notably in
'trbblctt vs.. Mckinney, 20 Texas, 1873 t
nd il was there held, on a suit against the {
rawer by an accommodation acceptor, that /
no technicalites and nicetes of the common |
,w did not apply under our system I
nd that tho action was grounded upon
he writing, which was an essential c
art Of the case, and not upon the i'm
lied promise of indemnity. In the action q
t bar, its basis was manifestedly the draft
rawn upon appellee, and its verbal accept
nee and promise to pay, and not upon IN
ccount proper or parol understanding with
4 the meaning Of the law. The action of .
ebt was grounded upon contract in writing, .
,ithout the existence and validity of which !,
laintiff would have no case. This contract y
4 writing constituted material and essen !
al part of tho case, and the mere fact that !,
he acceptance must have been established i
y parol does not relieve the case of this es-
,nta foundation so as to change the rule of :
The writing of ones name across
10 face ola bill is one mode of evidencing an
cceptance but the actual acceptance can
xist without it, and may be so made in 9TH
r modes as to constitute the acceptor u party
0 the contract and subject its terms to the
all extent. The court below evidently pro-
eeded upon different view Of the law. Re-
ersed and remanded.
Ii Vincent vs. N ~ S Maybum. Appeal
rom Fort Bend. Opinion by White, 2 j.
Whether the plaintiff was a tenant of Merit,
r any other party who had rightly been
laced in possession of the land, made no diff
erence, and could not justify or excuse q
ganton trespass upon his rights by defend
nts, even though his landlord, Merit might :
AVE been indebted to them for rents. In pur-
uing the course they did they were guilty OF
trespass, and the claw supposes that every
respass committed upon property is neces-
arily attended with some damage, however
the injury; and hence the right
o recover damage for atrespass cannot be de-
lied. But this was not bare technical
it was committed wilfully and in
vllful violation of plaintiffs rights in man
Ter, and under circumstances, showing aggra-
,ation, and in such cases the law allows
lamages beyond the strict measure of COM
,snsation by way of punishpent, and for
Examples sake. In tresspass
violates the law, the jury should
Abringer, in Musen IL Welsby, 842--2l;
Champion VS.. Vincent 20 Texas, Sill The
,hsrge of the court is not free from the objec-
ions urged by appellants counsel, that it is
contradictory and were calcu-
ated to mislead the jury. Reversed and
,emanded.