The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-11-29
COURT OF APPEALS.
synopsis of Opinions of the Court Of APP
peals, Tyler Term. 1881.

cause see IL ". app, ooA. LNVh say
evidence is admissible to impeach the evil
dence OF q witness, but when such evidence
is admitted the court must charge the jury
that 1t can only be used for the purpose OF
impeaching the evidence given by the wit
ness. Although motion for continu-
ance should not show due diligence, yet
when It appears that the evidence desired
TO be obtained is material, and If obtained
would change the result new trial should
be granted Reversed and remanded'
Wilson, J.
Clanton VS.. the State; from Navarro
county A court does not err in holding as
disqualified Juror, who on IS voir dire
answers that he has conscientious scruples
against inticting death for crime TO the
extent that he would not hang n man upon
Crcumstantial evidence; q CT. App, 29).
The case of Ruby VS.. the State % CT, App,
1853, is overruled and the contrary ruling to
that there announced is held to be the law.
The question as to whether the state can or
not impeach her own testimony is answered
by Art. 1853, Code Grim. Proc. Affirmed.
Wilson, ].
Rohren VS.. the State; from Bell county.
The Indictment contained this ayerment,
that the affidavit made by defendant was
ayerment is not an assignment of perjury.
Thu Indictment should contain the account
sworn to and the nilidavit made thereto in
full, and the matter sworn falsely to should
be specifically set out and negatlved, that
Is, each item which is false and wherein
should be SO set out AS that evidence under
such items in the account as were true
could not be admitted. Reversed and dis
missed. Hurt, ], &c. o
Howard vs. Moore and wife; from Gray
son county. A suit upon warranty deed,
as well Us any plea i'll reconyentlon for
damages for failure of the consideration, IS
n suit based upon written contract, and
the statute of four years limitation is the
one applicable. Appelees pleaded failure
of consideration in that the certain number
of machines given therefor did not come
M to the standard agreed upon. Held,
such plea arising out of being incident
thereto and connected with the plaintiffs
cause of action, is proper plea upon which
TO base q reconYention Tor damages, but
herein the evidence does not support the
verdict. Reversed and remanded. Will
son, ].
MoMahan ys. the State; from Rockwell
county. An Indictment or information for
SANDER must allege the slanderous words
TO have been spoken in the presence OF
some person az Ct. App, l6) and the better
practice requires the persons in whose pres
ence the alleged Islander was uttered to be
specifically set out. The slanderous words
being that certain party was whore, ev-
idence of statements made by TIE party
that she intended to become such on going
TO Dallas, as well as evidence of her after
wards going to Dallas, is admissible to show
that the alleged SANDER was ''wanton" or
"malicious,h without one OF which no
action lies. Reversed and remanded.
White, p.j
Western Union Telegraph company VS..
Catchpole; from Tarrant county. Tele-
graph companies can, by express contract
or proper rules and regulations contained
in their printed blanks, or otherwise, so it
is notice to the opposite party so as to ere
ate an express contract limit their liability
for delays or errors in transmitting mes
sagcs, except when such is caused by mis-
conduct, fraud or want of due care
on the part OF the company,
its servants or agents. The company
may also demand rs condition OF liability
that the messages be repeated AZ Il reason
able extra charge. The company is not liza
BILE for errors in an unrepeated message
where no misconduct, fraud, or want OF care
Is shown upon the part of the company, its
servants or agents, Reversed and re-
manded. White, p.
Kelly ys. the State; from Maverick
county. An omission OF the record to at
iimatively show that the jury were sworn,
il fatal % CT. App, 81; CT. App, 32j)
Though irregularity in the proceedings
may 1t appear, yet II fraud is not shown IN
obtaining the requisition, or that such was
in violation of the treaty between the re-
spective nations the court is not oustct 81
It's jurisdiction. Affirmed. Wilson, !.
Long VS.. the State from Guadalupe
10 10 "A 10 fol
for the court 70 allow evidence of the declar-
atoms of defendant not on trial, although
spoken or made in the presence of the
party on trial, such party not having been
shown to have heard or acqulesced in the
truthiulness OF such declarations 50 made
For other errors assigned see Tyler VS.. the
State, supra, which Is is II companion ease
TO this. Reversed and remanded. Will
son,
Jacob Bernhem e Co., vs.. Cumby 4
jam; from Hopkins county The court
committed vital error in admitting testi
mony going to prove certain statements
made on former trial by the alleged agent
Horribly, that when he hired the team, ior
the killing OF which appellants are sued ioi
damages, for the purpose of doing business
for appellants, the issue being the question
OF agency aud the hiring OF the team fol
the use ofappellants, the alleged agency hay
Ing ceased, admission OF statements as &c
Hornby's agency made by him are purely
inadmissible. Reversed and rcmandcd
Hurt, ],
Kaiser ct al. vs.. the State; from Delta
county Although variance, II is not
material when the court renders jud
ment nisi jointly and scverally against the
surolics. When the bond on its face show.
the scratching out or erasure of the name o
one of the sureties, IL devolvcS upon tn,
state to satisfactorily explain 1t to the ex
tent that il does not infringe upon tn,
rights of the other suretics A bond beinl
Altered in material manner by the oblige,
relieves the obligors OF liability. The eyi
dence being all in and the argument con
cluded, II was error to admit evidence a
such u stage to explain the erasure. Re
yersed aud dismissed. Wilson, ].
Bassling 4 Roller VS.. Hoyle 4 Bro; from
Limestone county. Where the measure o
damages Is expressed in u contract, ant
where, MS matter of law, IL does not appeal
that such amount was intended as u pen
atty, but as stipulated damages, the part,
committing the breach Is liable in suci
amount only rs is stipulated, and the re
coyery Is limited TO such an amount
When party places his refusal upon tn,
ground that the goods offered do not com,
up 10 the standard rs agreed upon, il viii
be considered n waiver of tender by sucl
party. Reversed and remanded. White
Taylor VS.. the State; from Clay county
Tho burden is not upon the defendant I,