The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-05-04

lieu. IL has been frequently decided that
the statute must be fully complied with
and so the petition should allege due re.
cording OF the bill of particulars, and ser
vice Of copy upon the debtor. Reversed
and remanded.-Watts,C G.
J. W. Fleming vs.. John T Shelton; er.
ror from Tarrant county.-In the absence
of evidence to the contrary shown by the
| record. the int ndment and presumption
of the law is that whatever evidence was
proper or necessary to support judg-
ment by default, under the facts of the
case, was addueed at the proper time by
the plaintiff, IL indeed any evidence was
| required; in the absence of an answer,
where nothing is contained in the record
TO warrant a reasonable superstition that
a writ of error was prosecuted with the
expectation of a reversal of the judgment
for any other purpose than delay, the
court will award ten per cent. damages
for the delay. Affirmed.-Walker, z. c.
The Falls county Turnpike road and
bridge company VS.. j. ID. Jordan appeal
| from Falls county.-A general demurrer
will not reach a merely informal or de-
| fective averment; II a cause of action be
shown, but be informally or defecti ely
stated. the objection must be taken by
| special demurrer. The petition did not
| allege the amount of the physicians bill.
that was lettblank. Held, the defendant
having gone into the trial without ex-
cepting to the petition specially by
| pointing out the Indebtedness as TO the
amount of said bill, the objection to evil
dence to establish the amount made
| during the trial tor want of allegation as
to the amount, will not be heard. Evil
dence respecting the time lost by the
plaintiff in consequence of his injury and
the value thereof Is admissible where
the petition describes his occupation and
the loss which ensued to him In con-
sequence OF being disabled from the
wound. Damages for loss of crop expect
ed TO be raised is too remote for cOnsid-
Grafton. Affirmed Walker, L. G.
Houston aud Texas Central railroad
company VS.. James l.. Leslie; appeal
from GraysOn county.-Appellee had
boarded appellants train at Van Alstyne
to assist ladies in finding seats, and while
thus engaged the train started. Appel
lee then jumped from the moving train
and was injured, for which he brings
Is measured by the fact that the injury
received follows proXimately from the
culpPble act complained of, and If the
erysipelas sprung from the injury, the
dangers from that disease, as well as the
sufferings produced by it. constitute a
portion of the injury itself, and is none
the less so, because under similar acct
would not ordinarily ensue. 1t appear
ing clearly from the fact proved that the
leaping from the cars in motion il unsafe
and dangerous, ii follows that plaintiff
contributed by his want of proper care to
the casualty which occurred. There is
no other connection of the defendants
agents with the accident except such
culpabllity as may be implied from the
short period of time the train of ears re-
manned at the station. The failure to
stop the five minutes required by law
was not per Sc an act rendering the de-
fendaut liable irrespective of the ques-
ton of contributory negligence on the
part of the plaintiff. A person cannot re-
cover from an injury received by reason
of the negligence of another if his own
want of care directly contributed to the
injury. But in order to shield the other
from liability the person injured must
have not only been negligent, but his
negligence must have been the proXi-
mate cause of the injury. He must by
his own wantof care directly contribute
to the injury. Reversed and remanded.
Walker, p. G.
Il. p. Dlmmitt VS.. George GARNER ap-
peal from Guadalupe cOunty.-It is a suf-
ticient objection to the granting of an in
junction that the party aggrieyed has
full and adequate remedy ut law. Equity
courts will not lend their aid for the pro-
lection OF right or the prevention OF
wrongs where the ordinary legal tri-
bunals are capable of affording sufficient
redress. Mortgaged property can be taken
in execution subject to the lien of the
mortgage. The commissioners incline to
the conclusion that the act oil 1874, whilst
affOrding the remedy of distress war
rant against the property of the tenant
In the mode pointed out by that statute,
it did not extend preference lien in IA
vor OF the landlord except as to such
property as is specifically designated by
the first section of that statute. Reversed
and remanded.--Walker,P p. G.
John c. Sedgwick VS.. j. X. Patterson
ct al; appeal from McLennan county,
To fix lien under the statute TART. 7112,
Pas. Dig.1 the provisions of the statute
must be complied with In every essential
particular. "Material men," when fully
complying with the statute, are entitled
fully to the benefits of the act. The lien
is not created by the contract of the par
ties, but when it exists at all, is the crea-
ton of the statute, and exists upon the
conditions prescribed for its formation
and S continuation. The requisites of
the statutes are necessarily descriptive of
the lien, and If omitted in the pleadings,
should subject them to demurrer. When
the suit was brought the district court
had jurisdiction of amounts in contro-
versy over S1U0. The jurisdiction of that
court was extended to $500 during the
tendency of this suit, and the court then
dismissed the cause, because the amount
in controversy was less than $500. Held,
the court erred in sustaining the demur-
rer and dismissing the suit. Reversed
and remanded-Walker. p. C..