The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-10-12

press or implied contract between ali par
ties 10 the action In the ordinary course Q
trade. Affirmed. Hurt. !.
Prcssler vs.. the State; from Nacogdoche
county. Tho recogBizance complained O
states that defendant was convicted of til,
ofense of knowingly and unlawiully sell
Ing spirituous liquors TO o person under p
years OF age, without the written consen
of the parent or guardian of such minor IL
their place or stead" Held, the recogni
zance does sufficiently charge in atlirma
tive language that the person to whom the
liquor was sod was under 81 years of age
and 1t being apparent that the omission Of
the ofense, as stated, is merely clerical
error, the motion to dismiss Is refused.
Motion overruled. White, p. j.
International & Great Northern railway
VS.. Wingate q Lynch from Anderson
county. Suit brought for damages for fail
ure to deliver saw shipped by appellees
via appellants to Philadelphia, saw delayed
beyond proper time, way.billed to Long
view only, but pay for freight received by
appellants for the entire distance. Held,
special damages are not recoverable ordi-
nary and actual damages, such as the
rental value OF the saw for the time delayed
are admissible only. The weight of author
| ity lays liability to appellants along its line
only, common law, over all connecting
lines and both agree in laying liability to
the receiving company for entire contract
of delivery to destination, when freight
charges for entire distance were received by
| first company. Affirmed. Hurt. j. :,
| Coker ct al. VS.. Davis; from Van Zandt
county. Coker having judgment against
A., had an execution levied on some cane
in the field. Davis, as constable, levied the
| execution, but prior to the levy, Davis de-
manded an indemnity bond, which was
given. After the levy A. recovered judg-
M on aNric IN
official bond for $104. Davis brings suit
against Coker and his sureties on the in
demnity bond. Judgment in JUSTICES court
for 5000. Appeal and judgment in county
court for S104. Plea Of non est factum by
defendants found against them by the court,
who found on the issues Of law and fact.
Held, the judgment will not be disturbed
without it is apparent that the Judge is
| clearly wrong. Defendants pleaded knowl-
edge Of the illegal act on the part of the
officer. Held, further, that contract of
indemnity is void when the officer to do
the unlawful act knows when he receives
the indemnity bond that such an act is il
legal. There being no such proof in the
court below, the Judgment is affirmed.
| Wilson, j.
| Wilbanks VS.. Brown, sheriff. from John
son county. The state being the plaintiff
| in Judgment in every misdemeanor case,
must be made party to an injunction to
restrain the sheriffs from recovering on
Judgment by execution. Brown was pro-
ceedinlg to levy an execution against VIII
banks surety on forfeited appearance
bond upon which final judgment had been
taken when the injunction was sued out.
| Injunction dismissed for want of equity in
the bill and because the state was not made
party. Held, the state being proper
party, and for want of equity The ipjunc-
ton was properly dismissed. Affirmed,
| White, p. ].
James & Co. VS.. Blumberg; from Guada-
lupe county. Appellant and appellee
contracted for the delivery of cotton 90
| bales at NJ, to be paid for on the day of
delivery at 5, When appellee had delivered
10 bales he applied to appellants at s. for
change in the place of payment from 5. to
NJ, the place of delivery. Though there is
no proof OF such agreement OF change OF
the place Of payment, yet on the day of
payment the clerk of appellants went to
the place of delivery and stating. there was
not half the amount Ito be paid in s., Of
fered payment at still another place.
Upon refusal by appellee no demand for
full delivery Of the cotton was demanded
of appellee by appellants. Suit for
cotton delivered, judgment accordingly.
Held, if the conduct of appellants, or their
authorized servants was such as to deceive
appellee and make him believe that appel
| lants had acquiesced in the change, though
there may not be proofof actual change,
yet the appellants will be held bound. The
contract having been violated by appel
lants and they having failed to demand full
compliance on the part of appellee, will be
held to have waived all rights by accept
ing a part of the cotton and are liable for
so much as was delivered. Affirmed.
| Hurt, j.
Scruggs vs. Cleveland; from Van Zandt
county. Where, as in this case, writ OF
certiorari will correct the errors complained
of and for which the appeal is sought to be
dismissed, and said writ is sought before or
simultaneously with the tling OF the motion
to dismiss the motion will be overruled
and certiorari granted. In this case, the
endorsement to the transcript was not
signed by the clerk of the court below, nor
did the certificate thereto certify that ut
contains n true copy of all the proceedings
! i'm said cause.n Motion overruled and GER
tiorari awarded. Wilson, ].
Smith & Bro. VS.. Burr d Co; iro'n Bell
| county. The petition and bond for writ OF
error was filed nearly year before the issu-
ance of the citation in error. The citation
| failed to state the date of the filing OF the
petition in error. IL also failed TO command
| the sheriff to forthwith summon the de-
| PENDANT in error. Held each and all OF the
above grounds are sufficient to cause the
dismissal of the writ on proper motion
ruade Revised Statutes art. l%l3-9i) Ap-
peal dismissed. Wilson, J.