The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-06-01

| us DEMENT'S can only De obtained by a
strict compliance with the statutes. To
constitute a final judgment there must
not only be an order that the defendant
recover his costs, but also, in order that
the plaintiff take nothing by his suit or
some other definite sentence equivalent
thereto. There being no final judgment,
this court has no Jurisdiction of the APP
peal. Appeal dismissed-Walker, l.. j.
Talbot VS.. Dyches ct al; from Travis
county.-The amount of business OF prac-
tical Importance would forbid this court
from occupying its time in considering
cases wherein there may be questions OF
Importance after their decision has be-
come useless by reason OF compromise
and settlement or otherwise, merely to
determine who shall pay costs. [49 Tex,
169. Dismissed.-Walker, L. j.
John j. Adams ct al. VS.. John T. Dug
gan; from Guadalupe county.-Psrties
are held bound to take care of their own
interest on the trial of cause. 1t is not
the duty OF the court ordinarily of pre-
senting and acting upon all questions
which the rights OF the parties might in
volve. Tex. 1856; % Tex. PA; "a Tex.
56.J Where case is brought before the
court which presents the question as to
whether the party complaining or the
court was In fault in not rendering par
tlcular kind of judgment, which, accord
| ing to the evidence adduced after the trial,
might have entitled him to particular
Judgment, the party must clearly show
the court below to have erred. Affirmed.
Walker, p. j.
Wilkinson VS.. Mcdonald appeal from
Bastrop county.-Plaintif- action Was
based on an agreement. in writing, ahSo-
lutely TO convey u certain designated
tract OF land, which said written agree
ment acknowledged the receipt of GER
tain specified sum of money, the consider
atlon upon which the Obligation. was
based. Defendant offered parsl evidence
to show that the contract sued on was
fraudulent, and therefore invalid, with
out attempting to infringe on the language
and terms of the bond. Held, this evil
denee was properly admitted. fist Green,
on evidence, sec. 277, 2S4-5.l Affirmed
Walker, z. j.
Steel administrator VS.. Amos Morrill,;
appeal from Lamar county.-Plaintiff
offered in evidence a written contract
signed by one Morgan, as agent, no proof
OF his (Morgan's) agency was shown.
Held, without proof of his agency by
some competent evidence tending at least
to establish that fact, there can exist no
Valld contract which can be enforced
against the defendant. The mere pro-
duction of the letter which stated that
ne was requested and authorized to make
the contract, does not evidence the
truth OF such facts, and unless
authority to make such contract
existed and OGS propen, his affirmative
declaration to that fact, as contained In
the letter, cannot be considered. I'll Tex
ADJ Where the option of two. offers in
one letter Is made, and the selection OF
either depends upon a specific perform.
ance OF certain work, though the work
may have been properly performed as de-
sired, to effect contract stween the par
ties, the party to do the work should have
indicated which of the optional proyis-
ions he would select. An unreasonable
considered refusal TO accept the offer
made. 10 Tex. 49, Revised and re-
manded.-Walker, P. j.
Gordon VS.. Vaughn ct al; from Guada-
lupe county.-The supreme court would
hardly raise a ruling which permitted an
amendment after the parties had an
nounced ready for trial, unless it appears
70 be arbitrary or had resulted in fnjus-
tlce TO the opposite party. rs Tex. 10
When the court finds the verdict in the
absence OF and without jury, the court
Will not reverse its rulings, and findings
unless shown to be clearly erroneous. Al
frmed.-Delaney, j.
Mays VS.. Cockrane ct Although there
are few or no decisions In this state on
the subject, the rule as laid down in
South Carolina seems TO have followed
in this state. In South Carolina they do
not hold, that where two persons are on
joint and several bond, one being a
surety and the other obligor and a person
who takes joint judgment against both
that he could not after the death of the
surety enforce the payment against his
estate, but have held the surely liable as
II the obligation had been joint and sew
eral. Reversed and remanded.-DeIaney,
Judge.
RhodIus VS.. Cornel appeal from UyaIde
county.-Where there is nothing on the
record to show that the court acted on a
demurrer 1t will be considered waived.
1t IL not a good ground for overruling
demurrer because it was not filed in due
order OF pleading. A sworn account is a
prIanG Jdcte case and unless rebutted is
sufncient to support verdict. 1t is only
When parties sue as partners that the de-
NAL of partnership must be under OATH
[51 Texas, 1901 Objection to the charge
that the jury could find against appellant
without finding against the firm is uu-
ttenable. LA Texas, I'll Affirmed.-Oe-
laney, j.
Pierce ct al. VS.. Logan ct al. On rehear-
ing.-Wlth or without administration the
heir takes the Inheritance burdened with
the debts of the ancestor, If there be an
administration the probate laws pre-
s nane me me credit snt or remedy If
general principle applicable to the case.
The record showing no administration
and lapse Of time which would bar the
right Of administration, the provision of
the probate law could have no applica-
ton to the case. The fact that the pur-
chaser at the sheriff sale knew that the
defendant In judgment was dead, or in
what manner he was informed is not ma
terial. the sale would only be irregular
and voidable, but not void. Rehearing
refused.-Watts,J sd.
Allen ct al VS.. Hall appeal from Fan
min county. - So long as the property
remains the homestead q party's cred
itors have no interest in it, and
1t is only after the sale is COM
pleted that credits could subject the
proceeds thereof to the payment of his
debt. But IL he chose to make q gift to
his wife OF his interest in the homestead
his creditors could not complain. So also
If before the sale he agreed to and did
make gift to his wife of the proceeds to
induce her to join in the sale, then such
proceeds would be the separate property
of the wife. Affrmed.-Watts, j.
Pickett ct al vs.. johnson ct al i; ap-
peal from NMcLennan county.-A certifi-
cate which recltes that the party
"appeared and acknowledged that
he signed and delivered the instru-
ment of writing on the reverse side
hereof" is sufficient. Each heir is
OF the ancestor only to the extent of
the value of the property inherited
and actually received by him. II
is necessary to prove value of property
so inherited aud actually received in
order TO fix liability. The burden OF
proof IS upon the party so alleging to
prove that the heir received the property
so inherited. as well as to prove the value
OF the property so received. Reversed
and remanded.-Watts, j.
Randall ct al VS.. Burks ct al; appeal
from McLennan county.-The judgment
in this case recites that the case was tried
before V. B., judge of the circuit court of
the city of New York, and the certificate
is by "a. Z. >" justice of the supreme
court Of the state of New York for the
city of New York. Held, this court can
not take judicial knowledge OF the laws
of New York, or look to its statute Of the
same for its judicial system and its court
organization. us Tex. 2S.] The act of
congress requires the attestation OF the
clerk, with seal of court annexed, to-
gether with certificate OF the judge, chief
Justice or presiding magistrate, as the
case may be. 1t is not shown that the
"circuit' and supreme" court are the
same, or that the justice of the last was
also justice Of the first, or how the judg-
ment roll found its way from the circuit
to the supreme court, whether legally
transferred, nor whether the Judge
named was judge OF the court rendering
judgment. II it could be inferred that
the sscircuit" and "supreme'' court were
the same, then it would appear that
judgment was rendered by Justice v.
B., whereas the certificate was made
by Justice A. r. s. which would raise
the inference that there were more than
one justice Of that court, and hence no
certificate save that of the chief justice
would avail. There was. therefore, no