The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-11-02

synopsis ~ Opdhlons NJ the supreme ooufi
4eier Tafm, faag.

THOMAS vs. lHumiHi run mhll"N
ouniy. ON motion IN aiiifm on certificate,
iarll6s appealing oauses ~ the supreme
ouft, should he careful In seems tl1at the
Endorsement Of the clerk Of The district
'onrt, Showing who applied for The tran
iOript and 10 whom the same was DEW.
ircd," Is signed officially by the clerk
If tile district court. Unless this II done,
Inc cause cannot be fled. This ruling Is
made In accordance witt the rules OF the
supreme court and has been strictly ad.
hered 10 ever since the adoption OF said
rules. Quite number OF cases lose their
ulaces on the docket In case Ola failure To
comply with this rule. This same rule APP
plies TO certificates for aliirmanco. Refer
ence to Rule 3, rules for the supreme
court. Certificate dismissed. Gould, C. J.
Wright vs. Blackwell ct al; from Travis
The evidence presents such
state of case as would authorize appellant
TO do such acts in reference to her separate
as were necessary for its preserya,,
ton and her support (she being separated
from her husband), the effect OF the power OF
attorney given by her will be considered,
10 Tex, 1870; II Tex, 1i3 Is Tex, 4 II
Tex, 6l3. The power of attorney author,
lied Stands to 90 takes general charge oil
the real estate, q rent or lease the same,
collect end receipt for all money arising
from same, % make all necessary repairs,
% ~ to place same in thorough repair,
1t to pay such sums OF the reh-
tai value . as may be neces-
sary." Held, this gives the attorney
full power to make such repairs as were
necessary, and it does not appear he e., ex-
ceeded his authority. The clause, ITO
nav such sums" ETC., was not intended to
operate as restriction on his power to con-
tract and pay for in proper manner all I'M
as given III other parts of the
instrument. Affirmed. Stayton, j.
Gibson vs. Hale; from Lamar county.
Gibson held claim of 81 ,544.07 against the
estate of which Hale was administrator.
On presenting 1t :sl96 was allowed, after
wards approved and. paid. This suit is for
the balance. The petition set out the cause
of action as identical with the
account presented to and par
tialJv allowed by the administrator.
Suit is brought on entire account and
credit is given of all asked. The money
paid by the administrator was not paid as
a credit. The petitions uncertainty as to
items sued on render it liable to general
demurrer. The allowance and payment OF
the account in part was under act OF Au-
gust 49, 1870. Held, the probate court
had jurisdiction of the entire claim, but It's
manner of presentation prevented the
court from approving any more than had
been allowed by the administrator. He
will be held to submission as to the bal
ance of his account by permitting ludg-
ment to rest on his claim by accepting a
part payment, and there is no reason why
Il should not have "the full force and effect
of Judgment" of any court other than
the probate court. He should have sued
on his entire claim in court of competent
Jurisdiction. Affirmed. Stayton, j. 49,,
Wise VS.. Old from Marion county. Old
as a tenant of lands instituted his suit by
distress warrant against the latter IN
Marion county, and caused a levy to be
made on cotton which had been taken to
Marion county ard sold to appellant. he
having no notice ofany proceedings had in
Marion county. In the proceedings had in
Marion county Judgment was had for S35I
forclosing lien on property levied upon IN
Marion county. No foreclosure was had on
the cotton in controversy, no mention be-
ing made of it in the judgment. Held, the
lien of Old will be considered void and
abandoned by the judgment taken, the same
not being mentioned therein. Reversed
and rendered in favor of Wise. Bonner, h.
Texas& Pacific Railway VS.. O'DoNnell;
from Bowie county. This court refuses
to say that railroad company owes no duty
to persons on its track, when such persons
are infants. When discovered, 1t is true
the servants of the company acted nobly
and promptly in their efforts to save the
child, doing all manhood or duty required,
but the evidence showed positively and cir
such facts as the jury might
infer they had failed to discover the child
in time because of their own want OF care,
and in their efforts 10 exculpate themselves
from responsibility, whether Lovingly or
not, that they failed to give the facts cor
,oot1r 0irnp1 GOull. a.. /
Willis q Bro. VS.. Mcneil; from Hender-
son county. The eighth assigned error IS:
THE court erred in permitting defendants
attorney, in the concluding argument, to
discuss the wealth of the plaintiffs, and to
INSIST that the Weather the plaintiffs were,
The greater the amount of damages that
should be assessed against them" The
evidence submitted on the trial OF cause
should be confined to the issues made by
the pleadings, and it is the sworn duty OF
,he Jury to try the case according to the
aw given them in the charge by the court
and the evidence submitted. The rules for
he government OF the district court pre-
scribe that: Counsel shall be required to
,ontine the argument of opposing coun-
,el % and that: 1.-The court will not be re-
luired TO wait for objection to be made
when the rules as to argument, are violated,
out should they not be notlced
md corrected by the court, opposing
counsel may ask leave of the court to rise
md present his points of objection" Rules
% and Al. 1t is further provided (Rule I'D,
hat any supposed violation of the rules
o the prejudice of party may be reviewed
,y bill of exception, presented as ground
or a new trial and as; igned as error by the
party who may conceive himself aggrleved
Nv such supposed violation. Under these
tiles the duty devolves affirmatively, first,
1pon counsel to confine the argument
trictly to the evidence and argument OF
opposing counsel; and, second, upon the
,ourt on its own motion to coniine counsel
o this line of argument. II both the
counsel who is making the argument ana
he court should fail in the dis
,harge of their duty, then the rules
lives TO opposing counsel the privilege,
tut does not make it his duty to then pre-
ent this point of objection. This discie.
ion given to counsel, as to whether be VIII
make the objection at the time, was doubt
ess based upon the well known embarress-
nents and often prejudice OF the agree
nent of one counsel by another, and was
Intended to place that as duty when 1t
properly belongs upon the presiding Judge.
n announcing as rule of practice, that
vhich was subsequently, incorporated into
pc Dove p Gnoted, i is said in
thompson VS.. the State, that zeal in behalf
( their clients, or desire for success, should
ever induce counsel in civil cases, much
,ss those respecting the state in criminal
ases, to permit themselves to endeavor TO
btain verdict by argument based upon
Their than the facts in the case, and the
onclusion, legitimately deducible from the
NV applicable TO them. IL is further said
hat such practice is of sufficiently grave
Importance and as highly Objectionable as
) REQUIRE the decided condemnation OF the
OUT; (4s Texas 279). Whether counsel.
nder such circumstances, remain silent or
b,ect. NAV be alike prejudicial to his
ause. silence may be construed
ito acquiesance. Objection may
All forth damaging repartee, In Berry
,. the State. The distinguished
Judge Lumpkin, In commenting upon a
mflar question and upon the duty Of the
Durt 10 check the argument Of counsel,
Tvs "that the practice complained OF Is
ichly reprehensible. no one can doubt.
ought In every instance TO be promptly
pressed. For counsel 10 undertake by
de wind 10 get that in proof which Is
..-.fr~ rorforfu~a aud then To work a