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

eidoi appellant II prosecuted Il moi slated
10 W. bill N exocldi1ht u tanD0t he con
llddfed, The evidence though olfoumslan.
Hat, IA ample ~ suppOft Tie verdict ard
Judgment VeDno ~ the offenso can DO
amply proven by oifcumstantlal evidence.
In 'thlsca Tie evidence was ample. AZ
iir med, Wilson, /.
Davis VA. Yates. from GraysOn county. A
party plaintiff, IN seeking 10 recover. upon
4 breach OF contract by the party defend.
ant, the burden Of proof II upon him 70
show full and strict compliance with his
part Of the contract. Where u party con
tracts, upon certain conditions being per-
formed, ho will give the party performing
such his approved notes, II Is evidently
meant to be good, merchantable paper, and
II notes without security be offered and .ho
receiving party refuses TO accept them
without security, and the maker refuses to
give his endorsed notes, he falls to comply
with his contract aud cannot recover as
against the failure of the other party. Re-
versed and remanded. Hurt, J..
International IL Great Northern Railway
VS.. Pope from Comal county. Any omis-
sion as to any requirement OF law in clta-
ton and the mode and manner OF its re-
turn, will cause a reversal Of the Judgment
by default because the regulations on the
subject are imperative and must be strictly
followed, no differences or presumptions be-
ing allowed to supply apparent defects go
Tex. 1850; % Tex, 130 3S Tex. $50. Al
though the dating on the back OF the cita.
ton one ear previous to its issuance was
mere clerical error, yet it cannot be disre-
garded when it is basis for judgment by
default, though ordinarily It would not
avail. Reversed and remanded. Wilson, ].
Watson vs.. the State; from Travis county.
1t is not necessary to state the name OF the
first wife in an indictment for unlawfully
marrying q second time when the first wife
is living. The defense relied on was the
belief that when appellant married the
second wife he believed the first wife dead.
Held, the charge should have contained
substantially articles % and So of the Penal
Code, leaving the jury to determine, under
the facts and circumstances OF the peculiar
case, whether the mistake of the defendant
arose from a want of proper care on his
part. The question of proper care depends
upon the facts of each particular case.
What would be considered proper care in
one person might not be In another. Re
yersed and romanded. Wilson, j.
Gulf, Colorado & Santa Fe Railway vs..
Graves; from Washington county. Suit for
damages, brought by appellee for damages
to lot, alleged to be caused by obstruction
and destruction Of street by defendants
road bed. said street AUDITING on the lot adj
Joining Judgment, $500 and costs. The
opinion is quite lengthy, and reviews the
authorities throughout in thorough, mas
terly manner, concluding briefly: Under
section II of the Bill of Rights, notwith-
the property Of the plaintiff was
not actually taken, yet If it was damaged
by the construction of plaintiffs road, she
is entitled TO recover compensation to the
extent of such damage. The following
charge in effect was correct; The plaintiff
4 ;,,t l,o
ton of which was such as taking of her ad-
jacent land as would entitle her to recover
for any damage done thereto. Affirmed.
Wilson, j.
TThe New York court of appeals recently
decided this question in the same way, but
this case was decided before that was pub.
lished. 1t is the first construction placed
on section II of the Bill Of Rights, and it
changes the rule as laid down by the
Supreme court in former decisions.-Rep.l
Stanley VS.. Couralen & Logeman; from
Hill county. An affidavit to an account
failing to contain the statutory words that
1.-THE account is within the knowledge of
affiant," it is insufficient and not admissa-
BILE as evidence. The petition herein was
fatally defective in stating that appellees
residence was in st. Louis and that OF APP
pellant was not known, and in falling to
state that appellant owned land In the
Jurisdiction of the court, a demurrer should
have been sustained 40 Texas, 2SS; Ib.
1867. The facts alleged of no knowledge OF
of the residence of the appellant, was not
sufficient to rebut the evidence of the resi-
dence of appellant in Erath county; l33
Texas, 500; 81 Texas, 622) A proceeding by
attachment where the writ is levied on land
is suit to foreclose q lien thereon and the
court has no jurisdiction to try the
case. Reversed snd remanded. Wilson, j.
Paynter ct al. VS.. Straus 81 CO.; from
Fannin cou-ty. Appellees sued Paynter
and wife and one Rhine. They had sold
goods TO Paynters wife, who was in the
milliner business, and when about to fall
had turned over to Rhine what she owed,
about 5000, stock of goods. worth $500;
them away, afterwards placing, a part OF
them in his store among his goods and sold
some of them. Judgment recovered found
all parties for half the value of the goods
Held, the jury having found
from the evidence that there was fraud in
The transfer made to defraud other cred
itors, and there being evidence to sustain
such finding, this court Will not set yer
dict and judgment aside. Affirmed. Will
son, j.
Carter VS.. Chambliss; from Navarro
The court quashed the affidavit
ior distress warrant, and the plaintiff there
upon refusing to prosecute his suit further,
defendant, With permission Of the court,
his counter claim ana plea in
and took judgment against
he plaintiff for the goods levied on, or their
value or all costs. Held, the affidavit fail
ing to state that appellant furnished APP
pellee any supplies, or that SUCH supplies
we're necessary for the purpose OF enabling
he appellee to make crop on the land, 1t
was properly quashed, and seeing no error
N the court below. IL is affirmed, Hurt, J.
Phillips VS.. Warricks q Adkins, from Lee
county. This suit being brought in the
place Of the fulfllment OF the written con-
.ract the court properly held jurisdiction.
The county in which the contract Is to be
Where Judgment is recovered in the justice
,ourl aud upon appeal TO the county court
Judgment for less amount is recovered by
he same party, unless good reason is shown
% the contrary the costs of the county
,ourt should be adjudged against the party
the judgment. This, ct being
lone, the Judgment is reversed and so re-
ormed as TO adjudge the costs Of the county
,ourt. Affirmed. Hurt,
The Texas & Pacific Railroad company
rs. Margaret Ellen 0'Donell (by her guar
liam, II. NJ. Beham); from Bowie county.
feel constrained to differ from the major
ty of the court in this case. II is shown
hat the mother of the child voluntarily
-esided on the place at which the accident
and that IL was within few
eet of the track of the road that she knew
II the approaching train, and recollected at
he time that the child might be injured.
Under these circumstances. great care was
Tue on the part of the mother. But, with
Dut expressing an opinion whether the con.