The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-11-30
THE DALLAS WEEKLY bBaAi D. THURSDAY NovBMgea

fase, which Ne we'll knew" Held, such nn
ayefment "a not ~ assignment OF PERJURY,
rhc indictment should contain tbe account
eworn ~ and the nilldaglt made thereto IN
full and the inhttof sworn falsely 20 should
be specifically set out aud negatlvtd, that
w, each item which Ia false aud wherein
should be No act out as that evidence under
ench items In tbs account rs were true
could not DO admitted. I,eyoflod and dis.
missed. Hurt,
Howard VS.. Moore and wlIei from Gray
son county. A suit upon warranty decd,
as well rs any plea In rocoLventi0n for
damages for failure Of the consideration, ia
n suit based upon n written contract, and
the statute OF four years limitation IS the
one applicable Appellees pleaded failure
Of consideration In that the certain number
OF machines gwen therefor did not come
up to the standard agreed upon. Held
such plea arising out of being incident
thereto and connected with the plaintiffs
cause OF action, is proper plea upon which
to base a reconvenlion for damages, but
herein the evidence does not support The
verdict. Reversed and remanded.i VIII
son, j.
McMahan vs. the State; from Rockwell
county. An indictment or information fol
SANDER must allege the slanderous words
TO have been spoken in the presence o.
some person az CT. App, 49,, and the better
practice requires the persons in whose pres
ence the alleged Islander was uttered TO be
specifically set out. The slanderous word!
being that certain party was whore, ev
idence of statements made by the party
that she intended to become such on gooinG
to Dallas, as well as evidence of her after
wards going to Dallas, is admissible TO show
that the alleged SANDER was "wanton" OF
"malicious," without one of which nc
action lies. Reversed and remanded
White, p.j.
Western Union Telegraph company VS.
Catchpole; from Tarrant county. Tele'
graph companies can, by express contract
or proper rules and regulations contained
in their printed blanks, or otherwise, so il
is notice to the opposite party so as to ere
ate an express contract, limit their liability
for delays or errors in transmitting mes
sages, except when such is caused by mis-
conduct, fraud or want of due care
on the part OF the company
its servants or agents. The company
may also demand as condition oil liability
that the messages BE- repeated at reason
able extra charge. The company is not liza
BILE for errors in an unreDeated message
where no misconduct, fraud or want OF cal G
servants or agents. Reversed and re-
Kelly VS.. the State; from Maverick
county. An omission of the record to at
limatively show that the jury were sworn,
is fatal Is CT. App, 81; Ut. App, 326)
Though irregularity in the proceedings
may il appear, yet if fraud is not shown in
obtaining the requisition, or that such was
in violation of the treaty between the re-
spective nations the court is not .ousted. OF
its Jurisdiction. Affirmed. 'Willson,j
Long VS.. the State; from Guadalupe
county. 1t is inadmissible and vital error
for the court to allow evidence of the declar-
atoms of defendant not on trial, although
spoken or made in the presence of the
party on trial. such party not having been
shown to have heard or acqulesced In the
truthfulness OF such declarations SO made.
For other errors assigned see Tyler. vs.. the
State, supra, which is is companion case
to this. Reversed and remanded. Will
son, j.
Jacob Bernheim & Co., VS.. Cumby d
jam; from Hopkins county. The court
committed vital error in admitting testi
mony going to prove certain statements
made on a former trial by the alleged agent,
Horribly, that when he hired the team, tor
the killing OF which appellants are sued for
damages, for the purpose OF doing business
for appellants, the issue being the question
of agency and the hiring of the team for
the use ofappellants, the alleged agency hav-
ing ceased, admission Of statements as to
Hornby's agency made by him are purely
inadmissible. Reversed and remanded.
Hurt, j.
Kaiser ct al. VS.. the State; from Delta
county. Although variance, it is not
material when the court renders Jud-
ment nisi jointly and severally against the
sureties. When the bond on its face shows
tine scratching out or erasure of the name OF
- daunIuac l,a
state to satisfactorily explain it to the eX-
tent that it does not infringe upon the
rights of the other sureties Abond being
altered in material manner by the obligee
the obligors of liability. The evil
dence being all in and the argument con-
cluded, it was error to admit evidence at
such stage to explain the erasure. Re-
versed aud dismissed. Wilson, ].
Bassling g. Roller VS.. Hoyle d Bro; from
Limestone county. Where the measure OF
damages is expressed in q contract, and
where, as matter of law. it does not appear
that such amount was intended as PEN
atty, but as stipulated damages, the party
the breach is liable in such
amount only as is stipulated, and the re-
covery is limited to such en- amount.
When party places his refusal upon the
ground that the goods offered do not come
up TO the standard as agreed upon, it will
Dc COQSlueTcu u WdlFtT VI bcuutT w ouCn
party. Reversed and remanded. White,
pa.
The burden is not upon the Defendant to
prove ''all the circumstances Of necessity
accident or infirmity which excuses, justi-
lies or extenuates the act" If the evil
ience showed that defendant killed, died
with deadly weapon, the law implies
malice, and il nothing further is shown, the
defendant is guilty of murder Of the second
legree. (See Priest Jones VS.. the State.
recently) Reversed and re-
handed. Hurt, ].
Davis VS.. tie State; from Live Oak
,oAlsy. IA au Indictment loI altering
brands on cattle the allegation as to the
alteration ofthe brand is material and
necessary one, and the alterf ton set
tut in the indictment is descriptive |
II the offense, and must be proven as
alleged. The evidence showed that the al |
GRAFTON Is described in the indictment TO |
,e after SO altering it,and as il appeared up |
N the COW is materially different, the evil |
lence therefore does not warrant the YER |
lict. Reversed and remanded. Wilson, i. |
Gordon We. the State; from Live Oak |
county. This cause having been dismissed |
or want ola final judgment, was sent back |
md the court below, after notifying the de- |
endant entered judgment nune
no tune. Although requested de-
en1ant, was denied the right Of
icing present when the judgment WIS
ntered. Held, in the absence Of the de-
sndant no valid final Judgment can be rem
erred, and no final judgment appearing in