The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1882-10-11
rHE APPELLATE COURTS.
synspsis OF Opinions of the Court of Appeals
TYLER Term, 1873.


county. A motion is filed by the assistant
attorney. general to dismiss the appeal FOL
want Of seal OF the court below across the
t,e. The tie Is enclosed in a wafer, properly
secured but NO seal of the court Is i'm,
pressed thereon. Held, defendants in mis-
demeanor cases are held bound to see that
records are properly made when brought
mp. Article $50, c. 9. T., Rule 10, district
courts requires the transcript to be fas.
tened at upper end with tape or ribbon and
sealed over the tie with the seal OF the
court from whence the case came. A fail
uie TO do such as is in this case will warrant
dismissal on proper motion, Appeal dis
missed Wilson, ].
Hardigree vs., Tiel; from Camp county.
Motion Of defendant in error sets out vari-
Gus grounds, among Others that there was
no assignment of errors nor briet Of plain
till in error filed with the transcript, and
asks for dismissal for want of prosecution
Held, good grounds for Dismissal and held
further rule 90, for, the government Of
district courts as well as article l4lG, Re.
Used Statutes, requiring the certificate OF
the clerk as well as the seal OF the court
from whence the cause came to be attached
to tho transcript must be strictly com.
Piled with. In this case neither was done.
Motion of defendant in error sustained.
Cause dismissed. White p. l.
Cunningham & Ellis VS. Bales ct nj. 4;
from Bell county. Appellants brought
suit on sworn account for damages against
Bales and his sureies on bond given for
faithful performance OF his contract with
appellants for the conveyance OF ConviCts.
BALES failed to deliver same. Suit for diff
ference in actual cost in getting them and
the cost OF Bales conveying Their On
motion, sworn account stricken out Held,
twas, not error in striking out tho sworn
account, II not being one against all the
parties defendant as an ordinary account,
but for damages. Held, further, article
goo Revised Statues contemplated no such
action An affidavit TO an account Is not
admissible to prove any character of ac.
count, but such only rs is incurred by ex.
press or implied contract between all par
ucs 10 the action in tho ordinary course of
trade. Affirmed. Hurt. l.
Pro5sler vs.. the State; from Naoogdoches
county. The recogni2ance complained of
statca that defendant was convicted of the
olensc OF knowingly and unlawiully sell
ing Hpirltuous liquors TO person under 81
years OF age without the written consent
Of the parent or guardian of such minor in
their place or stead.n Held the recogni.
zancc does sufficiently charge in ainrma-
I'VE language that the person to whom the
hAuor was sold was under II years of age,
aud II being apparent that the omission of
the oitcnse, as stated, is merely u clerical
error the motion to dismiss IS refused.
Motion oyerruled. White, p. /.
International & Great Northern railway
VS., Wingate & Lynch from Anderson
county, Suit brought for damages for fail
Oie to deliver a saw shipped by appelees
wa appellants to Philadelphia, saw DELAYED
beyond proper time, way-blied to Long
view only, but pay for freight received by
appellants for tho entire distance. Held
special damages are not recoverable; ordi.
nary ana actual damages, such as the
rental value oil the saw for the time DELAYED
are admissible only. The weight of author.
IVY lays liability TO appellants along its line
only common law, over all CONNECTING
i,nca, and both agree IN laying liability 60
tne receiving company for entire contract
o. delivery to destination, when freight
charges for entire distance were received Inv
Mst company. Affirmed. Hurt, /.
Cocker ct nj, vs. Davis; from Van Zandt
county, Cocker having Judgment against
a., had AN execution levied on some cane
IN thc held, Davis, as constable, levied the
execution, but prior to the levy, Davis de-
mended an indemnity bond, which was
gwen, Alter the levy a recovered iudg.
eiiictnl bond for $lOi. Davis brings snif
against Cocker and his suretios ON The in.
oeinhity bond. Judgment IN JUSTICES court
lof $2Un. Appeal and judgment in county
court for Si0i, Plea of non est lnctrm Nv |
uelendants found against them by the court |
VINO found on the issues Of law and fact |
Held, the Judgment will not he disturbed |
w'thout II is apparent that the Judge is |
cicaUy wrong Defendants pleaded knowl. |
edge OF the Illegal act on the part of tho
oihcer. Held, further, that contract of .
Indemnity is VOID when the officer TO do |
the unlawful &C, knows when he receives !
The indemnity bond that such IN net il il. |
legal There being no such proof in the |
Wilson, /. '''''
Wilbanl;s vs.. Brown, sheriff, from John.
son county. The state being the plaintiff |
IN Judgment in every miSdcmeanor case
must be made party to an Injunction 10
restrain the sheriils from recovering on n
judgment by execution Brown was pro-
cecding to levy M execution against wi.
banks surety on forfeited appearance
bond upon which final iudgmcn, had been
taken when the Injunction was sued out
Injunction dismissed for want of equity in
che bill aud because the state was not made
party Held, the state being proper
party, and for want OF equity tho iniunc.
uon was properly dismissed, Affirmed,
White, y.
James 4 Co, vs., Blumbcrg from Guadn.
lupc county. Appellant and appellee
contracted for the delivery of cotton 10
belcs) at NJ, TO be paid for on the day of
delivery at ), When appellee had delivered
10 bales he applied to appellants nj s. for II
change IN the place of payment from 5. TO
NJ, the place of delivery, Though there IL
no proof OF such agreemcn. oi II change of
the place Of payment, yet on the day of
payment the clerk Of appellants went to
tho place " delivery aud stating there was
not nall the amount TO be paid in s., OF. 1
letcd payment ut still another place. ,
Upon refusal by appellee no demand Tor
lull delivery Of the cotton was demanded |
OF appellee by appellants, Shit for
eottnn delivered, judgment accordingly, |
HELD, It the conduct of appellants, or their I
authorized servants was such as TO deceive !
appellee and make him believe that appel !
nuts had ocquiesccd in the change, THOUGH !
there may not be prcofot actual change, |
yot the appellants will be held bound, Tho |
contract having been violated by appel. |
lants and they having failed to demand mll |
compliance on the part of appellee, will be |
held to have waived all rights by accent. !
ing part ofthe cotton aud are liable for |
20 much as was delivered Affirmed, !
Hurt, J.
Scruggs vs., Cleveland; from Van Zandt |
county, Where, rs in this case. n writ of
ocrhorari will correct the errors complained |
oG and for which the appeal is sought To- bc
dismissed, and said writ Is sought before or !
simultaneously with the ding OF the motion |
to dismiss, the motion will DO oycrruled |
al - H.. Al