The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-05-05
THE COURTS.

.,,.i. Of Decisions OF the higber Iribu
Interesting and knotty Point
,,,.,d,,ed by Those Deep In Legal Lore
IN. Particularly Important Decisions
v.udergrif vs.. Percy, from Parke
unity opinion by West, j, Where il
= propossd to Prove the existence
contents of lost deed. un.
~ ,he rues OF evidence as de,
us .,sa IN our statute, certified copies con-
.,,,',,s original evidence, II the law is com
si;sd with. Revised Statutes, article 22)7.)
vssre II IS proposed to prove by past eyi-
ssnce the existence, loss and contents OF
uos,,sin original deeds, outside OF the stat
We The rules OF evidence at common law
md In equity, govern ana must re com
ped with Revised Statute, artic 2si5.)
Where il is necessary, it must be shown
, ma a notice to produce was given. 1t
a,nst also be shown that there has
zen dlgent search and inquiry
made of Inc proper person ana in
.hs nroper place for the lost deeds. Its LOGS
must be proven, if possible, by the person
~ whose custody il was when lost, if such
n ~ he living, and If dead, application
Eorld be made TO his representatives, and
sssrch made among the documents of de-
ceased The declaration merely, as to the
lass of the person in whose custody it was
AZ ,he time, will not do. Such custodian
must he produced, or his absence satistac-
,crly accounted for. There should be evil
Ssnce. in cases like the present. of some
one who was in such relation to the lost
deed, as to be able TO swear, that they were
in The county clerks office, when that office
was burned and were there burned. The
affidavit of the clerk, or deputy, or of the
person who had, or were entitled to, the
custody of the deeds should be taken, or the
absence OF such evidence should be salts.
fartorily explained. and accounted for;
IN Texas, l5i; 10 Texas, $50; o Texas, 2S5;
10 Texas, 5ll; A Texas, ~ The affidavit in
this case, did not lay a sufficient predicate
for the instruction of secondary evidence,
and such proof should have been excluded
Reversed and remanded.
Roemilee VS. Leeper ct al; from Collin
county. Opinion by Delany j.. adopted
When, in repiy to plea OF the statute of
limitations, plaintiff would set up some
disability which protects him against the
bar of the statutes, he should state when
the disability commented and the extent of
its duration or his pleading will be fatally
defective. But the opposite party may
waive the defect, and II he does so, and evil
dence is admitted under the defective plead
Ing, il is too late to make the objection
upon appeal. "a Texas, 4i6, q Texas, 3j7. J
Section II article II of the constitution, did
not change the common law con-
slruCtion OF statutes of Limitation
bnt merely extended the time
within which. under previous statutes,
married women, infants and insane persons
had the right to sue; (52 Texas, 90 II, by
reason of the disability, or by reason of the
nf n lot nj linn tot; 1 4
not commenced to run before the adoption
Of the constitution, then the plaintiff would
have seven years, instead of the shorter
term, within which to bring suit. But,
If the statute had run for any length of
time before the adoption of the constitu.
ton, that time must be deducted from the
seven years. Reversed and remanded.
Galveston, Houston * Henderson rail
way vs. Allison; from Galveston county, on
reheariDg. Opinion by Willie, chief Justice.
liza common carrier contracts to transport
goods to point beyond its own line, and
that these goods should go through the
entire route on the identical cars upon
which they are shipped, and by reason
Of their being changed into other cars
in the course of transportation, they
are lost, or damaged, the carrier Is
liable, no matter whether the loss or dam
age occurred on its own line, or that of a
connecting carrier, and this although the
contract contained special provision that
the carrier was mot to be liable for any
damage, loss or injury not on its own rail.
road" Upon violating its contract by
changing the cars, the carrier became an
insurer OF the goods in its charge, and be.
came liable for injury to them, no matter
from what cause it might occur. Rehearinr
refused. Affirmed.
McCamant ct al. vs. Batsell; from Tarrant
county, Opinion by Stayton, j. The answer
not showing what the real transaction was,
nor that plaintiff had such connec.
uon with IL, as to make it an
unlawful transaction between them.
even II such was its character, between Nc
Carmans and Randolph and Kirkpstrick
q TO-, the exceptions to the answer, al
leglng that the Indebtedness was based
upon gambling transaction" were prop
cry sustained. The Revised Statutes pro
wac That answers setting up certain e.
FENCES shall he verified by affidavit; Or s.,
Az l-oo), which statute is cited, regulates
,he manner in pleading but does not re-
neVe plaintiff from the necessity of PROV
lng MS case by competent evidence. Art.
80 rs, prescribes rule OF evidence, and
III terms IS applicable only to "open ac-
counts 70 authorize proof of indebted
nesss 10 be made by affidavit of plaintiff,
1 r, action must be upon n''open account"
me word account" has been defined to
De "a detailed statement of the mutual
ueuialid In the nature of debt and credit
between parties, arising out of contracts, or
some hduciary relation" As used in the
statutes OF our state, the word account" is
aseu III lts popular, not technical sense,
auu apples to transactions between persons
~ Mhlch by sale upon the one side and pur.
vaase upon the other, the title to personal
bIope,ty passed from one to the other, and
sue telatlon OF debtor or creditor is thereby
1Ssa'eu oy general course of dealing, and It
uVes not mean one or more isolated
uansactions resting upon special
contract. This view is sustained BY arti.
YES SA4 and S2nS, Resis, d Statutes. An
open account is one in respect to which
sv'nlhs mas occurred TO bind either party
iN statements; consequently, the mat
t ~, ,ie on is not an "open account -: n
e; ne i'aoility OF defendant, if he be the. prin.
Sipu. ueotor, and the plaintiff only surety,
upon payment of the debt by the surety
a aUssolutely liked, as to amount of the debt
t amu ;uelendan's liability to.pay it. The in
nor,o o, the statute was to give to an ex
r r;n aindavit an effect similar to that
ba. oVoNo vi u UOOk-kttDpT, ana III
Ia has never been held that such books might
S he used 10 prove collateral facts transporting
Psv meen plaintiff and some other person.
"e'ersed and remanded.
''"opsisof Opinions of the Court of Ap-
peais, Austin Term. 1888.
noIland VS.. the State; from Marion
n na! rms cause comes before the court
tb pvn motion to dismiss the appeal because
Nc .er 0i isho such final judgment in the record
~ ann EYES this court Jurisdiction. Held, as
a appellant was convicted of a misdemeanor
v wiz me nm, alone assessed, the Judgment,
sn;, mat he pay all the costs OF this
S cns,, anu that he stand con- mitted to the
easS'ouy oil the sheriff until said fine
ovS costs are paid" is sufficient. Motion
cor white vs.. the State, from Wise
The ms cause comes before
M. court upon motion to dismiss
Of appeal because of the want
il IN nns,nn, l final Judgment. Held, there
Is reo ,ie record no such final judgment as
yic,ot IRE oy the law. Defendant was con.
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