Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1883-03-16

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There are however, well established
exceptions TO this general rule, but
they will be fonndito be In cases which
rotate 10 knowledge or intent Oi
the party ns % some material fact
which though apparently collateral,
had some bearing on the main fact.
! Wharf. Grim. Laws, Gi7 Wharf,
Grim. ~. sec. 30 80 Tex. Z37 3 CT.
App. III Al Tex, 567 IL CT APP.
| 1I.i The testimony Of Anderson did
not tend In the reInotest degree To
prove or dIeproye any Issue In the case
Oh frni. Where ii IL alleged In the
indictment that the steer stolen WIS
an cetfny, the owner Of which was to
the grand Jurors unknown, and on
trial II was attempted 10 prove that IL
belonged 20 one Bennett, aud was In
the care and under the control OF
two l.eermans, II Is held that the prose-
! cutlon must go further and prove that
! the grand jury did not know theowner
or claimant OF the property aud could
not have known the same from the
| witnesses by the use Of reasonable dill
gence. Failing In this there was IA
| tnl variance between the allegations In
! the Indictment and the evidence AS to
ownership. Held, further, where the
proof shows that one person owned the
property and another person had the
possession, management and control Of
IL, the want Of consent To the taking
of both such parties must be shown,
first, by the parties themselves; sec
ond, If the parties are not obtainable,
and the fact IN shown, circumstantial
eyideuce may be resortcd 10. az CT.
App. 4sl; Bowling w. State, Texas
Law Review, 49l. Reversed and re-
mandcd.
Pinckard VIZ. the state--From Polk
county. Opinion by White i. j.
When motion for continuance Is pre-
scented, the question for the court is
whether the application Is sufficient In
law. In first applications, the law
never has, nor does IL now require de-
PENDANT 10 state that the testimony
can not be produced from any other
source known to DESCENDANT" This
statement Is only required in applica-
lions subsequent 10 the first. That
evidence IL cumulative where the de-
Tense IL un nlibI IL no reason for its cx-
clusion: on the contrary the greater
number OF witnesses to the facts estnb-
fishing IL, the stronger ordinarily
would bc our reliance upon the conyiC-
ton OF IT. truth, II WIS error in the
court to permit the allegations Of the
defendants wife's petition for divorce
10 be read aud go ns evidence to the
fury, aud especially so without any
explanation or instruction as to how
far and for what purpose they were
alone 10 bc considered The judgment
granting the divorce rendered some
months previous to tho commission
of the 0flense, was admissible. The
evidence of Henry Gardner was inn
properly admitted, because irrelevant
Reversed and remanded.
Heidenbeiincr Bros. w. Franklin
From Galveston county. Opinion by
Wilson, j. An incoming partner does,
10y his entry into the firm per SO, be-
come liable for the existing debts OF
the ilrln. He becomes a member and
is liable for the future liabilities, but
incurs no liability for what had
lranspired before he entered the firm,
II the incoming partner agree with
the firm to pay the existing liabilities
OF the firm, such agreement Is binding
M between the parties to it, but the
benefits oft do not extend TO a creditor.
Regarding creditors who are not par
Ties To such agreement, Ii Is res inter
altos nctn and does not confer upon
them any right TO fix the old debt
upon the now parties. In order to
render an incoming partner liable to
the creditors ofthe old firm, there must
he some agreement TO that effect en-
tered into between him and the cred
ors and founded on some considera-
ton. If there any be such agreement
the incoming partner will be bound by
1t, but his liabilities in respect 10 the
old debts will attach by virtue OF the
agreement, and pot by reason of his
having become u partner. Affirmed.
Mills Va. Hpckett From Fort Bend
county. Opinion by Hurt, j. ON app
| peal from the Justice To the county
court tho record shows that n motion
for II new trial WAS made aud over
ruled, aud the ruling excepted to and
notice of appeal given. The motion
for new trial WAS upon the grounds
that the Judgment WAS contrary to the
law and the evidence, Held IL was not
necessary To swear to this motion.
Rev. Stat, art, l623. An appeal
bond CONDITIONED that the said
Mills shall prosecute his
| appeal TO effect or (italics mine Rep. J
shall pay and satisfy the Judgment or
! deere italics mine--Rep.) that may
w ituuNTtN uptiiNi MN OF OH SutD An-
peal, - IL In proper form and sufficient
TO Tex, i3S, The bond not being in
double the amount of the judgement
the appellant rendered one 10y which
this defect wns cured, Held, he had n
right TO do this. Reversed and re-
manded.
Bohannon w. Pearson Weston, Il
parlker--From Fort Bend county.
Opinion 10y Hurt, j. Appellant was
sued and illed general demurrer
special exceptions, general denial and
n plea In the nature of IN cstuppel
hut waived his demurrer and cxcep-
tons and went to trial, and now as.
signs ns error the insuthciency of the
petition to warrant the full amount of
the Judgment Held, IL cause OF No.
tion Is deieeilvely stated, defendant l.
too late, and his waiver of his denur.
rer aud exceptions defeat his right Il
Insist upon his assignment; hutif thor,
Is no cause OF action stated in tho PEI
, tiiionl this being fundamental error
defendant can Insist upon this assign,
lnent. The petition and judgmeul
showing that the latter must hay,
been made up of Items which, under
. The contract appellant was not labl,
for, the Judgment h reversed and tn,
cause rtlnanded, Reversed and re-
! mandpd,