The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-06-17
THE COURTS
Addenda 10 tho Austin TERMS Work
Leading Cases
That Have Been Meiwd IN tho Cruciblc
of Learnlcg
Aud Poured into The aoulds oi Justice.
snrnKME cnuEr.

SIEINMN iNIkls
Glenn e. al. ". Ashcroft; from Cook
county. Opinion by Watts, J. Adopted
In an action OF trespGss TO Try tltle, wher
defendant plead the statute OF limitation
and plant 0'a only reply thereto. Was
special denial, evidence of plaintif,a non
age 10 inadmlssible 10 defeat the llnita
tior. In euch cSse, the plea oil disability u
like one OF confession and avoidance, nnf
unless plead 10 csnnot no proven INT
original records OF the county conrf, l. q.
the minutes, IN tho hands Of even u party
10 the suit, are admi sibie In ovidence Ia
tho district court. Where the returBi
both on the execution md the yendiuon,
exponss rhow that the execution was levto
upon the land and returned Tor the wan'
OF time in wnich 10 make the anle, and che
yenditioni exuongs was issued md The
sale made by virtue iii, ohjeotionB there
to IN unten able. Wnen the a~bortvla'iou
IN. Pr is attached TO the signature OF one
netting in at ciilclal cipaoily, II IL under
s WSs to-, mean og NO'sry by 'no iSc
parties that copies M be used In evidence
subject Only TO such objections es the
ORIGINALS Themselves would be, and no sgsl
of the affecting officer appears 10 Tho In
Btrument TO show that no such sal wa
appended to the original, II n 30 appear
by bill OF exceptions or otterTise, or u viii
be prcpnmtu that The clerk Ia msslGg ihf
WHY bAhlt " ~" NHN - 49, NH H%N $3.50
HHirmed.
HeIschell et a.. W. Blum IT al from
JOHNSON county. Opinion by Delany, J.
Adopted. Where, In d sut OF tho trial OF
the right Of properly, it Is claimed by the
wife az her scp4la = estate, the court cor
rectly charged he jury that TO eniitle her
TO recover she must trace, by clear aad
satisfactory evidence, her separate funds
through AL tho changes nnd mutHtioo9
through Which tho ame may have passed
down to the properly In question. Because
the wife borrowed tue money 10 20 INTO
business 1t did not become her separate
estate. IL she received the money by lilt,
deviac, or descent, 10 would have been hvr
separate property, sud by investing IL IN
business it would not have lost its
exemption. Where ihers is some evidence
that alter the money was borrowed nor
creditors gave the seine 10 hor, hello: II
the money loaned was invested before the
gift, the effect Of TIE gift would be, not to
charge the snttcedent character Of the
property. but merely to release her from
her obligation OF iepayment. Affirmed.
Jones VS.. bssatsr; from Parker county.
Opinion by Watt, ]. Adopted. a judg-
ment rsnnered On a service simply deirc-
tive or irregular, 10 not void and is no. sub.
jeot 90 collateral attack. Where the petit
tion alleged thst the defendant resided In
T.. county and the citation WAS directed 10
wv w w - shNAAi VI ~ OtAh . 1Ht
the suit WAS filed q d judgment rendered
in p. county; Held: Defendant cannot b.
heard to ques ion Tho "ju1guen, IN Il g1llat-
ersl attlck. For tina general iu,eo on this
subject ses Freeman on judgments, Sec.
126, and the case OF Issacs vs.. Price, . Dill.
lon, q. @. Rep 35l. Affirmed.
COURT r APPEALS.
Fort worth ~ Denver CtY railway VS..
Johnson & rrice; from Clay county. Opi1.
ion by White, %. ] Proof OF agency cannot
be established by The supposed agents "
declarations thEt he is agent. Declarations
OF the agent nre not admissible to prove
his agency. facts OF an agent are relied
on TO prove agency, the acts must be within
the scope OF the agency proposed 10 be
proved. For the guio as presumption OF
the sgenoy proposed to be proved. For
the rule Gs presumption OF the agency arts-
ing from i'm plicat ton, zee Waite Ac. aud
Def $50, 23l, $3.50. Green's Eg. (3 Ed.) o.
A. Applying these principles 10 tho case,
10 Is apparent that che evidence does not
support he verdict. Reversed and re-
marded.
Houston & Texas Central railway vs..
Hollis: from Grayson county. Opinion oy
Wilson, ]. The isct that plaintih'e irjary
has been aggravated by the mistake OF IA
competsnt sufgeOn, whom he employed In
< cd faith. will not have The ef,ct to re-
luce the damage. Ii through the negli-
gepce OF A. Is suffers an injury without mis-
own fault, A 10 answerable for IL; but he Is
not apswersble for any aggravation of the
injury produced bv the subsequent
negligence CT b. But where
the primary cause OF the damsge
was the negligence Of the defendant, The
plaintiff Ia entitle to the full amount o. The
damage sustained, unless The damage has
been increased by his own subsequent
negligence, and whether this is go or NOT
is a question for the jury. ia has re-
ceived a physical INJURY for which Is is
liable, and 4 ,Xerciata reasonable care u.s.
der the circumstances, IN tue selection OF y
physician or surgeon 70 trest the wound,
but. Notwithstanding this. The hurt is ag-
gravsted by the uuskiliiul treatment OF tue
h ysician or surgeon thus gm.
ployed, a mBy receive OF Is
the enhanced damages produced by
the unskillfNl treatment. Mental suffering
may be estimated as u bssis for damages,
and there 10 no restriction Of A. TO that
uhich arises from the bodily pain inflicted.
Che motion for n new trial not showing The
diligence used to procure the desired tsstt-
moDy, wss properly OyeIruied. Affirmed.
Harwood W.. the State; rom johnson
COUNTY. Ooinion h. Wilson l. There be-
ing no Indictment or Information IA the
record, there is no legal foundation Tor the
judgment Of convic ioO Alter conviction.
the Indictment was accidentlY destroyed.
IL may yet he supplied by . second iudict-
ment before the graz d ju y, or by
s%ubttitution In the mode proylded by Law.
Reversed and remanded.
Beatty VS. the State; from Bsstrop county.
Opinion by White, p, ]. While the over
ruling OF the motion Tor new trial would
not In the first IL stance be the euhject OF
revision by this court, yet 80 should be
taken into consideration by the court be-
low In passing upon defendants motion tor
new triol, AMI will be considered by this court
In r.riatnr tho .aNtnn ~ Hla nnnFl rafnafpU
the motion for new trial. AS II appears
that the desired evidence sought by the mo-
ton fer new iTisl was material, and not
supplied by othsr evidenoe adduced on the
trial, a new trial should be granted. Re-
vsrsed and remanded,
Miller vs.. ihe State; from Bal county.
Opinion by WlllsoD,j ]. 1t Is no objection
to an indictment that l. charges botn bur-
glary and theft. But u c1nyic,ion cannot
be had for both offences when thus charged
In the same indict nent. and = separate
punishment assessed for each, or q joint
punishment assessed for both. Is Oh: App,
447: 0 To-, 800, q. O.. p, Art. 7l4.) In this
case the Indictment charges both offences
The verdict finds defendant guilty as
charged in the indictmes {, and the judg-
ment OF the court edludees defend
ant guilty OF robbery" Held: Error. Re.
verssd and remanded.
Weiss VS.. the State; from Robertson coun-
ty. Opinion by White p. ]. The indie ment
charged that appellant did u~nlawiully and
wilfully play az a certain game with cards
ut and In a certain gaming room used for
gaming. etc. Held: This allegation 10 in
sufficient. II the charge had been that the
playing wac ia 20 gaming house" inttead
OF room" IL would have been sufficient.
no CT. App 54i. P. q. Art. 1861 Reversed
and dismissed.
Robinson vs.. Robertson ct ell; from vii.
Hanson county. Opinion by Willsoo, j.
In this csss an execution was levied upon .
jsckass belonging to appellant, who claims