Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-05-02

assigned as error in motion to set aside
verdict. 1t was claimed also that the
court should have instructed upon that
phase OF the case. But taken as a
whole the charge in this case was sutfi.
cient. Facts not alleged, though
proved, cannot form the basis of
Judgment. Affirmed on report of
Watts, commissioner.
Schultz vs.. Lampert Ell al, from Ell
Paso. This was an action to recover
mesne profits as damages for wrongful
detention of certain premises. Special
exception to petition set up INSULT
cheney of the description of the prop
erty, which was as follows: All
those certain premises and buildings
situated in said county of p, In west
ern part of town OF Fort ID, being the
same on that day and thereafter occu-
pied by s.. q S., merchants at Fort ID,
including the store buildings occupied
by their business as merchants,
together with the corral" stables,
lodging apartments and other build
ings thereto appurtenant. Held,
sufficient description. Remaining err
ror was alleged TO be the allowance of
interest on value Of mesne profits
found, Held, not tenable. Whether
called interest or damage, when the
court has properly held damages re.
coverable for wrongful detention equal
in amount to interest, the Judgment
viii not be disturbed. Affirmed upon
report Of Watts, C..
Chase VS.. Rowan, from Hill county.
The defendant WAS served with cita-
ton in vacation. He did not procure
the issuance of subpoena for "A desired
witness until the second day of the
term of court, Notwithstanding his
case was on call for succeeding Mon
day. Upon such state of case, without
an explanation of such delay, the de-
PENDANT moved for a continuance,
The record does not bring up the
subpoena nor does II show return Of
same, or that II was served on the
witness. Held, that under these cir
cumstances, the motion for contlnu.
ance was properiy oyerruled. Affirmed
upon the report Of Walker, commits
slOner.
Jeffrey VS.. Graham, from Young
county. Condition Of deed OF defeas-
ance was, In substance, that no gam
bling, sale or giving away OF spiritnous
liquors should be done or permitted 10
be done about or upon the premises
before nor until the said lcontemplat-
ed town shall be incorporated, ETC.,
If so, the deed to be
void, and the said property with i'm
proyements should revert to the grant
or. 'Tne action was to enforce the
condition for the violation OF the same.
Exceptions TO the petition were prop
erly oyerruled, the petition setting up
a good cause OF action. The Judgment
was authorized by the evidence. Az
iirmed upon report OF Walker, COM
missioner.
Poe ct al. We. Polk, from San Saba
county. Tenants Ia possession alone
had right of recovery against trespass.
ers for the conversion OF pecans grow
ing upon the leased property, but the
landlords would have the right OF ac-
ton against tres passers for permanent
injury 10 the trees. Parol evidence
was admissible to show title where the
landlord and tenants were In peacea-
BILE possession. and no adyerse posses
sion was asserted. The father Is re-
spopsitle for the trespasses OF his
minor children only when consents,
acquiesces or approves OF the trespass,
and the burden Of proof to show this
consent or approval Is upon him who
asserts 1t. In default OF motion below
10 dismies because OF insniilciency oI
appeal bond from Justices court. the
presumption obtains That Irregularities
we're Waived Reversed and remanded
on report OF Watts, commissioner.