The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-06-03
THE HIGHER COURTS.

j. G. B. Dunn Us. A. L. Cole, from Col
lin county. Watts, j. Adopted. This
is an action by appellant to recover
damages of appellee, claimed to have
accrued by reason of certain malicious
prosecutions instituted by and at the
instance of appellee against appellant.
There were no allegations of injury to
his character and no recovery sought
upon that ground; therefore, his bad
character could not be shown as proof of
probable cause. Such evidence, how
ever, is admissible in mitigation of dam
ages. Il WhartOn's Ev., Secs. AZ, 81 and
cases cited). But such bad reputation
must be general, and not limited or con-
fined to particular class Of persons.
(Eachbach VS.. ApplegOrth, AZ Md, 6l).
1t was not error TO admit the evidence
of the county attorney as to appellee's
statements to him of the supposed VIC
lations Of the penal laws OF the state by
appellant. Under the circumstances
the question, whether appellee made to
the county attorney full and fair state
mont and acted bona fide in respect to
the matter, was for the determination of
the jury. Cooley on FORTS, 1888; 3 South
erland on Dam, p. 70S; Waits Ac. and
Det., Vol. 4, p. 1897, Upon the trial, ap-
pellee being on the stand as a witness
in his own behalf, was asked by his
counsel: "Were you actusted by a
malicious motive in making the aft
davitr Appellant objected ON the
OF the witness. The court overruled the
objection and the witness answered /:
"None whatever" Held: This evil
dence was clearly inadmissable. (Gabel
VS.. Wessener, 40 Texas, 1872 The ques-
ton asked was not to any distinct, intel.
ligible fact, but sought to elicit from the
witness his inference or conclusion in
volving his correct understanding of the
meaning of the word "malice" in such q
connection. cleveland VS.. Duggan
Bros, 3 Texas Law Review, IL; Jacobs,
Bernheim u Co. VS.. Crum, 4 Texas Law
Review, 3l3). Reversed and remanded.
w. IL. Hodges Va. A. ii. Peacock, from
Grayson county. Watts, ]. Adopted.
There was an order made in the court
belo " allowing the parties ten days after
the adjournment OF the court within
which to prepare and file statement of
facts. The parties failed to agree upon
q statement and each furnished the
judge with what was claimed by each
TO be true statement OF the
facts proved upon the trial, but
owing to the fact that the judge was
then engaged with the county commits
sloners' court in canvassing the returns
OF the election, he was unable to pre-
pare and file the statement of facts
within the 10 days. Without any fault
Of appellant or his counsel, he has been
deprived of valuable right. The law
entitled him to statement of facts That
the cause might be properly reviewed
IN the appellate court, and without such
statement tRe questions presented by
the assignment of errors can not be
passed upon by this court. This Is q
Hulncient ground for reversal of the
Judgement. (Ruston VS.. the State, 3
Texas Law, Review, 63) Pending the
appeal III the county court, the SOW in
controversy had pigs, and appellee, by
amendment, set up the facts, and asked
for the recovery OF the pigs also;
stating the number and value of the
pigs and made the amount sought to be
recovered over 5000. Appellant moved
to dismiss the appeal because the Justice
court did not have Jurisdiction OF the
amount. By leave of the court appel
Ice amended as to the value of the pigs
reducing the amount TO $40 and the
court overruled the motion. Held: 1t
was competent for appellee to correct by
Rmenument inc allegations as to the
number and value ofthe pigs. While a
new and Independent cause of action
could not be set up in the county court
after the appeal had been taken from
the justice court, the amendment in
this case did not violate that rule. The
matter set up had no existence
until after the appeal and
it was the natural increase
of the property pending the approval,
and but on enlargement Of the cause OF
action as stated in the original claims.
Ordinarily substantial compliance
with article 2sS, Revised Statutes, would
be essen tial TO pass title, hut if the cou-
signee refused to accept the property
upon due notice, and thereupon the con-
signor directed the company TO sell the
property in the absence OF specific d.
rections as 10 the manner in which the
sale should DO made, that would only
authorize sale upon the terms pre-
scribed by statute. II the consignee
consented to and ratified the sale %
made he would not be heard aver
against IL. Reversed and remsnded.
SUPREME COURT.
Central Texas IL Northwestern rail