Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-07-01

Is not error. Objections to the exclu
sion o. rejection of testimony different
from the obi ections urged below can
not be asserted in this court. Even If
the verdict Of the jury he vague, yet II
in connection with the pleadings 1t Is
Ineligible II will not be disturbed,
Affirmed.
Gaines VS.. Mensing, Stratton a. Co.
et al from Wise county. Appelees
NJ, s. d Co. recovered judgment
against appellant, foreclosing a ven
doris lien upon certain lands and for
costs. An order OF sale was issued and
returned satisfied by the sheriff On
September 8, 1884, attorney for NJ, 5.
4 Co. Endorsed a receipt upon the
judgment fJr payment in full, and re-
leased the lieu. This proceeding was
commenced y ovember is, 1854 by 7.
ct al, claiming that certain costs were
due them on the original suit, and
pray that the original judgment be re-
modelled reformed and re.entered
G, pleaded satisfaction of the iudg-
ment. The court below rendered
judgment in accordance with the
prayer. This was error. The judg-
ment originally rendered in favor OF
NJ ). & Co. vs.. G.. ct al. was for the
note, principal and interest and costs
of suit. The subsequent proceedings
were as above stated, the indorsement
OF the sheriff on the return of
the order of sale being that
the same was satisfied, the defendant
having the amount of the judgment,
costs and interest. Appellees claimed
costs due them which were not taxed
and asked the remodeling and re.entry
of Judgment. which the court did, al
though NJ, S. & Co. were not parties
to the proceeding, and notwithstand-
ing the absence OF evidence showing
them entitled to any )sts in the orig
insl suit, or, If so due, that they were
not paid by G. If there had been q
mistake in taxing costs, then, upon
proper motion, the return OF the sher-
i'll might have been Sc, aside and the
costs retaXed. So Texas, 1873 But
there was in this case no evidence that
would have authorized the setting
aside of the return and the retaIing Of
costs, Reversed and dismissed.
The Bolton Compress Company vs..
Bolton Brick Manufacturing Company,
from Bell county. An agent with
power to receive payment for his prin-
cipal is not In general clothed with au-
v
principals debt for something else, or
for his own deb. but can only collect
it in money unless his particular em-
ployment confers the authority or ii
can be implied from the general usage
of business, or the habits of dealing
| between the parties. (See II Tex
| 450; II Iowa, 764 Affirmed.
Aaron VS.. Broiles ct al, from Tar
rant county. 1t is not open to ques-
ton that city council, acting under
q legislative authority, has the power
to pass and enforce au ordinance for
| the purpose of protecting the citizens
| from contagious and infectious dis
eases. If the safety OF the people of q
! city be imperiled by allowing q per-
son affected with contagious disease
to remain within the city limits, the
| city authorities have the right to re-
move them, but those Entrusted with
| this duty are bound to make every rea
slnable provision for the safety OF the
tllcted persons. If the officers OF
| the city government cause the
removal of the diseased per
sons without the care and precautior
| which the circumstances required
and il death result therefrom, they arc
responsible, and the fact that they are
| city officers and acting under city
ordinance will not shield them. Re,
versed and remanded.
| Ramsey ct al. VS.. Arrott, from LlanC
county. The plaintiff in an action for
damages for malicious prosecution
must assume the burden of proving
both the malice in putting the prosecu'
ton on foot and the want of probable
cause for the prosecution. Any UNI
lawful act, done willfully and purpose.
ly to the injury of another H. as against
that person, malicious. Probable cause
is the existence OF such facts and
circumstances as would excite belief
in reasonable mind, acting on the
facts within the knowledge of the
prosecutor that the person charged
was guilty OF the crime imputed tC
him, Probable cause is question OF
law when the facts are not contested
or II there Is conflict OF evidence il
becomes q mixed question Of fact anC
law, and must be submitted to the jurS
under proper instructions. Wher
good faith on the part OF the prose
cutor is shown, malice cannot be in
| ferred, hence, evidence of the advic,
of counsel, given on q full and fail
statement of all facts, without any
| bhdl VIC ldIlt
authorized the prosecution, is admissi
BILE as tending to establish good faith
upon the part of the prosecutor, anG
to repel any inference of malice tina
might be deduced from circumstances
showing want of probable cause
The evidence is insufficient to support
the judgment. Reversed and re
| manded.
Breckenridge VS.. Verrier, from Tay,
Tor county. Appellee, as plaintiff be
low, brought this suit on promissory
note. The appellant, by special plea
set up that he and appellee entered
into an agreement for the purchase
and sale of horses; the plaintiff became
uneasy as to the success Of the venture
and complained that defendant had in
duced him to enter into the specula.
ton, whereupon defendant agreed tC
take the horses purchased by plaintiff
at purchase price and interest, and
paid plaintiff certain amount and
executed the note sued on. The ples
also alleged that plaintiffs represen.
tations as to the value of the horses
were false and fraudulent, and so known
to be by plaintiff when made, and