The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-06-02
SUPREME COURT.

| ter q careful examination OF tE6 record
we conclude that the verdict is sus-
tanned by the evidence; save that
pointed out by our former opinion, for
which the judment ought 10 DO re-
versed. That error being cured by the
Temittitor, we conclude that the judg-
ment ought to be reformed in accord
ance with the remittilor, ana that the
costs Of appeal be adjudged against APP
pellees. Reversed and reformed.
Jack Brown VS.. owen b. Hardeman
from Caldwell county. Watts, j..
Adopted. The only question in this
case being one OF boundary, and the
court having heard the case without the
intervention of a jury, and
having found in favor of the
appellee, and after careful exRmina-
ton of the record, being unable to per-
c9ive any valid or Just reason for dis
turbing the judgment, it is affirmed.
VIM. Cameron a. Co. Va. Thos. Mar
sbal, ct al; from Mitchell county. Willie,
C. j. Although contract may be made
IN accordance with the law, yet If the
same is not recorded within a month
after the debt falls due, the lien of a
material man is not fixed and secured,
as required by statute, and although 1t
may have been agreed in the contract
that the material man was to have u
lien on tho homestead, yet such lien was
that which is prOvid, q by statute, and it
would not issue from an express reser-
walton, without compliance with all
| the requirements of the law. Where
the court has no jurisdiction OF the
amount in controversy, independent Of
the lien asked 20 be tOreclOsed, such
foreclosure being refused, the case must
DO dismissed. Reversed and dismissed.
COURT OF APPEALS,
! Phelan d Co. VS.. Wiley and BOtsOn,
| from Dallas county. White, p. j. APP
pellees filed their application under
the provisions OF articles 1886 1887, 4,28S
and $50, Revised Statutes, TO supply,
restore, and re-inslate judgment which
they alleged had been recovered by
| them against appellants on May "a,
1879, the record OF which Judgment had
| been totally destroyed by fire on Feb
ruary 4, 1884. This application was filed
February 4, 1884, Appellants, inter ALA,
interposed by special exception to tho
application the statute of limitations Of
four years. The court oyerTul9d the ex-
ceptiOn. Held: Erred The general
statute ARTICLE 3,207, Revised Statutes),
applies TO a proceeding like this, and
four years bars party's right TO avail of
1t. Reversed and dismissed.
). 5, Flndley VS.. j. i. IL o. NJ. Love,
from Baylor county. Hurt, i. Where
the parties to @ suit had orally agreed, at
the beginning Of the suit to allow all
testimony to be admitted that would
throw light on tho transaction, and ap.
pellees offered TO prove the contents OF
q written instrument by parol, without
having accounted for its loss or absence,
which was objected TO and admitted by
the court. Held: Whether or not the
trial court will take cOgnizance of and
recognize such oval agreements Is dis.
cretionary with 1t and no abuse OF the
discretion Is here shown, Affirmed.
Max Elser vs.. w. T. Pierce, from
Wise county. White, p. j. Malice and
want OF probable cause must both con-
cur to support charge of malicious
prosecution. Neither alone is sufficient.
II 1t were malicious and unfounded, but
there was probable cause for suing out
the attachment, nothing more than act.
ual damages can be recovered. Where
the petition does not allege that the at
tachment was sued out without prOba-
BILE cause, it is obnoxious to the special
exception attacking its sutliciency on
the claim for 6XJmp airy damages. Act
ubl damages wnicn may be recovered
for wrongfully suing out the writ of at
tAchment are such only as are the nat
ural, proXimate and legal consequence
of the wrongful act. Reversed and re-.
manded.
VIM, HUMPHREYS vs.. the State, from
Kendall county. Hurt, |. The court
erred in the third paragraph OF it's
charge, in which a charge not author
lied by the record. 1t also erred in Civ
ing the following definition OF abb;
IAN altbi is where an otiense has been
proven to have been committed upon a
certain date and at certain place and
evidence shows that at that time the
accused was at some other place than
that whore tho testimony shows the Of
Tense to have been committed, 10 re-
mote from 1t as that II would have been
impossible for him to have been the
person VINO committed the offense, and
hence, II the jury has a reasonable doubt
as to whether the defendant was the
person who was testified to have been
seen in comport with the alleged stolen
horse, or who was testified to as having
traded the horse TO Hof, you will ac-
quit. Reversed and remanded.
Venters vs.. the State, from Liberty
county; Hurt ]. That the state, after It's
application for continuance has been
oyerruled, enters mol. pros. and pro.
cures new Indictment, thus securing
continuance by operation of law, is not
such an Infringement of the right to
speedy trial as will bar further pr )se-
ton. A mol. pros, being entered, the de-
feudant is entitled TO his liberty. At
iirmed.
Martin vs.. the State, from Mitchell
county, Wilson ]. Indictments are
maintainable in the state courts for the
oilense against the state OF counterfeit
ing the coin or bills of the United States,
or foreign coin made current by the act
of congress, while proceedings will also
be unGer the United States statutes be.
for the national tribunals for doing the
same thing las an otlense against the
United States. Affirmed.