The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-06-10
With the pleadings i. is Ineligible it

Will be allowed to stand. Affirmed.
E. P. Gaines VS.. Mensing, Stratton &
Co. ct al, from Wise County. Watts, j
Adopted. Appellees, Mensing, STRAIT
ton q Co., recovered judgment against
appellant for $2l3.6l, foreclosing ven.
doris lien upon certain lands described
therein and for costs. An order of sale
fed by the sheriff, September 3, 1884
the attorney for Mensing, Stratton d
Co. endorsed receipt upon the judg.
ment of full payment, and therein re-
leased the lien, etc. This proceeding
was commenced November Is, 1884, by
Terrell ct al, claiming that certain
costs are due them In the original suit
and pray that the original judgment be
remaDded, reformed and re-entered
Gaines plead the satisfaction Of the
judgment. The court below
rendered Judgment IN accord.
ance with the prayer. Held, error
I he judgment rendered in the
original suit in favor of M, s. q Co. VS.
Gaines ct al. was for the note, principal
and interest, and costs of suit. Upon
that judgment an order OF sale was duly
issued and placed in the hands of the
sheriff, and he returned the same salts
fed, the defendant, as stated in the re-
hhNlhk Dult hilll bbJ vi
the within Judgment, interest and
costs" Appellees claimed that costs
were due them which had not beer
taxed, and asked that tho judgment be
remodelled and re- entered, and this the
court did, although NJ, s. &Co. were
not parties to the proceeding, and not
withstanding there Is nothing in the
record showing that there WAS any cost
due there in the original cause, or if sc
due them, that it was not paid to the
sheriff by Gaines. If there had been q
mistake In taxing the costs, hen, upon
a proper motion, the return OF the sheriff
might have been set aside ard the costs
retaxed. (R. II. VS.. Jones, So Texas, 1873.
But there is no evidence ado uced thai
would have authorized the court to sci
aside the sheritf's return and retax the
costs, much less to remodel, r. form and
re-render q judgment which had been
paid, satisfied and discharged. Re-
versed and dismissed.
Bolton Compress Company vs. Bolton
Brick Manufacturing Company, from
Bell County. Willie, c. j. An agent
with power to receive payment Is not
in general, clothed with authority e
compound the debt or commute it iol
something else, o. g., for his own debt
but can only receive it in money, unless
his particular employment confers the
authority, or it can be implied from the
general usage OF business, or the habits
of dealing between the parties. meal
pin VS.. Cassiday, II Texas, $50; Robson
VS.. Watts, II Texas, 764) Affirmed.
j. c. Ramsey ct al. vs. James B. Ar.
rott; from Llano County. " atts, J.
Adopted. TO sustain an act IN for
damages for a malicious prosecution the
burden is upon the plaintiff TO establish
tho existence both of malice in putting
the prosecution upon foot and the want
OF probable cause for so doing. Any un.
lawful act done wilfully and purposely
to the injury of another IL, as against
that person, mslicious.
Probable cause is the existence oil
such facts and circumstances as would
excite belief in Il reasonable mind, act.
ing on the facts within the knowledge
of the prosecutor, that the person
charged with was guilty of the crime
for which he was prosecuted. Probable
cause is question of law when the
facts are not contested, and there
Is no conflict in the evidence
directed to that issue. But, when
the facts are contested or there is q con-
tlict of evidence, 1t becomes a mixed
question of law and fact, and must be
submitted to the jury under proper
charges from the court. When good
faith on the part of the prosecution is
shown, malice cannot be inferred, hence
evidence OF the advice of counsel given
upon full and fair statement OF all the
facts, without any reservation whatever,
that the facts authorized the prosecu-
ten, is admissible as tending TO estab-
lish good faith upon tho part OF the proc
ecutor, and to repel any inference Of
malice that might be deduced from cir
cumstances showing a want OF probable
cause. The evidence Is insufficient to
support the Judgment. Reversed and
W. A. Aaron VS.. II. s. Broiles ct al,
from Tarrant County. Adopted. The
right of a city council, acting under leg
islative authority, to enact and enforce
an ordinance for the purpose of protect
ing the citizens from contagious and in
fictitious diseases cannot be questioned.
II the safety of the people Of city De
teopardized by allowing a person in
hicted with contagious disease TO re-
main within the city limits, the city au-
thoritles have the right TO remove them,
that those entrusted with this duty are
bound to make every reasonable provis-
ion for the safety OF those unfortunate
persons. II the officers of the city gov
eminent cause the removal of the de-
ceased person without the care and pre-
caution which the circumstances re-
quired, ana If death result therefrom
they are responsible, and the fact that
they were city officers and acting under
city ordinance does not shield them.
Reversed and remanded.