The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-10-23
HIGHER COURTS TYLER TERRI

HIGHER COURTS TYLER TEnai.
SUPREME COURT.
William y. Overs We. the State o
Texas eX. rni. Il. q, Jernatt, from Gal
vestOn county. Opinion by Willie, C.
y The relaior, in his petition, rested
his case upon charges OF fraud in tn,
counting the returns Of the polish the
Eleventh and Twelfth wards and Fiftl
ward Of he city Of Galveston. The de
isnd1 ?, Owens, denying these allega
ti0uA, charged errors and mistakes IL
First, Second Third, Fourth, Flfth, Say
erth, Eighth, Ninth end Tenth wards
enCh calming has lrus U0unl ot the
ballots would chow his election.
The boxes Of tho Il praoncrs OF Cal.
weston wore OpshGO auu the tiC6 sls
for sheriff counted. Several whine $50.
were int7OduceG whD testified that th.
v0,es fo:nd in !heic Respective b0Xe,
wore not the ballots voted by tbsm Oh
that they had baan altered, changed or
scrNtGhed, etc. Ovens. by The ol:cia
CONT, WIS elected by 10 votes, ana by
tho ,allot9 found il the box no va.
elected by 20 votes, The jury, there
Tore, in fiuding % verdict Tor Jenuett
must have taken into thei,
count the official return.
ic some OF tho pre- :incts and
ihslr own count Of me ballots IN tut
others, OF hoy mast nave con =, ID 10.
Jeunel5 no ballots of such persons
wuo test i'd Chaj thew had vo.od foI
hun, snd whose ha'|ois had beer
charged or . ed. IN either case
u e was error. II i
VOL settled drst, thaG tha
ohici2i ro,druH Gr6 priml
fsci0 evidence al the result
OF IN election. Second. that
in prnpar csee tho ballot boxes may
be o! eued, and tho ballots counted il
ORDER to Iebut such presumption, and
tho ballots wiz prevail. Third, bat il
ORDER for tue ballo'1t0 prevail ovdrth,
otliciol count il must he lhown that thC
boxes haV0 r9en Dres3, 7ed and kopi
as provided hv lev, aud they must mo-
nave econ tamperGi " TIL. -
Il was proper for the COAX 4
pecini5 evidence of tho voter
TO show that bis bailOb haf
been al ered or tampaled with, but not
under the ploedin.s Tor ohe pur, lse O
contrAdic.iHg his oGllo.. Ia Or1or foi
ench Testimony 30 h3 admissible. anC
to enable the Jury 10 count uob al
tered b3;lot tor th0 candidate to1
whom The voter SAWS be cast his vote
uere must be allegat.Oua ia ia,
plaGdings g. that effect. In this cas-,
.ner0 was uOnt. Aud in 0daiGtju4
huch teSl 'mouy OF he voter "a,
court on hit to have informed III,
Jnrq that 10 was Tor the purpose only
. q Na.sA
Elmperod with OF altered, aud iha
ttay con.d not count snuh bsllog o,hel
tbhu 7s 80 was found in tho box
g. - Tho eyideYce as +,
/ "tampelipgP Wds substantially tbi
same a8 to tire box in mo Eleventh
ward, and taNsa 9t the other wards
they accepted tha official cmp
In the Eleventh., and thsii
own count OF tho Oallo.s In tae ctberg
II was shown ~ proper bill og excsp
tons tn9t sr0at unher Of persons
attended the trial; that whenever any,
ihlog favorable occurred 10 tho causy
OF The rolator they greeted tho g1ms
WIN bur3.5 of applause. Tho cour.
checked such demonstrasion .e5
often a. inside, but the crowd
as anything favorable 10 Jeuuett &c.
curred. the court mad annie mower.
anu In It's iallure to exercise tho game
this court viii apply tho rule mi.
verSally adopted by Il whenever The
jury may haSe been Influenced to rem
der an incorrect verdict through pas.
sioO or prejudice, or undue miluol G
.ot Others 10 reverse the Judgment and
order a now trial
Tho words "eloctlon tickctn printed
~ tho hNad Ola ballot do not cnuatl
tuta n device uudar the meaning .,
s.ctiou l6 Of the amended elsrtion law
OF 1879 AMI Will not avoid the ticket
neither is Il made invalid by having
printed upon its face tho names OF the
candidates for president and vice
pronidsnt of tho United States and In,
residence Of tho presidonttnl electors
Reversed and romanded.
Susan Calhoun OF al. VS.. a. G.. Ben
ton 60 al, from Anderson county
Stayton, /. Since the case az Munso,
w. Hallowell, 20 Tex, 475, Il has bser
tho law OF this cours that undlscnverer
fraud will prevent the running OF tbt
s,atnto of Limitations, but Tho failur,
% discover the fraud must not 10 M
trihuishlo to the want of the syercis,
OF proner diligence by tho party sot
ting mp the fraud.
ltwould soem that tho mere know
edge that tna deceased hut fnw day,
before his death had made n vOluntar,
conveyance, or one To- n grCs.lv in.
adequate price, OF the great bulk of hi
property, would be n fact that shoulI
put creditors Of tho estate uron In.
outrY as 70 the suiliulency OF the reql.
duo to satisfy thoir CLAIMS, Tho do
ceesed two days before Ms
death had made a convey
anoo of the greater part Of Bis prop
erty 10 u stranger who, In turn, NV,
uht huer his death, convened It 70 tn
WHO ot the deceased. The plslntla'
waited over five years before at,aokin.
thes' CON oyNncne. Tney do nov deny
~ their rDcoedjnga that they heprd o.
theso oOnVeyauces, ior they were nr
record. or That they did not know thn
thev wero msdo Without consideration
aud With lrauduleus intent. but tn,
Inference IN that thoy knew these
fscst, but from Tho inventorle,
OF the estate they though,
hero was sufficient loft TO satisfy thei,
claims. Held: That it was the duty
OF such creditors to ironlr,
iuto the sutticiency OF such residue
and This involves au inquiry into IN,
Tito OF such residue. This they di
mo- do, and the court erred In not suh
hitting to the jury the soc cial charge.
asked by tho defendants IN regard Il
me three and five years Limitation