Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-02-12

The court below could assume, Wltnous
the aid OF testimony, that the plaintiff
would not have been so seriously injured
II the train had bcen moving more slowly
when ii came in contact with him. Az
armed. Opinion by Robertson, ).
Geo. a. Cherry vs., w Is. Wallis appeal
from --. The county court made
an order removing appellant from
the guardanehip OF some minors
on the stated ground that he had
been guilty Of gross neglect, and had
failed TO properly maintain and educate
his wards On appeal to the district
court he was again removed on the
ground Of misappropriation and con-
version TO his own use Of the funds OF the
wards. The guardian appeals to this
court and says here that the petition on
which the proceedings were based was
insufficient In law, and the Judgment
states no ground for removal. Held, that
under the statute the court Is authorized
OF its own motion 10 make an order for
removal, and IL could have proceeded
without petition. The cause stated
in the statute for removal is When
there is good cause to believe that
he has misapplied property
committed to his charge, The judgment
states that he has misuppied such prop
erty. II so, there Is "good ground for
believing" that he has.
The guardian Of the person OF the ward
IN necessarily intrusted wi h some por-
ton of the wards estate for current
needs and the Misrepresentation OF such
part units him for his duties The
statute makes no distinction between
guardians Of estates and Of the persons,
Affirmed. Opinion by Robertson, J
A. j. Smothers VS.. Field, Thayer
e Co, appeal from Dewitt
70 sustain motion against
a sheriff and his sureties Tor failure To
make u levy as directed, the plaintiff
must make n case prima facie, showing
that the defendant in execution had prop.
erty subject 70 execution. To defeat the
motion the sheriff may allege aud prove
that the apparent liability OF the property
to execution is not in accordance with
the true state Of the case. In this case
the plaintiff averred conveyance for
valuable consideration TO the wife of de-
PENDANT In execution This made prima
facie case, for the law prcsumes property
so acquired to be community property
And 1t was proper for the defendant IN
the motion To set up the right of the
wife to the land, Notwithstanding it's APP
parent community character, and the
court erred IN sustaining demurrer to
that part of the answer to the motion
1t was no excuse for not making the
levy that there were prior liens upon the
lands. The equity Of redeu ption was
still in the defendant In execution and
subject to his debts and the plaintiff had
a right TO have this sold for what it would
bring and applied to the satisfaction of
his judgment. Reversed and renanded
Opinion by Willie, C. J.
John Doe vs. Evellne Roe, appeal, Gal
weston. This was an action
To recover damages for breach
of promise Of marriage, with resulting
offspring,
The court did err in refusing to charge
that the plaintiff could not recover unless
more than nine months elapsed from the
date of plaintiffs husbands death TO the
date OF the b nth of her child. This
charge assumes that the period OF gesta-
ton is necessarily nine months. History
records some famous exceptions TO this
rule, and obstetricianS do not account IL
extraordinary II their services are re-
guired at any time within margin of
sixty days before the expiration OF the
procrusti0n period la the light of his
tory and science, the court below was
authorized to consider the requested
Instruction too uugallantly rigid, and
1t was question upon which, in
the absence OF statutory regulation, the
learned trial judge was no better quail
fled to pass than was the sworn Twelve
The court authorized the jury to lind for
the plaintiff only in the event the defend.
ant contracted to marry her after her hus-
bands death, and to C n>ider the cuncep-
ton and birth of her child in estimating
the damages, only in the event the de-
PENDANT begot the child after he had
promised to marry her. This contained
the law of the case. Judgment for five
hundred dollars damages affirmed. Opn-
ion by Robertson, j.