Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-11-20
THE HIGHER COURTS.
synopsis OF Decisions Rendered mt tho
Present Tyler sitting.

synopsis OF Decisions Rendered Mt the |
Present Tyler sitting.
SUPREME oouRT-TYLER TERM, 1886.
Senter & Co ct al. VS.. Willis Whitaker
ct al. Appeal from Bowie county. A
suit against Arm Is not Offset by a |
breach OF contract WITH an individual |
To an action brought by one
firm against another claim In set.off was |
pleaded, and 1t was proven that one Of
the defendant firm had made contract
with plaintiffs to ship them cotton on his
o Rn account, the proceeds of which were
to be subject to his individual drafts, and
the overplus left, after such individual
drafts were paid, was TO be credited on
the Arm Indebtedness; that by reason of
plaintiffs failure TO sell certain cotton
when they should have done so, u certain
sum was lost, etc. Held, the individual
contract Of one member of the defendant
firm, and damages by reason OF Its breach,
could not be pleaded ia Offset OF this suit.
And further held, the statute OF limita.
lions of two years bars an action for dam
ages such as Is here set up. Reversed
and remanded. Stayton, j.
j. i. Hays vs.. NJ. j Hays ct al. APP
peal from Titus county. IL Is well set
tied since the adoption Of the Revised
Statutes, that a suit can be maintained by
a next friend for the benefit OF a miner,
and no distinction in this respect as to the
character OF suits. In suit 10 declare
an absolute deed made OF homestead a
mortgage to secure debt, 1t Is not neces-
sary TO allege or prove the new acquisi-
tion OF a subsequent homestead. When
the charge Of the court to the Jury con-
tnins the principle embodied In Il special
requested instruction, this latter should be
refused, for the court should lay stress
upon any point by the repetition Of II In
the charge. When the charge given con
tains the general law applicable TO the
case, requested Instructions should be
asged on any point on which party Is
not satisfied with the charge OF the court
A. G. Walker vs.. Brown, Thompson &
Co. Appeal from Titus county Where
parties representing that they were part.
ners and induced a member OF a firm TO
sell them goods on such representation
Held, 1t would make no difference
whether they were such partners or MOI
they would be held liable as partners for
the goods 80 purchased. II one OF the
alleged partners deny the statements, in
order to lmpeach his testimony II Is com
petent to prove declarations made by him
prior to sale to TO the Other alleged
partner, was In fact partner even though
such declarations were made In the ao-
sence OF one Of the parties. Affirmed.
Stayton j.
A. C. Glass VS.. r.. o. Smith ct al APP
peal from Titus In justice court iudg-
ment was rendered against appellant In
which he acquiesced and delivered up the
property in the suit, without his knowl-
edge some unauthorized person sued out
writ OF certlcrari to the county court
In which latter court the writ was dis
missed Execution was issued, TO prevent
and restrain the levy Ct which an In
| junction was sued out. Held, the ludg-
ment was nullity, and 70 prevent Its
| being carried into effect an Injunction
was the appropriate remedy. Reversed
and rendered. Stayton, j.
f. NJ Graves vs.. Drane, johnson 4
Drane. Appeal from Navarro county
| Where the individual and lirm names OF
plaintiffs appear In the petition, and d
copy thereof accompanies the citation
the fact that the firm name alone is sci
forth In the citation, does not render II
| insufficient to support judgment by de
fault. The return on the citation served
i'm another county than that OF the suit
was: "Served by delivering
20 the wlthln-named defendant
in person, q true copy Of this writ, to
gether with certified copy OF PLAINTIFF
original petltion.n Held, sufficient t.
support Judgment by default. Affirmed
Gaines, j.
G.. A. Watson, administrator, VS.. Bly,
mer Manufacturing COMPANY. Appea
from Bowie county. Where the loss o.
an instrument sued on Is alleged by
plaintiff and he proposes to establish ~
loss by fire aud it's contents by oral testl
mony, an affidavit OF It's loss, ETC., Is no
necessary. Where a certified copy OF tn,
alleged lost instrument Is attached TO anc
made a part OF the petitlon, defendan
has notice OF II from the time OF hhnt
the answer, and It Is not necessary lG
have filed such copy with the papers Il
the cause before trial, etc. Reversed
anu rendered. Gaines, j.
j. Il. Conner vs.. N. Elkins ct al. APP
neal from Morris county. Where th'
Judgment rendered In the appellate II
less than that recovered IN the court
quo, costs OF the appellate court Will b.
adiudeed against the plaintiff. This rul
applles where the defendant is claiman
OF property levied on, and OF which tn
Indictment In the court below decreed
recovery or It's value, which was DEGREES
Ia be less in the appellate court than i
The court below. Affirmed Gaines, ]
CITY National Bank OF Dallas VS.. M. V
Flippen. Appeal from Bowie county. II
mis- case the petition for attachment wa
not sworn to. The affidavit recited tina
defendant 'justly indebted 70 the plain
ia y leaving ont the verb ''is" before tn
0 word dusty Held, 70 lnyalidate tn
/ writ and for which Y was properi
! ouashed. Affirmed While, CD
! j. III. Deering VS.. John Hurt et a.
/ Error from Red River county. Where
minor is represented by guardian q
\ item, appointed BY the court, having an