Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-02-26


that ore witness is infelifble and thus
preclude the testimony Of other witnesses,
which would be relevant and competent,
but for the assumed Instability. Theevi-
deuce Is also admissible under the rule
in Green VS.. State, IL CHI. app. 1896, and
the court erred in rejecting IL. Reversed
and remanded Opinion by Hurt, J.
Lewis Nash Va. the State, appeal from
Kaufman. The defendant was convicted
for burglary. IL appears from the evil
dence that there was a trsp-dcor in the
floor Of the mill-house which opened up
wards on hinges. The proprietor OF the
mi had arranged "spring gum In such
manner az 90 fire II when the trap-door
was raised twelve inches. That one OF
the party OF burglars placed his hand I'M
der the trap-door and raised II and as he
pushed II upward the gun fired, where
upon the party fed. The question Is was
there an entry. Held, that when the door
was raised twelve inches the hand was In
the house and by virtue OF the provision
OF the statute, that an entry may consist
OF the entry Of any part Of the body, the
entry was complete. Franco W.. State,
AZ Tex, 276.
In regard to another question present
ed by the record, but not discussed IN
the opinion, the Judge delivering
the opinion, said, "The verdict entered In
the Judgment ~ defective in emitting the
word guilty occurring In the verdict as
actually returned. We hold the juda-
ment good, but regard the question a
doubtful oDe.n Affirmed, opinion by
Hurt,J.
u. Eastman, eSecutrix, vs.. ). M. Ran
dolph, appeal from Walker. Appellant
brought suit in favor Of estate OF Eastman,
deceased, for goods sold to defendant.
The defendant by way Of counter-claim
pleads an account for oyercharge, made
by the deceased against defendant, which
he paid in the lifetime OF the deceased.
Tho ovcrcharge claimed was interest
charged In the account. The answer was
In writing and sworn to. Exception was
taken that II was no defense US II did not
allege fraud or mistake. Held, the de-
Tense presented Is an equitable one only,
as the alleged overcharge was paid
by the defendant nearly two and half
years before the bringing of this
suit The defendant claims to have
discovered the mistake short time after
IL was made but took no steps TO rectily
II, but goes on and makes q new account.
AS remarked by tho supreme court In
Koran VS.. Long, II Texas, 1888, at looks
q little extraordinary and hard TO he be-
lievodn and shows such laches as will
prevent the intcrpositlon OF equitable
relief.
The rule Of the statute prohibiting evil
dence by the party as TO transactions with
deceased persons was infruged by per-
hitting the defendant to testify that
short time after the settlement and dis
covery OF the oyereharge, he called tho
attention OF the deceased to the over
charge. This was statement OF a
"transaction" between the dead man,
whose mouth was closed, and the defend
ant. within the rule. Reversed and
remanded. Opinion by White, y. j.
T. A. Sawyer w. Crawford ct al, APP
peal from Harris. Whilst IL Is true that
fraud may be, and often must be proved
II proved at all, by circumstantial evil
dence, II IL also true that II VIII never be
presumed, IL must to be available as u
cause OF action or ns defense be salts.
iactorlly proved and more suspicious cir
cumstances, which are reasonably ex-
planned, or which are capable OF reason
able explanation upon another hypothesis
than that Of fraud, and which are not in
consistent with tho good faith of the trans
action, cannot be regarded as furnishing
| a basis for the conclusion that the trans
action is fraudulent. Reversed and re.
mandod. Opinion by Wilson, j.
| Gulf, Colorado & Santa Ee Railway
Company w. johnson OF al, appeal from
Fort Bend, On the part OF plaintiff II
was shown that on previous occasions,
and ON subsequent occasion
TO the one In question, the grass In this
| nm ar In
fire by defendants engines On the Other
hand, there was for defendant proof un
contradicted that the only two OF these
engines that passed through the pastur,
on the day OF the fire were In good condi
ton, were supplied with the best appli
ances for preventing the escape OF fire
were burning coal, and that the place o
the fire was on level grade; that the ut
most caution had been used in the con
struction, inspection and operation o
these engines to prevent the escape o
Are. Held, that while the evidence o
negligence by proof of preceding an,
subsequent tires was sufficient to make
prlma facic case, IL Is certainly too veal
To withstand the positive and uncontra
dictcd evidence In rebuttal, and the ven
dict Is set aside as being against tn
weight OF evidence and clearly wrong,
The single fact that Are did escape
from the engine and set fire to the gras
is not sutllcien proof OF negligence, be
cause II Is impossible, even by the ua
of the best appliances and the exercise o
the greatest caution, TO operate an engln
without the escape thcrcirom Of IRE,
w. Con. Rep. 6i-GSl; Il. II, Co. v. Tim
norman, 81 Tex. goo. Reversed an,
remanded Opinion by Wilson, j..
X. Rutherford v. Harris county. An
, peal from Harris. This was II suit b.
. appellant against the county upon an &C
, count for services rendered as physI
clan and chemist In performing post NOR
tenn examinations, autopsy and analyst
at the request OF the justice OF the peac
holding lnquests. Tho court below sus
tanned general demurrer and dismissed
tho suit. Held, that while there is N
statute In this state expressly declarln
the county liable for such services, th
justice being the officer OF the county, vest
cd with the authority and charged wit
! the duty OF holding an inquest, must b
regarded as having power to bind tn
county for such reasonable aud nocessar
expenses as he may incur In the exocu
tion OF the law relating TO inquest pro
ceedlngs, and in the endeavor TO accom-
plish the purposes OF the law. Boouo OF
Corp sec, 3l7; . Tex, 60; rs Tex, 5sb
"a Penn. ST., 50li 30 How. Pr, l79, |