Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-02-05


principle that II should be held void only
to the extent OF the conflict with the
higher law, there is no constitutional OBJ
lection TO the refusal Of a jury in con-
test In the county court, for the
reason that the right remains
inviolate, though denied In the court Of
first instance, II the right to appeal and
the jury trial on appeal are secured. In
a contest over the execution Of q viii In
the district court, whether by appeal or
brought IN that couDt originally, Jury
may be demanded.
In this case the probate proceedings
were In the county court and removed 10
the district court on account OF the dis
qualification of the county judge, and II is
commended that IL being a probate proceed
ing purely, like procedure should obtain
as though the contest were being con-
Quoted ia the county court. There being
no appeal from the result OF the proceed
ing In the district court sitting
as probate court, to the same
tribunal as final trial court
to sustain the rule commended for, would
be 10 deny trial by jury 10 such cases.
Where a cause IL removed to the district
court Tor tiial denoyo the practice OF that
court governs the proceedings, and not
that Of the court quo.
There was error in allowing q witness
to Stale ms opibsore Of .he decedents ca.
pacity 70 make o will, after ne had tssti-
led 10 the facts upon which the opinion
was predicated Affirmed. Opinion by
j,
r. q. sheldon VS. r.. Martin, appeal
from Webb Martin, in his capac-
ity as assignee, sued Sheldon on q
note executed to him as assignee
aud sought recovery for the
benefit of the creditors Sheldon adj
mitted the Indebtedness and claimed n
unsatistlcd judgment in his favor
against Martin as assignee Exception
was sustained 10 this answer. Held that
as the answer further alleged that the
Judgment was also for foreclosure of II
vendors lien on goods In Martins pos
session, and that under an agreement be-
tween the assignee and the defendant,
the goods were to be delivered to him In
satisfaction Of the Judgment, and that at
the time of execution OF the note sued on
IL was agreed that defendant did not
waive the balance due on the Judgment,
or his lien, the creditors Of Martins as
slgDOrs having received the benefit of the
goods upon which defendant had lien,
they were IN equity bound to account TO
him to that extent, and there il
no reason why the setof could
not be pleaded in this action, the goods
being liquidated demand
Reversed and remanded Opinion by
Willie, G. j.
W. b Wall VS.. j Mccormick, appeal
from Houston. Action In the name of
the county judge, w d Wall, for the use
OF Houston county against I. G treasurer
and srreties on his official bond to recoy-
er money which the treasurer claimed the
right TO retain az commission on money
received and disburscd by him. Held,
the county Judge had the right aud power
to Institute and maintain the action with
out pleading or proving that he was di-
rected to do so by the commissioners
court
The county received drafts Tor insur-
ance on public buildings DESTROYED, and
they came To the hands of the county
Judge, and were placed In bank for col.
lection under an agreement with the
bank to collect without charge, the bank
to retain the money until needed In
building a courthouse and jail. Held,
the county judge had no authority to
place the money which belonged to the
county in the custody of any person
other than the treasurer. A deposit
elsewhere Is unauthorized, unsecured,
and ought not TO be made The county
treasurer was entitled To commission on
the amount collected on the drafts at the
rate allowed at the date of the collection
and placing the money In other custody
Gid not deprive him of his right
Judgment ordered accordingly. Opinion
by Stayton,
Mat Ussery VS.. City of Laredo; appeal
from Webb. The appellant taught school
under contract made with three persons
claiming TO he trustees OF public schools
by appointment of the county Judge. Pre-
vious to the date of this contract the city
of Laredo had assume control of the
public schools In its limits and the trus-
tees of the city were at The time alone
authorized To make such contracts. Held,
that itnot heing shown that the school
Taught Ivy appellant had ever been recoe-
nl2ed by the proper school authorities of
the city as public school, aud that
neither the city nor its trustees had be-
come IN any manner parties TO the con
tract, the city council We're right In refus-
lug to pay him.
The superintendent OF public schools
had no authority To command the city TO
pay tho claim, and even admitting that he
had the authority to reverse the action OF
The city council In refusing the claim OF n
public teacher, he had no power TO order
hem 10 pay salaries OF private schools,
,nch as this one was, Such case is be-
'ond his jurisdiction, and the city was
not houud by his order on the subject
inirmed Opinion by Willie, C. j,
w d Cleveland ct al. VS.. Cole ct all,
'ppeal from San ,lacinto. Where an
affidavit for continuance Is IN strict
with the statute, the court
'as no discretion IN the matter, and must
grant. GO Tex 2T5l
IL is firmly settled by the decisions that
'rops grown upon the land of the wife,
'lth0egh the labor and other means used
n It's production are OF her separate
state, becomes the community estate OF
he husband and wife, (2l Tex. Gl, 20
Tex 25) and are liable for the debts of
he husband
Whore property is partly purchased
With the separate estate of the wife, and
'artly with the means OF different char
cter, the wite's separate interest in II is
'roportionsts TO the. amount her separate
state contributed towards its purchase
sryvrsed and remanded Opinion by
Willie, CD.
King s Davidson VS. Steele & Bro,
ppeal from BTaxos. Whore the reputa.
ion Of witness for truth and veracliy Is
ot put In issue by the opposite party,
Q witness being called TO testify as To
Is reputation, nor to prove that at some
ther time he had made statements va.
liant 20 those given in evidence, the party
reducing HIN cannot call witnesses TO