Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-03-12

ants w. =. and Matte w. whlfpor,h
me PROOF was that the land was conveyed
" Mauiua W. Whitworih, and IL Is
clhlneu az q Variance, This proof was ad.
uiseeu WlthOnt objection. The defend.
ants were notified 10 the petition to pro
uu-e VIC deco made 70 them or either OF
INN one OF the defendants was Matte
". Inc conveyance was 20 Matilda w
NlAltiV ~ one OF the diminutiyes OF the
name Matllda. That the deed was made
70 one 81 the defendants docs not
prove the land WAS not sold 10 both.
Ihat y was sold TO both IL an averment
not proved, hnt not conttadirted by the
vyluence. y was not necessary 10 prove
snat averment, because the lien would ex.
,ht u the note was ior part Of the purchase
money no matter who Is the purchaser
OF yenueo, Enough OF the allegation was
proved 70 sustain decree for the debt
sna foreclosure Of the lien, and the proof
ulu not show o different cause of suit
from that pleaded. Affirmed onln,on
by ROBERTSON, J.
appeal ifem Galgt ston. Tho law re-.
quiriug the names Of the parties 10
he stated In citation was moi
changed, but continued, by the Revised
Statutes, and now, as before their adop.
ton, this requisite Ia fulfilled by stating
~ the writ the partnership names of tho
plaintiffs, where the suit IA by partners
Andrews vs.. Ennis, 10 Tex, l5; bikes
vs., Monroe, IL Tex, $50
The trm name was not stated IN the Dc.
tition, but IL was signed 10 The contract
made part of the petition. The plaintins
/. "A
wheeler 3 Rhodes,n and .he writ
Identified the suit. There was no varl.
ance between. the petition and the writ
The omission to state the Arm name m
the petition was point in the pleading
aud not u defect In the process.
II the plaintiffs had been suing for A
breach OF that part OF the contract which
bound defendant TO pay the sum
OF $4,000 as soon as she
should realize her husbands estate.
that she had realized would
1 be q necessary ayerment. But the part
OF the contract alleged to be broken is
that which, without condition, engaged
the plaintiffs rs the dciondanps attor.
neys. For this breach, which involved
the reputation OF the entire contract,
! prevented the plaintiffs from earning the
suing upon the qualified promise, the do.
fendaut was Immediately liable. Suth.
! p. 10. Affirmed. Opinion by RohcrtsonJ
Mo. Pac. Ry, Co. vs.. j. r. Jarrard.
Error from Walker. The opinion that
the road track AT the time and place
where the wreck occurred was ont Of re-
pair aud In an unsafe condition, ex.
pressed by the witnesses, was objected to.
The witnesses had actual knowledge of
that particular part Of the road and tcs-
Tiled as fully as they could 20 the facts
upon which their judgments were found
ed. This brought the opinions clearly
within the rule II the matter was
one requiring technical or spe-
cial information. Whar., Ev. 5l3. On
the other hand the opinions were adj
mssible II the condition OF the road could
be Judged Of by men OF ordinary inlorma.
ton, for the reason that the witnesses
from actual observation have acquired
knowledge, which can only be cOmmuni'
Gated TO the jury as n result What the
witness saw cannot be reproduced and
made palpable In tho concrete to the
Jury. II Is susceptible OF expression only
IN the form Of an opinion. Id. 5ll
Tho plaintif testified that the injury he
sustained caused him 10 lose a few days
/ time, but that his employer made no de.
| duction on this account from his wages
! lle lost time as n result Of the Injury ano
| was entitled to compensation Tor this
/ loss. II the continuance Of hls wages was
% provision Of hio contract or the grace
of his employer, the defendant was moi
entitled 20 tho benefit OF either The
| time was lost by him mud he was entitled
TO recover. Affirmed, Opinion by Rob
ertson, j
4 i w Ryan ct al, VS., b A. Sheppard
appeal from Fort Bend. The claim II
this suit was upon note which was pre-
scented 10 and allowed by the admlnsira
tor OF the estate OF II. Ryan on 10th o
! May, 1876. The note, when allowed ant
approved by the county court, became q
Judgment The evidence Of this judg
ment was the note, the Endorsements o
the allowance and approval by the admin
istrator aud county Judge, aud the cntr
in the claim-book. The note therefor wa
properly admissible In evidence as proc
OF the Judgment sued on. The claim wa
not barred by limitation as the statute o
ten years applies In such cases. Affirmed
Opinion by Willie, G. j.
Heirs of II. Ryan vs. j. Rust, appea
from Fort Bend. Under the mandate q
the constitution the act of June g, 1876
was passed aud had the effect 70 transie
TO the county court all causes then pend
ing In the district court which wer
within the jurisdiction OF the former i
accomplish the transfer from the on
court TO another no order Of any court 0
Judge was required WAS accom-
, plished by the act Itself. Affirmed. Opir
lon by Willie, O.
w. Holt vs.. a. S. Eollett, appeal tror
Bra2oria. In order to sustain the suit fo
malicious prosecution both malice an
want OF probable cause must combine
The former may be inferred from the lai
ter, but is not legal Inference. Wher
, want Of probable cause Is FIRST showi
7 then malice may be established by proc
I that the prosecution was not commence
, for any other purpose except to subserv
I the private Interest OF the prosecution
! But ii probable cause Is shown, no matte
4 what evidence OF malice may be intro
4 duced, the suit must fall The two Gle
ments necessary TO make out the cas-
! have not been shown 10 exist. Affirmed
, Opinion by wlllie, CD.
= o. A. Barring vs.. l.. q. ward appeA
{ from Jackson The plaintiff did not see