Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-12-06
THE HIGHER COURTS.
synopsss OF Decisions Rendered at tho
Present Tyler situsg.

=
I Present Tyler sittiag.
COURT or APPRALs--TYLKR TERM, 1886
Cnarles Huffman VS.. the State Appea
from Taylor county. Counsel for tn,
state was permitted Of the objections o.
defendant In the court below to ask
witness II he had given defendant permits
sion 70 take the horse, to which counsel
! for defense objected on the ground that
there was no allegation In tho indictment
that the witness ever had possession, nor
was 1t alleged that the horse wAs taken
without his Cthe witness') consent. Held,
that this was not reversible error. Az
ilrmed.
Thomas Harrison vs.. Susan Elliot.
Appeal from Navarro county. This suit
WAS brought ostenslbly for "money had
and received" was really for the recovery
OF money due under contract for legal
services. The plea In abatement was
died before answer To the merits, and the
fact that II was filed Gin JUSTICES court)
after continuances granted defendant on
oral motion does not effect It's validity as
to the due order Of pleading, nor az to
the right TO plead IL. II was not error TO
exclude plaintiffs answer TO interroga-
tories testifying as to transactions with
| NhN uNithNtu uuHDhuu OI utlt0uhlL.
When an attorney agrees TO a contingent
fee, he cannot recover II the suit be lost.
| Affirmed
Pacific Express company Va j. M. An.
derson & Bro. Appeal from Red River
county. This was "A suit for damages
against the Pacific Express company by
Anderson & Bro, for the non.deivery OF
certain parts Of harvester which appel
lees had ordered from bal as, and which
was proven had been delivered TO appel
lants for transmission to Ammonia, Tex.
Appellants carried said articles to Aurora,
Tex, whereby appellees were damaged
by reason OF the negligence OF appellants
10 not delivering said articles, by the de.
Btrnction OF large fields OF grain. IL was
shown that packages were delivered TO
appellants the first and second times and
were never delivered at Ammonia. Held.
that this constituted sufficient grounds
for damages, and the judgment Is hereby
u fit ned.
w, H. Blrth vs. Jester Bros. Appeal
from Navarro county. Barth hali ing d
draft on Galveston for 1882 80 presented
the same for discount at the bank Of Jes-
ter Bros. l.. l. Jester, one OF the mem
5ers Of said banking firm, purchased the
draft and, deducting the discount, handed
Barth SSl 80 in money and package Of
bills, which no supposed contained $3.50.
lie says the package hau 5000 printed on
1t, but this was marked out with pencil
and $3.50 marked on II with pencil.
That when he handed the money TO Barth,
Barth asked him II tn re was not mis-
take, and called his attention to the $500
mark d on the package, but witness ex-
planned TO HIM that the S500-mark had
hann fhFnuuh a
the $3.50 mark put upon II and suggested
TO him to count II, which he did not do,
saying he supposed IL was all right.
In casting up the cash account in the
bank that night, appelees found they
were $3.50 short, Jester says that after
retiring to bed that night he remembered
that the mistake must have been made
with Btrth. He also remembered that he
marked out $500 ON package and sub.
stltuted $3.50, intending for the package
TO contain $3.50, but afterwards changed
his mind and let the 5000 remain. Barth
claimed that he took the package and
gave II TO man named Eklns to make
the calculations and then divide between
McElroy and himself. Bartb claimed
that no never received any portion
OF the $3.50 Jester claims to have
lost. II appears that the man
klkins disappeared that night and
has not been seen since. Verdict and
Judgment for appellees. II Ia not neces
sary that an application for continuance
must show that the witnesses were In at
tendance on the frst cay OF court When
the requirements OF the statute for a con.
tnuance appear In the affidavit for the
hrst and second applications, IL Is not
within the discretion OF the court TO re-
iuse. The rule OF bank that no mis-
takes are corrected after once leaving the
building, when proven, will not be recog.
nlzed when subverslve OF legal rights.
Even though there is negligence on the
part OF person paying money, he may
recover II back, II the payee will not be-
prtiudiced or los any rights thereby.
For the error OF the court In overriding
defendants motion for continuance, and
because the charge was insufficient In
law, the cause IL reversed and remanded.
Reversed and remanded. White, p j.
A Steagall Is, the state. Appeal
from & ay county. This appeal is from a
conviction Of murder In the first degree
with death penalty, and the deceased is
alleged to have been appellants own
child, and the illegitimate Offspring of
lncestuous intercourse with his own
daughter A special venire Is one of
me important and peculiar features per-
tanning TO the selection of a Jury for the
trial VI capital case, and the record on
appeal should show the proceeding with
regard thereto. When mere Irregularities
occur In a transcript this court may over
look OF presume that that was done
which ought TO be done, but such pre-
sumption can not aud will not be in
obliged waeu the proceeding goes TO the
very glst OF one OF defendants most
important rights given him by law, when
about - he tried upon q matter Involving
his lie. No objection, however,
appears to have been taken In hmine TO
any matter pertaining to the special
vehire, aud dou1tle tho provisions Of
the law Mere fully compiled with. The
transcript not showing this matter, II we
asd concluded TO afilrm the judgment
otherwise, We would not do 80 until we
had nrst ascertained by means OF GER
'iorAri to perfect the record that the pro.
eeedlngs not shown had been taken in
conformity with the statute. II was OBJ