Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-03-25

anu NV DIAOitf tui NODlHdflN lnSIitntNf
this proceeding to condemn the land OF
which the house was built. In the cas-,
OF the Texas & Pacific Railway Comnan,
VS.. Hays, at the last Tyler term. hi,
court held that road-beds, cross
ties aud rails placed by rail
road company upon land before con
domination of the. right OF way, did moi
become fixtures or . part of the realty
and were not TO be estimated In the dam
ages Where there is a manifest inteu
tion to use the fixtures in some employ
ment distinct from that of the occupant
Of the land, they do not become part OF
the realty. In the Hays case this dis
tnction was recognized. But in the case
here Hendry without disturbing the
house could use it--use 1t as It stands.
fixed and as a part of the realty,
and hence one of the reasons
controlling the Hays case is wanting.
In estimating the damages the appellant,
lIendry, should recover, the value Of the
house should be included. Reversed and
remanded. Opinion by Hurt, j.
| City of Hampstead VS.. Silsby Manufac-
turing Company, appeal from Waller.
This was suit by the company against
the city on four notes, executed by one
Cloud as acting mayor OF said city,
for the purchase money of fire
engine for the use of said
city. The city answering, alleged that
the city was not bouno by the contract
or notes, as Cloud was not authorized to
execute them Plaintiff then amended
| by praying that in the event the court
should hold the notes void, ne should
have Judgment for the engine or its value.
There was Judgment In the companys
favor for the engine or its value. From
the pleading and the evidence it is clear
that the city was bound by the contract
and the title passed to the city,
and ordinarily the company would
not be allowed TO thus re-
pudiate the contract and recover
the engine. But party is bound by his
pleadings, and as the city by its plea de-
MED the validity of the sale, the city can
not complain that the court below found
as true its own answer Affirmed. Opinion
by Hurt, j.
Elk parte Gus Canto, appeal from Bra
EOS. Canto was arrested and held in
custody upon the charge of selling fresh
beef, within market hours, at place in
the city Of Bryan other than the market
house of said city. On hearing before
the county judge he was remanded to
custody
1t is contended that the city had no
authority under its charter to pass such
an ordinance. The charter grants
authority 'to regulate the erection, use
and continuance OF market-houses. -
Held, that these grants to municipal
agencies TO control markets are not so
strictly construed as are those which in
vest the corporation with powers of a
more extraordinary and unusual char
acter, and under this rule the authority in
this case is clear. Dill. Nun. Corp, $50.
1t seems that after the ordinance in
question was passed it was destroyed
with the mayors Office by fire, but that
the city had previously had printed COM
pilation of its ordinances, and this having
been examined bya lawyer, who had com
pared it with the originals, he swears
that they were correct. Held, competent
and sufficient to establish the ordinance
Affirmed. Opinion by Hurt, j.
Albert Foster VS.. State, appeal from
Lavaca. The indictment was in the or
binary form for theft of horse, and a
conviction was claimed under art
749 Il. c., for driving or remoy-
ing from its accustomed range, and
the trial court charged the jury that they
L
was verdict and Judgment convlctipg
the appellant of "lraudulently driving
from their accustomed range livestock
not his own Held, that article 749 ex-
pressly declares that party driving or
removing stock from its accustomed
range under the circumstances mentioned
"shall be deemed guilty of theft" under
this provision the charge was correct and
the verdict and judgment was supported
by the allegation in the Indictment. Opin-
ion by White, p. j., Hurt, j., dissenting.
X. L. Musick VS.. the State, appeal from
Cherokee. The rule at common law was
that II A shoots at B with express malice
aud by accident or mistake kills C the Of
tense would be what we call murder in
the frst degree. Under our code consti-
tutes murder in the first degree, or rather
murder upon express malice, it
must and can only be NAL
ice directed towards the particular
Individual killed, and another than the
one against whom this malice is directed
ana entertained be the victim, the crime
is murder in the second degree. Meow
VS., the State, % Tex, So; Ferrill VS.. the
State, 45 Tex, sos. Affirmed. Opinion
by White, p j.
George Green vs.. the State, appeal from
Denton, Prosecution for burglary and
two counts in the indictment. A motion
was made to quash the first because the
value OF the property intended to be stolen
was not alleged. Such an allegation is
not essential to the validity of indictment
Tor burglary. Sullivan VS.. State, 10 Ct,
app. 1872.
1t Is insisted that the prosecution
should have been compelled to elect on
motion Of defendant upon which, count
the conviction would be claimed. This
position is not maintainable Mastersun
vs. State, present term; also Is Ct,
p. j.
NJ Murphy VS.. state, appeal from
Harris. Where that is detect in the
Judgment of conviction in felony case,
under the requirements Of the statute,
put such defect is cured by the entry in
the order of sentence, this court will
look to the latter, and, II the two taken
together make good final Judgment,
WIN not dismiss the appeal on this ac-