Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1889-01-21

ldclS as confer Oh rim an eQultdole OWL
eTship, the land not being patented
tAil lands which may be located by en-
try or application shall be surveyed with
in twelve months from the date of entry
or the same shall be null and void, and
the lands subjectto relocation and survey ;
but such lands shall not in any case be
| subject to relocation by the same certifi-
cate. R. s. $500 The effect of this
statute is to declare absolutely void a loea-
/ ton not followed by a survey within
/ twelve months after entry and to restore
the land once bound by it to the mass of
/ unapprOpriated public domain, and to
| subject it to relocation by any
| person, but the land cannot be
relocated under the certificate on
/ which the forfeited location was made.
! The locations made in 1880 and 1881
ceased to confer any right on failure to
make surveys within twelve months after
! location was made, therefore they inter-
posed no obstacle to tie appropriation of
/ the lands by appellee under valid land
certificates. Held: That appellee ac-
| quired valid title and the judgement of
the court below is affirmed. Affirmed :.
| Opinion by Stayton, chief Justice
| w. r. Pau VS.. L.. r. Ortiz, clerk; ap-
| peal from Webb county. If the clerk of
a court had the power to deliver. TO the
assignor OF juror or bailf certificates
that would evidence the aSsignor's right
as such to the sums claimed, it would be
necessary for him to pass on the validity
of the several transfers through which
appellant claims, thus exercising
judgment or discretion, the courts
would not control him in this re-
spect through a writ of mandamus,
but it would leave appellant to
his ordinary legal remedies. a clerk,
however, has no such poweror right con-
ferred upon him to pass upon the validity
or the genuineneSs of the claim OF the as
signor to the sum due TO juror or balif,
and should he exercise such a power it
should be at his peril. Such demand
would be for the performance of acts
which the law does not make purely the
ministerial duty of appellee as clerk
Judgment affirmed. Opinion by Stay
ton. C.. j.
Mayer, Kahn s. Freiberg ct ais vs.. J.
NJ. Duke; appeal from Colorado county.
In this case attachment was levied on
plaintiff stock and the jury awarded
exemplary damages. Held: When an
attachment has been wrongfully and ma
liciously sued out, the jury are permitted
to take into consideration the loss of
credit in assessing the exemplary
damages. The damages are large;
but 1t Is a gross outrage,
wrongfully and maliciously by process of
law to seize a debtOr's property and
break up his business, although he may
be unable promptly to meet his obliga-
tions. Judgment is set aside as to the
sheriff attaching, he being protected by
the writ sued ont. He is
dismissed with his costs.
Tho ,apiIrt fiuoJ oo,,veol e.,
plaintiff for contempt of court, because
of the language used in the closing
speech. The offensive words were cpl
thets which are always weak and cannot
be presumed to have influenced the jury
Motion to set aside Judgment on the
ground of absence of defendants material
witness was properly Overruled. party
to IL suit whose testimony is material to
his cause may prefer to give his testimony
in person. But if he does so he
takes the risk of losing the benefit of his
testimony, in the event he should from
any cause fail to attend upon the trial.
The appellee will recover his costs both
here and i'll the court below, except such
costs as have accrued by reason of the
sheriff having been made party to the
suit. Judgment affirmed. Opinion by
R. r. Gaines, associate Justice.
u y. huDI cG al VS.. - H. an VOL
kenberg; appeal from Harris. The law
as it stood at the date this Judgment
was rendered (l847) allowed the petition
to be referred to an action of trespass to
try title as well as in other suits, to aid
the description furnished by the jIdg-
ment. The foreclosure part of this iudg-
ment depends entirely upon the petition
for description of the land
The order of sale ard petition were |
missing from the files of the court: the |
district judge permitted plaintiff IS attor-
hey to testify that he with the clerk, |
had made diligent search i'll |
the Office of the clerk for the |
missing papers, but they could not be |
found, and no trace of them except the |
receipt of the firm of lawyers one of |
whom had moved away many years be-
fore and the other knew, nothing of the |
papers. Held: a proper exercise of the |
discretion of the court to hold that the
absence of the records was sufficiently |
accounted for, and that the sheriT's |
deed, which fully described the property,
was admissible in evidence as an ancient
Affirmed. Opinion bv
Henry, associate Justice
Charles NJ Fisher vs.. Dow Bros. ap-
peal from Polk Co. Suit to recover the
value of lumber, agreed to be delivered
II payment Of land. The defense was
that the vendor of the land represented
that the title was good both by deed and
and that the title had wholly
failed, also, that no demand had been
made for the lumber. 1t was shown
that the vendee had transferred part of
the land, thus placing it out of his power
to recover such title as he had received,
and he made no offer to prove that he did
not have title by limitation Held. That
these facts were fatal to his defense.
Held: Also on the evidence that a de-
mand for the lumber was waived by de-
PENDANT s refusal in advance to deliver
On account of the alleged failure of title
to the lots. The proof of value of the
lumber did not designate time and place,
but no specific objection was made and
the defendant in his testimony did not
the value claimed. As the
contract called for first-eIass lumber this
proof was held sufficient. Interest was
allowed from date of filing suit. At
armed. Opinion by Gaines, associate
;uSti0p