Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-06-01

without claiming any commission on the amount
realized on said lands and expended. He now
brings suit to recover mis- commission, year
after having gone out of Office, and he recovered.
Appellant raised the question OF the legality OF
the bonds, but this question was not prop
er one in this action. The bonds were issued,
sold and the money paid to the county and the
treasurer, and not a private bank, was by law
the proper custodian, and entitled to commission
on the fund thus collected. l65 Texas, S97 The
court correctly refused to charge that the appel
lee was estopped from asserting his claim
after settlement. In the absence Of
mnent includes all the transactions of the treas
urer with the county. But the case shows by
abundant proof that the clcim here in issue was
not included. The admission Of plaintiffs tes-
timony to the effect that his commissions
amounted to about $3.50 per annum, is objected
to, because the minutes Of the commissioners
court were the best evidence on that question.
But the evidence was offered to show that the
commissions did not exceed the statutory limit
of $1,000, and for that purpose was admissible.
q witness by defendant, was stricken out as
hearsay. Afterwards this answer was offered by
defendant in answer to cross interrogatory by
plaintiff. This was correctly rejected, because
clearly inadmissible in both cases. Affirmed.
D. G. Newton ct al. VS.. Mary Newton, from,
Guadalupe county; opinion by Gaines, j., 5sEetS
their father, who died having bequeatheFit and
his other property to Mary Newton, h7 second
wife, the step-mo Their of appellants. She sues
as legatee. In order to maintain theft plea OF
want OF consideration appellants onefpa 80
prove by the wife of one of them conversations
between deceased and her husband relative to
said note. The exclusion Of this testimony was
error, although contrary to appellants conten-
ton, witness had an interest in the suit, as
a judgment against her husband would
affect the community property, in which
she had q half interest. 81 Tex, 10.
Is the capacity in which plaintiff sues such as to
preclude any party from testifying to statements
by her husband during his life time? Art 224S.
r. s.. establishes exceptions to the rule laid
down in Art. 2246, that parties may testify in
he 0Tvn M
brace all the exception. devisee or legatee is
not in legal Specification an heir, nor is such al
party embraced in the term legal representative
and therefore the plaintiff is not within the ez-
ception and the rejected testimony was admiss-
ible. promissory note imparts considera-
ton, impeaching the consideration by sworn
plea leaves the burden Of proof on the parry
impeaching the consideration. II there vas
originally consideration parol evidence was
inadmissible to show that payment should only
be demanded in case Of need; because that1
would be varying written contract by pagof
Reversed and remanded.
William Zadick ct al. vs.. Shafer, Schwartz g.
Co., from Wise county; opinion by Gaines, j.
A number of writs of attachment were levied on
the stock of Wartelsky & Bro. The last writ was
levied by GppeIlees, and the previous ones by APP
pellants and some other firms, upon suit Of
Blankenship Blake, claiming under at
tachment junior to appellants. The latter were
finally postponed to Blankeship & Blake, be-
cause Of fraud in their claim. With the pro-
ceeds of the attachment sale all Of the Attaching
creditors, with the exception OF eppenees,
could have been satisfied, and for them
the sum Of s574.o9 would have been left over
provided appellants had not run their attach
ment in the contest over which the sum of
s57s. 90 was consumed by accrued interest, etc.
Upon this state of facts appellees sued appel
lants upon the ground that their attachments
were fraudulent and fictitious, by reason Of
which plaintiffs were damaged. They prayed
for recovery of the amount of their debt and did
recover $574.o9. Against the contentious -
appellants the Judge was warranted upod the
evidence adduced to hold that their claims were
in part ct least fictitious, and that the attach
ments were run in order to defraud other cred
itors. The Judgment Is also responsive to the
pleadings and prayer. Plaintiffs damage was
the sum Of money they would have realized II
defendants had not run their attachment. and
this they did recover. This action Is novel
one, but il lies as Is held IN Pick. 542 and has
q beneficial effect to check fraud. Affirmed.
j. W. Posey Ell al. vs. T. A. Bass, from Nolan
county; opinion by Gaines, J. Appellant
owned two and seven acres respectivelEin two
different sections. The house was on thE<tEQ<
acre tract, and orchard and stables on #h
seven acres. All OF it was enclosed. At &c
time he moved to the place the north bouaaary
of Sweetwater was 460 feet south of the Place.
The town limits were moved north twice. The
last time, when the town was incorporated. the
limits extended sufficiently north TO erahxas=
most Of the nine acres. The premises weru Hever
laid off, however into lots or blocks, bat one time
Posey Was engaged IS partner in q mercantile