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 his 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 private bank, was by law
| the proper custodian, and entitled to commission
court correctly refused to charge that the appel
| lee was estopped from asserting his claim
after. settlement In the absence Of
ment includes all the transactions of the treas
| urer with the county. But the case shows by
| abundant proof that the claim here in issue was
not included. The admission OF PLAINTIFF tes-
| timony to the effect that his commissions
| amounted to about $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.
! The answer to one interrogatory propounded to
| a witness by defendant, was stricken out as
! hearsay. Afterwards this answer was offered by
/ defendant in answer to a cross Interrogatory by
| plaintiff. This was correctly rejected, because
| clearly inGdmissible in both cases. Affirmed
D. c. Newton ct al. VS.. Mary Newton, from
| Guadalupe county; opinion by Gaines, j., ,jssE3s
on promissory note executed by appel zstS to
| their father, who died having bequeathsFit and
| his other property to Mary Newton, hf second
| wife, the step-mother Of appellants. The sues
as legatee. In order to maintain thsfR plea of
want Of consideration appellants offered 20
between deceased and her husband relative to
said note. The exclusion Of this testimony was
eEror, 1tnousq contrary 70 appslLannLs Contea-
ton, witness had an interest in the suit, as
judgment against her husband would
affect the community property, in which
she had a half interest. I62 Tex, 10. |
Is the capacity in which plaintiff Sues such to
preclude any party from testifying to statements
! by her husband during his life time? Art. 2248,
r. s., establishes exceptions to the rule laid
down in Art. 2246, that parties may testify in
their own cases. This Art 224s. is held TO en-
brace all the exception. devisee or legatee is
not in legal Specification an heir, nor is such a
party embraced in the term legal representative
and therefore the plaintiff is not within the ex-
ception and the rejected testimony was admiss-
ton, impeaching the consideration by sworn.
plea, leaves the burden Of proof on the parry
impeaching the consideration. If there vas
originally consideration parol evidence was
inadmissible to show that payment should only.
be demanded in case Of need; because thar
would be varying written contract by paTdtl
Reversed and remanded.
William Zadiek ct al. vs.. Shafer, Schwartz g.
Co, from wise county; opinion BY Gaines, ].
the stock of Wartelsky & Bro. The last writ was
levied by appellees, and the previous ones by APP
Blankenship g. Blake, claiming under an 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 attIching
creditors, with the exception OF sppellees,
could have been satisfied, and for them
provided appellants had not run their attach
ment, in the contest over which the sum of
$751; 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 S514.o9. Against the contention.s6f
appellants the judge was warranted upod the
evidence Gdduced to hold that their claims were
in part at least fictitious, and that the attach
ments were run in order to defraud other cred
TORS. 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
beneficial effect to check fraud. Affirmed.
j. W. Posey ct al. Us. T. A. Bass, from Nolan
county; opinion by Gaines, J. Appellants
owned two and seven acres respectivefEi in two
different sections. The house was on the<tEn-e
acre tract, and orchard and stables on ~
seven acres. AL OF it was enclosed. At Sc
time he moved TO the place the north boundary
of sweetwater was $50 feet south OF the place.
The town limits were moved north twice. The
last time, when the town vas Incorporated, the
limits extended sufficiently north to ernAElHe
most Of the nine acres The premises were never
laid of, however, into lots blocks, but one time
Posey was engaged - q partner in mercantile