The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1890-06-05
PROCEEDINGS IN THE TEMPLES OF
JUSTICE HERE IN
AUSTIN.
Important Decisions in the High Courts
and Minor Legal Matters In the Dis
trict and Other Courts.
DISTRICT COURT.

on foreclosure of lien.
State of Texas VS.. j. S. Morris
charge, burglary; verdict not guilty.
State of Texas VS.. Ensey Tyson;
charge, burglary; dismissed.
Decree of partition; Falcon and
others against Andrew Hero ct al.
1t was announced that witnesses in
criminal cases who fail to attend the
court will be prosecuted to the full ex-
tent of the law.
JUSTICE CALHoUN's COURT.
Chas. Lundgren was yesterday on
trial before Justice Calhoun charged
with disturbing the peace; found not
guilty.
John Ballinger, colored, charged
with theft of over 500; bound over in
he sum of $500.
SUPREME COURT.
G., G. & S. F. RY Co. VS.. w. T. HUD-
SON, from johnson county. Opin-
ion by Stayton, @. j.
Appellee stopped with a drove of
cattle for the night about half mile
from appellants road on the highway.
During the night storm came up,
the cattle stampeded, ran, notwith-
standing all efforts on part of appel
lees servants to appellants road. The
road was not fenced and number of
the cattle were killed and wounded by
passing train. The defendant tried
to prove that an ordinary wire fence
would not have stopped the stampeded
cattle. Held: This evidence was
properly rejected. The clear meaning
of the statute is that the railway shall
be liable for the stock injured or killed
by the cars unless the company prove
that the road was fenced; in which
event plaintiff shall not recover unless
the injury resulted from want of Or
binary care on the part of the road.
Other exceptions need not here be
considered. 1t would be incompetent
for the road to show whether or not
the injury would have occurred had
the road been fenced. All instruc-
tons to the effect that if the road had
used ordinary care it would not be liza
BILE were properly refused. The road
being unfenced the company was liza
BILE, as ordinary care does not then ex-
list. 1t was claimed that some of the
injured cattle died afterwards for want
of proper care given them by appellee /;
on this plea the burden of proof wonld
have been on defendant. The judg-
ment under the evidence was not ex-
cessive.
Affirmed.
d. 9. NEWTON EFT AL. VS.. MARY New
TON, from Guadalupe county. Opin-
ion by Gaines, ].
Suit on promissory note by appel
lants to their father, who died, having
bequeathed it and his other property
to Mary Newton, his second wife, the
stepmother of appellants. She sues
as legatee. In order to maintain their
plea of want of consideration appel
lants offered to prove by the wife of
one of them conversations between
deceased and her husband relative to
said note. The exclusion of this tes-
timony was error, although contrary
TO appellants contention witness had
an interest in the suit, as a judgment
against her husband would affect the
community property, in which she
had half interest (62 Tex, 170). Is
the capacity in which plaintiff sues
such as to preclude any party from
testifying to statements by her hus-
band during his lifetime? Art. 2248
establishes exceptions to the rule laid
down in Art. 2246, that parties may
testify in their own cases. This Art.
224S is hold to embrace all the excep-
tons. A divorce or legatee is not in
legal Specification an heir, nor is such
party embraced in the term legal
representative and therefore the plain
tiff is not within the exception and
the rejected testimony was admissi-
BILE. A promissory note imparts con-
sideration, impeachlng the considera-
ton by sworn plea leaves the burden
of proof on the party impeaching the
consideration. If there was originally
consideration parol evidence was in
admissible to show that paymen,
should only be demanded in case O
need, because that would be varying
written contract by parol.
Reversed and remanded.
J. w. PosEY EFT AL vs.. T. A. BASS,
from Nolan county. Opinion by
Gaines, J.
Appellant owned two and seven
acres respectively in two different sec
tions. The home was on the two acre
tract, orchard and stables on the seven
acres. All of it was enclosed. At the
time he moved to the place the north
boundary of Sweetwater was 400 feet
south OF the place. The town limits
were moved north twice, the last time,
when the town was incorporated, the
limits extended sufficiently far north
to embrace most OF tie nine acres.
The premises were never laid off, how
ever, into lots or blocks. At one time
Posey was engaged as a partner in a.
mercantile and at another in the land
agency business, and he owned in COM
mon with his respective partners the
place of business in Sweetwater proper
Was the tract under these circum-
stances the homestead of Posev or