Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-12-08
COURT OF APPEALS.
synopses Of Decisions Rem Tered az the Pres
ent Tyler sitting.

syBopses OF Decisions Rendered az the Pres
ent Tyler sitting.
Correspondence OF the Gazette.
TYLER, TEX, Dec. Cd. q.
HirshEeld vs.. city of Dallas, from Dali
las. Conviction for pursuing the occupa-
ton OF ticket broker and scalper with
out first procuring a license therefor
l. Under section 100 of the charter OF
1.-The city Of Dallas is given the power to
isfk~'uee, tax and regulate certain enum-
Grated occupations. aud also sail other
trades, professions, occupations and
callings, the taxing Of which Is not pro-
hib ted by the constitution of the suite of
Texas, which tax shall not be con-
strued Us tax on property.' Held:
The city Of Dallas, under its charter and
ordinances, has the right to lew an oc-
cupa;ion tax on ticket brokers and
scnipers. While the state does not tax
the profession of a railway ticket brok er
and scalper, still under its charter and
eNtuauces the city of Dallas has the
right to levy the tax =. There was
evidence that the tax of $500 per year
levied by the city was more thau
enough to regulate the business. Two
witnesses swore that the tax acted as,
and was in fact. a prohibition of the bus
mess. and this evidence was not contra
d:cted. If this be true, ann the occupa-
ton is not per SO injurious to the public,
the ordinance is void. In view
of this unimpeached evidence
that the tax amounted to a prohibition
of the business, we feel constrained to
hold the ordinance void, because in ey-
Ir,, r.,f fEG,f md
because 1t prohibits the pursuit of an oc-
cuIation which any citizen would have
the right 10 pursue under reasonable tax
restrictions and regulations. The ordi-
nance 10 invalid and the ju igment ille-
gal. Reversed and remunded. White,
p. ].
Robert Glass VS.. the State; from Bas-
trop. Robbery. /. The Indictment was
presented and filed October 10, 1889. The
evidence shows the oIense TO have been
committed October Z. 1890. Held: Be-
cause the evidence does not show the
oiIense to have been committed anterior
to the prrsentment and filing of the in
dctmsnt the cause is reversed and re-
munded. Wilson, J.
Wier 'Plow Co. vs.. Hattie Carroll at
al. from Ellis. /. Abe Carroll was in
the livery business and being lnsoivent
made bill of sale and sold the horses in
controversy to his wife. The wifa knew
OF his insolvency and the sale was Sc
cret, no one but the husband and wife
knowing of the transaction. The business
was carried on after the sale as before.
Held: To our minds the transaction
was clearly fraudulent, and it was evil
IDENTIFY the intention of the husband and
wife 10 defraud the creditors of the
former. The judgment Is reversed and
here rendered that appellant have judy
ment for the amount of his claim in the
court below rs prayed for. all costs OF
suit, and 10 per cent damages on amount
of claim. Reversed aud remanded for
appellant. Wilson, J.
+. T. Sims vs.. Howell Bros. Shoe
Company; from Navarro. Suit upon
account. l. 1t was error to permit ap-
peliee TO Introduce IN evidence the az
count sued on, to which affidavit WAS
made under Art. 2266. R. S.. because III
the time of the institution of the suit the
account was not due. Reversed aud re-
munded. Wilson, J.
John c. Brown, Receiver, VS.. Rose
dale Street Railway; from Tarrant. Sui,
by appellee for the destruction of one of
It's cars 10y appellant. /. Allegation and
proof that the railway while in the hands
of the receiver expended large sums of
money in betterments OF the road, wouHss.
render the company liable for
the negligence OF the receiver
after his discharge, the property
being returned 10 the company.
2. The court erred in refusing to permit
appellant TO prove by several railroad
men Zone nu engineer, another fire.
unan) that the engine was running at
low rate of speed at the time OF the col
iission. Prima fncie they were experts as
TO the speed of engines and trains. The
rejected testimony was material on the
issue of negligence. Reversed and re-
munded. Wilson, J.
W. A. Pruitt VS.. L Kelley, from Ma
varro. Suit bv appellant on recital con-
ira". with distress warrant. /. The
court erred in charging the jury tina. II
the distress warrant was illegally sued
out, that is If the ground stated in the
affidavit for the distress warrant was uu-
true, they would tud FOR defendant.
Apppllau, was entitled TO recover on his
rental contract regardless of the distress
warrant. (G5 Tex. 1927 Reversed and
Wilson, J.
Jamss Passmore vs.. The State; from
Shelby. /. This case rests upon the
testimony of the prosecutrix. She testi-
fled that she was married woman and
that the assault to rape was committed
ut tine house of appellant. She was sleep
ing III the same room with appellant ana
his wife, aud that she awoEe in the
night and found that appellant
had unfastened her uud-rclothes and
was performing the act CT population.
That she pu, her hand on him and asked
him who il was, when he got up and
went buck TO his bed. She testified In
the examining trini that all that appel
LIANT did was to unfasten her under
aud pull thetn up. She told her
husband the next evening. Held: The
evidence does not support the convic-
tiou. 1t does not appear that such force
was used as was calculated TO overcome
resistance, considering the strength of
the parties. The evidence tends TO
show that appellant intended TO have
carnnl intercourse with the prosecutrix
by stenlih and with her consent. Re-
ve-set, and remauded. Wilson. J.
Il. 5 Gclight.v ct al. vs.. J 7. Irvine;
from Ellis. l. The affidavit in forma
pauperis reads as follows after the cup
ton: :And now comes FL. :. Golich,ly
aui H. S. Goligh,Iy. Jr. and in open
court make application to the county
court of Ellis county, and each urou