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 a 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. IS Texas, 597. The
court correctly refused to charge that the appel
lee was estopped from asserting his claim
after. settlement. In the absence OF
proof to the contrary settle
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 plaintiffs 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.
a witness by defendant, was stricken out as
hearsay. Afterwards this answer was offered by
defendant in answer to cross lnterrogatory by
plaintiff. This was correctly rejected, because
clearly inadmissible in both cases. Affirmed.
D. c. Newton ct al. Mary Newton, from
Guadalupe county; opinion by Gaines, J SsEss
on promissory note executed by appel zSsS to
their father, who died having bequeathekit and
his other property to Mary Newton, hf second
wife, the step-mo Their of appellants. he sues
as legatee. In order to maintain their plea Of
want Of consideration appellants ofensa~E40
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 a half interest. l62 Tex, 170.l
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
their own cases. This Art 2243. is held to en-
brace all the exception. A devisee or legatee is
not in legal signifcation heir, nor is such al
party embraced in the term legal representative
and therefore the plaintiff is not within the ex
ception and the rejected testimony was admiss-
ible. A promssory note imparts considera-
ton, impeaehing the consideration by sworn
plea, leaves the burden of proof on the party
impeaching the consideration. If there vas
originally consideration parol evidence was
be demanded in case Of need; because thaks
would be varying written contract by pare5E
Reversed and remanded.
william Zadick ct al. vs.. Shafer, Schwartz &
Co., from Wise county; opinion by Gaines, j.
number Of writs of attachment were levied on
the stock of Wartelsky & Bro. The last writ was
levied by appellees, and the previous ones bysap-
pellants and some other firms, upon suit of
Blankenship & Blake, claiming under an at
tachment junior to appellants Tit 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 attfehing
creditors, with the exception OF appellees,
could have been satisfied, and for them
the sum Of s574.09 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 S574.09. Against the contentiop.<lSf
appellants the Judge was warranted upod the
evidence adduced to hold that their claims were
in part at 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 If
defendants had not run their attachment. and
this they did recover. This action is . novel
one, but it lies Is held in Pick. 542, and has
beneficial effect to check fraud. Affirmed.
j. W. Possy ct al. vs.. T. A. Bass, from Nolan
county; opinion by Gaines, J. appellant
owned two and seven acres respectively in two.
different sections. The house was on ths<tEQ-s
acre tract, and orchard and stables on -.
seven acres. All Of it was enclosed. At iei
time he moved to the place the north bouf1ary
Of Sweetwater was $50 feet south Of the place.
The town limits were moved north twice. The
last time, when the town ives incorporated. the
limits extended sufficiently north 20 eHhzaaa
most Of the nine acres. The premises were aever
laid of however, into lots or blocks but time
Posey was engaged IS partner in mercantile