Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1892-03-07
COURT Of APPEALS.
DECISIONS MADE AT THE SATUR-
DAY SITTING.
Another Riot Case Reversed and Dis
missed-A Receipt for Money Only
Prima Facfe Evidence of Payment.
Special to the Gazette i.

special 70 the Gazette.
GALVESTON, Tex, March 5.-Calvin
Springfield vs.. the State; from Waller
county. Conviction for engaging in a riot.
Similar III all respects to Blackwell VS.. the
State, passed on at a previous day OF the
term, in which it was held the information
fails to charge the offenSe of riot. Reversed
and dismissed. Opinion by Davidson, j.
H NJ Brown and w. ]. Pool for appellant.
A j. Hendricks VS.. ]. Leopold & Co. /;
from Dallas county. The court erred in re-
fusing to permit appellant to explain the
check offered and read in evidence by ap-
pellee. A receipt for money is only prima
facie evidence of payment. 1t is not con-
elusive. 1t may be explained or contra
dicted by parol It was not necessary for
appellant 20 file his sworn plea in nature Of
plea of non est fsctum in order to explain
the check or receipt. Reversed and re-
manded. Opinion by Davidson, j. Thomp-
son & Thompson for appellant
Arthur A. Messer VS.. Barrett & StJohn;
appeal from Dallas county. Plaintiff
for $500. Defendant agreed to sell the lots
for plaintiff within sixty days for 500 cash,
providing a penalty for failure to do so.
Plaintiff sued for penalty. Defendant
answered that the consideration passing TO
them for the lots was horse and buggy,
WHICH ldlI6u 10 PROVE dS represented duu
were worthless, ETC., and asked ia cancella-
ton of contract, etc. 1t was error to sus-
tain general demurrer on the ground that
it was suit involving title to land 1t was
an action for damages for breach of con-
tract. Reversed and remanded. Opinion
by Davidson, j. Paul McCombs for appel
liant.
John Mckay VS.. G. S. Barlow; from
Arkansas county. In constituting the statutes,
with regard to appearance day together,
and because repeats by implication are not
favored in law, the court holds that under
the amendment of 1891 the party would have
the whole of the second day in which to file
his answer, and while the appearance
docket is called on that day, still Judgment
by default cannot be taken until the third
day, as is provided in Art. 1868. Reversed
and remanded Opinion by White, P. J.
NJ j. Hathaway and G. f. Bailey for appel
liant.
William Green vs.. the State; from Brown
county. Defendants connection with the
alleged stolen horse was only shown after
it was stolen and ninety miles distant fro m
place of the theft. In order to make him
liable the testimony should have shown
that he was in some manner connected with
the original taking. Reversed and re-
manded. Opinion by White, P. ]. Jenkins
& McCarty for appellant.
Gulf, Colorado and Santa Fe railway
company VS.. w. B. Lockhart; from Gal
weston county. Original application for
mandamus to compel the county judge of
Galveston county to sign bill of excep-
lions to the action of the court in falling to
instruct the jury not to converse with or
suffer themselves to be addressed by any
other person on any subject connected with
the trial. Our statute requires that bills of
exception should be reserved at the time of
the alleged erroneous act of omission or
commission. This applicant failed to do.
The applicant does not show that he pro-
posed to establish the fact that he would
have been injured by the dispersion of the
Jury Mandamus refused Opinion by
Davidson, ]. c. K. Lee. for applicant; w.
B. Lockhart, county judge, for himself.