Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-02-10

into the Collin county pasture, which at
tempt was prevented 10y witness; that
said Mnnguu claimed 10 represent
Sun IN finding out whether the cattle
were attached. One OF the objections to
this testimony was that there was no
proof Of the agency or authority oi sald
Alnngum la making such statements or
doing such nets save his own declnrn-
tiOns which were insufficient 10 prove
agency. Tho purpose of this testimony
Stems 10 have been TO show COLLISION
between the Mckinney bank aud sun,
aud that Stiff instead of complying IA
1 good faith with his contract was en-
| dpavOring To use the mortgage of the Me
| Kinney bank a, an obstruction To the
! fulGllment of his engagement IL viii
! be- seen therefore that the testimony was
of muteiial character
That ,he acts and declarations OF the
agent are madmissibc TO establish
/ agency Is elementary II is not re-
quircd, however that the proof Of agency
bc full und satisfactory before such acts
and declarations are admissible. III COM
potent evidence has FIRST been introduced
tending 10 prove the agency, the acts
aud declarations of the agency, VI other
wise competent. may Ice admitted, as IL
| Is the province of the jury to pass upon
the suthcicucy Of the proof upOn this as
well as other issues of fact Mechem
| on agency, cestion Jog.
No complaint IN made Of the suiliciency
Of the evidence TO support the verdict
nor OF the failure of the court to in
! struct the jury to disregard these acts and
| declarations In case The authority TO
| make them was not otherwise shown.
The only question then for us 20 pass
! upon Is, did the evidence tend 20 show
that Stin sent Mungum with q message
60 Withcrspoun? The circumstances
seemed to demand OF him that he should
az least send representative TO meet
NitherspOun nc Pilot Point on that day.
rs he failed 90 return himself accord
| ius TO promise made ON the previous day.
! lie admits that he did send Mnngum,
nut denies that II was for this purpose.
| Ia other respects his testimony was CON
| trndicted by some of the witnesses
| The circumstances tended 10 show, IL
| NppellceR witnesses were credible, that
! II was moro reasonable and probable
! lhot Mungum was sent with n message
| TO NitherspoOn on that day than 10
| carry money 10 a rauchlnan. as claimed
by Stii The judge trying the ease.
! with the witnesses before him. con
| cludcd that there was evidence tending
| 10 support uppcllop's theory on this
! p'ht' Hnd we are not prepared 10 hold
4 that In this there was error As tho
testimony OF Mungum, though nom
| resident, was not produced aud no at.
| tempt WNS made 10 procure 1t. we have
h'Sltateu much In approving this.
VII.
The plea In rcconycntion contains n
! traverse of the two grounds upon which
| !he attachment was sued ont Upon tho
! issue thus raised ms TO the truthfulness
OF the ground that the debt was due for
money obtained under false pretences.
| appellants requested the following charge.
| which was refused: "lf YOU believe
| from the evidence that plaintiff 4. l.
! Fisher advanced "a defendant n. M
! sun the sum of Sl2OO. which money was
obtained by false pretences made by
| sun, and the remainder of the money
advanced 10y plaintiff was not Obtained
IN such way then you are instructed
! 'hnt the obtaining OF such money I'm such
way would not Justify the charge mad,
IN tho affidavit chat the money sued for
WAS obtained under false pretpuces6
lhe evidence clearly called for this
charge IL IL he the law, that an attach
ment rs WrOngfully sued ont ON MS
ground where only part of the debt Is
que Tor property obtained under fnlse
prrtehces. This luoNion seems. so far
as our research has gone never To hnve
been raised before. and must therefore
po disposed OF without the benefit OF pr,.
ccueut. IL Scema 10 Us an attachment
Ia such case Is permitted by the statute