The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-05-18
SYNOPSIS OF OPINIONS.
REPORTED Expressly for the sr.rr.u.N.l
supreme Court.


Dwyer V. Continental insurance COM
p1ny: appeal from Washington county
The cause of action asserted was for loss
ny bfe against an insurance policy. The
defense was fraudulent burning by plain
IN Charge OF the court iustructing the
jury that the burden of proof was upon
appellee was predcaled u on the
grounds ~ TO the existence aud COLI
tents OF the policy sued on; value of
goods in stock, and those DESTROYED; that
the loss was not the result OF the uishou-
est practice of the insured or his assignee
or agency. a charge, presenting the
converse principle was asked. and re-
fused. Held. that the charge as given
was an instruction in effect to find
for the defense unless the evidence
showed dishonest burning by the in
sured, his assign or agency, which was
IN ELECT instructlug "A presumption which
the law, As a matter of fact, docs not in
dulge. Reversed and remAnded.-Stay-
ton, j.
Brooke vs.. Clarke; appeal from Gray
son county This suit wa, in.ttuted by
the plaintiff through next friend, Tor in
Juries, by malpractice, ia delivery at
birth; the pleadings alleging that The
defendant, as an accoucheT, by reason of
Uu>kiiliul attention, damaged and M
jured the plaintiff to n large amount.
judgment was rendered for plaintiff for
suit on suggestion OF death OF appellant
was Overruled. The appeal, however,
was ui'mlsse because the action was
prosecuted by next friend and not by
guardian: but, or rt-uearing, such ruling
was reversed. On Gra trial. held that
the injuries inf cted bringOi life tenure,
this court cannot hold the amount
awarded excessive damages. Objection
to a charge submitted on question ofeX-
empiary uamages cannot tie made in this
court for tie first time (and in this case
| such is not. in the record, assigned as
| error. But whatever may be the true
| rule on the subject, there is not in this
case such evidence As would negative in
| difference ON the part of defendant as
made il improper for the court TO charge
on exemplary damages. A1brmed.-Gould,
| q. j.
Seay VS.. Hill: appeal from William
| sou cOunty---WithOut proving levy and
! execution, II sheriff cannot show right of
pos essiOn as against one who is not Il
| party o the judgment or execution there
| Oh; and when such proof, through the
sheriff, was sought TO be made. without
| proper pre- dictate, such proof was proper
| ly excluded. The cOnrt, in this case. en-
ToneOusly allowed evidence to 20 To the
| jury upon question OF special damages,
which were excepted 10 at the proper
| time. The Judgment is therefore re-
NeGseu. anu lHe cause reminded unlesS
the damage of $50 be RENTED In ten
days, in which event the judgment Is
! affirmed .--GOuld, Z. j.
| Hines vs.. Thorn ct al; appeal from
| Young count, An inchoate claim for
land is a subject matter OF sale. A legal
sale OF the land carries with il IA legal
title to the claim or certificate by virtue
of which il was appropriated. II a certi-
| fed copy of a deed be offered In evidence,
| objection that il does not appear from the
copy itself that The original certificate
was under the officers official seal, If IL
purpOrts so to be, is not well taken, the
| presumption. in absence of clear proof to
the contrary, being that the officer per-
| forming his whole duty, the burden is
| upon him who attacks IA legal title, to
show Il SUPERIOR .uity. Aliirmed.-BOn.
| ner, j.