The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1882-06-29

and battery. Reversed aud remanded.
Wilson, j.
synopsis of Opinions of Commissioners oil
| Appeals.
! higgins Il Anderson VS.. II. G. Ford; APP
peal from Hill county. i. sued II. " A
for 500 for rent of a sLoIe-house, only q
| norton of which was due when distress
was sued out, because II. &c. n. were about
| to remove their property from the rented
premises. i. recovered judgment and atore,
/ closure of the lien was awarded. The bond
| to obtain the distress warrant omitted the
words "and uniustly," whereas the statute
expressly contained them. Question as 10
! the sutliciency of the bond to secure the
| distress warrant and are the terms Illegally
| and uniustly synonymous ana convertible
terms. Under our statute when an amount
| is due for rent the creditor has the legal
right to sue out distress warrant, but Ill
case the creditor should resort to the rem
edy by distress for the purpose OF harrass'
ing his debtor, sues out and witt issues
"uniustly,n the Legislature is not pre-
sumed to use surplus words meaning the
same thing if a different meaning can be
assigned to the words of an enactment Re
versed and remanded. Watts j.
Trial and wife VS.. Lepori; from Wilson
and filed by justice is an original paper
and must be transmitted to the county
court The variance between the name
"Lapori" used in the bond, and "Lepori'
are idem sonans, and are sufficient. One vt.
App. 53l; 2 Ct. App. 800 The principal
is not required to sign the appeal bond, he
is etfectually bound by the Judgment with
ont so doing. Tex, $50. The fact that
his name when signed to the bond was
''Lepori Leretin'' instead of mLeretn1
Lepori," would not invalidate it. The legal
effect of the bond given was the same
as if the language of the statute had
been used. Lee ct al VS.. Stone, supra.
Where the amended petition purports to be
filed by permission of the court two months
considered as having notice of the same.
p Texas 49, ibid, %. Reversed and re-
manded. Watts, i.
Brown VS.. Him; from Dallas county.
The proposition that as bond had con-
veyed the land before the purchase money
note had been sued on by Burtord, there
-veg i.otu.ng to pass by sheritls sale under
foreclosure judgment, therefore the appel
lee failed to show such title as would sus-
tain the plea of three years Limitation,
is not sound 26 Texas 100; q Texas
2i9; do not sustain the proposition.
Where one whose land has been sold by
Judgment against him, and he remains
upon the land three years after the sale he
has no title upon which to file q claim.
Here the appellee has occupied the land by
regular deed for more than three years, he
traces his title therefrom, step by step, and
regularly connects himself with the adj
mitted common source who it is agreed
held under q regular change of transfer
from the sovereignty of the soil. We are OF
opinion that the term title as used in the
section (of three years limitation) means
pl,n Of ire
sovereignty of the soil as when tested with
out respect to other titles, is regular, and
as between the various links, they are
valid. Affirmed. Watts, j.
Ewing VS.. Baldridge; from Washington
county. 1t is not every defect of pleading
which may be fatal on demurrer, that can
be reached in motion in arrest of Judg-
ment; if the issue joined be such as neces-
sarily required, on the trial, proof OF the
facts so imperfectly or effectively stated,
such defect, imperfection or omission is
cured by the verdict. But if the petition
state a detective title or totally omit 10
state any title or cause of action whatever,
a verdict will not cause the defect. Where
there is no statement of fact in the record,
nothing can be assigned as error OF law
which could have been cured by evidence
legally given at the trial. Until the con-
trary be shown, the appellate court Is
bound to presume that the evidence
is sufficient to sustain the Judgment.
Every legal intendment is IN favor OF the
Judgment, and everything will be presumed
TO have been proved which could have
been legally proved under the issue.
Where the petition sets out the ia IT'S which
constituted the alleged fraud, and charac-
teriZed them as being intended by the de-
PENDANTS 10 cheat, wrong and deiraud tue
petitioner, it is sufficient to allege fraud.
Relief by injunction in proper cases, IS
granted to protect the security OF the mort
gagged, where adequate protection cannot
be obtained at law, and where he would be
without adequate remedy. The court did
not err in overruling defendants demurrer.
Affirmed, with 5 per cent damages for de-
lay. Walker, p. J.
Eyerhart ct. al. VS.. 0'Bannon ct. al; FROM
Grsyson county. Plaintiffs claim that the
sheriff has failed to do his duty whereby
they have been damaged. Although this
is a negative allegation they should have
offered proof to sustain it. Green Ey., sec.
rs. The proof offered showed that they
placed in the sherifI7s hands writ which
directed him to attach goods enough to
make over 500; that the goods attaced when
sold some months after brought only S2CO.
Held, il does not necessarily follow that the
sheriff failed in his duty. The return
shows that he levied on goods valued at
500. This is at least prima facie evidence
for him. The return was sufficient until
controyerted. The fact that the goods sold
for less than the sheriff's estimate is not
sufficient. The question properly IS; DID
the sheriff exercise caution and reasonable
discretion, such as should influence the con-
duct of prudent and discreet men, in the
Of their own affairs? 81 Tex,
100, The Judgment is not sustained by the
evidence. Reversed and remanded. De
laney, ].
Morris et. al. VS.. Meek ct. al; from Hood
county. The deed 20 Meek bears date No
We nber, IA, 1870. His possession prior TO
that time must be considered the posses
sion of Mrs. r. The suit was filed October
IS. 1873. Three years had not elapsed be-
tween the date Of the deed and the COM
Of the suit. II was therefore,
error in the court 70 give in its charge the
statute of three years Limitation. q Ter,
PAS: Is Tex, 40. IL the title OF defendants
In error rested on this plea. reversal Of the
Judgment would result. but the plea - Dot
considered material.
Seventeen years after purchase without
giving any notice Of claim, they institute
his suit. The doctrine expressed IN -
Tex, al, has since been oyerruled az
Tea, 50. The fact that q small amount OF
he purchase money remained UNPAID oOes
iOt alter the case. Affirmed. Delaney, J.
,y5opsIs Of Opinions Of the Supreme Court
Gasquet vs.. Collins A Campbell; error
rom johnson county. Although the
.arIier decisions Of this court held motion
o ouash an attachment good and tenable
or want Of seals 10 the attachment bond, /
-ef the contrary is nov held; IS Texas, Dis /
While there afirmafivelF appears no ez-
eption 70 the ruling Of the cOurt sustain
NJ the notioa 70 quash. yet the order show /
ng that receiver vas arPolH1iea 70 - :.
i.eree Of the goods instead Of ns usual IN |
'nrli r.sses delivering the attached goods % /
~ defendant. ID can only be held that sucn
-IIrr Wa made on the ground that TIE
pint wsns reserved for appeal. Reversed
I--.-.r~