The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-06-05

anu As appellant seconded Newly's right by \
puicnsse and assignment, and having taken
anu heid possession of the same until dis
possessed by the appellees, he thereby Is
isohshes the superior right 10 the land |
Reversed and rendered.
Hipp ct a.. VS.. Kerr, Machou & Co. from
McLennan county. Opinion by Delanep.
/ Adopted. The contract in this csse \
having been made before the act of Au. |
gust 'ln. 1876, took effect, laws 1876, p. |
w, me righis and liabilities of the public |
bar l1th, ISL, (Pas. Dig. art. 7ll9.) and by |
section 90, art. IL of the constitution, <
Judgement by default admits every allega. |
ON In the petition, which is well pleaded, |
out Ike any other judgment il must be |
supported by allegations which are sutfi- |
Gent. A Judgment upon insufficient aver. |
msnts cannot be maintained. Presley VS., !
Iestina, y Tex, 100. Hall VS.. Jackson, 3 !
Texas, go Ii is not alleged in the petition
except by inference that plaintiff furnished
the material. But fatal objection TO the |
petition is that it does not allege that the |
contract was recorded. pave VS.. Sanford,
o. Texas, bsl. II was intimated in Huck |
vs. Gaylord $50 Texas 57Sl that the statute
gives the "riSht to the lien, )" not only when
the claim is Que but for six months after
wards, but the case above referred to, held
that in order to fix and secure the lien so as
to maintain a suit upon it, it must be re-
corded. The petition also fails to allege the
privy examination of the wife as required
by the constitution (Art. l6, sec. SOL Re-
versed and remanded
Thompson ct al VS.. Shires ct al, from
McLennan county,. Opinion by Walker,
p.j, adopted. Unless facts, or crcum-
stances exist which tend to rebut the, in.
ference that written contract or obiga.
ton was delivered to the obligee its posses.
sion by the latter, or by one claiming it
through or under him, prims facie implies
and possession of it by the obligee or
grantee, or their assigns is prima facie evil
dence OF ownership. II deed.is found in
the grantees hands delivery and accept
snce is always presumed; Is Wash. Real
Prop, 4 Ed, sec. 29i. And the execution
oil deed in the presence OF an attesting
witness is evidence from which delivery
may be inferred. Where deed is delivered
to the grantee named, the law presumes it
was done with an intent to make his deed
stiectual; ibid e95). Affirmed
Kendall county vs.. S'eudebark ct al;
from Kendall county. Opinion by Watts,
j., adopted. Suit brought in the name of
the county and at the direction of the
SOuuty COuTt uDuu tue OIL
cial bond Of the collector OF taxes. Ex-
ception was sustained to the petition on the
groun that the suit should have been
brought at the instance of the county
treasurer;(Sec. 4. Ac. app'd April 18th, 1879.
Held, this act, as long as in force, GER
tainly authorized the county treasurer to
direct the institution of a suit like the pres.
ent. But after careful consideration of
the act OF May II, 1916, Up. d. Art. 1916
that of 1876 provided for the organization OF
the county Commissioners courts and that
Of 1870 comforting general power over coun-
| ty matters upon county court, We are led
to the conclusion that there is nothing in
the act of 1873 indicating an intention upon
the part of the legislature to make that the
only method Of instituting the suit therein
named, or to deprive the county or Com
missioners' court OF any powers or duty
with respect to suit in behalf of the county,
whatever might be their nature. 1t was
held in Wright VS.. Leath GA Texas, 2OS),
that the delivery Of an official bond to the
chief justice for the approval Of the county
court is sufficient delivery on the part OF
the obligators, and its deposit and record in
the proper Office renders itetfectual without
other evidence of approval on the county
court, while In Pom vs.. Brown Qb., 34), that
no formal order of approval of sheriff bond
by the county court is necessary to its va
tidity, whether given to the members of the
| county or Commissioners court, the boLd
is an obligation to the county, and suit can
be maintained thereon in the name of the
county. (Pas. Dig. Art. 1868 and 1861. Re-
versed and remanded.
COURT OF APEALs.
Lee VS.. The State, from Galveston comfy,
opinion by Wilson, j. The criminative
evidence is entirely circumstancisl and IL ere
being no dire,t.svidence.th that appellant con
United the theft, the court below should
have instructed the Jury in the legal princi
pals applicable to that kind of evidence
| (Gonzales VS.. the State, IL CT. ADD
657) Under the peculiar features of the
case the issue should have been submitted
to the jury as to whether or not the theft
il defendant was guilty, was felony OIL
misdemeanor, that is, whether the property
was valued at $40 or less. There was evi
dence that she found the necklace, and Il
the jury believed it, the remaining articles
were not valued at $40. Reversed and re
manded.
International & Great Northern Railway
ct al VS.. Pritchard; from Milan county.
Opinion by Wilson, ]. In our opinion IN
case No. 2,Sl3 between the same parties ss
to this case, all questions arising in tb {
case were considered and determined. The
two cases involve substantially the same
matter and present very nearly the same
propositions. The opinion in that case is
therefore adopted in this. Affirmed.
International d Great Northern Railway
ct al. VS.. Pr.tchard, from Milan county
Opinion by Wilson, j. Suit by appellee
against appellants jointly to recover the for
feiture denounced by Article 1858, Revised
Statutes, in oye.charging upon certain
freight shipped from Austin to Milan
Appellants demurred to appelle's petition,
and also excepted specially upon severa
grounds. which demurrer and special excep
tions were overruled. Held, the cause o
action in this case arising independently
OF contract is q wrong tort, and the &C
ton is ex deicto. This precise question
has been settled by the supreme court O
the United Statas, us Wall 53S) where il
was held, that practically the action is on,
ex delicto and for all practical purposes
must be treated as such. Being an action
governed by the rules for tort, II wa
properly brought against the two railroad
companies jointly, without alleging wha
relation they sustained to each other. Tn,
other questions raised are all noticed, bu
none are sustained. Affirmed.
-
Neither mental nor physical labor can be
accomplished satisfactorily unless the sys
tenn is in order. When you feel tired, Ian
guild, wearied without exertion, the mine
slow to act, and requiring great menta
effort, you can rest assured that your live
is not acting properly and that nature re
quires assistancento help throw off impuri