The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-02-09
Synopsis OF Opinions of the Ceart
of Appeals,

Prepared for the Herald by Edward j. Ham
ner Of Galveston.l
Abe Rountree Va. the state Of Texas; sp.
peal from Walker county. Among other
things the court below charged the jury in
this case as folowp: When an oaense is COM
mltted by one person, others being present
and aiding by their acts or giving counte
nance to tho Preparation Of tho same to
those actually engaged in the commission of
tho unlawful act, are held as principal often
ders and may be prosecuted and convicted rs
such On this charge tho court Held: That
the rule of law is thst to hold person liable
as principal WITH others in the commission
of an otiense, II Ter, must be combination
of both act and n,ut. (P. G, article rs; 8
CT app. 4lSl Reversed and remsnded.
White, p. j.
John A. LyI al. VS.. George PfeuAar;
error from GIAd "lpe. In order for mo-
ton for conJnrAD,l may be granted, the
affidavit mu( snow the testimony for .ho
want of viii b it is asked Is material or that
due diligence was used 10 obtain it. At
frmed. White, p. j.
G. Ii. Il 5. A. railway company VS. Henry
Davis appeal from Guadalupe county.
A railroad is not liable for exemplary
or peremtory damage for killing stock I'M
less the testimony clearly shows that the
killing was wantoH, malicious and wicked
&C. on the part of tho engineer or the com.
pany's servants, and that tho act was au-
ihorized and approved by them; second then
the character of the stock killed, qualities the
uses to which they could be put, the value
of their services are proper to be considered
Reversed md reinar1od, White, j. j.
@. 3. Shepard VS. Don Phsers appeal
from Washington county. Appellant en-
dorsed the note in controversy IS follows
81 guarantee the collection Of the within
note" Hold: That Shepard was only con.
di.ional guarantor. lie did not guaranty It's
payment absolutely aud at all events, he
was only bound upon condition that Pnaers
would act with duo diligence in prosecuting
the collection Of the note. "Whero the prin-
cipal on a note is VIGOROUSLY insovent no
suit against him is necessary before giving
the guarantor" For error in charging the
jlry, shat in order TO fix Shepard's llabili-
w OuthIS WAS hNt uuunu w NAo SbllnluAu ,
(prmcipsD until the defendant Shepord
had notified him in writing to sue"
roe judgment is reversed and cause ro-
maDded. White. p. j.
0ltort. Rimes & Preston va White 81 King;
appeal from Falls county In this case ap-
pellees had execution levied on house
which sold for $50. Oltorf, Rimes 81 Pres
ton, attorneys in the case withhold the
amount; but $1,000 was for costs of the
sheriff. etc. Judgment was given below for
$3.50 with per cent. interest and 10 per
cent. damages on the 81 so. Held: That the
court below should have given judgment for
only $1,000 with interest and damages, and
therefore the Judgment is reversed aud re-
formed 80 TO hold. Reversed and rendered.
Winklor j.
A. j. Fry VS.. John Ireland; appeal from
Guadalupe county. Fry and Ireland owned
jointly Judgment on which execution WIS
lowed and money recovered. Fry failed 10
account to Ireland for his portion. To the
petition Fry filed general demurrer which
was overruled, because it alleged that the
petition should have alleged that there was o
special contract that the property should be-
come the joint property Of to parties
Held: That "the obligation of Fry to nc.
count resulted from their joint interest in the
judgment and tho purchase of the land with
ii, and it is sufficiently charged that the pur.
chase Of the property was done under Ire.
lands direction and for their joint account
Story Eq., 1901, OF seq. Affirmed. Win
| kler, j.