The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1883-02-18


all the parties thereto, and II
anything is lost on account Of his failure to
use such diligence, not only the surety but
the principal Is discharged 10 the extent
that he is Injured. The maker OF the note
having gone b Kansas, and appellant
having followed him there with the notes,
aud II being shown that by due effort the
amount OF the notes might have been re-
covered, aud no such effort as was nee
essary being shown on appellants part, the
judgment ought To be affirmed. De'any, ].
Moody & Jeuison vs.. Levy ct al; from
Gonzales county. The sole question IN this
case turns upon the action of the lower
court in quashing the affidavit for attach.
ment because it stated "this attachment Is
not sued out tor, the purpose OF iuiuring aud
harassing defendants. Held, there was no
error In the courts action. The statute, in
the phrase used, intended more than a
mere redundant expression, elgnifying an
other phrase O! that which Was embraced in
The tirst part The plaintiff must make
affidavit that his purpose ia not to iniure
the defendant, in the sense OF inducing
damage or loss. aud he must also swear that
the purpose is not 10 harass the defendant
IN the sense that the word is usually under
stood. The court therefore properly sus'
tained motion to quash because the ALL
davit simply stated that II was not the pur-
pose to both injure and harass the defend
ant, Affirmed. Opinion of Walker, p. j.
adopted.
Atkinson vs.. Mead OF al. from Gonzales
county, In this case appellee Ward sued
alone, alleging that, with certain heirs, g
was joint owner of the land IN controversy.
lie prayed for Judgment quitting him ia
his possession o. the undivided One.thUd.
Iha ynr.ltst xVgu Wnrt ulnun IlfFp.
upon Judgment was rendered IN favor OF
Ward aud his Joint co.owners. Held, the
judgment was not warranted by the verdict.
Ward alone was entitled to recover The
trial being had under the Revised Statutes,
under the allegations In the petition ward
could only recover his undivided oneihird
interest. Since by the Revised Statutes one
can only recover his distinct portion as sued
Tor aud distinctly stated IN the pleadlnBs
aud petition, (Groshaus vs.. DeLOpe2; last
Tyler term) Reversed aud remanded.
Walker, y. /.
lleidcnnelmer VS.. Gnrten Verein, from
Galveston county. Appellant being on the
bond OF contractor Who had Jailed IN ms
contract to build u pavilion for appellee
upon certain conditions undertook to carry
out the contract and 20 construct the pa
yilion, according to the plans and speCliCa-
There was u disagreement, Heidenheimer
ceased work, the appellee iinighed 1t, and
brings SUIT for the difference ia cost There
was no conflict rs to the flooring, about
which the difference sr0se, but appellant
COntended ns the original contractor had
deyiated from The contract, he had the right
TO continue in the deviation. The court
below held otherwise; held correct. The
evidence undoubtedly showing that the ~ =
pellant and not the architect, was to blame,
q charge of the court holding that, VIII ether
Heideuhemer or the architect was to blame,
etc, did not iniure appellant, aud the judy
ment cannot be reversed for that abstract
error. Affirmed, Watts, j,
Ranthun w. Hllllmann, from Colorado
county, An owner may create Il high way
by dedication or donation Of his land for
that purpose, when such has been recog'
ni2ed AZ u highway by the proper public
authoritieg,or when such has been accepted
and used as such by the public, An intent
to 80 dedicate the land must he SHOWN by
the acts and declarations OF the owner, and
such acts should Enthusiastically show the
intention to dedicate the land absO
lately and irreyOcably 10 the public use
The fact that way may have no outlet, or
may terminate IN Il private road, does not
prevent Il dedication 10 public use. The
owner may, without an intention OF dodlCa
ton, permit the public to use u way, but
this would only constitute Il license, reyok-
able ut pleasure. The charge OF the court
below, not being in accordance with these
principles, as above announced, tho JUG.
mont is reversed and remandeG. Watts, ],
Kendall VS.. House; from Fort Bend county
For statement, see this case in So Tex, 40,
The sale hy appellant being with the CON
seat o, and afterwards ratified and con-
lirmed hy the remaining executor, it rem
dcred the agreement binding on the estate,
/ az Tex, $50, W Tex 23D. such agree,
ment and ratification being shown, 1t can
not be considered personal obiipnliun al
the appellant, for 1t is only upon the prlu.
clple that " is not obligatory upon the
estate that would make it binding upon
| the appellaut<sNd would make Inn liable.
| rhacourt therefore committed fundamental
error In rendering JUDGMENT against the
/ appellant in his individual capacity, for
which the judgment Is reversed aui re,
manded, Watts, J.
| Baker ct al. vs.. Smith from Harr
county. One Never subscribed for five
shares Of Central railway stock, giving five
promisory notes therefor. ono DAVIS sub
scribed for two, doing likewise BY trans,
fer these notes came iuto Smiths posses
sion, The shares ol stock were aitcrward
issued and came into Bakers possession
Smth suod aud recovered upon the notes
but being unable 10 make II out Of the par
ties, sued Baker aud the railroad for the
stock, The Judgment rendered ordered
the shares of stock TO be delivered up aud
to be sold, and in the event Of failure gqy,
judgment against the parties Held, tn,
| pleadngs did not warrant the judgment
! There WINS no lien nm the stock far the nav
ment OF the notes. The right of forfeiture
did net pass by the assignment of tn,
notes. The judgments being obtained
against Meyer & Davis, in 90 aud 60, anl
Smith asserting no claim for them unit
70, his demand was stale and not enforce
able in equity. Reversed aud dismissed
| Watts /