The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1883-02-22

ual augh diligence moi only the surety but
the pflnHpnl is discharged " The extent
that he " Injured. The maker Of the note
having gone ~ Kabns, aud 0pI ollnht
having followed him there with The notes,
and I bsihg shown that by due effort The
amount Of tho notes might have been re-
covered and no such effort as was noe
es8ary being shown on appellants part, the
judgment ought TO bu affirmed. Delany, j.
Moody 70 JpmIson vs.. Levy 81 ali from
Gonzales county. The sole question In this
csse turns upon the action of the lower
court In qun8hiug tie affidavit for attach
ment because II stated this attachment ~
not sued on. for the pnrposeo OF iniurinB ana
harassing defendants" Held, there was no
error In the courts action. The statute, IN
the phrase used, intended more than II
mere redundant expression, sigufying an'
other phrase OF that which was embraced in
the first part, The piaintilf must make
affidavit that his purpose is not to inJnre
the defendant, in the sense OF inducing
damage or loss, and re 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'
tainea motion to quash because the all
dayt simply stated that it was not the pur-
pose TO both iniure and harass the defend
ant. Affirmed. Opinion OF Walker, p. j.,
adopted.
Atkinson VS.. Mead ct al. from Gonzales
county. In this case appellee Ward sued
alone, alleging that, With certain heirs, he
was joint owner OF the land in controversy.
He prayed for judgment quitting him IN
his possession OF the undivided one.thlrd'
The verdict was for Ward alone. There
upon Judgment was rendered IN favor OF
Ward and his joint co.owners. Held, the
Judgment vas not warranted by the verdict
Ward alone WAS entitled 10 recover. The
trial being had under the Revised Statutes
under the allegations in the petition Waro
could only recover his undivided one.thlrd
interest. Since by the Revised Statutes one
can only recover his distinct portion as sued
Tor and distinctly stated in the pleading;
and petition; (GroshaaS VS.. DeLopez; last
| Tyler term). Reversed and remAnded
Walker, p. j. n
Heiden elmer VS.. Garten Verein; from
! Galveston county. Appellant being on the
bord Of CONTRACTOR VINO had failed IN his
contract to build q pavilion Tor appellee,
upon certain conditions, undertook to carry
out the contract aud 10 construct the pa
yi!ion, according to the plans and speclilca-
! tons, under the direction OF the architect.
There WAS q disagreement. Heide nheimeT
ceased work, the appellee iiniGhed 1t, and
brings suit fer the difference in cost There
was 10 conflict as 10 the flooring, about
which the difference arose, but appellant
COMMANDED, as the original contractor had
deylated 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 ap-
pelant, and not the architect, was to blame,
charge Of the court holding that, WI ether
Heidenheime r or the architect was to blame,
&C., did not iniure appellant, and the judy
ment cannot be reversed for that abstract
error Affirmed Watts, /.
Ranthum VS.. Haltfmann; from Colorado
county. An owner may create hlghWay
by dedication or donation OF his land for
that purpose, when such has been recog>
nized as highway by. the proper public
authorities, or when such has been accepted
and used as such by the public. An intent
to so dedicate the land must be shown by
the acts and declarations OF the owner, and
such acts should Enthusiastically show the
intention to dedicate the laud abso
lutely and irrevocably 10 the public use.
The fact that way may have no outlet, or
may terminate in a. private road, does not
prevent dedication, TO public use. Inc
owner may, withoutan intention OF dedica'
tion, permit the public to use way, but
this would only constitute license, revok'
able at pleasure. The charge of the court
below, not being in accordance with these
principles, as above announced, the Judg'
ment is reversed and remanded. Watts, j.
Kendall vs.. House; from Fort Bend county.
For statement, see this case in SO Tex, 40,
The sale by appellant being with the con-
seat of and afterwards ratified and con-
firmed by the remaining executor, 1t rem
dered the agreement binding on the estate;
az Tex, 535; So Tex 23l) Such agree
ment and ratification being shown, it can
not be considered q personal obligation OF
the appellant, for il is only upon the prin'
cipla that IL is not obligatory upon the
estate that would make IL binding upon
the appellant and would make HIM liable.
The court therefore committed fundamental
error in rendering judgment against the
appellant in his individual capacity, for
which the judgment is reversed anc re-
manded. Watts, j.
Baker ct el. VS.. Smith; from Harris
county. One Meyer subscribed for five
shares If Central railway STOCK, giving five
promisory notes aSsyefor. One Davis sub
scribed'lor two, dSNE likewise By trans.
fer these notes came into Smiths posses.
sion. The shares of stock were aiterward
issued and came into Bakers possession.
Smith sued and recovered upon the notes,
but being unable to make IT out of the pnr-
ties, sued Baker and The railroad for the
stock. The judgment rendered ordered
the shares OF stock TO be delivered up and
to be sold, and in the event of failure gave
Judgment against the parties. Held. the
pleadings did not warrant the judgment.
There was no lien on the stock for the pay
ment OF the notes. The right of forfeiture
did not pass by the assignment Of the
notes. The judgments being obtained
against Meyer Il Davis, in $50 aud go, and
Smith asserting no claim for them until
'73, his demand was stale and not enforce
able in equity. Reversed and dismissed.
Watts, !.