The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-04-29
scribe theland in the decree, this would

scribe thel in the decree, this would
not reverse the Judgment. Affirmed.
Il. G.. l., Weibush OF al. VS.. Isaac
Taylor, from Falls county. Willie, G. j.
II is no objection to an amended petit
tion that it sets up a new cause of ac-
ton. This merely subjects the plaintiff
TO the payment Of all costs of the suit as
originally brought, aud admits all de-
lenses which might have been set up to
the new cause Of action, If suit had been
originally commenced upon it, at the
date Of filing the amendment.
Where il was claimed in the answer |
that a recovery could not be had on the |
note originally sued on, because it was |
delivered before it was signed by as |
many sureties az had been agreed upon, |
and this was denied in the amended pc |
tition and prayer was made that in the
event the plaintiff was rot entitled TO re-
cover upon the note decl sred on in the
original petition, recovery might be had
upon the note first executed and FOR
which the other note was intended as Il
substitute. Held: IL was no objection
TO the petition that ii asks alternative
relief Of this nature, if each character OF
relief sought is appropriate TO the plead
ings in tho cause.
Where the evidence shows that GER
tain events transpired which would re-
lease these parties from liability ON the
second note, the first uJte is left in full
force and effect and plaintiff was ontit-
led to a recovery thereon.
Whore the note set out in the petition
| Is payable 10 I'M. j. Barron and Isaac
Taylor, administrators Of Thomas IL.
Burron,D and that offered in evidence is
payable to an, j, Barron and Isaac
Taylor, administrators OF the estate of
| r.. II. Barron,n the variance is inmate
rial. TO constitute fatal variance the
misdescription must DO such as to mis-
| lead or surprise the adverse party other
wise ia should be disreg arded by the
court. This rule obtains even where
the plaintiff assumes to give an exact
copy of the note. (McClelland &
Smith, 3 Texas 2l0). Affirmed.
George A. Clark IL Bro. vs. A. & Il,
Mittenthal; from Tarrant county. Stay
ton, |. Declarations of insolVent cred
itors as to their fraudulent intentions
made long before purchase OF goods
bv the other party at sales made by tue
United States marshall and sheriff,
made under attachments which were
not attacked, are not ord inarily admis-
sible in evidence.
That property may have boon sold ia
bulk, and that the proper notices Of sale
may not have been given, is NO
ground for holding in collateral pro-
Ceeding, that purchasers who bought in
good faith did not acquire title. (How-
ard VS.. North, 5 Texas, 29S; Sydnor W.
Roberts, ID Texas, sos; Hancock VS.. Mil
by, Is Texas, 205; Coffee Va. Silvan, Ii
Texns, 35f; Ayres vs.. Duprey, q Texas,
593; Freeman on Tx. 1856, 206) If there
were Irregularities in the sales which
tun1r1h bgNta umthnTfyp1 the antf inc ugf1f
of them, these could only be reached by
some proceedings instituted by proper
person for that purpose, 10 which the
parties TO the suits under which the
sales were made as well as the purchas
ers, were parties. (Ayres VS.. Duprey
q Texas, $685. Borgess. VS.. Howard, Il
Texas, 1853; Freeman on Tx. 800, 306)
Affirmed.
w. b. Wright vs.. John Shaub; from
Lamar county. Watts, !. Adopted
Property owned by MARI ed man who
was the head of n family at the time the
constitution took effect, April Is, 1876
and occupied by him as place coutin.
uously until the destruction of the house
by fire, in September, 1877, became 8
part of his homestead when the con
stitution took effect, and remained so as
long as he occupied it as q place TO eX-
erciso his calling or business,
The constitution protects the home
stead from forced sale for taxes, except
such as are assessed against il, and
: when tho homestead Is sold for taxes as
sessed against it and the sale was also
made to pay taxes assessed upon Other
property, the sale is void as to the
homestead.
1t was not the intention Of the consti
tuition to divest or destroy previous ex
| OF I'm md ln.,I
lien takes precedence to subsequently,
acquired homestead right.
An existing Judgment lien is such {
right as is beyond the power of consti
tutional convention to divest or destroy
Affirmed.
Henry Grabbenheimer ct al. VS.
Rindskoif, Bros. & Co. ct al; from Ilous
ton county. Delany, !, Adopted.
/ subsequent attaching creditor may in
tervene in order to have the judgmen
. of previous attaching creditor so
aside on the ground of fraud withou
giving bond. q Texas Law Review, 30
and 307.) A failure to allego the insOl
vency of the attachment debtor is fata
to the suflicioncy of the petition Of inter
vening attaching creditors. III a per
mits b, who ia but clerk foT him, L
represent himself (B) rs q member o
the firm of A Il b, and to contract debt
with @ upon the credit Of the suppose,
!, partnership, as against G, A oanno
I deny the existence of the partnership
or deny his liability for the debts as T.
! @, but this estappel only affects A, ant
! an antecedent creditor Is not estappe,
10 deny the partnership rs to c, or an,
one else, unless he, the antecedent at
a taching creditor, has participated In tn
fraud, In which event he would b
| ~ Al 4.
: partnership, there can he no right Q
, preference, TO which partnership cred
I tors can be subrogated, A clerk, VIII
receives a certain portion OF the profit
in lieu Of salary, Is not q partner. RI
vorsed and romanded.