The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-06-10
THE HIGHER COURTS.
SUPREME COURT.

huku DuIHs We y. II. Iluudlo, lIOnu
Williamson county. Walker, p. j.
question of boundary. The only issue
was as to where were the boundary lines
OF the John Thomas survey made in
1871. Its calls were for the lines of older
and adjacent surveys, the field no tes OF
which were: Beginning at the north
east corner of survey No. 6, made for p.
O'Dougherty. Thence south II degrees
west with the north line of said No. 6,
1851 varas a stake in prairie and north
west corner of said survey No. 6.
Thence north 10 degrees west with the
east line of j. Dyches survey, Ass vsras
to stone mound and his northeast cor
ner, which l found. Thence north
II degrees east 2,7s6 varas to q
stone mound and southeast corner
of j. Dyches survey of $40 acres.
Thence south 10 degrees east 1000 varas
to y. Palmer's southwest corner q stone
mound in prairie. Thence north II de-
grees east 800 varas stone mound and
northwest corner of j. G. Eaves' survey.
Thence south 10 degrees east with said
Eaves' west line 2,9SS varas TO beginning
The court properly applied the evidence
in the case in determing the location OF
the controverted east line of the
Thomas survey. The stone mound, west
II degrees, east 800 varas from the
Palmer southwest corner was fully
Identified by very satisfactory evidence,
and it was manifestly proper to close
the Thomas survey by running to the
place of beginning by following the
Eaves west line to the southwest corner
of that survey. Under the facts dis
lance would clearly yield to the other
calls, and the excess of So Yaras in the
lA., Il Of thn lfNNn stNtn
inpediment to thus locating the line in
question. The courts findings or con-
illusions of fact are supported by the
evidence and the deductions drawn by
the judge from them are maniiestly
just and correct. They were: First,
that the west line of the Esves tract, not
having been run,is found by connecting
the northwest and southwest corners SO
found Northwest and southwest COR
ners of Eaves having been fixed by evil
dence). Second, that the plaintiff have
judgment fixing his east boundary line
upon the west line of the Eaves survey
so found; that as to the lands east OF
the Eaves line so done, plaintiff taking
nothing. Affirmed.
I. l.. Wren ct 81. VS.. John p. Peel ct
al, from Travis county Stayton, !.
While o judgment rendered against
both the principal and sureties on q re-
plevin bond establishes the liability of
each person against whom 1t is rem
dered, yet 1t does not change the rela-
ton between the principal and sureties
on such bond. In such cases the rela-
tons in all it's bearings should be recog-
nized.
In this State a judgement cannot be
rendered against surety upon any in
strument OF writing unless at the same
time judgment be rendered against the
principal, except in the cases in which it
is otherwise provided by statute. The ex-
copied cases are such as TO enforce the
general rule would prejudice the right OF
the creditor or operate no advantage to
the surety 10 have its judgment so rem
dered. The same reasons for which q
judgment against surity alone is de-
MED, apply with equal force to any pro-
cess or proceeding to enforce judg-
ment against surety in which an ap-
peal or writ OF error prosecuted under q
supersedeas bond, is perfected by a
principal for the purpose of having a
judgment against himself and sureties
revised. Unless the case be in such
condition as that the plaintiff might
have issued an execution against the
principal, had he desired to do so, he
cannot proceed against the surety. Re-
versed and remsnded in favor of sp-
pellants.
Julia Q. Leigh VS.. IL. Wsgenbuhr and
wife, from Bexar county; Watts, /.
Adopted. by sppelees against appel
liant to recover $500 and interest from
July 10, 1875, collected by appellants
husband and appropriated to his own
use; alleging that appellant was the
principal legatee and devisee and had
received more than 5000
worth Of property from her hus-
bands estate. Judgment for 1913. "a. Re-
mittitur of 1880 entered. Held: The
plea in abatement setting up that there
was another suit between the parties in
volving the same cause of action, then
pending in the Probate Court was not
verified by affidavit, and was, there.
fore, subject to general demurrer, as
such plea was nullity. (Rev. Stats,
Art. 1861 collected the money January
~, 1873 and died soon thereafter. His
partner testified that Leigh recognized
the claim OF appellees as just and valid.
This, together with the evidence show
ing that the relation of attorney and eli
ent had long existed between Leigh and
appellees, was sufficient to authorize
the judgment rendered. Judgment re-
formed as per remittitur filed at appel
lees cost.
w. A. Lockhart ct ux VS.. NJ. ellis,
from Bexar County. Watts, /. Adopted.
Our statutes authorize surety on a
note to present the issue OF suretyship
and have it tried and determined in the
main cause, and by this means render
the judgment therein rendered aynila-
bic to him against the principal In the
event he pays 1t. But a failure of a SUI
FntNF n avail hfnNgalf Of 4.
the main suit would not conclude him
from alleging and showing that he was.
In fact, but surety in suit brought
by him against the principal for reim-
bursement for any sum paid upon the
Judgment in the main cause (Revlsed
Statutes, article 1862; Burke ys. COnger,
Texas, &C.; Wiley VS.. Pinson, % Texas,
4ss; Freeman on Judgments, section
10; Wells Res. Adjudicata, section 81.
Butthe liability of the principal was de-
termined in the main suit, and until
that judgment be vacated or set aside
his liability is conclusive. There Is no
reversible error 80 far as w. A. Lock-
hart is concerned.
A married woman's liability for debts
contracted by her is limited TO such
debts as are contracted for necessaries
furnished herself and children and for
expenses incurred by her for the bene-
nt OF her separate property. (Rev.
Stats. Art. 1854; Magee VS.. White, q
Texas 1917 1t was, therefore, error 10
render any Judgment whatever against
Mrs. Lockhart. The Judgment Is az
tirmed rs to w, A. Lockhart and re.
versed and rendered In favor of Mrs.
Lookhart.
W. q. and X. ID. Batemau VS.. w. q.
McCreight; from Mitchell county.
Watts, j. Adopted. To entitle a
plaintiff to recover exemplary damages,
the burden is upon him TO show that
the writ of attachment was maliciouslv
sued out and levied on the property.
The record does not disclose single
circumstance tending to show that es-
sentih fact. II is admitted that G.
Bros. were indebted TO appellants In the
amount claimed by them In the attach
ment suit. The evidence clearly shows
that G. Bros. sold TO appellee all their
property and Immediately left the
country without paying appellants
debt; that appellee knew at the time of
tho rNNNn1, n htFk t.., - A.