The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-07-02
THE HIGHER COURTS.
SUPREME COURTS.


into court and answers setting up
claim to the property, plaintiffs cannot
dismiss him from the suit if he shows
any claim Of right or title TO the land.
A party defendant in suit for parti-
ton, brought into q case by plaintiff
may therein set up superior title and
claim to the entire property, though
he claims through the title under
which the partition is sought. Where
party would have been entitled to
intervene in suit if originally COM
by party defendant in the
suit for partition VINO claims the en-
tire land by superior title, no is EMIT
led to be made party defendant in
the said partition suit under the cir
cumstances. Reversed and remanded.
Thomas Piggott VS.. Schramm d Co.,
from Kinney County. Walker, p, j..
Adopted. Where plaintiffs sworn ac-
count is an exhibit attached to, and
made part OF, the petition and is for
items running through the year 1881
and into 1882, the aggregate amount OF
which is So, 03S,30, and he claims inter-
est only on that part accruing prior to
January, 1882, and after thus stating
the account the petition alleges that
by reason OF defendants failure and
refusal TO pay the debt plaintiff has
been damaged in the sum 50 ,450, this
averment is not be construed as an
averment Of the amount of the indebt-
edness, especially where the specific
items constituting the amount of the
debt are at1irmatively and expressly
stated and itemiZed. The same rule
which is applicable to mortgages and
other like liens, applies to the toreclos-
ure Of an attachment lien, and the
right to decree for foreclosure
and sale OF the property attached for
the interest and costs accruing up TO
the date of the Judgment is clear.
The deed of assignment was dated
February q, 1882; the assignee &C
cepted the trust on the night of that
day. He was in possession of the goods
as assignee when the attachment was
levied. He proceeded to qualify under
the law by giving bond as assignee
and acted as such Tor about a month,
whom he returned the property TO the
sssignor under the direction OF one OF
the principal creditors, who repre-
sented all creditors except Rppellees
and another attaching creditor. Tho
deed of assignment was filed for
record at $3.50 y. M, a few minutes
ment was issued and before il was lew
led. The evidence as TO acts tending
to show that the defendant was about
to transfer his property TO deiraud his
creditors referred alone to the deed OF
assignment. The evidence also tended
to show that he was influenced to do SO
from immediate expectation that
plaintiffs were about to attach his
property. Held: Under such facts the
attachment law does not regard the in
| tent of the debtor who sees proper e
make an assignment of his property,
II is sufficient that he does so, and i
he shall have made an assignment ioI
tho benefit of his creditors whlcl
shall be sufficient to convey the prop
erty,a creditor cannot attach tho prop
erty TINS conveyed. Reversed anj
remauded.
Amos Rowland VS.. c. z. Wright
from iLlano County, Willie, c, ]. Al
affidavit for continuance which does
not state that tho testimony expected
to be elected from the absent witnesses
could not DO obtained from any othe,
source does not meet tho requirement
of the statute for second or subse
quent continuance, (Revissd Statutes
article l,27S) The application tbel
should have shown equitable ground
for its allowance. This 1t failed to dc
The showing rs to diligence was insut
ficient, When the attachment was or
d6fed returnaole instanter, it was tn
duty of the party apply ing therefor b
see that it was issued and placed ia tn
hands OF the sheriff for service. Al
ilrmed.
Tia the following cases rehesyiug
have been denied and the origina
J opinions adhered to- Repl
Earnes VS.. Railroad Company, iron
Harris County. 1t is negligence in
railroad TO permit weeds to grow, O
other distractions to exist on 10 right
oi-way to such an altitude as to ms
teriRlly obstruct tho view of a railwa
crossing, or at any other point slOn
tho line, and if injury results to stoc
: or persons at such point which Nigh
have been avoided but for the obstru(
tons, the companyis liable. (l5 TeXa
Law Review, 29.) Rehearing deniet
: Edsall VS.. Telegraph Company, frol
Cooke County. When message
, written on one Of tho company's blank
and the sender signs same withOl
} dissent, in the absence of fraud, no
: estopped from denying tho bindin
AOAN1 Va Nhq ANAAAlhNAOAlNf NAlONhA AN AAA
not read them. But he may sho
4 understand them. When the sendt
I requests the operator TO write the me
sage for him, such operator becoml
the agent OF the sender and the lattl
- is bound for the formers acts, (See
Texas Law Review, Si0) Rehearir
denied.
u MequiRr Helm & Co., VS.. Bidwe
from Parker County. The negotiRb
promissory note ofa debtor does II
: amount to the payment OF the amour
/. of the Indebtedness for which II
|. given, unless such wss the intentiC
OF the parties. Where merchaI
% contemplating future dealing with q
d other, advances money to such 9th
n to enable him to purchase goods, OF,
=, a suit brought upon the balance OF Il
y account due, after the note was barre
10 and such account, including said no
oil as an item of debt, is not barred un
4 four years after cessation Of the del
!, ings between the parties. % Tex
u, Law Review, 265.) Rehearing denie
I'd Beard Ys. Blum, from Fannin Cou
or ty. Tho conveyance of homeste
"a upon secret trust, with cenditi
~ OF reconveyance, does not affect 1
homestead right, and, as against gu
Of sequent attachment creditors, may
a. asserted by the homestead owner,
those claiming through him, the pre-
40 erty being occupied as q homeste
d. continually before and after the &C
OF veyance up TO and beyond the date
=, tho attachment sale. Where II v
vi the intention OF the homestead owl
q to pass title 10 the trustee subject
et conditions OF reconveyance, the trar
hy fer of the trustees notes
" homestead owner TO a third party
n valuable consideration and the @
'u- veyanco OF tho trustee 10 such th
m party upon consideration of the 8
a., render TO tho trustee Of his notes, gil
w to tho homestead owner, passed It'll
OF such third party. Had the homest'
ia been abandoned after the conveya
10 the trustee by the homestead owl
I. itrwould have been subject 10 seiz
ny N sale hX sEeditors or aaRR!ss p &.
yesterday and the Aztec. thousand .sll.e
az win proceed az ch~- lsooiauonl