46 Tex. 584 | Tex. | 1877
The court did not err in holding that the sureties in the sequestration bond might be joined in an action with the principal, for the recovery of damages for the wrongful suing out the writ, without a breach of the bond by the principal having been previously judicially ascertained. This construction of the obligation is believed to be to the advantage of the sureties as well as the obligee, and certainly the obligor has no good ground for objecting to it. The construction contended for by the plaintiff’s counsel would occasion a circuity of action, delaying and embarrassing the obligee in obtaining redress for the injury done him by the wrongful suing out of the writ, and would also subject the sureties to the costs of two suits instead of one, and to the possible damage of an excessive or improper judgment against the principal, by his collusion with the plaintiff, or his neglect to make a proper defense to the action.
The sureties have an immediate and direct interest in the amount of damages for which they are bound, in default of their principal, being properly ascertained. Therefore, upon principles of equity, they are proper parties to a suit by which
The demurrer to the petition was properly overruled. It is quite manifest that the suit was brought for' damages alleged to have been sustained by the estate of Joseph Toland, deceased, by an unlawful seizure of property of said estate. It is true, there are in the original petition some allegations of personal wrongs and injuries to the administratrix, which seem to have been intended as matter of aggravation, which are not at all pertinent .to the action for the injury to the estate; to which an exception, if taken, should have been sustained.
The objections to the evidence, shown by the bills of exception, are without force. That touching the validity of the sequestration bond for want of a scroll and seal, has been heretofore decided by this court, and must now be regarded as finally settled. The evidence of the witness Wallace though evidently not of so satisfactory a character if it stood alone, as it would have been if he had stated the market-price of the cotton at the different periods to which his attention was addressed, it cannot be said that it is altogether inadmissible. Though the statement he makes is a conclusion, still it is a conclusion of facts which he may know and be able to testify to, just as readily and certainly as that the cotton was worth so much per pound on the days in question. The real objection, if there is any, to the evidence is rather to its proper weight with the jury than to its admissibility.
The other assignments of error are too general to require notice, unless it was plainly apparent that obvious injustice had been done plaintiff in error by the court, in some of the rulings thus complained of. As this is not manifestly the fact, we shall make no cbmment upon them.
Reversed and remanded.