the reason why the matter to be proved was in the peculiar knowledge of the defendant. As he is an exception in the mass of the people, it is to be presumed that the fact to be proved is more peculiarly within his knowledge. An illustration of this is the licensed liquor dealer. Another is Wiley v. State, 52 Ind. 516. In that case the defendant was indicted for carrying a concealed weapon, he not being a traveler. The court held that the burden was on him to prove that he was a traveler, and said: "We think the exception relates to the appellant personally, and is particularly within his knowledge. Besides, a majority of persons are not travelers. The presumption was that the appellant was not a traveler, and, if he desired to take himself out of the operation of the general rule, it was incumbent on him to make the proof." U. S. v. Hayward, 2 Gall. 485, Fed. Cas. No. 15,336; Rex v. Turner, 5 Maule & S. 206.

In the case before us, the appellants claimed to be an exception to a rule. The statute makes it a public offense for any one to labor on the Sabbath, unless the labor performed is a work of charity or necessity. They claimed to be within the exception, because their labor was necessary to keep the mine in which they were working free from gas and water on Sunday, and thereby to preserve the mine, and make it a safe and fit place in which to work on Monday and succeeding days. Whether this be true or not depends on the locality of the mine, the extent it is subject to be filled by water and gas, the time and expense required to free it from the gas and water, and to preserve the walls. Without a knowledge of these facts, no one can tell whether it be necessary to work in or on the mines on the Sabbath in order to operate them at a profit on other days. These facts are peculiarly, not exclusively, within the knowledge of the appellants. Their observation, experience, and knowledge as to the mine, its construction, the extent to which it is exposed to gas and water, the use and capacity of machinery usually employed in operating it, presumably enabled them to prove with more facility than the state can whether their work on Sunday was a necessity. It imposed on them no hardship, and exposed them to no penalty, to do so. In fact they should not In fact they should not violate the Sabbath unless it appeared to them to be a necessity, and, when they do, ought to be able to prove that they come within the exception.

Appellants complain of this court misunderstanding an instruction to the jury which was asked for by them, and refused by the circuit court. It was as follows: "It is not necessary, in order for the defendants to be acquitted, that the evidence should satisfy the jury that the work done by the defendants was a work of necessity, but the jury should acquit them if there arises out of the

whole evidence a reasonable doubt as to whether or not the work done by them was a work of necessity, as defined in the foregoing instructions." Under the evidence we deemed it unnecessary to notice it, as, under the undisputed facts in the case, we thought the refusal to give it was not prejudicial to appellants.

Witnesses testified that the mine at which appellants labored on a Sunday was what is known as a "wet mine," and was exposed to gas; that it was necessary to use a pump and fan all the time in order to keep it in a safe condition; that, if the pump was not operated on Sunday, the inflow of water would be so great as to require the whole of Monday, and probably Tuesday, to pump it out; and the roof in some portions of the mine would be liable to fall in on account of the accumulation and effect of the water; and that, unless the fan was continually kept in motion, gas would accumulate, and it would be dangerous for laborers to enter the mine. And they further testified that a pump of sufficient capacity to pump out, on Monday, all the water accumulating on Sunday, and a fan capable of expelling all the gas on Monday by noon, could be procured, but the pump and fan already in use were sufficient for that purpose if operated on the Sabbath. But no witness testified that the walls and roof of the mine could not have been so constructed, at a reasonable expense, as to prevent them caving or falling in after being exposed to the water.

The whole effect of this evidence was to show that it was more profitable to use, on the Lord's day, the fan and pump already in operation, than to construct the walls and roof of the mine in such a manner as to prevent them falling in on account of the eifects of the water, and to procure and to use a pump and fan of sufficient capacity to expel on Monday all the gas and water accumulating on the preceding Sunday. But this was not sufficient. If true, it does not prove that the labor performed by appellants was a work of necessity on Sunday; for, if the operation of the mine might have been made practicable and remunerative, at a reasonable cost, without laboring on Sunday, by the structure of its walls and roofs and use of improved appliances, then there was no necessity for work on the Sabbath. Labor cannot be lawfully performed on the Lord's day merely for the purpose of adding profit to the accumulation of a business already lucrative; for, if it could, all kinds of work might be a necessity, and it would be a sufficient excuse for labor on Sunday to say that it was convenient and profitable; and all barriers to the desecration of the Sabbath would be thereby broken down.

We deem it unnecessary to add anything further to what has been said in the opinion. heretofore delivered in this case.

The motion of appellants is denied.

TREZEVANT et al. v. TERRELL et al. (Supreme Court of Tennessee. Dec. 10, 1895.) FRAUDULENT CONVEYANCES--SUBSEQUENT CREDIT ORS-WHO ARE.

1. The taking of a note for a debt owing at the time of a voluntary conveyance by the debtor, after the conveyance, in which subsequent indebtedness is also included, does not render the entire indebtedness a subsequent indebtedness, so as to prevent the creditor from suing to set aside the conveyance.

2. A voluntary conveyance, fraudulent in law on account of pre-existing indebtedness, is likewise fraudulent as to that subsequently incurred with the creditor.

Appeal from chancery court, Shelby county; John L. T. Sneed, Chancellor.

Bill by M. B. Trezevant and another against A. C. Terrell and others. From a judgment sustaining a demurrer to the bill, complainants appeal. Reversed.

S. J. Shepherd and Smith & Trezevant, for appellants. Moon & Jones and Charles Scott, for appellees.

MCALISTER, J. The object of this bill is to set aside an alleged fraudulent conveyance, and to subject the property therein conveyed to the payment of complainants' debt. The bill is filed by M. B. Trezevant and John M. Peters, assignees of Thomas H. Allen & Co., against A. C. Terrell, Laura B. Terrell (his wife), Katic C. Terrell, Charles D. Terrell, and W. J. Terrell. It is alleged in the bill that the defendant A. C. Terrell is indebted to complainants, as assignees of Thomas H. Allen & Co., in various amounts, as evidenced by certain promissory notes, which are fully described in the bill, aggregating probably the sum of $86,920.60. It is further alleged that on the 5th day of April, 1888, the said A. C. Terrell transferred and conveyed to his wife, Laura B. Terrell, and to his children, Katie C. Terrell and Charles D. Terrell, by deed of gift, in consideration of love and affection, certain real estate in Shelby county, which is fully described in the bill. It is further alleged that at the date of this conveyance, to wit, on the 5th April, 1888, the said A. C. Terrell was indebted to the firm of Thomas H. Allen & Co. in the sum of $9,563.64, which is embraced in the indebtedness specifically described in the bill. It is further alleged that on the 16th day of February, 1893, said Laura B. Terrell, who was joined therein by her husband, attempted to make a conveyance of the aforesaid property to W. J. Terrell, but that the certificate of acknowledgment is fatally defective, and conveyed no title to the said W. J. Terrell. Counsel for Laura B. Terrell demurred to the bill, assigning four grounds, all of which were sustained by the chancellor, and complainants' bill dismissed. The complainants appealed, and have assigned as error the action of the chancellor in sustaining the demurrer.

The first ground of demurrer is that the bill shows on its face that all the notes

sued on are of a date subsequent to the date of the deed, and the alleged pre-existing debt, being embraced in said notes, is thereby also made a subsequent debt, and cannot affect the validity of the conveyance, in the absence of an allegation of fraud, which is not made in the bill. The contention of counsel for Mrs. Terrell is that the alleged pre-existing debt of $9,563.64 has been mingled by the creditor with the large debt created after the conveyance, and that complainants are therefore subsequent creditors only. We think this contention is unsound. Mr. Bump, in his work on Fraudulent Conveyances (2d Ed. p. 498), states the law on this subject as follows: "The rights of a creditor, however, arise from the fact that a debt is due. Any change, therefore, of the evidence of the existence of the debt, does not exert any influence upon these rights. Evidence may be introduced to show that a judgment is founded upon a prior claim. A note may be shown to be given for a prior account, or in renewal of a prior note. A novation does not affect the rights under the debt." The author states, however, that a renewal by which a liability is created different from

that created by the original debt is a new debt. In the case at bar the pre-existing debt of $9,563.64 was simply merged in the indebtedness contracted subsequent to the conveyance and notes executed by the debtor for the whole amount, but no liability was thereby created different from that created by the original. We are all of opinion that the allegations of this bill make out a case for an answer. The demurrer admits that on April 8, 1888, when this conveyance was made by Terrell to his wife and children, Terrell was indebted to Thomas H. Allen & Co. in the sum of $9,563.50, and that the conveyance was not for a valuable consideration.

The conveyance was therefore presumptively fraudulent. Nicholas v. Ward, 1 Head, 323; Smith v. Greer, 3 Humph. 118; Susong v. Williams, 1 Heisk. 631; Yost v. Hudiburg, 2 Lea, 627. Fraudulent in law as to the existing indebtedness, it is likewise fraudulent in respect of that contracted subsequently. Young v. Pate, 4 Yerg. 164; Greenlee v. Hays, 1 Tenn. 300; Nicholas v. Ward, 1 Head, 325; Martin v. Olliver, 9 Humph. 565.

We have also examined the other grounds of demurrer, and in our opinion they are not well taken. The decree of the chancellor is reversed, and the cause remanded for an

answer.

GULF, C. & S. F. RY.. CO. v. STANLEY. (Supreme Court of Texas. Dec. 12, 1895.) LIVE-STOCK SHIPMENT-CONTRACT-STIPULATIONS -NOTICE OF INJURY-LIMITATION OF ACTION -MEASURE OF DAMAGES.

1. The measure of damages to a shipment of cattle, from negligence of the carrier, is the difference between their value in the condition in which they arrive and that in which,

but for the negligence, they would have arrived, though they are not shipped for sale, but for pasturage.

2. Stipulation, in a contract of carriage of cattle, that recovery cannot be had for injury at any place where they may be unloaded during the trip, unless the shipper give notice to the station agent at that point, before they are removed therefrom, specifying the nature of his claim, is unreasonable, in a case where they are not given room to eat and drink, the injury from which afterwards appears.

3. Stipulation, in a contract of carriage of cattle, that suit be brought within 40 days for damage to then is unreasonable.

Error to court of civil appeals of Third supreme judicial district.

Action by J. E. Stanley against the Gulf, Colorado & Santa Fé Railway Company. A judgment for plaintiff was affirmed by the court of civil appeals (29 S. W. 806), and defendant brings error. Affirmed.

J. W. Terry and Chas. K. Lee, for plaintiff in error. Browning & Matthews, for defendant in error.

GAINES, C. J. The suit was brought by defendant in error to recover of plaintiff in error damages for alleged injuries to cattle transported for him over the line of the company and that of the Atchison, Topeka & Santa Fé Railway Company. The time at our disposal precludes us from considering in detail, in this opinion, all the points raised by the numerous assignments in the court of civil appeals, all of which are insisted upon in this court. We will therefore confine our discussion to a few of the more prominent questions presented in the petition for the writ of error.

The plaintiff in the district court testified, upon the trial, that he applied to the agent of the defendant company at Lampasas, in this state, for transportation of a herd of cattle from that point to Elgin, Kan.; that the agent agreed to furnish the cars for the carriage of the cattle, and to transport them to their destination at the rate of $50 per car; that, when the cattle reached the station, it was found necessary to employ two separate trains of cars for their transportation; that he took charge of the cattle on the first train, and that he placed one Harmon, as agent, in charge of those upon the other. The defendant company's line reached only to Purcell, in the Indian Territory, where it connected with the Atchison, Topeka & Santa Fé Railway, which led to Elgin, the point of destination of the cattle. The plaintiff further testified, in effect, that, with the exception of a delay of a few hours, and a resultant delay in feeding and watering, the cattle reached Purcell, the point of connection, in good condition. but that, at that point, they were taken off the cars and crowded together in muddy pens, in such numbers that it was impossible for them to take sufficient food and water, and that, in consequence of this treatment, some of them died on the route to Elgin and after reach

ing there, and the others were greatly injured and deteriorated in value. He further testified that, after the cattle of which he took charge were loaded upon the train at Lampasas, and the train was about to start, upon the demand of the conductor he signed a contract of shipment which he did not have time to read. Harmon, his agent, also testified that, just before the train which he accompanied left, he also signed a contract, but that he had no authority from his principal to alter the contract previously made with the agent of the company. The contracts themselves were signed by the agent for the company, and by Hughes & Rathmell, to whom the cattle were consigned for pasturage. The names of the plaintiff and of Harmon appeared signed only to the drover's passes, which were a part of the contracts. It therefore seems that the plaintiff's and Harmon's testimony referred to these latter signatures. The agent of the company also testified as to the transaction between him and the plaintiff, but did not deny either the agreement to furnish the transportation or the rate which was testified to by the plaintiff. Hughes & Rathmell were the plaintiff's agents, and the contracts were both signed in their name. The company's agent testified that, when the contract was made for the shipment, Hughes, a member of the firm of Hughes & Rathmell, was present and participated in the conversation, and that he did not know that the cattle belonged to plaintiff. The undisputed evidence showed that the cattle belonged to plaintiff, and that they were shipped for his benefit. It is not important whether the agent knew for whom the cattle were shipped or not, for the principal in the contract, whether disclosed or undisclosed, had the right to sue upon it. Heffron v. Pollard, 73 Tex. 96, 11 S. W. 165.

A careful consideration of the evidence as to the amount of damages satisfies us that it was sufficient to sustain the verdict in that respect. It is insisted, however, that, since the testimony showed that the cattle were not shipped for immediate sale, but were to be put upon pastures, and fattened, and then sold, the court erred in charging the jury that the measure of the plaintiff's damages was the difference between the market price of the cattle in the condition in which they were delivered at Elgin, and what their market price would have been at that place had they been carefully cared for during the trip, and that it also erred in refusing a charge to the effect that the plaintiff was entitled only to recover the amount of the additional expense to which he was subjected, by reason of their injuries, in preparing them for market. We think the court gave the correct measure of damages. That the rule laid down is the ordinary rule in such cases is well settled in this state and in other jurisdictions. We see nothing in this case to take it out of the ordinary rule.

In a case strikingly like this, the supreme court of the United States say: "The difference between the market value of the cattle in the condition in which they would have arrived but for the negligence of the defendant, and their market value in the condition in which, by reason of the negligence, they did arrive, constituted the proper rule of damages. It was not material whether the plaintiffs intended to keep the cattle upon their farms, for breeding purposes, or to sell them upon the market. The depreciation in value of the cattle was the same in either case." Railway Co. v. Estill, 147 U. S. 591, 13 Sup. Ct. 444. We think it true that, as to the damages for injuries to personal property resulting from a wrong of a defendant, no rule can be laid down which is applicable to every case. In each case that rule will be adopted which will lead to the most accurate result. Here the cattle, in their injured condition, had a market value at Elgin. They would have had a value in the market if they had arrived uninjured. The difference in that value, if correctly determined, furnishes a safe and certain criterion of the loss. It is true that value is a matter of opinion, and that testimony as to value in such a case may be somewhat speculative and unsatisfactory; unsatisfactory; but we do not see that the rule insisted upon by plaintiff in error would have led to a more satisfactory result. Railway Co. v. Estill, supra. From a logical standpoint, the rule of the difference in market value is also the correct one. To make the plaintiff whole he should recover a sufficient sum to enable him to sell the injured property and to replace it with that which is uninjured, without loss.

The written contract contained stipulations limiting the company's liability to its own line. The judge, in his general charge, instructed the jury, in effect, that, if they found that the parties had first made an oral contract, and then entered into a written contract for the transportation of the cattle, the latter would govern, and that, if they found that the cattle had been injured during the transportation through the negligence of the defendant, they would award the plaintiff damages according to the rule laid down in a special instruction to be given. The special instruction authorized a recovery for such injuries only as the cattle received while on defendant's own line. No charge was given which warranted a more extended recovery. Hence, the court was not in error in refusing charges limiting the damages to such as occurred while the cattle were in the possession of the defendant company.

The written contract also contained the following stipulations: "Ninth. That, for the considerations aforesaid, said shipper further agrees that, as a condition precedent to his right to recover any damages for any loss or injury to his said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded for any

purpose on the company's road, or previous to loading thereof for shipment, he, they, or his or their agents, in charge of the stock, will give notice in writing of his claim therefor, specifying the nature of the claim, to its station master at said last-named station on the company's road, before said stock is removed from said station, and before the same shall have been removed, slaughtered, or intermingled with other stock, and will not move said stock from said station until the expiration of three hours after the giving of such notice, to the end that such claim may be fully and fairly investigated; and that a failure to comply with the terms of this clause shall be a complete bar to any recovery of any and all such damages. The written notice herein provided for cannot and shall not be waived by any person except such station master, and by him only in writing. Tenth. And it is furthermore hereby expressly provided and mutually agreed that no suit or action against the company for the recovery of any claim by virtue of this contract, or for loss or damage to said stock, or decrease in the market value thereof, from delay or any other cause, while in transportation or at stations on the company's road, or for breach of any alleged contract, concerning the shipment of said stock or the furnishing of cars, made before the receipt of the stock by the company, or before the execution hereof, or on account of the breach of any written or verbal agreement or contract whatever, concerning said stock, prior to the execution hereof, shall be sustained in any court of law or chancery, unless such suit or action shall be commenced and citation served within 40 days next after the loss or damage shall have occurred; and should any suit or action be commenced against the company after the expiration of the aforesaid 40 days, the lapse of time shall be taken and deemed conclusive evidence against the validity of such claim or cause of action, and shall be a full and complete bar to such suit, any statute of limitations to the contrary notwithstanding." In view of the testimony and the findings of the court of civil appeals, we cannot say that no other conclusion was authorized than that the written contracts were executed without consideration. If, after the cattle were placed upon the train, the plaintiff and his agent had signed them without knowing their contents, and without any new consideration, it may be that they should have been held void. Railway Co. v. McCarty, 82 Tex. 613, 18 S. W. 716. But, since they were signed by Hughes & Rathmell, who, as the plaintiff himself testified, were authorized to do so, and since it does not appear when and under what circumstances they so signed, it cannot be said that they were executed without consideration. It is evident that the trial court was of opinion that, at least, the jury were au thorized to find that the oral agreements were supplanted by the written contracts. The plaintiff admitted in his testimony that no no