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the reason why the matter to be proved was whole evidence a reasonable doubt as to in the peculiar knowledge of the defendant. whether or not the work done by them was As he is an exception in the mass of the peo a work of necessity, as defined in the foreple, it is to be presumed that the fact to be going instructions." Under the evidence we proved is more peculiarly within his knowl- deemed it unnecessary to notice it, as, under edge. An illustration of this is the licensed the undisputed facts in the case, we thought liquor dealer. Another is Wiley v. State, 52 the refusal to give it was not prejudicial to Ind. 516. In that case the defendant was appellants. indicted for carrying a concealed weapon, he
Witnesses testified that the mine at which not being a traveler. The court held that appellants labored on a Sunday was what is the burden was on him to prove that he was known as a "wet mine," and was exposed to a traveler, and said: “We think the excep gas; that it was necessary to use a pump tion relates to the appellant personally, and and fan all the time in order to keep it in a is particularly within his knowledge. Be safe condition; that, if the pump was not sides, a majority of persons are not travel operated on Sunday, the inflow of water
The presumption was that the appel would be so great as to require the whole of lant was not a traveler, and, if he desired to Monday, and probably Tuesday, to pump it take himself out of the operation of the gen
out; and the roof in some portions of the eral rule, it was incumbent on him to make mine would be liable to fall in on account of the proof.” U. S. v. Hayward, 2 Gall. 485, the accumulation and effect of the water; Fed. Cas. No. 15,336; Rex v. Turner, 5 Vaule and that, unless the fan was continually & S. 206.
kept in motion, gas would accumulate, and In the case before us, the appellants claim it would be dangerous for laborers to enter ed to be an exception to a rule. The stat the mine. And they further testified that a ute makes it a public offense for any one to pump of sufficient capacity to pump out, on labor on the Sabbath, unless the labor per Monday, all the water accumulating on Sunformed is a work of charity or necessity. day, and a fan capable of expelling all the They claimed to be within the exception, be gas on Monday by noon, could be procured, cause their labor was necessary to keep the but the pump and fan already in use were mine in which they were working free from
sufficient for that purpose if operated on the gas and water on Sunday, and thereby to Sabbath. But no witness testified that the preserve the nine, and make it a safe and fit | walls and roof of the mine could not have place in which to work on Monday and suc
been so constructed, at a reasonable expense, ceeding days. Whether this be true or not as to prevent them caving or falling in after depends on the locality of the mine, the ex
being exposed to the water. tent it is subject to be filled by water and The whole effect of this evidence was to gas, the time and expense required to free
show that it was more profitable to use, on it from the gas and water, and to preserve
the Lord's day, the fan and pump already in the walls. Without a knowledge of these operation, than to construct the walls and facts, no one can tell whether it be necessary roof of the mine in such a manner as to preto work in or on the mines on the Sabbath vent them falling in on account of the eiin order to operate them at a profit on other fects of the water, and to procure and to use days. These facts are peculiarly, not ex a pump and fan of sufficient capacity to exclusively, within the knowledge of the appel- pel on Monday all the gas and water acculants. Their observation, experience, and mulating on the preceding Sunday. But this knowledge as to the mine, its construction, was not sufficient. If true, it does not prove the extent to which it is exposed to gas and that the labor performed by appellants was water, the use and capacity of machinery a work of necessity on Sunday; for, if the usually employed in operating it, presuma operation of the mine might have been made bly enabled them to prove with more facili practicable and remunerative, at a reasonaty than the state can whether their work on ble cost, without laboring on Sunday, by the Sunday was a necessity. It imposed on structure of its walls and roofs and use of them no hardship, and exposed them to no improved appliances, then there was no nepenalty, to do so. In fact they should not cessity for work on the Sabbath. Labor violate the Sabbath unless it appeared to cannot be lawfully performed on the Lord's them to be a necessity, and, when they do, day merely for the purpose of adding profit ought to be able to prove that they come to the accumulation of a business already within the exception.
lucrative; for, if it could, all kinds of work Appellants complain of this court misun might be a necessity, and it would be a sufderstanding an instruction to the jury which ficient excuse for labor on Sunday to say was asked for by them, and refused by the that it was convenient and profitable; and circuit court. It was as follows: "It is not all barriers to the desecration of the Sabbath necessary, in order for the defendants to be would be thereby broken down. acquitted, that the evidence should satisfy We deem it unnecessary to add anything the jury that the work done by the defend further to what has been said in the opinion. ants was a work of necessity, but the jury heretofore delivered in this case. should acquit them if there arises out of the The motion of appellants is denied.
sued on are of a date subsequent to the date TREZEVANT et al. v. TERRELL et al. of the deed, and the alleged pre-existing debt, (Supreme Court of Tennessee. Dec. 10, 1895.) | being embraced in said notes, is thereby also FRAUDULENT CONVEYANCES--SUBSEQUENT CREDIT
made a subsequent debt, and cannot affect ORS-WHO ARE.
the validity of the conveyance, in the ab1. The taking of a note for a debt owing at sence of an allegation of fraud, which is not the time of a voluntary conveyance by the made in the bill. The contention of counsel debtor, after the conveyance, in which sub
for Mrs. Terrell is that the alleged pre-exsequent indebtedness is also included, does not render the entire indebtedness a subsequent in- isting debt of $9,563.64 has been mingled by debtedness, so as to prevent the creditor from the creditor with the large debt created aftsuing to set aside the conveyance.
er the conveyance, and that complainants 2. A voluntary conveyance, fraudulent in law on account of pre-existing indebtedness, is
are therefore subsequent creditors only. We likewise fraudulent as to that subsequently in- think this contention is unsound. Mr. Bump, curred with the creditor.
in his work on Fraudulent Conveyances (2d Appeal from chancery court, Shelby coun- Ed. p. 498), states the law on this subject ty; John L. T. Sneed, Chancellor.
as follows: "The rights of a creditor, howBill by M. B. Trezevant and another
another ever, arise from the fact that a debt is due. against A. C. Terrell and others. From a Any change, therefore, of the evidence of judgment sustaining a demurrer to the bill, the existence of the debt, does not exert any complainants appeal. Reversed.
influence upon these rights. Evidence may
be introduced to show that a judgment is S. J. Shepherd and Smith & Trezevant, for appellants. Moon & Jones and Charles
founded upon a prior claim. A note may be
shown to be given for a prior account, or in Scott, for appellees.
renewal of a prior note. A novation does not
affect the rights under the debt." The auMCALISTER, J. The object of this bill is to set aside an alleged fraudulent convey
thor states, however, that a renewal by ance, and to subject the property therein
which a liability is created different from conveyed to the payment of complainants" that created by the original debt is a new
debt. debt. The bill is filed by M. B. Trezevant
In the case at bar the pre-existing and John M. Peters, assignees of Thomas H.
debt of $9,563.64 was simply merged in the
indebtedness contracted subsequent to the Allen & Co., against A. C. Terrell, Laura B.. Terrell (his wife), Katic C. Terrell, Charles D.
conveyance and notes executed by the debtTerrell, and W. J. Terrell. It is alleged in
or for the whole amount, but no liability was the bill that the defendant A. C. Terrell is thereby created different from that created indebted to complainants, as assignees of by the original. We are all of opinion that
the allegations of this bill make out a case Thomas H. Allen & Co., in various amounts,
for an answer. The demurrer admits that as evidenced by certain promissory notes,
on April 8, 1888, when this conveyance was which are fully described in the bill, aggre
made by Terrell to his wife and children, gating probably the sum of $86,920.60. It is further alleged that on the 5th day of April,
Terrell was indebted to Thomas H. Allen & 1888, the said A. C. Terrell transferred and
Co. in the sum of $9,563.50, and that the con
veyance was not for a valuable consideraconveyed to his wife, Laura B. Terrell, and
tion. The conveyance was therefore preto his children, Katie C. Terrell and Charles D. Terrell, by deed of gift, in consideration sumptively fraudulent. Nicholas v. Ward, 1
Head, 323; Smith v. Greer, 3 Humph. 118; of love and affection, certain real estate in Shelby county, which is fully described in
Susong v. Williams, 1 Heisk. 631; Yost v.
Hudiburg, 2 Lea, 627. Fraudulent in law as the bill. It is further alleged that at the date of this conveyance, to wit, on the 5th April
, fraudulent in respect of that contracted sub
to the existing indebtedness, it is likewise 1888, the said A. C. Terrell was indebted to the firm of Thomas H. Allen & Co. in the sequently. Young v. Pate, 4 Yerg. 164; sum of $9,563.64, which is embraced in the
Greenlee v. Hays, 1 Tenn. 300; Nicholas v.
Ward, 1 Head, 325; Martin v. Olliver, 9 indebtedness specifically described in the
Humph. 505. bill. It is further alleged that on the 16th
We have also examined the other grounds day of February, 1893, said Laura B. Terrell, who was joined therein by her hus
of demurrer, and in our opinion they are not band, attempted to make a conveyance of
well taken. The decree of the chancellor is
reversed, and the cause remanded for an the aforesaid property to W. J. Terrell, but that the certificate of acknowledgment is fa
answer. tally defective, and conveyed no title to the said W. J. Terrell. Counsel for Laura B. Terrell demurred to the bill, assigning four GULF, C. & S. F. RY. CO. V. STANLEY. grounds, all of which were sustained by the (Supreme Court of Texas. Dec. 12, 1895.) chancellor, and complainants' bill dismissed.
LIVE-STOCK SHIPMENT CONTRACT-STIPULATIONS The complainants appealed, and have assign- --NoticE OF INJURY-LIMITATION OF ACTION ed as error the action of the chancellor in
- MEASURE OF DAMAGES. sustaining the demurrer.
1. The measure of damages to a shipment
of cattle, from negligence of the carrier, is the The first ground of demurrer is that the
difference between their value in the condibill shows on its face that all the notes tion 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 purpose on the company's road, or previous court of the United States say: "The dif- to loading thereof for shipment, he, they, or ference between the market value of the his or their agents, in charge of the stock, cattle in the condition in which they would will give notice in writing of his claim therehave arrived but for the negligence of the for, specifying the nature of the claim, to its defendant, and their market value in the station master at said last-named station on condition in which, by reason of the negli- the company's road, before said stock is regence, they did arrive, constituted the prop- moved from said station, and before the same er rule of damages. It was not material shall have been removed, slaughtered, or inwhether the plaintiffs intended to keep the termingled with other stock, and will not (attle upon their farms, for breeding pur- move said stock from said station until the poses, or to sell them upon the market. The expiration of three hours after the giving of depreciation in value of the cattle was the such notice, to the end that such claim may same in either case.” Railway Co. v. Es- be fully and fairly investigated; and that a till, 147 U. S. 591, 13 Sup. Ct. 444. We think failure to comply with the terms of this clause it true that, as to the damages for injuries shall be a complete bar to any recovery of to personal property resulting from a wrong any and all such damages. The written noof a defendant, no rule can be laid down tice herein provided for cannot and shall not which is applicable to every case. In each be waived by any person except such station case that rule will be adopted which will master, and by him only in writing. Tenth. lead to the most accurate result. Here the
And it is furthermore hereby expressly procattle, in their injured condition, had a mar- vided and mutually agreed that no suit or ac
tion value in the market if they had arrived un- any claim by virtue of this contract, or for injured. The difference in that value, if cor- loss or damage to said stock, or decrease in rectly determined, furnishes a safe and cer- the market value thereof, from delay or any tain criterion of the loss. It is true that other cause, while in transportation or at stavalue is a matter of opinion, and that testi- tions on the company's road, or for breach mony as to value in such a case may be of any alleged contract, concerning the shipsomewhat speculative and unsatisfactory; ment of said stock or the furnishing of cars, but we do not see that the rule insisted upon made before the receipt of the stock by the by plaintiff in error would have led to a more company, or before the execution hereof, or satisfactory result. Railway Co. v. Estill, on account of the breach of any written or supra. From a logical standpoint, the rule verbal agreement or contract whatever, conof the difference in warket value is also the cerning said stock, prior to the execution herecorrect one. To make the plaintiff whole he
of, shall be sustained in any court of law or should recover a sufficient sum to enable him chancery, unless such suit or action shall be to sell the injured property and to replace it commenced and citation served within 40 with that which is uninjured, without loss. days next after the loss or damage shall have
The written contract contained stipulations occurred; and should any suit or action be limiting the company's liability to its own commenced against the company after the line. The judge, in his general charge, in- expiration of the aforesaid 40 days, the lapse structed the jury, in effect, that, if they found of time shall be taken and deemed conclusive that the parties had first made an oral con- evidence against the validity of such claim tract, and then entered into a written con- or cause of action, and shall be a full and tract for the transportation of the cattle, the complete bar to such suit, any statute of limilatter would govern, and that, if they found tations to the contrary notwithstanding." In that the cattle had been injured during the view of the testimony and the findings of the transportation through the negligence of the court of civil appeals, we cannot say that no defendant, they would award the plaintiff other conclusion was authorized than that the damages according to the rule laid down in written contracts were executed without cona special instruction to be given. The special sideration. If, after the cattle were placed instruction authorized a recovery for such upon the train, the plaintiff and his agent had injuries only as the cattle received while on signed them without knowing their contents, defendant's own line. No charge was given and without any new consideration, it may which warranted a more extended recovery. be that they should have been held void. Hence, the court was not in error in refus- Railway Co. v. McCarty, 82 Tex, 613, 18 S. ing charges limiting the damages to such as W. 716. But, since they were signed by occurred while the cattle were in the posses- Hughes & Rathmell, who, as the plaintiff himsion of the defendant company.
self testified, were authorized to do so, and The written contract also contained the fol- since it does not appear when and under what lowing stipulations: "Ninth. That, for the circumstances they so signed, it cannot be considerations aforesaid, said shipper further said that they were executed without considagrees that, as a condition precedent to his eration. It is evident that the trial court was right to recover any damages for any loss or of opinion that, at least, the jury were au. injury to his said stock during the transpor- thorized to find that the oral agreements were tation thereof, or at any place or places where supplanted by the written contracts. The the same may be loaded or unloaded for any plaintiff admitted in his testimony that no notice was given to the agent of the company then called, and have materially diminished at Purcell of the damages to the cattle, and the labors of the court. it appears clearly, from the evidence, that Upon the first question, our conclusion is the suit was not brought within 40 days from that Sunday, although the thirtieth day from the time of the breach of the contract. The that on which the motion for a rehearing defendant, by counsel, asked the court to was overruled by the court of civil appeals charge the jury that, if the notice was not (32 S. W. 314), cannot be excluded from the given, the plaintiff could not recover, and al- computation. Such is the general rule, also, in effect, that, if the suit was not institut. though there are some conflicting decisions. ed within 40 days from the time the cause of It was adopted by this court, after a careful action accrued, it was not bound. Both of consideration, in Burr v. Lewis, 6 Tex. 76, and these charges were refused, and their refusal we have found no case in this court which brings up the question as to the validity of modifies that decision. Where the time althe two stipulations in the contract which lowed for doing an act is very short, it is have been quoted. A stipulation of the char- usual to exclude a Sunday. The principle acter of these in question, to be valid, must would seem to be that, when but a few days be reasonable. At the time the cattle were are allowed in which to do the act, it is not reshipped at Purcell, the plaintiff, according to be presumed that the legislature intended to his own testimony, knew that his cattle further to abbreviate it, in effect, by includhad been crowded in pens, and had suffered ing a day ordinarily observed as a day of for the want of food and water, but did not cessation from all ordinary business. For know the extent of his damages. Under the example, where two days are designated, it circumstances, he could, at most, have made is not reasonable to hold that it was the only a vague complaint, which would have purpose to include a Sunday, when the subserved no useful purpose to either party, practical effect of the ruling would be to It was by no means certain that any serious reduce the time to one day only. But, where loss would ensue, and, if the contract is to weeks are included in the time allowed, the be construed as requiring notice in such a reason does not apply. Sunday at common case, we think it must be held unreasonable. law is dies non juridicus. Swan v. Broome, Whether the stipulation as to the time in 1 W. Bl. 496, 526. When the point was first which suit should be brought, and the cita- raised in the case cited, Lord Mansfield was tion served, is reasonable or not, is not an evidently in great doubt whether a court open question in this court. It was held to could not render a valid judgment upon a be unreasonable in the case of this same Sunday, but, after full consideration, the company against Hume Bros. (87 Tex. 211, question was resolved in the negative. That 27 S. W. 110). We find no error in the judg- a judgment rendered on that day is void ments of the district court or of the court may now be regarded as settled law. It was of civil appeals, and they are affirmed. so held by the court of appeals in Shearman
v. State, 1 Tex. App. 215. But it was also recognized that, while a judgment could not
be pronounced, a verdict might be returned HANOVER FIRE INS. CO. v. SHRADER
on Sunday. See, also, Hoghtaling v. Osborn,
15 Johns. 118. A distinction is made beet al.
tween judicial acts and those of a ministeri(Supreme Court of Texas. Dec. 9, 1895.)
al character, and it seems to be generally TIME - COMPUTATION – EXOLISION OF SưynAY – held that, in the absence of a statute, minSUNDAY – JUDICIAL PROCEEDING - WRIT OF
isterial acts performed on Sunday are valid. ERROR-RECORD-FILING APPLICATION.
The service of process on Sunday was for1. Where the last of the 30 days within
bidden by the statute of 29 Car. II.; and we which application for a writ of error to the court of civil appeals must be filed falls on
think that the English cases which hold the Sunday, it cannot be excluded in computing the ministerial acts of officers of the court void time. 2. An application for a writ of error to the
because performed on Sunday are referable court of civil appeals may be lawfully filed on
to that act. Expressions of opinions may be Sunday.
found in the books to the effect that the 3. An indorsement by a clerk that an appli
statute was merely declaratory of the comcation for a writ of error was received by him for the purpose of filing on Sunday, but that,
mon law. Early decisions of the courts at due to his doubt as to his power to place it Westminster hold to the contrary. Mackalon file that day, he marked it “Filed” on the next ley's Case, 9 Coke, 66b; Bedoe v. Alpe, W. day, sufficiently shows that the application was
Jones, 156; Swan v. Broome, supra. See, filed on Sunday.
also, Sayles v. Smith, 12 Wend. 59. But we Application for writ of error. Denied. have not found it necessary to determine For prior opinion, see 32 S. W. 872.
that question. In 1846 our legislature pro
vided that "no civil suit shall be instituted, GAINES, C. J. Counsel for the respective nor shall any process be had on Sundays, parties in this case, in response to the re- except in cases of attachment or sequestraquest of the court made at a former day of tion.” Pasch. Dig. art. 1424. The substance this term, have filed written arguments upon of this provision is found in article 1184 of the questions to which their attention was the Revised Statutes, which reads as fol