Fannin, Delta, Hopkins, and Franklin counties, in Texas, and from the Choctaw and Chickasaw Nations, Ind. T., which constitute a large territory, a very small number of the citizens whereof are known to plaintiff. Besides, there were all the time many other persons buying cotton in Paris, who bought a large number of bales in said market. That he has made diligent inquiry to ascertain the names of the persons from whom said defendants bought said cotton, and the precise date of each purchase. That he has propounded interrogatories, under articles 2239 and 2240 of the Statutes of Texas, to John Martin, Frank Fitzhugh, and T. W. Johnson, in order to discover the number of bales bought by or for them, the names of the persons from whom they bought, and the precise date of each purchase, but has been unable to get the information desired. That he has exhausted all the means at his command to ascertain the facts above referred to, so as to be able to plead them more specifically, but is unable to get the necessary information; and if the defendants, or any of them, have such information (which they ought to have, if any one), they conceal it from plaintiff for the purpose of trying to defeat the ends of justice in this suit, by preventing a fair trial and full investigation into the merits of this case. (12) That he have judgment against the defendants, and each of them, for five dollars a bale for each and every bale of cotton weighed by Speairs and Long, as employés of the defendants, in violation of the statute and of plaintiff, as publie weigher, that the evidence may show on the trial of this cause.

September 5, 1893, appellants filed their third amended and third supplemental answers, containing general demurrer and 16 special exceptions to plaintiff's petition, general denial, and special answers.

The gen

eral demurrer and special exceptions of appellants were each and all overruled. There was a verdict and judgment for plaintiff against all the defendants for $1,825, from which judgment this appeal is prosecuted.

Burdett & Conner and H. D. McDonald, for appellants. Hale & Hale and R. Woolbridge, for appellee.

FINLEY, J. (after stating the facts). The first assignment of error is made the basis of the proposition that a recovery of a statutory penalty cannot be had upon a petition which fails to set out or specifically refer to the statute creating the penalty. Courts take judicial cognizance of general laws, and, under our system of pleading, it is only necessary to allege the facts upon which the recovery is sought. The provisions of general statutory law governing the rights of the parties upon such a state of facts need not be alleged. Steph. Pl. 347; Chit. Pl. 215; Gould, Pl. c. 3, § 16; 23 Am. & Eng. Enc. Law, pp. 286, 287.

The second, third, fourth, fifth, and sixth assignments of error assail the validity of the acts of the legislature of 1879 and 1883 (Acts 1879, p. 116, and Acts 1883, p. 83), upon several grounds. The propositions urged under these assignments were decided adversely to appellants upon a former appeal in this case, and we do not feel disposed to question the correctness of that decision. Johnson v. Martin, 75 Tex. 33, 12 S. W. 321.

****

The seventh, eighth, and ninth assignments of error attack the eighth section of the act of 1879, as being violative of both the state and federal constitutions. The eighth section of said act is as follows: "Sec. 8. It shall not be lawful for any factor, commission merchant or any other person or persons to employ any one other than a regularly appointed and qualified public weigher, or his deputy, to weigh any cotton, wool, sugar or hides required to be weighed, sold or offered for sale in any city having a public weigher duly qualified; and any person or persons violating this provision shall be liable at the suit of the public weigher of such city, or either of such public weighers, to damages in any sum not less than five dollars for each bale of cotton, bale or sack of wool, hogshead or barrel of sugar or bale of hides so unlawfully weighed, to be recovered in any court of such county having jurisdiction thereof; * It is contended that the failure to fix the maximum of the fine by express terms in the statute renders the same obnoxious to the eighth and fourteenth amendments to the constitution of the United States, and to sections 13 and 19 of the bill of rights, as contained in our state constitution. The provision referred to in the eighth amendment of the constitution of the United States has its origin in an act of parliament in 1688, entitled "An act declaring the rights and liberties of the subject, and settling the succession of the crown," which act sets forth numerous grievances, and, among them, that "excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects; and excessive fines have been imposed, and illegal and cruel punishments inflicted." And it is therein declared that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. St. 1 W. & M. c. 2. The declaration of rights, as contained in this act of parliament, relates to the executive and judicial departments of the government of England. The language, as used in our federal constitution, is a limitation upon the authority of congress, and has no application whatever to the government of the states. In re Kemmler, 136 U. S. 446, 10 Sup. Ct. 930; Pervear v. Com., 5 Wall. 475; Fox v. Ohio, 5 How. 410; Barron v. Mayor, etc., 7 Pet. 243; Eilenbecker v. Plymouth Co., 134 U. S. 31, 10 Sup. Ct. 424. The exact language used in the amendment of the federal constitution, namely, "Excessive bail

ments in this form, under our system of laws, appears to us to be very questionable. It is quite easy to fix the maximum of fines and penalties in express terms of the statute, and the scope below the fixed maximum would seem to be a sufficient domain to be governed by the discretion of the jury. As, however, we find nothing in our constitution and laws prohibiting legislation in this form, and as we find that such statutes receive the sanction of the common law, and are enforced by common-law courts, the mere fact that such form of legislation is thought to be ill advised furnishes no reason why, as a court, we should decline to enforce the statute. Again, this statute has been twice reviewed by our supreme court, and, while this particular question was not brought before the court for adjudication or decision, the statute was treated by the court as a valid statute. Watts v. State, 61 Tex. 184; Johnson v. Martin, 75 Tex. 33, 12 S. W. 823. The assignment of error cannot be sustained.

The tenth assignment urges that the petition of plaintiff seeks to recover for more than one penalty up to the time of bringing the suit, and that the special exception directed at that feature of the petition should have been sustained. The very terms of the statute under which the cause of action arises and the liability is claimed clearly indicate that such a suit may be maintained under it. The assignment is without merit.

The eleventh, twelfth, and thirteenth assignments are not well taken, and it is not deemed important to discuss them.

Under the fourteenth and twenty-second assignments, based upon the ruling of the court upon special exceptions to the pleadings, and the refusal of a special charge requested, the proposition is urged that the defendants Martin, Wise & Fitzhugh and Johnson & Long bought the cotton from producers or other owners, and the vendors, at the instance of the purchasers, carried the cotton to the warehouse company to be weighed, and the warehouse company, under previous arrangements with the defendant purchasers, weighed the cotton, and that no liability exists against the defendants therefor. The act of 1879 (Acts 16th Leg. p. 116) creates the office of public weigher, provides for his appointment, qualifications, duties, etc.; and the seventh and eighth sections of the act are as follows:

"Sec. 7. It shall not be lawful for any person other than a regular appointed weigher, or his deputy, to weigh any cotton, wool, sugar or hides required to be weighed, sold or offered for sale in any city having a public weigher duly qualified. Any person or persons so offending shall be deemed guilty of a misdemeanor, and upon conviction before any court of competent jurisdiction, shall suffer a fine of five dollars for each and every bale of cotton, bale or sack of wool, hogshead or barrel of sugar, bale or loose hide so weighed. "Sec. 8. It shall not be lawful for any factor, commission merchant or any other person

or persons to employ any one other than a regularly appointed and qualified public weigher, or his deputy, to weigh any cotton, wool, sugar or hides required to be weighed, sold or offered for sale in any city having a public weigher duly qualified; and any person or persons violating this provision shall be liable at the suit of the public weigher of such city, or either of such public weighers, to damages in any sum not less than five dollars for each bale of cotton, bale or sack of wool, hogshead or barrel of sugar or bale of hides so unlawfully weighed, to be recovered in any court of such county having jurisdiction thereof; provided, any owner shipping any produce named in this act to any town or city having a public weigher may by written instructions authorize his factor, commission merchant or agent to have such produce weighed by private weighers, if he prefers so to do, and in all such cases the prohibitions and penalties embraced in this section and in the preceding section shall not apply."

This act makes it unlawful for any factor, commission merchant, or any other person other than the public weigher in the city or town having a public weigher, to weigh, or employ any one other than the public weigher or his deputy to weigh, cotton, wool, hides, or sugar, except under certain named conditions, to wit, "provided, any owner shipping any produce named in this act to any town or city having a public weigher, may by written instructions, authorize his factor, commission merchant or agent to have such produce weighed by private weighers, if he prefers so to do, and in all such cases the prohibitions and penalties embraced in this section and in the preceding section shall not apply." In the case of Watts v. State, supra,-the cause arising under the act of 1879, as amended by the act of 1883,-our supreme court held that any person may lawfully pursue the business of private weigher of cotton, etc., and solicit business in a town or city having a public weigher. Upon that point it is said: "The law then permits private parties to weigh cotton shipped to a city, under certain circumstances, forbidding it if these do not exist. The appellants, if requested by the factor, who exhibited the written instruction to that effect from the owner, were authorized to weigh the produce covered by such instructions, and as to it their powers were as great as those of the relator [public weigher] himself. This being the case, we can see no reason why they should not be allowed to pursue the occupation of private cotton weighers, solicit business of the kind they were allowed to receive, and make the necessary preparations to comply with a legal request for their services in that respect, their business being confined to private cases in which private weighing was allowable. There would certainly be no illegality in their soliciting owners, in person or by letter, for such employment, or in seeking it from factors who had received the necessary written instructions. The form

or manner of the solicitation could not be a matter of importance, and we therefore see no impropriety in their holding themselves out to the world as persons willing to do an act which the law expressly authorizes them to do." Under authority of this case, the Lamar Warehouse Company should be treated as having the right to solicit and engage in the business of weighing cotton. As a corporation, it could only act through its servants and agents, and it had the right to employ whom it pleased to transact its business in a legal manner. Under the strict terms of the act of 1879, no one other than the public weigher, or his deputy, was authorized to do such weighing, except upon the written authority of the owner who had shipped the produce to such city or town to a factor, commission merchant, or agent. Whether that act should receive the construction of taking away from the owner, under all other conditions, the right to control and direct as to who should weigh his produce, to say the least of it, is very questionable. But it is unnecessary for us to pass upon that point in this case. In 1883 the legislature passed an act amending the law of 1879. This amendatory act purports to amend only sections 1, 2, and 9 of the act of 1879, leaving sections 7 and 8 to stand as passed in 1879. In amending section 1, which originally provided for and regulated the appointment of public weighers, the act of 1883 provided for and regulated their election, and added this new matter to the section: "Provided nothing herein contained shall be construed so as to prevent any other person from weighing cotton, wool or hides when requested so to do by the owner or owners thereof." The two enactments are now to be regarded as one law, and we have section 1 declaring that "nothing herein contained shall be construed so as to prevent any other person from weighing cotton, wool or hides, when requested so to do by the owner or owners thereof," while sections 7 and 8 broadly prohibit any other person from weighing or employing any other person than a public weigher, under this limitation: "Provided, any owner shipping any produce named in this act to any town or city having a public weigher, may by written instructions, authorize his factor, commission merchant or agent, to have his produce weighed by private weighers, if he prefers so to do, and in all such cases the prohibitions and penalties embraced in this section and the preceding section shall not apply." Does the statute, as it now stands, place any limitation upon the right of the owner to control in the matter of the weighing of his produce, when he is present and acts for himself? It will be seen that the express terms of the act of 1879 provided for but one contingency in which it was lawful for private persons to weigh, or employ prirate weighers to weigh, such produce, namely, when the owner had shipped the cotton to a factor, commission' merchant, or agent, and given written instructions authorizing it

a

Under

to be weighed by private weighers. the letter of this provision, an owner present upon the ground, controlling his produce, could not have it weighed by a private weigher; and a private weigher, acting upon his request, either verbal or written, would not be protected. The provision only applies to a case where the produce is handled by factor, commission merchant, or agent, for the real owner. Are the rights of the owner so restricted by the act as amended? In the Watts Case, above cited, Chief Justice Willie says: "For the purposes of this case, it is not essential for us to decide whether the amendment of the first section of this statute by the act of 1883 changed the law in this respect or not. It certainly does not interfere with the right of the owner of produce to have it weighed by private weighers, but, if it has any effect, it allows that to be done by direct request of such owner, without the intervention of the factor or commission merchant. We do not now pass upon that question, as it is unnecessary for a decision of this appeal." We are of opinion that the amendment has the effect which seems to be intimated by the learned chief justice. It removes the restrictions apparently placed upon the power of the owner over his own property, and makes it lawful for private weighers to weigh his produce at his instance. A factor, commission merchant, or agent to whom he might ship his produce cannot lawfully have it weighed by a private weigher, except upon written instructions from the owner; but, where the owner acts for himself in having the produce weighed, the statute does not limit the exercise of his right to select the weigher, nor the right of the person selected by him to do the weighing. The object of the act is clearly the protection of the owners of produce from false weights, and from the fraudulent conduct of their factors or agents in rendering false accounts of such weights of produce. The statute should be so construed as to accomplish this object, but it should not be given such a range as to interfere with the complete dominion of the owner over his property.

Applying these principles to the case before us, if Martin, Wise & Fitzhugh and Johnson & Long, defendants, purchased the cotton from the owners, agreeing to pay therefor certain prices upon receipt of the weights, gave them tickets addressed to the warehouse company, requesting it to weigh cotton for their account, and the vendors of the cotton carried the cotton to the warehouse company to be weighed, presenting such written requests, and the warehouse company weighed the cotton, then the cotton was weighed upon the requests of the owners thereof, and no liability was incurred by the defendants. The case was not presented in this light in the court below, and its judgment must be reversed. It is not clear from the pleadings of plaintiff that the cotton was weighed under circumstances that rendered any of the de

fendants liable in damages to the public weigher, and the court below should have sustained the thirteenth special exception urged upon that point.

There are many other assignments of error presented, which we deem it unnecessary to consider. On account of the errors indicated, in ruling upon exceptions and instructions to the jury, the judgment of the court below is reversed, and the cause remanded.

of the judgment was made, and upon the hearing of said motion the court reopened the case, rendered judgment quashing the attachment, and for the assignee for the amount of the debt sued for and against the receiver, etc. The judgment recites that the East Line Lumber Company was insolvent at the time of the levy, and for that reason the assignee was not entitled to preference by virtue of the levy if the attachment was valid. The proceedings were duly excepted to, and the as

sitting.

ROGERS v. EAST LINE LUMBER CO. (Court of Civil Appeals of Texas. June 26, 1895.)

JUDGMENT-CORRECTION-AFFIDAVIT FOR ATTACH-
MENT-VARIANCE-INSOLVENT CORPORA-
TIONS-ATTACHING CREDITORS.

1. Where, in attachment, a judgment is rendered for plaintiff for his debt, refusing foreclosure of the attachment lien, and overrul ing a motion to quash the attachment, the court cannot, at a subsequent term, in passing on a motion to correct the entry of judgment, reopen the case, and render another judgment, quashing the attachment.

2. Where both the petition and the affida vit for attachment correctly describe the indebtedness and state the aggregate amount due, the mere recital in the affidavit that the additional 10 per cent. on the sum due, provided for in the notes sued upon, amounts to more than it really does, is not such variance as will vitiate the attachment.

3. The levy of a writ of attachment on the property of an insolvent corporation does not give the attaching creditor's demand priority over the claims of unsecured creditors.

Error from district court, Marion county; John L. Sheppard, Judge.

Attachment proceedings by T. J. Rogers, assignee, against the East Line Lumber Company. There was a judgment quashing the attachment, and plaintiff brings error. Affirmed.

W. T. Armistead and F. H. Prendergast, for appellant. S. T. Todd and C. H. Culberson, for appellee.

RAINEY, J. T. J. Rogers, assignee, plaintiff in error, brought suit against the East Line Lumber Company, a corporation, defendant in error, for debt. Subsequently, to wit, January 29, 1893, plaintiff sued out a writ of attachment, which was levied upon personal property of defendant. On February 1st following, in a different proceeding, a receiver was appointed for the East Line Lumber Company, who was afterwards made a party to this suit. At the January term of court, 1894, the cause was tried, and a judgment rendered overruling motion to quash the attachment, for plaintiff for his debt, and refusing to foreclose the attachment lien. The minutes of the court failed to show the overruling of the motion to quash the attachment, and failed to make disposition of the receiver. At a following term a motion to correct the entry

of error.

The quashing of the attachment by the court is complained of upon two grounds:

1. Because the court "had overruled the motion to quash said attachment at last term of court, and the defendants nor receivers did not except to said ruling, and said judgment rendered at last term of court was final, and could not now be changed; and no sufficient reason is shown for changing said ruling." The action of a court upon a motion to quash an attachment becomes final upon a trial of the cause and a final judgment rendered therein. The judgment of the court rendered at the January term was final. It is well settled that after a term of court has ended the minutes of the court may be amended at a subsequent term, but in passing upon a motion to amend a final order the court cannot retry the case, and render a different judgment from that theretofore rendered. It must confine its investigation to what was done at the former term, and only enter nunc pro tunc the precise order made at the former term. City of Brownsville v. Basse, 43 Tex. 441; Ximenes v. Ximenes, Id. 458; Chestnutt v. Pollard, 77 Tex. 88, 13 S. W. 852. While it was error for the court to reopen the case for the purpose of considering the motion to quash, its action in this respect becomes immaterial, as, under our view of the case, plaintiff was not entitled to a foreclosure of the attachment, no lien having been created upon the property by virtue of the levy thereof.

2. "The court erred in quashing the attachment on account of the variance between the affidavit and petition, because there was no such variance as to justify the quashing of the attachment." Plaintiff's petition sues to recover on two notes and an account, all of which are correctly described, and are attached to and made a part of the petition; the aggregate amount being $5,381.06. The affidavit for attachment states that the facts stated in the petition are true, that the defendant is indebted in the sum of $5,381.06 (the amount sued for), the notes and accounts are properly described therein; but, after setting out the notes correctly, the further statement is made "that 10 per cent. on both of the above-described notes amounts to $230 * * * when suit was instituted on each of said two notes, which are attached to the petition, and marked 'Exhibit A' and 'Exhibit B,' respectively." The notes provided for an ad