The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1880-03-30

Galveston Term, 1850.
lgeportod for the Galveston New8 by o, y
Eaton, OF the Galveston bar,
s Ephraim vs. N M Groce, Appeal from
Waller. Opinion by White, p j. This wa
a trial Of a right Of property In and TO Il
bales of cotton, or rather tho interest which
one L s Clark had therein. Jury waived
Only error In record Is that court rendered
Judgment against claimant and suroties on
his bond for value Of tho cotton In case same
was not returned to the Sheriff in tho time
required by law. On tho trial for tho right OF
property, where the claimant fails to make
good his claim, IL Is error TO render judy
mont against him on his statutory bond (P
ID, art $500 for tho value Of the property.
Claimant has ten days in which TO return the
property, on failure 10 do which tho clerk
endorsement on tho bond that It has been for
feited has the force Of Judgment ID
art 1915; Mardis vs. johnson, AZ Tex, 200 ]
Although tho judgment as rendered would
b. good under our new law 5, art 1913,
vet II was not such At tho time made. Re-
versed, reformed and remanded
Planters Insurance company.vs. Walker
lodge No. 10, l. 0. o. II. Appeal from
Walker. Opinion by Clark, j. Under the
contract of insurance sued upon, II WAS in
cumbent upon appellant, in case it desired a
CANCEL .tion Of the policy before ito expira-
ton, to notify appellee that such cancella-
ton had beon made, accompanying the no.
tce with tender Of the amount Of premium
for the unexplred term. Neither of these
prerequisites standing alone could suffice to
release appellant from its obligation, but
both must concur, before, under the law, the
appellant could avoid liability and terminate
the contract. The notice should DO in effect
that the contract is terminated, not that it
will be terminated at future day; and the
amount to be returned should be paid or ten
dered to the assured, holding II subject to his
order, or leaving it at some place for him is
not sufficient, but the assured must DO sought
out and tender made; and these defenses
must be established by proof.
Appellant pleaded cancellation and tender
before the destruction Of the property in
sured, but giving to the evidence the most
favorable construction possible, it can not be
said TO maintain tho plea. The transaction
shows desire to effect cancellation, but
never in fact executed. The apparent will
ingness of appellee to submit to cancellation
possesses no significance, because it was
bound to submit to the pleasur of appel
liant in the matter, and could not affect the
result by dispute. The instruction asked
was not applicable to the pleadings and not
To the law Of the case. The jury might have
found all the issues requested in favor of the
defense. and that the conclusion would be u
rem sequitur. Affirmed
n, 'na., onllaotor va nj Knpnar1 Er
ror from Galveston. Opinion by Clark, j.,
Under the laws in force in September 1876,
il was competent for the Assessor Of Calves
ton county to assess for taxation the shares
held by defendant in error in the National
bank Of Texas, even though such assessment
was supplemental; and the owner failing or
refusing 10 afiix taxable value to said pro-
perty, such valuation could be made by the
Assessor. Laws 1878, CHI. SO, sec. 8, i'd.
1874, oh. l51, CHI. 1876, sec. s. The assess
ment as made Is not claimed TO be excessive
nor IA any claim made that the property Is
not in truth and tact liable to taxation, the
nlea being that it was made under the assess
ment act of 1879, which had not taken eff
feet. The mere fact that it appears TO have
been made in September, 1876, does not es-
tablish the fact that it was under the act Of
that wear, but o more potent and natural
conclusion is that 1t was made under the
laws in force at the time, and which did not
cease to operate as laws until the new system
devised b,y the Legislature had taken effect
For aught that appears in the record, the as.
sessment was regular and authorized by law
and the plaintiff in injunction was not emit
tied to an injunction restraining the sale OF
his land, in the absence Of tender of the
amount of taxes due Reversed and dis
missed.
John Boehl VS.. j f Hecker. Appeal from
Galveston. Opinion by White, P.J. ATE
the case was appealed from the Justice
court to the County court, the plaintiff
moved to dismiss the appeal because the "pa
per filed in said court purporting to be III
appeal bond, docs not appear to be signed b,
either Of the principal or surety, but exc
cuted by their mark, without any subscribin,
witness to their said mark, or to the fac
that they have authorized any one else Il
write their name for them" Motion sus
tanned by court and appeal dismissed. w
know Of no law which requires that attestin
witnesses are essential to give validity to sig
natures 10 such instruments when the pal
ties are unable 10 write. In all respects tn
bond is prima facie all that is required. RI
yerssd and remanded.
Texas Express company vs.. Q. L. Beissns
at Al. Error from Galveston. Opinion b
White, p. j. If it be admitted, as Is col
tended by defendants in error, that the bon
sued on could not be introduced in evidenC
until plaintiffs, as predicate, had first e
tablished their corporate capacity to su
and that the act Of incorporation could N
be introduced in evidence until prop
predicate had been laid for its introductit
by proof Of the law of the State under whi'
It asserted corporate existence and privilege
then, 10 say the least when the printed lay
Of the State we're offered in evidence, a
thenticated as they were by the authority
the State government, they should not ha
been excluded. 7. d., Art 3712, $500; l
lis vs. Wiley, II Tex, 1856; Green, 81
4 1887 Reversed and remanded.
: Amanda Thomas vs. the State. App