The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1882-06-15
srNopsi, or ofiNroNs.
Reported Expressly for the sr.rrs~AS.l
supreme Court.


stead. The suit in which sequestratlon
was sued out and levied was instituted
by b., December IL, 1878. After seizure
Of the property, the appellee failed TO re-
plevy Il; b. did so, and took possession
OF the same. That suit was dismissed by
the plaintiffs ut the succeeding term OF the
court, and the property sold by IL. TO
Gerald, after which Gaines Instituted suit
of trespass to try title, and he recovered
Judgment for the property and for rents.
This suit was instituted in December.
lsSO. against Il. and surettes on the Sc
auestration bond. The recovery was for
actual damages against all the defendants,
and exemplary damages against Is. b.
claimed the property under exemption
sale in their favor in October, 1878. On
the trial evidence was admitted of the
seizure and sale ofpers0nal property al or
about the time OF the sale OF the real esS
tate. Held, error, that to show such dam
ages legal evidence islndispensible. There
was no error in permitting appellee to
prove that b. ct al paid the cost OF, and
dismissed the suit in which the writ OF
sequestration was sued out. Reversed
and remanded.--Stayton, j.
Houston and Texas Central railway
company VS.. Boehm; appeal from Robert
son county.-In Il suit for damages faS in
juries the defendants asked charge
which was in effect that If the jury found
for plaintiff they would consider whether,
under the evidence, plaintins ability TO
labor was diminished by the injuries re-
ceiyed. IL SO, to allow an amount for
compensation equal TO the difference be-
tween what plaintiff could earn before
and what he could earn since, in conse-
quence of the said amount, for the length
of time he was so prevented from work by
said injuries. This rule for estimating
damages the jury were asked to be ln-
structed to consider in connection with
such damages as they should allow Tor
pain and suffering. Held, that the court
did not err in refusing the charge, be-
cause incorrect under the pleadings. and
because the general charge on the subject
was full and sufficient. An instruction
against allowing compensatory damages
for permanent injuries, because of the
absence of evidence to show what would
purchase an annuity, was properly re-
fused. Nor was IL error to refuse charge
to allow only compensatory damages, and
nothing for the purpose OF furnishing de-
PENDANT, the suit being only for COM
pepsatory damages, and the general
charge correctly instructing the jury to
find only actual damages. The evidence
tending to show permanent disability,
$1,000 cannot be said to be an excessive
award. Atfirmed.--Stayton, j.
Hodges VS.. Taylor ct al; appeal from
Burleson county.-This suit was insti-
bankruptcy of the debtor and after his
discharge, upon debt incurred anterior
to such adjudication and discharge. The
one question OF law involved is as to the
effect OF such discharge. Held, that IL In
defense to such action, the defendant had
pleaded his discharge, such plea would
have had the same effect as plea OF the
statute of limitations, and would have
been a bar to recovery, but not being
pleaded amounts to q waiver of such de-
tense. Aflirmed.-Gould,C T.. j.
GlasscOck v. Schell from Williamson
CONFEDERATION in suit for damages for
breach of promise OF marriage, sets up
simple contract without any circumstances
ces of aggrayation whatever, but con-
tains general allegation of damages OF
$4,000. No special damages are alleged.
Verdict for plaintiff for $4,000.
Two questions arise ~ What is the
measure OF damages where simple
breach of contract of marriage is alleged
without grounds of aggrayatiOn (2) Is
IL the duty of the court to charge this
measure of damagesY As general rule,
the measure of damages must be gov
erned by allegations which constitute le-
gal ground for damage and the support
ing evidence. The rule to be observed
in drawing the distinction between gen.
eral and special damages, is laid down in
80 Tex. $50. A breach OF promise OF
marriage is n tort, and per above author
ity requires special damages which must
be p eaded specially. Precisely what
damage, or what would be not only the
natural but necessary result of breach
OF promise of marriage may admit of
question. AS Il general rule, that which
| Is necessary TO be proved, should first be
| alleged. A mere conclusion OF law,
however, need not be. The usual ele-
ments of actual damages includes disap-
poin.ment of reasonable expectation,
money advantage of proposed marriage,
| injury to the feelings, etc., and actual
outlay in preparation. But such do not
follow absolutely as RGturOI or necessary
results, for the breach may be Il satlstac-
| ton to both parties. Then ifnot the
natural and necessary results, the law
will not imply damages, and unless they
are alleged and proven as elements OF
damage, the plaintiff, under objection at
proper time and manner, would be enti-
tied to only nominal damages. The court
should have charged the jury what, in
| this case, constituted the basis upon
| which they should estimate damages.
Reversed and remanded. Bonner, j.
City of Fort Worth VS.. Davis. ct ais
appeal from Tarrant county.-This suit
was to enjoin the collection of special
| school tax, which, under an election in
1877 assuming control of the public
/
| lin 1SS0) on the proposition "whether or
not the city council of the city of Fort
| Worth should he empowered to levy tax
| of one-fourth of one per cent. for the sup
port of public free schools" The consti-
| nationality of articles 37S0, 1886 and 1881
being attacked, were properly upheld in
| the court below. But the statutory ques.
ton which should have been submitted
| was "Shall such an amount be raised by
taxation, not to exceed one-half of one
per cent, in addition to the pro rata of
| the school fund received from the state,
| as may be necessary to conduct the
schools for ten months . the Year," Re-
vised Statutes, $751; Subsequent legis-
| lation has changed this question and
authorized a vote on tax for specified
| amount. The change, however, does not
| effect the validity of action had before
the change took effect) Notwithstand-
| ing the decisions of this court in As
Texas, 413, and 30 Texas, 33s, the men,
bers of this court regard the validity of
the various provisions in the Revised
Statutes for eontesting elections as still
an open question In this court. The tax
levied was illegal and the court did not
err in enjOining its collection. Affirmed.
Gould, q. j.
Carson VS.. Kelley; appeal from Ellis
| county.--Where a deed is absolute on its
| face, with usual warranty of title, and
without an express reservation of ven-
| doris lien, the contract of sale of land is
| an executed contract. Liabilities of the
vendee differ In eXecut0ry and executed
| contracts thus: In the former he would
be relieved by showing defect of title,
unless proved by vendor that such was
known at the sale and such title taken as
| he had. In the latter the veudee should
show that the title failed in whole or in
part; that there was danger of eviction
Il ~. ii. .aku
/ fdcis repel presumption that he knew and
| took risk of the defect. Defense then, of
| invalid title, should set up ignorance
/ thereof at the time of purchase, by way
/ OF answer. This was not done, nor by
amendment when exceptions were sus-
tanned. That defendant ''fears" b. can
| not respond In damages on warranty, is
not sufficient averment OF Insolvency.
Allegation of fraud emitting to charge
that the representations were fraudu-
lently made with intent to deceive, and
that they were relied upon, etc., is insult
ficient. Affirmed. 2. j.
| Williams VS.. Mayfeld; appeal from Nc
Lehman county.-ln contest over the
true locations of the lines of two diff
ferent pieces of patented lands, it be-
comes the duty of the court to charge the
jury as the principles OF law which
should govern in the application of the
various GAYS in the patents TO the
| ground. The latter psrt of the second
| paragraph of the charge asked and
refused is: eff you believe from the
evidence that the ID. survey was In fact
remade. and following the actual survey
as IL was made, you find the land sued
for included in said survey, you will find
for the defendant" While such charge
might be incorrect in some instances, il
Is not under the facts in this case. The
court erred in not charging the rules