The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-06-22
1HE HIGHER COURTS.
SUPREME COURT

only tOr tne reason LlaD IL WAS not dis
cussed in our former opinion rendered
In the case. Is Texas Law Review. J
1t is urged that the district Judge
erred in giving judgment for the value
of the book accounts, for the reason
that mortgage OF these did not come
within the province of the of the l7th
section OF the assignment law, the
being neither goods, wares nor ner.
chandise. This might be a point
of some difficulty II it were Jrue that
the accounts and outstandings, for rhe
value OF which judgment was rem,
dered, existed az the date OF the mort.
gage and were included in it. BuI
the fndinE of the judge IS supported
by the evidence is that $4,000 OF
these accounts arose from the sale o.
goods belonging to Schwartz at the
time he madL the mortgage; and $l0,.
600 were the proceeds Of the sale o
goods added by him to his stock after
the execution of that instrument. II
the mortgage WAS made and the goods
included in 1t did not pass TO the bank
but continued ths property OF
Schwartz, subject to his debts and at
assignment by him for the benefit OF
his creditors, the accounts represent
ing their proceeds were in the same
condition. They took the place of the
goods sold upon credit, and must he
treated as such goods in passing upon
the rights of the parties under the
mortgage and assignment.
IL Is also claimed that tho
court should not have rendered judg-
ment for the value OF such accounts
a had mot haan op1l antad rha o,,,z.
found that there WAS 5000 worth Of
good solvent accounts representing
goods as above stated, in the hands of
the bank belonging to Schwartz at the
date of the assignment. They had
been placed out OF the reach of the as
signee and large amount of them had
been collected by the bank and appro-
priated 10 its own use, and the bank
was using every exertion to collect the
balance for the s9me purpose. 1t WAs
not in the power of the assignee to
collect these claims, as the bank holt
the evidence OF the indebtedness In its
own hands and made no offer to sur
render them TO the assignee or into
court for his benefit, 1t is apparent,
therefore, that by the wrongful act Oi
the bank, property to the value OF
$1,000 was kept from the assignee, an d
WIZ SOuib PiOpolly Holu JuhN INC DAuh
was responsible to him for that
amount. > Rehearing denied.
T, l.. Marsalis ct al. VS.. the Texas
Cactus Hedge Company, from johnson
County. Watts, j.; adopted. Suit by
appellee against appellants for dam
ages for an alleged wrongful seizure
and sale of portion OF stock OF gro
ceries claimed TO have been purchased
by appellee from W. Price. Appel.
lants claimed that Price was in falling
circumstances and largely indebted,
and that the sale was made to appellee
for the purpose and with tho intent To
hinder, delay and defraud his credi-
tors, and this intent was known to ap.
pellee, or ought to so have been known
by the use OF ordinary diligence, at the
time Of the sale; that the sale was not
in good faith and for yalua-
bic consideration, because the only
consideration paid was void
patent right, the answer asserting the
facts which 1t is claimed showed its
inyalidity. Judgment for appellee for
S6O9.l0, Held: There was no error in
permitting the officer who took the de-
positions TO endorse upon the enyslope
the names of the parties TO the suit,
and also the name of the witness
whose deposition it contained. This
was matter addressed TO tho disCre-
ton of the court, and no abuse OF its
exercise is disclosed by the record.
Chapman VS.. Alien, Is Texas, 2S2.
Conger VS.. Cotton, 81 Ark, 1913.
IL IL claimed that the court erred I'm
overruling appellants exceptions 10
appellee's repleader. These excep-
lions were that It was not shown by
the allegations where or in what man
ner or for what purpose appellee was
incorporated, and that IL was
not alleged that the charter
authorized appellee to buy, own and
hold merchandise.
Where the plaintiff alleges its own
Incorporation, the statute REQUIRES
that the allegation shall be that IL
was duly Incorporated and "the |
date and manner OF incorporation |
shall be stated" Grew. Stats, Art. |
l,l00)
1t was alleged "that the plaintiff |
Texas Cacuts Hedge CompanyJs now |
and was on and before, TO wit; The |
10Th day OF September, 1882, q corpora
ton duly incorporated under the gen.
eral laws of the State Of Texas, having |
Its principal office in the city OF Gle. |
burne, Texas, by filing its charter in |
the Secretary of States office at Aus
tin, Texas, on the It'll day OF Septem.
ber, lSS2.n These allegations |
show substantial compliance
with the statute. IL was
not necessary for appellee TO allege |
that the charter authorized il TO buy,
own, hold and sell merchandise, III
appellee had exceeded its powers In |
this respect, then appellants should |
have averred and shown II. The stat |
ute expressly authorized private cor
porattons to nuy, own and sell prop. |
erty for certain purposes. (Rev. Stats |
Ar. 615) Appellants exceptions TO |
alppi,,ss tepleaded were properly |
Reversed aud remauded.
j. II. Brown OF al Va. Cactus Hedge |
Co.; from johnson County. Watts I.
Adopted. 10 by no means follows |
from the provisions OF the United
States statute giving United States
Circuit Courts jurisdiction of all |
questions relating 10 the IN |
iringemonts of, as well az suits
70 annull' and cancel pstents
Omitted States Rev. Stats, Sec 62q). |
that the state courts have no power 10 |
adJudicate and determine questions re. |
laung opatents which arise incident |
ally or oollaterally as defensive matter
In suits The great weight OF author
Ivy Is that when such questions arise |
incidentally or collaterally in suits |
pending In State courts that such
courts have the power and authority |
TO adjudicate and determine the same.
Taking the averments OF the answer
as true, which alleges that the process
or method Of planting, etc., cactus
hedges rs described In the patent had
been in common use in the State OF
Texas for more than two years before |
the application of letters patent and |
that IL was neither n nav
nor useful invention or disooyerv.
II admits OF no question that the patent
IL void. But whether the methods do. |
scribei In the patent for utilizing the |
cactus for hedging are new aud useful |
must be determined from the evidence.
Where the purchaser has paid a valus.
Die consideration, without notice of
such intent upon the part OF his VEN
uor, a. IL demanded by article 2,l65,
Revised Statutes, he Ia relieved from
the Eject OF that announcement, IN
inc patent, which was the oonsidera.
ton paid, was void the vendor and
purchaser are both chargeable with
notice OF that part, and such ba,ng