The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-06-12
THE HIGHER COURTS.
SUPREME COURT.

in substance, these: That on or about
March 30, 1884, plaintiff was the owner
and legally seized and possessed of a
certain dray reasonably worth $50; that
on said day defendant unlawfully, will
fully, wrongtully, traudulently and ma
liciously, seized and forcibly took pos
session and carried away said dray,
without plaintiffs consent and with the
intent to injure him by depriving him
Of the use and value thereof; and con-
verified same to defendants use; that
by reason of such seizure ETC., plaintiff
was derived of the use of said Gray for
about 10 days, and was compelled there
by to hire another dray for that time
etc, to his damage 500; that by
reason of ssid unlawful, wrongful, will
tut, fraudulent and malicious acts
of defendant, with the intent to ipjure
plaintiff as aforesaid, and to deprive him
of the use and enjoyment of his said
property and of the value thereof and to
appropriate same to defendants own
use, plaintiff has been damaged In the
sum of 1000 exemplary and vindictive
damages. Prayer for $50 actual, 500
special and $1,000 exemplary damages.
Verdict and judgment for $50. In sup.
elemental petition plainbitf alleged that
he was the head of a family and said
dray was exempt to him as such from
forced sale; that defendant knew and
was advised of the facts, etc. Held:
The averments of plaintiffs pleadings
were such as would sustain an action
for exemplary as we'll as actual dam
ages, and the court did not err in over
ruling the exceptions of defendant ques-
| ttoning the sufficiency of the
Sverments of the petitions to
| confer jurisdiction on the District
Court. (Kolb VS.. Bankhead, Is Texas,
go; Champion VS.. Vincent, 20 Texas,
80; Gordon VS.. Jones, II Texas, 622;
Graham VS.. Roder,l5 Texas, l46;
Cole VS.. Tucker, 6 Texas, 267;
Neil VS.. eSton, "a Texas, 203.)
An officer is not liable for exempiar Y
damages, who, in proper manner and
in good faith, seizes property under a
wit which he holds, but IL affords no
protection to him when he wilfully uses
process in his hands to accomplish q
purpose forbidden by law, and thereby
becomes its violator.
The statute eXempts from forced sale,
if owned by the head of family, or q
family, one wagon, one carriage, or one
buggy. (Revised Stats, Art. 1885, In
DISCRIMINATING whether dray is en-
braced within the meaning of the word
"wagon," 1t Is proper TO look to the in
tention of the Legislature in giving the
exemption, and no such restricted mean
ing should b. given to 1t as will defeat
that intention. The intention OF the
Legislature was TO protect ell heads of
families in the pursuit of their occupa.
tions, and correct construction OF the
law would seem to protect the draymen
and cartmen in the posses
sion of their vehicles, although
they do not come within the strict
definition Of the word "wagon." (Rog-
ers VS.. Ferguson, 81 Texas, 535. Mich
OILS vs.. Claiborne, 80 Texas, 306. Gordon
VS.. Shields, Kansas, 325. Quigby VS..
Gorham, 8 California, 4lS). The statute
does not give the exemption of q We
hicle which may be classed as a
''wagon" to persons only who may be
farmers or who pursue some given &C.
cupation, but "to every family" and
the fact that the plaintiff was pursuing
the occupation OF drayman, or that he
used the vehicle in any particular way
could not defeat the exemption. To a
person pursuing the business OF dray-
man such an exemption would seem
peculiarly appropriate and in harmony
| with the spirit OF the statute, which eX-
empts "all Implements of husbandry"
and "tools, apparatus and books belong
| ing to any trade or profession" The
defendant is not entitled to have de-
Quoted from the amount of the judg-
ment rendered against him the sum re-
allied from the sale of the exempt prop
erty and applied TO the payment of the
debt for which the execution issued,
and costs of the same, including such as
were incurred through his own wrong
full acts, Affirmed.
w. &. West, W, Schneider Il Davis,
| ~ 4
the contents of deed of assignment
are received in part in the pleadlngs and
made part thereof, though not at
taohed thereto as an exhibit, and the
judgement OF the court sustains obieC-
lions TO the assignment before proceed
ing to hear the facts OF the case, such
deed Is part of the pleadings and
ought to be Incorporated in the record,
A district clork having authority under
the statutes to take acknowledgements OF
deeds OF assignment, his deputy may
also take such acknowledgements. 1t is
error for tho court TO sustain objections
to snd hold invalid deed Of rs Ign
ment for causes which are not apparent
upon the face of the deed, when such
objections are made before proceedings
to hear proof. Reversed and remanded
Peter Getzweller VS.. II. A. Collier,
from Bosque County. Stayton, J. The
answer sets up az defense TO this ac-
ton, which Is based on purchase
money notes, breach OF warranty in
the deed by which the land, for which
tho notes sued on were given, was con.
veyed. The defendants answer shows
that he had notice of the outstanding
superior title at the time he bought anC
received the warranty deed, and hi
does not propose to cancel the deco
made 10 him, or to surrender posses
sion Of the land, although from his an
swerit Is to be inferred tn at he has pos
session. The court below properly sus
tained a demurrer to this answer, AZ
firmed.
Galveston, Harrisburg & San Antoni,
Railway VS., Damon Jones; IRON Harris
county. On rehearlng. At the last Gal
weston term this case was reported OF
by the Commission of Appeals; thei
conclusions were adopted and the judg
ment affirmed. The motion for rehear
ing presents Tor revision no point upoi
which this court did not formerly pass
and upon another careful consideration
. Of The case no errors appear in the judg
ment, and II is affirmed.
Duncan, Wyatt Il Co. VS.. A. NJ. Taylo
OF al. from Red River County. Willie
{. ]. Liens coming within The provis
ions of the 18th section of the act o
March u, 1879, regulating assignment
for the benefit OF creditors are abso
lutely void. (First National Bank VS.
Lovenberg, 8 Texas Law Review.) Thil
rection OF the statute is not within the
prohibition OF Art, 3, Sec. 3, of the con
stitution, which provides that no bill
shall contain more than one subject
matter, which shall be expressed in Ia
caption.
Any instrument coming within thi.
purviow OF said section being abso
lutely void, the property romans in the
same condition as though no effort had
been made 10 create the lien, and 10 Is
Liable 10 attachment or execution fol
the mortgages debts In the same man
ner, and 10 the same extent, as II he had
not sought to subject II 10 the payment
OF the claims OF the creditors named In
the mortgage. Nor does the mere fact
Of recording the illegal instrument give
IL any vitality. Judgment reversed and
rendered in favor of appellee.