*1 (Tex. REPORTER 142 SOUTHWESTERN having negligence. colt; but, partitioners a mare and of carelessness defendant’s garnished against plaintiff, in a suit it was duty seen defendant It was the of agreed tionally condi- was to take the animals kept paper con- in safe was that this cutter to hold until the debts were working order, good it and, dition and if it took the mare and colt to settle plaintiff debts, Plain- was not to charge jarred of loose.” The would not he family one tiff the head of a was subject “If as follows: was on this the court kind, other animal of the horse paper you in an cutter was believe that by partitioners mare for the reservation exempt. condition, in said and Held colt were and that unsafe par- might of a lien in favor reservation create negligence by reason condition of garnishees, not available titioners as was * * * company, further defendant plain- exemption fayor of other avoid the injured ma- that he believe was under rule that the volun- tiff’s creditors tary debtor’s creditors of one of the of a lien creation operation jarred by of other chine was machinery exempt personal , against * * * factory, be- claiming property his preclude him from does not jarring blade to caused the lieve that said fall because the machine was to other creditors. as con- in unsafe cases, Exemptions, other see Note.—For [Ed. Dig. Dig. 122, 123; negligence, § Dee. 99.*] by §§ Cent. reason of defendant’s dition plaintiffs.” you find There will for for On Motion timony tending to show that in the record Exemptions (§ 99*) —'Waiver—Effect paper of its cutter defective to Other Creditors. parts. personal partitioners of decedent’s Where property plaintiff’s share to him con- delivered show, how- does tend to ditionally agreement same to return the paper ever, was so situated cutter garnishment, par- necessary satisfy regard machin- to the location of other prop- right to the could assert their titioners erty only proof machinery ery jarring of the other case would apparent blade It is shook the down. plain- and hence to foreclose paper having a cutter blade which acquire tiff’s creditors partitioners by position only perpendicular by sustained gravity, under against parti- against plaintiff and execution tioners as having any catch or other position, device to sustain the blade Exemptions, other [Ed. Note.—For proper allegations jury under would au- Dig. 99.*] 122, 123; Dec. §§ finding ref- thorized its location with Exemptions (§ 146*) on Execution —Sale machinery negli- was a erence —Recovery Tenant in Common. prop- personal one, Ownership gent injury negligence in common and that such caused the accompanied decedent, erty of a the heirs jarring in that ma- of the other possession at the time ap- chinery shook the blade down. It is also pur- is sufficient as was levied chaser at machinery parent jarring if the the tenant an execution possession maintain a suit him to machine in connection the defect theory that it on the to recover the was fall, caused the blade to warrant a such defect exempt. recovery. Exemptions, cases, see Note.—For other [Ed. determining plain- Without whether Dig. 146.*] Dec. allegations allege tiffs’ were sufficient to Court; County W. E. Titus location the machine with reference Riddle, Judge. machinery negligence, under all the Rogers against R. H. Ful- M. L. circumstances, apxrarent the court defendants, and others. ler theory. did not submit the case on such plaintiff and re- charge of the court submits unsafe for new trial. negligence, condition of the machine as Ward, combined the defects location of the machine and' its L. E. & Rolston negligence. appellees. There is no evidence Keeney, for in the record of defects the machine it- charge by appel- Therefore self. that the court on WILLSON, suit was C. J. The subject assign- pos- erroneous. This recover the lant by appellant, special charge or, alternative, ed as error in the a mule session subject, requested alleged thereof, which is suffi- to be the sum of the value justice cient. court the In the $125. in concur, therefore, court, county I favor, result reached by my prosecuted, Associates. which an to judgment appellees. was in favor of intestate, Rogers died that one John seems personal owning, property, ROGERS v. FULLER et certain al. real besides horses, mules, consisting and and (Court of Civil heirs, 1911. On Motion of money. Appellant was one of Rehearing, power attorney, execution of 1.Exemptions (§ 99*) joined by heirs, —'Waiver—Eeeeot au- the other which he was Creditors. Other one Barnett to to thorized personal prop- Partitioners of decedent’s property belonging plaintiff erty portion delivered Key No. Series cases see same * For other section NUMBER Dec. *2 y. Tex.) PULLER 69 ROGERS (cid:127)tate, allotting the estate time he the partition tain creditors controversy nishment sought March, as to tified to have understood was to take it debts also testified tions colt in the mule colt interest nishment time the over until the a horse could law he could colt were were levied ly cution lant’s other uncontradicted appellant’s favor, McLean and Barnett his home to make ous a result of the exempt colt. At executions livered to stable he could witness, that, the contention constable’s 2395; man of tions, their appellee’s garnishees. exempt by them, 51 W. Civ. bility [1] From garnishment the his debts to the S. partition not contradicted he was not entitled Cas. to levied on appellees kind. He attorneys because of the condition Hall v. to against controversy it.” Executions, appellant died, to in said debts partition impound the time the debts were partition, mare and the colt proceedings Ct. him under the law. 36; of John that had to be settled.” against McLean and when he and take the between against in this suit. lien the statement Afterwards, At the sale he and remaining McLean App. 249, page to was of Miller, forced sale for indemnify conditionally; when the constable as John and McLean appellant’s possession, understanding is tenable. against Yancy take the that he claimed the colt as notice testified, settle tenable. appellant, unless the contention made partition "as his made, over to a constable a be fixed was the delivering him and a McLean plaintiffs in their 215a. colt—that “under the testimony levy, 21 created on testified same was de on belonging it.” and were mare and colt were should made. McLean in their Rogers And it Tex. Civ. Barnett turned while the and them it seems that that of mare, Felker, Willson, purchasers and his Prior under the execu- property, hands debts he appellant, made among Barnett he claim the colt as Sayles’ We and, bank and he was pending head of a fami- given Barnett turned the colt may them “that he and between was shown animal as testified to told the con- writs of to by virtue of owed do not think that at but that to upon to may be, hands. after appellant’s it is obvi 3 the execu there any appellant, testimony mare and his heirs App. Stat. art. the time Barnett, said payment against thq came made an them as entitled Barnett to 2 it that as at colt as his at which appel- appel a lia Free some pay- hold took they gar- gar- was exe- cer- the not es- In to by against a been heard to and Barnett were any laws, which ferred they Lean tion seems to have been that McLean such a self of the itors against any to him as creditors. We to be ates appellees claim that of Barnett, because of tled, judgment statement in against a the time the was er) conditionally; ed ment and. lant’s McLean ion, had that, against that it. Before Barnett red on such titled to colt that then their foreclose nett As lien On Motion of ^[2] him as was not the colt existed against motion, way acquired undisputed testimony, not that appellant, a over could had foreclosed a pointed we had been an to and and may assignments to, supposed voluntarily proceedings motion, lien appellant’s possession. be settled.” personal property for a to secure appellant understanding, assert appellant, McLean and think, had a claim on the colt exempt, the lien. As said Barnett it was understood had against assert right against bank, have existed McLean and pretended when right only one of bank writs that reversed, Barnett, At contended, new had him, claimed to have say of this that there was favor of one do property. because to be to assert the record does before the to opinion, by appellant not to reach effects of any right an owner their pretend he trial. created and were the time are account, against based on the not understand the “that he was to take it claim the colt it then it must exemption. liability they garnishment parties lienors. Their the If time, thereby that McLean and appeared as stated understanding, all creditors who some lien favor McLean and claims of and the cause is would have claim. Barnett, by would have been Barnett, they had, appellant it could be claimed understanding sustained, favor other of his cred- Sayles’ he is entitled to should not have it colt was that is they not asserting voluntarily of his creditors hands. court debts also that to the colt as seems, appeared the contention in his between them deprives exemption as resulted from that McLean But McLean they garnishment He is enti- support of said Mc- the colt at asserted on superior any turned had incur were serv- but were were not (the Stat. art. asserting suit, the most virtue of garnish- reply been to has opinion, conten- exempt exempt had rights appel- opin own- him- Bar and and law cre- colt lien not re- en re- in to to (Tes. 142 SOUTHWESTERN REPORTER purchas- Jones, Crane, Crane S. P. sale, appellee. ers at or in oth- their foreclosure way, acquired er lawful acquired lienors. rights, not have LEVY, Appellant had issued to *3 any existed, in favor of McLean its several certificates of insurance cover- lienors, by the colt by him, cotton bales owned held or or under executions delivered, sold but not L. Wo- J. [3] The contention made that yard Marshall, mack’s certificates cotton The Tex. was not entitled maintain suit following provision; each had the appellees, that the colt hereby policy “And the assured under this belong belonged agrees keep a covenants and set of books deceased, Rogers, estate of John and because showing daily complete date record appear it istration ers, did admin there was no at which each covered under bale cotton Rog estate John purchased received, this certificate was or necessity nor that there no purchased received, from whom in together or what administration, an able. is not believed to ten compress yard warehouse, stored, or appear that, did It original tag with the on, number or mark there- owner, parti not the sole as the result of the weight classification, with its and a tion made McLean and of the complete daily shipments of all shipped or record colt, in with common the other heirs John sales, showing sold, or to whom with com- same, lawfully he owned was in shipment, warehouse, date of from what possession of it at the time it was seized press yard tag shipped, original or and the under the executions claimed un weight mark, number or classification of ownership by der. It seems that such bale, each and in case of loss the assured in common with the other heirs of John agrees produce and covenants books Rogers, accompanied by posses records, the event of failure to sion of the colt time it was levied produce the same this certificate shall be sufficient, against appellees, destroyed by null and void.” The cotton was Stockbridge him to maintain the suit. 8, fire on March In answer to the suit Crockett, App. 69, 15 Tex. Civ. 38 S. W. 401. loss, appellant pleaded a breach of motion overruled. stipulation failing and condition this showing have a set of books “classification” destroyed. of the ing conclusion hav- cotton pleading been reached that LONDON, fully ROYAL proven trial, EXCHANGE ASSUR. OF lant was certificates were ENG., v. avoided, ROSBOROUGH. no more pleading questions or need set (Court of Civil 28, Rehearing Denied or discussed. Jan. By proper assignments appellant contends conclusively appears (§ 335*) from evi Insurance —-Conditions—Perform ance. keep did dence that book covering Insurance certificates cotton showing “classification” of the cotton de storage required keep the insured to a set of stroyed, and the its certificate terms showing complete daily books record of the proven, date at which therefore avoided. here each bail cotton covered was purchased or received, purchased or from whom denied, appellee kept book show received, warehouse, compress, in what or ing the entries of his cotton transactions. It yard stored, together original tag with the entries, except with, here is admitted weight number or classification, all mark thereon its complete daily “classification,” compliance record of were in to the terms of the shipments,- sales, etc. Eeld that where or stipulation. is unneces plaintiff’s record showed no classification of sary long to set out the list of entries in the the cottoD covered as the same entry appears similarly, varying price per pound paid as each book be ascertained from the price therefor the connection with the market on only according data, on which day purchase, and the custom of An idea of form and contents founded. price or variation above below market gotten can be what middling grade, book is here cotton was above or below compliance given. separate-columns shows, there was sufficient The book on the first line requiring provision classification, pre- parallel and on a “L. line: recovery policies. cluded 1909, yard, September 23, cotton J. Womack’s Insurance, [Ed. Note.—Por 515, B, 12-60, Lea, 64.90, 1910, J. J. Dig. 335.*) ¿eigler Co., March Sold to Merrifield dissenting. Levy, J., Dallas, explained; Texas.” “L. That yard” Court, from District Coun- Harrison Womack’s cotton meant and re Judge. Buford, ty; place W. C. where the cotton was ferred stored. the each first Rosborough against W. J. That first-mentioned dates were Royal Exchange Eng- month, day London, year, Assurance of the month that plaintiff, purchased. land. and defend- bale That the names persons rendered. ant mentioned whom Key otter oases see same and section No. Series & *For NUMBER in Dec.