Leon & H. Blum v. Bassett & Bassett

Citations

• 67 Tex. 194
• 3 S.W. 33
• 1886 Tex. LEXIS 636

Syllabus

<p>1. Continuance.—An affidavit for continuance made by plaintiff on the eighteenth of the month, when the case was called for trial, set forth that on the eleventh of the month the plaintiff caused a subpoena to be issued for an absent witness, which was served on the witness by the officer on the seventeenth day of the month; that the witness resided in the county where the suit was pending; that the testimony of the witness was material; that plaintiff had used due diligence to procure the testimony of the witness; that the witness had not obeyed the subpoena, and was not in attendance on court. The application was the first made by plaintiff. Held:</p> <p>(1) It was not necessary when the witnesses were served that the witnesses’ fees should have been tendered, and this is not in conflict with Hensley v. Lytle, 5 Texas, 497.</p> <p>(2) A deputy sheriff may serve a subpoena issued in a cause wherein the principal sheriff is a party.</p> <p>(3) That the affidavit was made by the agent of the plaintiff was immaterial, and this case distinguished from Robinson v. Martell, 11 Texas, 75.</p> <p>(4) The affidavit was in strict conformity with the statute, and was sufficient.</p> <p>2. Custom—Evidence.—The fact that a loan of money under circumstances stated was unusual and violative of custom among bankers, can not be given in evidence against the bankers making the loan, in a suit by an attaching creditor against them and the borrower to establish fraud and collusion and to postpone the levy made by the bankers to secure the loan to a subsequent attaching creditor.</p> <p>3. Evidence.—In a suit by a subsequent attaching creditor, to secure precedence in the satisfaction of his debt over the lien of a former attachment, it is not admissible to prove on the trial by the defendant,who was plaintiff in the first suit, that he knew of no facts that tended to show that defendant in the first attachment was about to transfer his property for the purpose of defrauding, his cr