28 Tex. 448 | Tex. | 1866
—The judgment in this case must be reversed. The pleadings do not state such facts of fraud on the part of the appellant as authorize a judgment against him for the attorney’s fee. And the evidence does not disclose any fact,
It does not appear that the defendant at any time set up any claim to the negroes, or denied the right of plaintiff to them. From his statement, which was given in evidence by plaintiff, it appears that a negro came for the slaves in controversy, (how long before the suit'does not appear;) that defendant would not let them go, but declared that, if plaintiff would come himself, or send a white man, he would let the negroes go. If the defendant was not satisfied that the negro who applied to remove the slaves from his possession had authority from the plaintiff, he might properly decline to deliver the negroes "then under his control until the plaintiff", in person or by his agent, having satisfactory evidence of his authority to act for the plaintiff, applied for the property. Demand may be made by an agent duly authorized, but such demand will not be sufficient, if the defendant bona fide refuse to deliver the goods, in consequence of his not being reasonably satisfied that the person who applies is properly empowered to receive them. (Chitty on Plead., 158.)
It is not believed that the evidence discloses any fraud on the part of the defendant that gave to the plaintiff a cause of action against him, and authorized a judgment
The petition in this case properly alleged the value of each slave, and the verdict finds the value of each separately. The judgment provides, in the event that the slaves cannot be had, that the plaintiff recover of the defendant and his sureties on his bond given to replevy the property the sum of $2,200, the assessed aggregate value of said slaves, and that for this he have execution. The judgment should have conformed to the verdict. If there had been a failure to deliver one of the slaves, the judgment,does not furnish information upon which an execution could properly be issued. In the altered condition of the property of the country, it is believed that this error is now of little practical importance in this case.
The judgment is reversed, and the cause
Remanded.