Riggins & Anderson v. Ford

1 White & W. 745 | Tex. Comm'n App. | 1882

Opinion by

Watts, J.

§ 1286. Distress warrant; bound for; “illegally” is not synonymous with “unjustly.” The statute requires the conditions of a bond for a distress warrant to be, “to pay the defendant such damages as he may sustain in case such warrant has been illegally and unjustly sued out” [R. S. 3113], whereas the conditions of the bond in this case omitted the words “and unjustly.” Statutory bonds must contain fully and clearly all the conditions prescribed by the statute. “ Illegally ” and “unjustly” are not convertible terms. They are not synonymous in a legal sense. Mr. Bouvier defines ‘ ‘ illegally ” to mean “contrary to law,” and “unjustly” as “that which is against the established law; that which is opposed to a' law which is the test of right and wrong.” Under our statute, when an amount due is for rent, the creditor has the legal right to sue out a distress warrant. But suppose that the debtor had an abundance of property out of which the debt could be made, and the creditor should resort to the remedy by distress, not for the honest purpose of securing his debt, but with the intent and for the purpose of vexing and harassing his debtor. In such case all forms of law are complied with; the facts existed that authorized the issuance of the writ, and it cannot be said that the writ was “illegally ” issued. But the intent of the creditor being to harass and vex his debtor, and not to secure his debt, the writ would issue “unjustly;” and doubtless this was the sense in which the legislature used the term in the statute under consideration. It will not be presumed that the legislature would use simple words meaning the same thing, if a different meaning can reasonably be assigned to the words used in an enactment. The motion to quash the bond should have been sustained, and the judgment which should have been rendered in the county court is rendered here.

June 21, 1882.

Reversed and rendered.