Smith v. Tooke, 20 Tex. 750

Smith v. Tooke

20 Tex. 750 | Tex. | 1858

Roberts, J.

This is an action brought against Smith and his sureties on his bond, for his failure to perform his duty as Sheriff, in the execution and return of a writ of attachment, by which the defendant in error, Tooke, has been damaged to the amount of his debt. The petition contains two grounds of failure of duty. 1st. In having levied on property sufficient to satisfy the debt, and letting it get out of his possession, and disappear by his negligence. 2d. In not returning the writ of attachment.

If the evidence sustains either of these grounds, and there is no error in the charge of the Court, in relation to such ground, the verdict of the jury in favor of Tooke for damage, to the amount of his debt, will be sustained. (Sims & Smith v. Chance, 7 Tex. R. 561.)

Whatever doubts there may be in relation to the first ground, it is believed, the last one is amply sustained by the evidence, which was properly admitted to go to the jury by the Court.

The charge on this ground was in accordance with the statute; that, failing to return the writ, the Sheriff became liable to the party injured, for all damages he may have sustained. (Hart. *753Dig. Art. 2888, page 869.) It was shown that the Sheriff received the writ, failed to return it, and made no excuse for the failure ; that the defendant in the attachment had sufficient property, known to the Sheriff, which, under the evidence, was determined by the jury to belong to defendant in the attachment and liable to levy; and there was some evidence, tending to show that, if the Sheriff had returned the writ, it would have fixed his liability. For it must either have shown a levy on property, or it could not have shown truthfully, that the defendant in the attachment had no property liable to the writ. His failure to return the writ, as required by law, raises a presumption against him ; which he did not remove by any justification or excuse, and he was therefore rightly held liable. And the amount of property in the possession of defendant, which was determined by the jury to belong to him, being sufficient to satisfy the debt, the demand of plaintiff below became the measure of damages. The return of the writ, being a duty required by law, the sureties on his bond became liable for the damage arising from his failure. (Hart. Dig. Art. 2882, 2888.)

Plaintiffs in error, to avoid this liability, set up in defence that the property, in the hands of the defendant in the attachment, had, for a valuable consideration been transferred by bill of sale to his mother, Emily Gilbert, and was her sole property before the issuing of the attachment. It is objected by plaintiffs in error, that the Court erred in charging the jury that they might find this transfer to be void, for want of consideration, and if made to delay or defraud creditors; when there was no allegation in the pleadings of plaintiff below, that said bill of sale was made to delay or defraud creditors. Had this been the only plea of that character, this position might be tenable. The evidence adduced was not in accordance with this plea; for the bill of sale was made not to Emily Gilbert alone, but to her and her husband T. Y. Gilbert. But there was another plea, more general in its character, under which this evidence was admissible, which alleged that Shannon, the defendant in the writ, was wholly worthless, and had no property liable to be levied on by virtue of said writ. This plea did not require any allegations in avoidance on the part of plaintiff below; but left the question of Shannon’s right to the property open to evidence generally on both sides. It was only under this plea, that the bill of sale from Shannon to Emily Gilbert and her husband, (differing from the one described in the plea,) was admissible; and under this plea it was liable to be *754avoided by evidence, without a special allegation of fraud being made by plaintiff below.

When the whole of the pleading is considered, with reference to the evidence adduced, we conclude that this objection is not well taken.

The plaintiffs in error then failed, both to give any excuse for not returning the writ, and to avoid the liability of showing that Shannon had no property liable to levy.

There are various questions raised which it is not necessary to discuss.

Judgment affirmed.