Baines v. Ullmann, Lewis & Co.

Citations

• 71 Tex. 529
• 9 S.W. 543
• 1888 Tex. LEXIS 1178

Syllabus

<p>1. ATTACHMENT.—An attachment was sued out upon the alleged ground that the defendant, a retail merchant, had disposed of part of his stock with intent to defraud his creditors. After the seizure of the stock a motion was filed to quash the writ for irregularity in the proceedings. While the motion was pending the plaintiffs made a second affidavit and bond for attachment, and had a second writ issued which was levied upon the same goods, still in the custody of the sheriff. In re-convention for damages for illegal seizure, etc. Held,</p> <p>(1) If the ground of attachment existed it was continuing, and the second writ could not be held as without grounds or wrongful.</p> <p>(2) Had the first writ been quashed the costs of the proceedings under it should have been taxed against the plaintiff.</p> <p>2. Charge—Pull Proof—Satisfactory Proof.—Where a charge indicates the necessity of “full proof” and it appears that by that term was meant that the jury must be satisfied in their minds of the existence of the fact, such charge was erroneous in requiring more than a preponderance in the testimony as the grounds of the verdict.</p> <p>3. Charge on Weight of Evidence.—A charge which intimates to the jury that the testimony of a party to the suit might not be sufficient to warrant a finding upon it if it appeared that he could have brought other testimony to the fact, is improper as upon the weight of evidence.</p> <p>4. Consent to an Attachment.—In reply to the claim for damages for wrongfully suing out and levying the attachments, the plaintiff offered evidence tending to show consent on part of defendant to the first attachment. Held, that such consent, if made, would apply to a second v#i issued on account of the irregularity in the first.</p>