Barber v. Hutchins

Citations

• 66 Tex. 319
• 1 S.W. 275
• 1886 Tex. LEXIS 513

Syllabus

<p>1. Assignee—Creditors—Damages—Evidence—Practice—An assignee brought suit for damages for the seizure and sale of the assigned goods, by a creditor of his assignors, under attachment. It was shown that over two months elapsed between the seizure and sale, and there was evidence tending to show that the goods were much damaged during the interval. No issue was made by the pleadings as to whether notice had been given to creditors to establish their claims, or as to whether such claims had been established, but more time than would be requisite for those purposes had elapsed before the trial. Held:</p> <p>(1) Evidence was not admissible to show what the goods brought at the sheriif’s sale.</p> <p>(2) It was not necessary for the plaintiff to make proof that claims of creditors had been established.</p> <p>(3) The right of the plaintiff to recover was fixed by the facts existing at the time the action was brought.</p> <p>(4) The legal title to the entire estate vested in the assignee. For a violation of the right growing out of this, an action lay, and if any creditor had an equitable claim or legal right against the assigned property, which he sought to assert otherwise than as the statute contemplates, he would have to plead and prove the facts on which such claim or right was founded.</p> <p>(6) It cannot be presumed that an assignee under the statute holds simply as a trustee for the benefit of his assignor, and that he and the estate may be treated as though no other relation existed.</p> <p>2. Evidence—See statement of facts for evidence held admissible.</p> <p>3. Counsel—Improper language—Improper language used by counsel on the trial is no ground for reversal, unless there is reason to believe that it influenced the jury.</p>