Harrison v. Harwood

Citations

• 31 Tex. 650

Syllabus

<p>Where the plaintiff in attachment had acquired a lien by a levy, other creditors could not intervene upon the mere ground that the defendant was insolvent; and hence they were entitled to a, pro rata division with the attaching creditor. The law favors the diligent. (Paschal’s Dig., Art. 149, Note 262.)</p> <p>A motion was made in the court below to quash and dimiss the attachment for various reasons; some, for matters alleged to be apparent upon the face of the attachment; others, for irregularities in the execution of the levy by the ministerial officer. Among the first enumerated, were, that causes for the attachment were stated and sworn to, both in the petition and the affidavit; that the affidavit was made, the bond approved, and the attachment was ■ issued and attested by the deputy clerk, though in the name of the principal clerk; that the attachment was for a different amount from that claimed in the petition; and that the attachment had performed its office when an appearance had been secured. Neither of these grounds is sustained by the facts in the record nor by the law. It is no valid objection, that the party swore to the petition and made a written affidavit besides. If good cause were stated in the petition or the affidavit, it was sufficient to warrant the issuance of the writ of attachment. (Paschal’s Dig., Arts. 138, 214, Notes 257, 259.)</p> <p>The deputy clerk, ex virtute officii, may perform all official acts in the name of the principal clerk which the principal himself can perform in discharging the duties of clerk. Where duties are imposed upon the clerk by statutes, not necessarily belonging to his office as clerk, the rule is different. (Paschal’s Dig., Arts. 142, 496,501 )</p> <p>A large discretion is left to the officer by the statute, in fixing the valuation of the property levied upon. The policy of the law is simply to hold, the property impounded till final judgment for the ultimate satisfaction of the debt. (Paschal’s Dig., Art.