Slay v. Milton

Citations

• 64 Tex. 421

Syllabus

<p>1. Distress warrant — Reconvention — Custom.— Plaintiff, a landlord, procured a distress warrant and levied on the ungathered crop of defendant, who was liis tenant, in order to satisfy a claim, for rent and supplies. He then gave the required bond, and had the property sold and the money paid into court. At the next term of the court he prayed for a foreclosure of his lien, judgment for bis debt, and that the proceeds of the sale be applied to his judgment. Defendant answered that the debt was not due, and in reconvention claimed damages for the malicious suing out of the writ. Held:</p> <p>(1) That article 3113, Revised Statutes, did not restrict the defendant to a suit on the bond, but he could claim damages in reconvention.</p> <p>(2) That since the contract between the landlord and his tenant specified no date for the payment of the rent, it was not error to charge that a general custom among merchants in the same community, relating to transactions of the same kind, could not be held as absolutely fixing the time of payment, but only as a matter of evidence to be considered by the jury.</p> <p>(3) That only when a distress warrant has been both illegally and unjustly sworn out can recovery be had upon the bond, and the same would probably be true in regard to a plea in reconvention. After a debt for rent or supplies is due, the suing out of a warrant is not illegal, and no matter how grossly unjust or ruinous to the tenant it may be, there is no remedy as the law now stands.</p> <p>,2. Evidence.— See opinion for facts to be considered by the jury in estimating damages, and held sufficient to sustain the verdict.</p>