Thomas v. Browder

Citations

• 33 Tex. 783

Syllabus

<p>1. The sureties of a sheriff are not liiible for money paid to him by a judgment debtor after the return day of the execution held by the sheriff, (Hamilton v. Ward, 4 Texas, 356, cited by the court.)</p> <p>2. Nor are the sureties of a sheriff liable for Confederate money received by him or his deputy' on execution.</p> <p>3. A payment of Confederate money on an execution in the hands of a sheriff was no payment at all, unless the plaintiff in execution had authorized its receipt by the sheriff.</p> <p>4. A sheriff had the right to amend his return upon an execution; and the fact that a motion to amerce him was made before he amended his return only affected its credibility, not its competency. (Vaughan v. Warnell, 28 Texas, 119, and Haley v. Greenwood, 28 Tcxrs, 680, cited by the court.)</p> <p>5. A plaintiff in execution sought, in his original petition, to charge a sheriff and his sureties for the non-payment of money alleged to have been collected by the sheriff on the execution; but afterwards, and without abandoning his original petition, the plaintiff amended and charged the sheriff with misfeasance in office, and with gross neglect of duty for not having collected the money from the defendants in execution, who were alleged to be good and solvent men. Held, that the causes of action thus set up in the original and amended petitions are different, repugnant, and mutually destructive of each other. It is not decided, however, that the plaintiff might not, on payment of costs, have abandoned his original petition and proceeded on the causes of action alleged in his amendment.</p> <p>61 An original petition'and an amendment thereto must betaken together, and be regarded as parts of one entire exposition of the plaintiff’s cause of action.</p>