Erath County v. Robinson , 30 Tex. 435 ( 1867 )

Latimer, J.

On the 12th of May, 1857, the appellees executed a bond, in the sum of $90, to the chief justice of the county of Erath, conditioned for the faithful observance of the estray law then in force, respecting an estray which had been taken up by the principal in the bond. ]¡n January, 1859, the chief justice instituted suit before a justice of the peace for a breach of the bond. There was a judgment by the justice of the peace against the obligors in the bond for the sum of $45. A writ of certiorari was prayed for and granted, and there was a trial de novo in the district court. The suit upon the bond was instituted because the taker-up of the estray sold the same at his own house, instead of the court-house door, as the law required.

There was a plea to the jurisdiction of the justice of the peace, on the ground that William Robinson, one of the obligors in the bond, was sued in another beat than the one in which he resided; but it nowhere appears in the record that the suit was in a beat in which none of the defendants resided. The supplementary act of the 20th March, 1848, provided, that where two or more persons are liable to be jointly sued before a justice of the peace, such suit may be brought before any justice of the peace in the precinct where either of the defendants may reside, [Paschal’s Dig., Art. 1216.]

There was proof on the trial, in the district court, that the taker-up of the estray had paid to the county treasurer a certain sum, as one-half of the proceeds of the sale of the estray; hut there was no proof that the county court had consented to receive the amount paid in full discharge of the liability of the taker-up. On the contrary, it is shown that the county court, after inquiring into the sale, ordered suit to be instituted upon the bond of the taker-up for a violation of the law.

The evidence does not warrant the verdict of the jury, and a new trial ought to have been granted. It is not shown, by anything in the record, for what amount the estray was actually sold, but it is agreed that the animal was worth $45, and that the taker-up paid to the county treasurer only $10 25 cents.

The verdict should have been for one-half the value of of the estray, less the amount paid by the taker-up to the county treasurer.

The judgment is reversed,'and the cause

Eemahded.