Leob v. Blum , 3 Tex. L. R. 265 ( 1884 )

OPINION.

Delaney, J.:

The first question presented by counsel arises upon the following facts: Greenleve, Block & Co. levied a writ of attachment upon the goods,and appellant filed his affidavit and bond to try the right of property. Shortly afterwards appellees seized the goods, sold them under execution against J. H. Loeb and appropriated the proceeds. These facts were alleged by the plaintiff as one of the grounds of his claim for damages against the defendants. The court sustained a special exception to this part of the petition, and appellant presents that ruling as error. He insists that after the sheriff had levied the writ of Greenleve, Block & Co. upon the goods, they were in the custody of the law; that when he presented to the officers his bond, and took the goods, they remained still in the custody of the law; and that when another officer under the direction of appellees took the goods out of his possession, it was a trespass, for which the appellees are responsible. Our opinion is that the court did not err in the ruling complained of; and this is so whether the goods were in custodia legis or not. If the goods, while in his possession, were in the custody of the law, it was his duty to maintain that custody and keep the goods. And it was just as much his duty to keep them from a second and unauthorized levy of an attachment or excution as it was to protect them from loss by fire.

In the case of Roberts v. Dunn (71 Ill., 46), after the defendant’s replevy of his property which had been attached at the suit of a creditor, it was seized and sold under execution to satisfy another debt. As an excuse for not restoring the property to the sheriff in the first case, the defendant pleaded the second levy. The court says, “ The property included m this bond was no doubt in the custody of the law and was not liable to be seized again on execution against the attachment debtor. * * * Appellants temporarily had the legal custody, and when seized by any one, whether under process of court or otherwise, they could protect themselves by replevying the property. This they ought to have done, but they omitted to avail of their privilege. The loss sustained, if any, must therefore be attributed to their want of diligence in defense of their interest in not employing the means the law had placed in their hands.”

It is a mistake to suppose that appellant could lawfully claim damages of L. & H. Blum, merely because the latter may have wrongfully taken goods which were in the custody of the law. If L. & H. Blum wrongfully took the plaintiff’s goods, the latter would have his remedy, because the goods were his, but not because they were in the custody of the law. It is not necessary therefore in this case to determine whether the goods, while in the possession of appellant were in custodia legis or not, and we prefer not to decide that question until it is necessary.

If appellant had desired to retain the goods he could easily have done so. The mere fact, therefore, that they were taken out of his possession is not one of which he can complain.

But we think there was error in the charge given by the court which is set out in the third sub-division of the agreed case. The court in framing this charge appears to have held that since the act of Nov. 3, 1879, (R. S. App. p. 5,) know as the assignment law, an insolvent debtor cannot make a valid transfer of his property to one creditor in payment of a debt, to the exclusion of other creditors, though it be done with entire good faith. Since the trial of this cause the reverse has been practically determined. (Abille Wagon Works v. Tidball, 59 Tex., 291, Greenleve, Block & Co. v. Blum, Id. 124.)

We agree with counsel that the evidence in the record is sufficient to sustain the verdict and judgment; but whether the jury rendered their verdict upon the evidence or the charge, we cannot say. We think therefore that the judgment should-be reversed and the cause remanded.