Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 412
xxii, 836 p., 22 cm.View a full description of this book.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
412 JACOBS, BERNHEIM & CO. V. CRUM. [Tyler Term,
Opinion of the court.
ment which he knew were capable of proof, submitted for that
counsel's judgment and determination whether, upon such facts, he
would in law be justified in suing out an attachment, and that on
being advised that he would be so warranted, he acted upon such
advice.
The purport of the conferences between Mayer and the counsel
was general, and had reference mainly to the question of expediency
as to the best course to be pursued for the interest of the plaintiffs,
after a statement of all the facts. It is true that the evidence
showed that the attorney advised that an attachment would lie, and
advised the pursuit of that remedy, and that Mayer was willing to
follow whatever course the attorney might suggest as best and
proper, but it does not conclusively appear that Mayer in any special
manner submitted for the opinion of the attorney whether the facts
stated to the latter warranted an attachment, and that he sought
such an opinion with the intention of being satisfied on that question,
and of being controlled in his action by the opinion that might
be given, irrespective of any preconceived intention or considerations
of pecuniary policy he may have entertained, to sue out the
writ if his views of financial expediency required it.
It is assigned as error that the court refused the following instruction:"Although the facts charged in the affidavit may not be true, yet
if there was probable cause for believing them to be true, the plaintiffs
will not be liable for exemplary or punitory damages; probable
cause is such a state of facts and circumstances as would lead a man
of ordinary caution and prudence, acting conscientiously, impartially,
reasonably and without prejudice upon the facts within his
knowledge, to believe that the grounds charged were in fact true, or
a reasonable ground of suspicion, supported by circumstances sufficiently
strong in themselves to warrant a cautious man in the
belief that the facts charged are true; and if the jury find from the
evidence that, at the time of suing out the attachment, the defendant
had disposed of a part of his property, retaining the use and
possession thereof, known to the plaintiffs or their agents, they are
instructed that this constitutes probable cause for the charge in the
affidavit that the defendant had disposed of a part of his property
for the purpose of defrauding his creditors."
The instruction was properly refused, because there was no evidence
tending to prove that Mayer had any information, at the time
of suing out the writ of attachment, that the defendant had retained
the use or the possession of the cattle sold to Brown. The evidence
Upcoming Pages
Here’s what’s next.
Search Inside
This book can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Book.
Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/434/: accessed May 6, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .