Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 219
viii, 704 p. ; 22 cm.View a full description of this book.
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1875.] MCCLANE V. ROGERS. 219
Opinion of the Court.
to attach to it. The judgment in favor of such debtor is subject
to his control, and he may deal with, and dispose of it in
any legitimate way, and for any lawful or proper purpose to
which he may see fit to apply it, so long as it is i fieri, unless
some one has invoked the aid of judicial process to stay or prevent
it. If his creditors are entitled and desire to do so, they
may, of course, by a proper proceeding for this purpose, previous
to its collection or appropriation by the debtor, have the
money, to which he is entitled under the judgment, applied to
the payment of their debts. But unquestionably this cannot
be done by merely placing an execution in the hands of the
sheriff in anticipation of his collection of money under a judgment
in favor of the debtor against another party.
As the debtor may legitimately give preference to one creditor
over another, the plaintiff in execution would have no
ground of complaint by reason of a bona fide appropriation of
the judgment by his debtor, in payment of some other valid
demand against him. If there was a valid and bonafide transfer
and assignment of the judgment, and notice thereof given
the sheriff, before its collection, and without the necessary steps
having been taken to give a preference to any other party, the
money, when collected, would belong, not to the plaintiff in
the judgment, but to his assignee. And the sheriff, under such
circumstances, could not appropriate it to the satisfaction of
executions in his hands against the assignor. If the sheriff
applied the money so collected to other executions, and it
passed from his control, or the rights of other creditors had in
any way attached before receiving notice of the assignment,
he could not be held to account for it by such assignee. But
if, after notice of the assignment, the sheriff voluntarily, and
at his own instance, ignores the rights of the assignee of the
judgment, and pays the money collected to other parties merely
because executions in their favor against the plaintiff in such
judgment are lodged in his hands, he does this at the peril of
having to account to the assignee of the judgment, unless he
can show that the claim of the assignee is unfounded, or that
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28531/m1/227/: accessed April 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .