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: 796
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:
796 INDEX.
LIQUOR LAW - continued.
(4) The consent of the mother to the employment of the minor by the
saloon keeper did not protect him against the enforcement of the penalty
of the bond.
(5) The statute was enacted for the purpose of shielding youth from
temptation, and the state has power to enact the law and provide for its
enforcement, in disregard of the parents' wishes, when its object and tendency
is to protect the child; and for such a purpose, if necessary, if the
parents were unfitted to properly rear their offspring, the state could confide
the child to the keeping of another. Goldsticker v. Ford, 385.
LIS PENDENS.
1. Lis pendens, being but constructive notice, it follows that. it cannot
apply in a case where the specific property is not designated in the proceedings,
or the right claimed afterwards is not asserted at the time when it
is sought to make the constructive notice apply. Russell v. Kirkbride, 455.
MALICE. See MALICIOUS ATTACHMENT.
MALICE IN LAW. See MALICIOUS ATTACHMENT, 14.
MALICIOUS ATTACHMENT. See ATTACHMENT, 13-16.
1. When damages are claimed for wrongfully suing out a writ of attachment
and for using the writ maliciously, the two elements of damage should
be separately pleaded, and the jury should be required, under appropriate
instructions, to discriminate by their verdict between the actual and exemnplary
damages found, if any. The pleader who neglects thus to plead should
not be permitted to obtain benefit from a general verdict which fails to discriminate
between the two elements of damage. Kaufman v. Wicks, 234.
2. A jury cannot infer malice in an attaching creditor, who honestly believes
that the defendant is indebted to him and who has a reasonable and
probable cause for so believing, simply from the fact that no debt did in
fact exist. If there was probable cause for suing out the writ, actual damage
only can be recovered. Id.
3. While malice may be implied from the want of probable cause, it
cannot be implied where probable cause exists. If the circumstances are
such as to induce a reasonably prudent person to believe that a debtor is
about to so dispose of his property as to defraud his creditors, malice cannot
be implied against the creditor in attachment. Id.
4. Probable cause is a mixed question of law and fact, and should be
submitted to the jury under appropriate instructions. Id.
5. See opinion for facts held insufficient to sustain a verdict for exemplary
damages for maliciously suing out an attachment. Id.
6. One who by his conduct ratifies and confirms the act of his agent who
sues out an attachment, knowing the grounds on which the writ is obtained
are without foundation, is liable in exemplary damages. Jacobs, Bernheim
& Co. v. Crum, 401.
7. Malice in suing out a writ of attachment may be implied from the want
of probable cause. Id.
8. See opinion for facts held proper to be considered in determining the
responsibility of a principal for the malicious act of his agent in suing out
a writ of attachment. Id.
9. It is not error to refuse to charge a jury that the advice of counsel
given in a case, truly stated, whether correct or not, will constitute a protection
to the client, if, in pursuing it, he begins attachment proceedings,
when its tendency would be to divert the jury from considering independent
evidence of a malicious intent. Id.
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/m1/818/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .