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: 212
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212 WEEMS v. LATHROP. [Term of
Opinion of the Court.
and we are satisfied that it conferred on Brooks the office of
receiver whilst the suit was pending, unless he was sooner discharged.
It is contended that under his instructions the receiver had
no power to collect the notes which he took for the hire of the
slaves. The order does not in terms confer such authority.
The usual and better practice is, to give such instructions as
leave no ambiguity as to the duties and authority of the
receiver. The nature of the office and of the duties expressed
in the order, are perhaps such as to justify the conclusion that
Brooks was authorized to receive payment of notes taken by
and payable to himself, and remaining in his hands at maturity.
But whether he had such authority or not, if, as alleged,
he did collect and thereby place it out of his power to account
for the notes, otherwise than by producing the money, and
failed to do so, it is clear that he did not faithfully discharge
his duties as receiver, and his sureties are liable on their
It is further objected that the receiver Lathrop had no
authority to sue on the bond of his deceased predecessor Brooks,
because an order of court was not first obtained authorizing
such suit. The record shows, however, that the suit was
brought in the same court where the original cause was pending,
and that previous to the trial, that court made an order
approving his action in bringing suit on the bond, and instructing
him to proceed with its prosecution; and this was alleged
in an amended petition. Any defect of authority which may
have affected the original petition was cured by the subsequent
order and amendment. It is not deemed necessary, therefore,
to pass upon the general question of the authority of a receiver
to institute a suit, more especially a suit on the bond of a
former receiver, without first obtaining an order to do so.
The liberality of our practice, admitting even of amendments
setting up new causes of action, would leave it only a ques.
tion as to the costs previous to the amendment.
But it is said that the executrix of Brooks (whose estate is
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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.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/220/: accessed January 24, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .