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: 214
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214 MCCLANE V. ROGERS. [Term of
requiring the payment of the money into court. The absence
of such an order would be no excuse to the receiver under the
English Equity rules, requiring him to account. (Potts v.
Leighton, 15 Vesey, 273.) No exception was taken at the trial
or in the motion for new trial to the charge of the court on
the subject of interest. If the point were properly before us,
we cannot say that it was erroneous to charge interest against
the receiver under all the circumstances of the case.
The judgment is affirmed,
JOHN MCCLANE V. WM L. RLOGERS.
1. SHERIFF. Under the Constitution (Art. 5, Sec. 21), where a sheriff is
interested, process must be executed by a constable; and no such officer
can exist as a "special sheriff" appointed by the court to execute
all necessary process which may issue in a case, but such defect must
be taken in limine, by motion to quash citation and service.
2. PREFERMENT BY DEBTOR-ASSIGNMENT OF JUDGMENT. If there was a
valid transfer of a judgment and notice thereof given to the sheriff before
its collection, without the necessary steps having been taken to give
a preference to any other party, the money when collected on such
judgment would belong to the assignee.
3. LIABILITY OF SHERIFF FOR MONEY COLLECTED. If the sheriff, after notice
of assignment of a judgment, voluntarily ignores the rights of the
assignee and appropriates the money to other parties who have executions
in his hands against the plaintiff, he does so at the peril of having
to account to the assignee.
4. SHERIFF'S RETURN ON EXECUTION. That the sheriff has returned such
executions against the plaintiff in execution satisfied, in no way affects
the rights of the assignee of such judgment.
5. INSTRUCTIONS TO JURY. Where an improper charge could not possibly
work an injury to the party complaining of it, it is not a ground for reversal
APPEAL from Nueces. Tried below before Hon. T. C. Barden.
W. L. Rogers, Oct. 11th, 1872, sued John McClane, alleging
that on 28th Feb., 1872, one P. Hi. McManigle obtained judg
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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/m1/222/: accessed June 20, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .