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: 243
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1875.] STEWART V. THE STATE. 243
Statement of the case.
Stewart, the intervenor, sets up his claim in three different
modes of statement, all of which amount in effect to an allegation
that a gift was made to him of this one thousand dollars
by expressions indicating that purpose, and by the delivery to
Stewart of this bank-book by Luder during his last sicknesswith
yellow fever, before his death.
Stewart's petition of intervention was, upon exceptions
thereto, dismissed, from which he takes an appeal to this court.
The question thus presented is, was such a delivery of this
account book such an one as consummated a complete gift so
as to vest absolutely the property in the one thousand dollars
deposited in New York, in Stewart ?
The account being a chose in action not assignable by delivery,
and not being such an instrument as ordinarily passes from,
one to another in the usual course of trade by mere delivery, it
would seem on principle that such a delivery would not vest
the property in Stewart, as it would not give him either dominion
over the property, or the right to sues for it in his own,
name and right. So it has been held in some States, where the
transfer of an account is not permitted.
The decisions, however, are not uniform in reference to the
strictly legal principle relating to the delivery of choses in
action, 2 Kent's Cor., 438 to 448 and notes; 2 Robertson's Practice,
490, 492-3-4 ; Chevallier v. Wilson and Wife, 1 Texas R.,
It becomes unnecessary to make any conclusive ruling upon
this question in this case, because of the want of any final judgment,
determining the case as between the original parties. If
there is such a judgment, it does not appear in the record.
We know of no authority that authorizes an intervenor tQ
bring up the case himself on appeal, before the final determination
of the case as between the original parties. To permit
such a practice would cause the remedy of intervention to
produce a multiplicity of suits relating to the same subjectmatter,
instead of preventing a multiplicity of suits, which is
its main object as a remedy. (Eccles v. Hill, 13 Texas R., 67;
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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/m1/251/: accessed November 21, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .