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: 331
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1875.] CARB v. TucXKE. 331
Statement of the case.
3. SET-OFB. While the hire of the wife's separate property is community
property, yet the creditor of the husband, in a suit against him by the
wife for her separate property, cannot offset his debt against the use and
hire of her property while in his possession. (See 39 Texas, 98.)
APPEIAL from Victoria. Tried below before the Hon. T. C.
This was an action brought by Frances Tucker and her husband,
J. W. Tucker, against Robert T. Carr, to recover two
horses, a wagon, harness, etc., alleged to be the separate property
of Frances Tucker. A writ of sequestration was sued
out, and the defendant giving a replevy bond retained} possession
of the property.
Carr claimed the property by purchase from the husband,
J. W. Tucker, or from his agent, Jones, alleging that the property
was community property, or if the separate property of
the wife, that she assented to and approved the sale.
On the trial the jury found for the plaintiff, the aggregate
value of the property as fixed by them being three hundred
and twenty-three dollars; the use of the property was assessed
at two hundred and ten dollars and fifty cents, for all of which
judgment was rendered for Mrs. Frances Tucker.
It appeared that Jones, as agent of J. W. Tucker, had sold
Carr the wagon and team, etc., for two hundred and fifty dollars,
which sum Carr insisted, in pleading and evidence, he
should be allowed to recoup against damages for the use of the
property while kept from the possession of the plaintiff, Frances
The admission on the part of plaintiff of evidence of value
of the use and hire of the property, and the Tefusal by the
court to allow the debt of Carr to be set off against the hire,
was assigned as error.
Glass & Callender, for appellant.
Philips, Iackey & Stayton, for appellees.
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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/m1/339/: accessed October 20, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .