Maltbie, Presiding Judge.
The questions in this case arise from the suing out of an attachment by Leon & H. Blum in the district court of Galveston county, and causing E. D. Costley, who was a constable of McLennan county, to seize and sell a stock of goods, the property of J. A. Strong, under said attachment, which was situated at Crawford, in McLennan county. After the seizure and sale of said property Strong brought suit [323]*323in the district court of McLennan county against the Blums and E. D. Gostley for damages, actual and exemplary, on account of the said seizure and sale of his goods, but the claim for exemplary damages was eliminated by the rulings.
It was claimed in the petition that the Blums and Gostley combined together and made an excessive and oppressive levy on plaintiff’s goods, and the constable; at the instance of the Blums, sold the same in bulk at Crawford, where there were but few buyers, of limited means, and the Blums purchased said goods at less than one fourth of their value as the result of their combination; that plaintiff requested the goods to be sold in small lots; that if it had been done they would have brought something like their true value, but that the Blums and Gostley disregarded the reasonable request of plaintiff and caused said goods to be sacrificed. To these allegations the constable only pleaded a general demurrer; and the Blums their privilege of being sued in Galveston county, that being the place of their residence, but they did not plead that the allegations of the petition were fraudulently made with a view of giving the district court of McLennan county jurisdiction of the persons of the Blums.
The jurisdiction of a court must be determined by the allegations of the petition, except when it is averred in the . answer that the allegations are fraudulently made for the purpose of conferring jurisdiction and there is issue joined, and it is found that the allegations were in fact fraudulently made for the purpose of giving the court jurisdiction. The case of Hilliard & Hilliard v. Wilson & Blum, reported in 65 Texas, 286, et seq., holds that ordinarily when a writ of attachment is wrongfully issued in one county and levied in another, the plaintiff in attachment being a resident of the county where it is issued, can only be sued in the county of his residence when the plea of privilege is interposed; but that decision further holds that such allegations as are contained in the petition in this case would be sufficient to give the court of the county where the writ was levied jurisdiction of the person of the plaintiff in attachment, in a suit by the defendant against him for damages on account of an oppressive and excessive levy and fraudulent sheriff’s sale resulting in loss to the defendant in attachment; from which it follows that this suit was well brought in McLennan county.
There was error, under the facts of this case, in refusing to [324]*324instruct the jury, upon request, to find in favor of E. D. Costley. The process was regular upon its face, and not only justified but required him to make a sufficient levy to satisfy the amount of the attachment and all costs of suit. (Rev. Stats., art. 144; Drake on Attachments, sec. 194 et seq.)
The officer must necessarily exercise a discretion as to the quantity of goods and effects that would be required to bring the amount of the debt at forced sale. The inventory of the goods, as made out by the officer, was but slightly in excess of the amount of the debt, while they actually sold for only about half the amount of the debt. And there is no evidence in the record tending to show that he acted improperly in any way in making the levy or sale.
The court did not err in refusing to charge that the burden was on the plaintiff to show that the attatchment was wrongfully sued out. While it is a rule of law, as well as of logic, that the burden is on the party holding the affirmative of an issue, it is not believed to be necessary to give it in charge to a jury in every case. A jury is to pass upon all the evidence in the record without regard to whether the plaintiff or defendant has introduced any particular fact or facts; and it doubtless sometimes happens that the plaintiff’s evidence is of itself insufficient to authorize a verdict in his behalf, when the defendant comes to his relief and introduces evidence, which, when taken together with that introduced by the plaintiff, will justify the jury in then rendering a verdict for the plaintiff, and vice versa. In this case both parties introduced evidence before the jury, and the court, among other things, charged: “If you believe from the evidence that the grounds set out in the affidavit for attachment were not true, plaintiff would be entitled to the actual damages which the proof shows he may have sustained. The affidavit recites that the plaintiff J. A. Strong had disposed of his property for the purpose of defrauding his creditors, and if you believe from the evidence that the plaintiff at and before the suing out of the attachment had disposed of his property with intent to defraud his creditors, or if you.find that plaintiff had disposed of his property, and the natural effect of such disposition was to withdraw and place the property of plaintiff beyond the reach of his creditors, then you will find for defendant.” We think the charge as given fairly presented the issues involved to the jury, and [325]*325any further instruction in reference to the burden of proof was unnecessary.
We do not think it was the duty of the court to call the attention of the jury to the distinction between legal fraud and a corrupt intent any more definitely than was done in the general charge. Speaking for myself, I have always doubted whether the enunciation of propositions of law, disconnected with the facts of the particular case in the charge of the court, tended in any great degree to enlighten the jury. We do not think the court erred in refusing sixth special instruction requested by defendants, for the reason that it gives undue prominence to a particular portion of the evidence by calling special attention to it, and because it may have been construed as intimating that Strong had not accounted for the proceeds of the sale of his goods and was calculated to mislead the jury. It is insisted that the court, upon request, should have submitted the issue to the jury, whether Strong had done any other act, beside the one charged in the affidavit, that would have authorized an attachment, for the alleged reason that such attachment would not be wrongful as to Strong, he being guilty of other acts that would authorize an attachment. It is settled law that such other acts may be considered whenever there is a claim for exemplary damages. And there has been a clear distinction in this State as to what would authorize actual and what would authorize exemplary damages in attachments since the case of Walcott v. Hendrick, 6 Texas, 419. In order to defend against actual damages the very grounds stated in the affidavit must be true, while it is a sufficient defense to a claim for exemplary damages, that there was reasonable and probable grounds to believe that the facts stated in the affidavit were true.
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Maltbie, Presiding Judge.
The questions in this case arise from the suing out of an attachment by Leon & H. Blum in the district court of Galveston county, and causing E. D. Costley, who was a constable of McLennan county, to seize and sell a stock of goods, the property of J. A. Strong, under said attachment, which was situated at Crawford, in McLennan county. After the seizure and sale of said property Strong brought suit [323]*323in the district court of McLennan county against the Blums and E. D. Gostley for damages, actual and exemplary, on account of the said seizure and sale of his goods, but the claim for exemplary damages was eliminated by the rulings.
It was claimed in the petition that the Blums and Gostley combined together and made an excessive and oppressive levy on plaintiff’s goods, and the constable; at the instance of the Blums, sold the same in bulk at Crawford, where there were but few buyers, of limited means, and the Blums purchased said goods at less than one fourth of their value as the result of their combination; that plaintiff requested the goods to be sold in small lots; that if it had been done they would have brought something like their true value, but that the Blums and Gostley disregarded the reasonable request of plaintiff and caused said goods to be sacrificed. To these allegations the constable only pleaded a general demurrer; and the Blums their privilege of being sued in Galveston county, that being the place of their residence, but they did not plead that the allegations of the petition were fraudulently made with a view of giving the district court of McLennan county jurisdiction of the persons of the Blums.
The jurisdiction of a court must be determined by the allegations of the petition, except when it is averred in the . answer that the allegations are fraudulently made for the purpose of conferring jurisdiction and there is issue joined, and it is found that the allegations were in fact fraudulently made for the purpose of giving the court jurisdiction. The case of Hilliard & Hilliard v. Wilson & Blum, reported in 65 Texas, 286, et seq., holds that ordinarily when a writ of attachment is wrongfully issued in one county and levied in another, the plaintiff in attachment being a resident of the county where it is issued, can only be sued in the county of his residence when the plea of privilege is interposed; but that decision further holds that such allegations as are contained in the petition in this case would be sufficient to give the court of the county where the writ was levied jurisdiction of the person of the plaintiff in attachment, in a suit by the defendant against him for damages on account of an oppressive and excessive levy and fraudulent sheriff’s sale resulting in loss to the defendant in attachment; from which it follows that this suit was well brought in McLennan county.
There was error, under the facts of this case, in refusing to [324]*324instruct the jury, upon request, to find in favor of E. D. Costley. The process was regular upon its face, and not only justified but required him to make a sufficient levy to satisfy the amount of the attachment and all costs of suit. (Rev. Stats., art. 144; Drake on Attachments, sec. 194 et seq.)
The officer must necessarily exercise a discretion as to the quantity of goods and effects that would be required to bring the amount of the debt at forced sale. The inventory of the goods, as made out by the officer, was but slightly in excess of the amount of the debt, while they actually sold for only about half the amount of the debt. And there is no evidence in the record tending to show that he acted improperly in any way in making the levy or sale.
The court did not err in refusing to charge that the burden was on the plaintiff to show that the attatchment was wrongfully sued out. While it is a rule of law, as well as of logic, that the burden is on the party holding the affirmative of an issue, it is not believed to be necessary to give it in charge to a jury in every case. A jury is to pass upon all the evidence in the record without regard to whether the plaintiff or defendant has introduced any particular fact or facts; and it doubtless sometimes happens that the plaintiff’s evidence is of itself insufficient to authorize a verdict in his behalf, when the defendant comes to his relief and introduces evidence, which, when taken together with that introduced by the plaintiff, will justify the jury in then rendering a verdict for the plaintiff, and vice versa. In this case both parties introduced evidence before the jury, and the court, among other things, charged: “If you believe from the evidence that the grounds set out in the affidavit for attachment were not true, plaintiff would be entitled to the actual damages which the proof shows he may have sustained. The affidavit recites that the plaintiff J. A. Strong had disposed of his property for the purpose of defrauding his creditors, and if you believe from the evidence that the plaintiff at and before the suing out of the attachment had disposed of his property with intent to defraud his creditors, or if you.find that plaintiff had disposed of his property, and the natural effect of such disposition was to withdraw and place the property of plaintiff beyond the reach of his creditors, then you will find for defendant.” We think the charge as given fairly presented the issues involved to the jury, and [325]*325any further instruction in reference to the burden of proof was unnecessary.
We do not think it was the duty of the court to call the attention of the jury to the distinction between legal fraud and a corrupt intent any more definitely than was done in the general charge. Speaking for myself, I have always doubted whether the enunciation of propositions of law, disconnected with the facts of the particular case in the charge of the court, tended in any great degree to enlighten the jury. We do not think the court erred in refusing sixth special instruction requested by defendants, for the reason that it gives undue prominence to a particular portion of the evidence by calling special attention to it, and because it may have been construed as intimating that Strong had not accounted for the proceeds of the sale of his goods and was calculated to mislead the jury. It is insisted that the court, upon request, should have submitted the issue to the jury, whether Strong had done any other act, beside the one charged in the affidavit, that would have authorized an attachment, for the alleged reason that such attachment would not be wrongful as to Strong, he being guilty of other acts that would authorize an attachment. It is settled law that such other acts may be considered whenever there is a claim for exemplary damages. And there has been a clear distinction in this State as to what would authorize actual and what would authorize exemplary damages in attachments since the case of Walcott v. Hendrick, 6 Texas, 419. In order to defend against actual damages the very grounds stated in the affidavit must be true, while it is a sufficient defense to a claim for exemplary damages, that there was reasonable and probable grounds to believe that the facts stated in the affidavit were true. The reason that other acts that would authorize an attachment, or facts or rumors that would raise a strong suspicion in a reasonable mind that some act had been, or was about to be done, that would justify an attachment, may be considered in reply to a claim for exemplary damages, is because such acts, facts or rumors, might tend to show that there was no malice or improper motive and that there was probable cause for suing out the attachment.
It is insisted by appellants, as a reason why other grounds than the one stated in the affidavit should be considered as a defense to an action for the wrongful suing out of an attachment, that a creditor might hear, and it might be a fact, that [326]*326his debtor was about to dispose of his property to defraud his creditors, and that such creditor might at once begin to prepare his paper for an attachment on that ground, but before he could have them filed the debtor had actually disposed of his property; and that in such case the creditor, under the rule as it now is in this State, would be liable to the dishonest debtor for actual damages; and that a rule that would lead to such absurd results ought not to be permitted to stand as the law of the land. There are but few rules of law that may not, in some instances, work hardships, but it is hardly probable a distinction between a contemplated and actual transfer of property with fraudulent intent, so closely connected in point of time as in the instance of counsel, could be enforced in the courts of the country against a creditor who had made such a slight mistake.
That a debtor has done a certain act that would authorize an attachment, is no sufficient reason for a creditor to make affidavit of other acts not in fact true, and thereby cause a loss to the debtor; and if he„does so, he ought not to be heard to say; “It is true I made a false affidavit to procure the attachment, but you were guilty of other acts which, if known in time, would have justified me in procuring an attachment on those grounds, and therefore you are not wronged.”
This would be giving the creditor an unjust advantage, making the debtor suffer for his violation of law, while holding the creditor harmless for false swearing—even though the debtor sustained an actual loss on account of it, and releasing the creditor from the consequences of his tort, for no other reason than that the debtor had done an unlawful act. When a creditor resorts to the proceeding by attachment, he stands for himself alone, to the exclusion of the rights of his debtor and the rights of every creditor such debtor may have; and it has always been the policy of the courts to require him to strictly pursue the provisions of the law entitling him to this great preference; and it seems but just to require him to answer for any violation of law, at least to the extent of compensation for losses thus occasioned. The rule, as it exists in this State, has been long established, and is, we think, well sustained by reason and authority, and should stand. (Bear Brothers & Kirsch v. Marx & Kempner, 63 Texas, 298, et seq., and authorities there cited; William Wood v. W. A. Huffman, 5 Texas Law Review, 384.)
[327]*327It follows that the court did not err in excluding from the jury the evidence of Strong and Eaton to the effect that shortly before the levy of the attachment Strong had attempted to dispose of his entire stock of goods for the purpose of defrauding his creditors, offered for the purpose of showing the attachment was not wrongfully sued out; the ground set forth in the affidavit being that J. A. Strong had disposed of Ms property for the purpose of defrauding his creditors.
It is also claimed that the verdict of the jury is not warranted by the evidence. While there are some apparent inconsistencies in the testimony of the appellee still we think the same susceptible of explanation on grounds consistent with honesty and truth; and the weight of the evidence and the credibility of the witnesses being matters that the jury and court below were the primary judges of we do not feel called upon to disturb the verdict on that ground.
The court, in its charge, did not submit any issue in reference to the liability of the constable, E. D. Gostley. The facts that would render the Blums liable would not render the constable liable, nor were the same facts relied on for that purpose, nor are there any facts in the record that would authorize the jury to find against him. Construing the verdict of the jury in the light of the charge of the court there was no finding against Gostley and no judgment should have been rendered against him. It follows that the judgment must be reversed as to this defendant. And as a general rale when a judgment is reversed as to one defendant it should be reversed as to all. But it seems that when the justice of a case will be reached by reversing as to one defendant and affirming as to the other that it may be done. (Burleson v. Henderson, 4 Texas, 60.) Counsel for appellee in their argument express a willingness to enter a remittitur as to Gostley, and believing that the justice of the case will be attained by reversing the judgment and dismissing as to E. D. Gostley and affirming as to the other defendants, we report that the judgment should be so entered.
Opinion adopted December 6, 1887.
Willie,
Chief Justice.
Scott & Levi, for appellants, submitted a motion for a rehearing for the alleged reasons: "That it is apparent upon the [328]*328record that the district court of McLennan county had no jurisdiction over these appellants, Leon Blum, Sylvain Blum and Hyman Blum, except on account of an alleged cause of action against them jointly with the appellant Costley, which joint cause of action was specially denied in the plea of these appellants to the jurisdiction of the district court of McLennan county, and this court, in its judgment, has found the facts so relied on to give jurisdiction to the district court of McLennan county were not true, and under the plea to the jurisdiction made by these appellants, judgment should have been in this court for these appellants.”
The motion was supported by a vigorous argument.