Walmsley v. Hubbard

24 Tex. 612

• Court: Texas Supreme Court
• Decided: July 1, 1859
• Status: Published

Opinion

Bull, J.

We are of opinion, that the court below did not err in refusing to instruct the jury in accordance with the request of the counsel for the plaintiff in the execution. The instructions asked, certainly had no application to the case. If the defendant in the execution, John S. Hubbard, held the negro man in controversy, as the agent, or trustee, or bailee of another person, and the real owner of the slave was not present to protect the property from the execution, it was proper that the agent, or trustee, or bailee, should assert the rights of the real owner, in such manner as to prevent the sale of the property. The statute establishing the method of trying the right of property levied on under writs of execution, expressly provides that the affidavit may be made and the bond executed by the agent of the person who claims the property.

There was no objection made in the court below to the competency of the defendant in the execution as a witness for the claimant of the property, on the ground that he was also acting as the agent of the claimant in making the claim. For do we think that his competency as a witness can be denied. It was for the jury to attach such importance to his testimony as to them might seem proper, under all the circumstances of the case.

We think there was no error in the rulings of the court, and that the verdict of’the jury is sustained by the testimony. The judgment of the court below is therefore affirmed.

Judgment affirmed.