Smith v. Perry
Texas Supreme Court
Error from Colorado. Tried below before the Hon. Nelson H. Hunger. Suit by defendants in error, William B. and George L. Perry, against plaintiffs in error, Asa Smith and the sureties on his bond,[for failure of said Smith, as Sheriff of Colorado county, to return two executions in favor of plaintiffs, one against D. H. Rhine, and the other against A. 0. Crawford.
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Error from Colorado. Tried below before the Hon. Nelson H. Hunger. Suit by defendants in error, William B. and George L. Perry, against plaintiffs in error, Asa Smith and the sureties on his bond,[for failure of said Smith, as Sheriff of Colorado county, to return two executions in favor of plaintiffs, one against D. H. Rhine, and the other against A. 0. Crawford. The judgments were recovered at the Spring Term, 1853, and the executions were issued returnable to the next Term. This suit was commenced on the 29th of November, 1854; and the defence was that Rhine and Crawford were both utterly…
1Opinion of the CourtWheeler, J.
In the rendition of judgment, the Court evidently proceeded on the ground that the insolvency of the defendants in execution, and the fact that the plaintiffs had sustained no injury by reason of the default of the Sheriff, did not affect their right under the Statute (Hart. Dig. Art. 1346) to have judgment against him and his sureties for the full amount of the debt, interest and costs. The judgment can only be supported on the ground that the Statute fixes absolutely the measure of the plaintiffs’ damage ; and it makes no difference that they have not been injured by the default of the…
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