Loeb v. Blum

Opinion.— The first question presented by counsel arises upon the facts as follows: Greenleve, Block & Co. levied a writ of attachment upon the goods, and appellant filed his affidavit and bond and retained the property. Shortly afterwards appellees seized the goods, sold them under execution against J. H. Loeb and appropriated the proceeds. These facts were alleged by the plaintiff as one of the 447 grounds of his claim for damages against defendants. The court sustained a special exception to this part of the petition and appellant presents that ruling as error. The court did not err in the ruling complained of. If the goods, while in his possession, were in the custody of the law, it was his duty to maintain that custody and keep the goods. Roberts v. Dunn, 71 Ill., 46. It is a mistake to suppose that appellant could lawfully claim damages of L. & H. Blum merely because the latter may have wrongfully taken goods which were in the custody of the law. If L. & H. Blum wrongfully took plaintiff’s goods the latter had his remedy, because the goods were his, but not because they were in the custody of the law. Appellant could easily have retained the goods; and the mere fact, therefore, that they were taken out of his possession is not one of which he can complain. But we think there was error- in the charge given by the court in this; That an insolvent debtor cannot make a valid transfer of his property to one creditor, in payment of a debt, to the exclusion of other creditors, though it be done in entire good faith. Wagon Works v. Tidball, 59 Tex., 291; Greenleve, Block & Co. v. Blum, id., 124. We think the evidence in the record is sufficient to sustain the verdict and judgment; but whether the jury rendered their verdict on the evidence or charge we cannot say; therefore the judgment should be reversed and the cause remanded.