SUPREME COURT RECORDS PAGE 16
File contributed by Lisa Lach and proofed/formated by Dena Stripling
*1 It has been heretofore decided by this court, that the delivery of the body of the
defendant is not a good answer to a scire facias on a forfeited recognizance, without
a further showing of excuse for the failure to have the body of the defendant in
court at the proper time; it therefore follows that it is not a good answer to the
scire facias, that the surety after the forfeiture of the recognizance, had caused
the arrest of the defendant, on capias, to answer the charge, and that he was delivered
by habeas corpus to other bail, without a further showing of excuse for the failure to
have the defendant in court at the proper time.
Where a pardon is obtained, it may be filed after judgment in this court, before the
issuance of the mandate, and the judgment will be made to conform to the pardon.
Error from Lavacca. Tried below before the Hon. Fielding Jones.
At the spring term, 1855, plaintiff in error entered into recognizance for the appearance
of William B. Gage to answer a charge of unlawfully altering the mark and brand of a
heifer, the property of William Hudgens, without the consent of said Hudgens. At fall
term, 1855, the recognizance was forfeited, and scire facias ordered to issue thereon.
On the 15th March, 1856, a capias for Gage was issued to Bastrop county, upon which
he was arrested on the 5th April, and being brought before the Hon. Thomas H. DuVal,
by writ of habeas corpus, was admitted to bail, and gave bond with other sureties for
his appearance at Lavacca district court to answer the above charge. At spring term,
1856, on motion of the district attorney, the scire facias served to that term of the
court was quashed, and another ordered returnable to next term. Same term, the second
bond given in Bastrop was forfeited, and scire facias ordered. Fall term, 1856, continued
by consent. To next term plaintiff in error answered the scire facias by plea that he
had used every exertion in his power to have said William B. Gage at this court, as
he agreed to do in his bond, by having a writ issued by the clerk of this court to
the sheriff of Bastrop county, etc., stating the facts as above. To this plea, the
court sustained a demurrer, and judgment on the scire facias was made final.
The surrender of the principal in a forfeited recognizance, after entry of judgment
nisi thereon, will not release the sureties from the penalty of such recognizance.
A remission of forfeiture on a bail bond may be filed after judgment and before mandate,
and the mandate will be conformed to it.
B. F. & W. M. Fly, for plaintiff in error, argued that the surety had done all that the
law could reasonably require, by causing the defendant to be re- arrested, with a view to
deliver him up in answer to the scire facias on his recognizance, which he was prevented
from doing by the delivery of the defendant to other bail on the habeas corpus; and cited
1 Bac. Ab. r. 597; 3 Black. 224, n. 31; State v. Mahon, 3 Harring. 569.
Attorney General, for defendant in error.
*2 It will be observed that a forfeiture nisi was taken in this case before the capias
was ordered, upon which Gage was apprehended the second time, upon the charge preferred
against him. It is contended that this apprehension of him by the sheriff, placed him
in the custody of the law, and by depriving his bail (Chambless) of the power of control
over his person, relieved him, the bail, from responsibility upon his recognizance.
It cannot be supposed that his being taken upon a capias by the sheriff, would be more
efficient to produce that result, than a surrender of Gage by his bail, at that time,
to a competent court would have been. Putting it, then, on ground so favorable as that
for the plaintiff in error, the question may be asked, would a surrender of Gage made
by his bail, Chambless, to a competent court or officer, at any time after the forfeiture
nisi had been rendered on the recognizance, operate as a release of the bail's liability;
or, in other words, constitute a defense to the scire facias? This has been decided in
the negative by this court in the case of the State v. Warren et al. 17 Tex. 283. To
admit the proposition of plaintiff in error would be making a defense arise out of facts
subsequent to the default, whereas the defense or excuse must exist at or before the
time of the default. The whole question is fully discussed, and so well defined, in
the case cited, that it is only necessary to refer to it in support of the view here
taken. It is not, however, intended to be intimated that the plaintiff is regarded as
occupying as favorable a position, in every respect, as if Gage had been surrendered
to the court by his bail after default. Whether he does or not need not be critically
examined into, as it is immaterial in this case.
We are of the opinion that the court did not err in sustaining the exceptions to the
plea of plaintiff in error.
Later in the session the following proceedings were had.
Chambless was bail for Gage and the recognizance was forfeited. Upon error to this
court judgment was affirmed. A remission of the forfeiture (not of the costs) in
favor of Chambless is produced in this court after judgment, under the great seal
of the state, and signed by Governor Pease. Under the constitution and laws this
releases the party Chambless from the recovery of the forfeiture here adjudged,
excepting the costs, of both courts. Hart. Dig. page 66 and art. 1417. The clerk
will make an entry of release, and let his mandate conform to the judgment so
NATHANIEL CHAMBLESS v. THE STATE.
20 Tex. 197, 1857 WL 5216 (Tex.)
END OF DOCUMENT
*1 Money received by the agent of an attorney, under an authority to receive and
deliver the same to the attorney, in payment of a judgment controlled by him, and
of which he held, besides, an assignment from the plaintiff therein, is not subject
to levy in the hands of such agent, to satisfy an execution against the plaintiff
in the judgment, on which the money was collected. The possession of the agent, is
the possession of the principal.
Where a deputy sheriff, who has in his hands an execution against two defendants,
receives money from one of them, pointed out by him for levy, as the property of
his co-defendant, and delivers the same, with the execution, to the sheriff, before
the return thereof, and the sheriff finds that the money was not subject to levy,
he may decline to levy upon it, and make his return, without crediting the execution
with such amount.
Where the defendant in an execution points out property of his co-defendant, to satisfy
the execution, and the sheriff refuses to levy, because the property designated is
not subject to such levy; if the sheriff determine rightly, the plaintiff in the
execution is not bound to move against the sheriff, for such failure, in order to
have determined the liabilty of the property to such levy. He may proceed, regardless
thereof, to enforce his judgment.
APPEAL from Gonzales. Tried below before the Hon. Fielding Jones.
Petition for injunction, by appellees, John T. Tinsley and Hugh W. Branch, against
the appellants, Orson Carey and William H. Reese, filed January 30th, 1858, alleging
that, on the 30th day of October, 1855, in the district court of Gonzales county, a
judgment was rendered in favor of said Carey and Reese, against John W. Pennell and
Evan Lovett, for the sum of $595.76, and costs; that Pennell filed his petition for
writ of error; and that petitioners, Tinsley and Branch, were securities on the bond
for writ of error. That on the 22d day of November, 1856, the supreme court affirmed
the judgment against the plaintiff in error, and said petitioners, as securities. That
after the return of the mandate of the supreme court, and the issuance of various
executions on said judgment, on the 9th day of January, 1857, an execution was issued
on the same, directed to the sheriff of Gonzales county, for the amount thereof, and
for costs and damages, against said Pennell and Lovett, and the petitioners; which
execution was placed in the hands of Hugh Lewis, the deputy sheriff, on the day of
its issuance; A. D. Harris being then the sheriff of said county.
That on or about the 19th day of January, 1857, the sheriff, by his said deputy,
levied this execution on $635 in specie, the property of Evan Lovett, and took
possession thereof, by virtue of said execution and levy. That on the day last
aforesaid, the sheriff, by his said deputy, returned the execution, making thereon
"This execution is returned by order of the plaintiff's attorney, January 19th, 1857.
*2 A. D. HARRIS, Sh'ff G. C.
per H. LEWIS, Dep'y Sh'ff."
And with said return, made the following indorsement on the said execution:
"Received on the within $179.01, of John W. Pennell, by the hand of J. T. Tinsley,
Jan. 16th, 1857.
A. D. HARRIS, Sheriff,
per H. LEWIS, Dep'ty Sh'ff."
The petition for injunction further alleged, that said deputy received from said
Tinsley, two hundred and twenty-five dollars, which was to have been credited on
the execution; and for which he took from said deputy a receipt. The receipt was
described in the petition as follows:
"Received January 20th, 1857, of John W. Pennell, by the hand of J. T. Tinsley,
the sum of two hundred and twenty-five dollars, on execution styled Carey, Reese
& Co. v. John W. Pennell et al.
A. D. HARRIS, Sh'ff G. C.
per H. LEWIS, Dep'y Sh'ff."
That no other credit was indorsed on said execution, than that of $179.01 aforesaid;
that Lovett and Pennell were insolvent; and that on the 29th day of October, 1857,
an alias pluries execution issued, on said judgment, against said Lovett and Pennell,
and petitioners, in favor of the plaintiffs therein for the full amount, less the
credit indorsed thereon as aforesaid, notwithstanding said levy and payments, fully
satisfying the execution and judgment.
That said deputy sheriff took said $635 from the possession of Tinsley; that it
should have been applied to the full satisfaction of the execution, and was, ipso
facto, a discharge of the execution and judgment; and that the return by the sheriff,
of said execution, not satisfied, by order of plaintiff's attorney, Horatio S.
Parker, and the direction, by said attorney, to return the same not satisfied,
were in violation of petitioner's rights. Prayer for injunction against the
execution aforesaid in the hands of the sheriff, and against all further proceedings
under said judgment; also, for process and general relief.
Fiat granted January 26th, 1858.
The answer of defendants denied that the money paid by Tinsley to Lewis, was the
property of Lovett, or subject to attachment or levy for the debts of Lovett; and
alleged that said money was collected by, and in the hands of Tinsley, on a judgment
in favor of said Lovett or Pennell, which judgment had been assigned to H. S. Parker,
by a transfer upon the execution docket, on or about the 12th day of July, 1857;
that Tinsley knew that the money, when collected, was payable to Parker, and that
he promised to pay the same to him, on or about the 1st of January, 1857; that the
money, so paid to Lewis, was to be first applied to the payment of said case of
Lovett or Pennell et al. (assigned as aforesaid to Parker), and the balance on the
said execution in favor of Carey, Reese & Co. (plaintiffs in the execution, sought
to be enjoined); and that the sheriff made the calculation, and after satisfying
said judgment, applied the balance to Carey, Reese & Co., amounting to $179.01;
that if Lewis gave a receipt for more, it was by mistake, and not correct; that
the executions were sent to Bastrop county, for the benefit of and at the urgent
request of Tinsley and Branch, and the defendants were assured that, by so doing,
the money would be collected on the same. (This part of the answer referred to the
execution on the judgment assigned to Parker, which the facts showed was a judgment
in favor of Lovett against J. W. Pennell and J. T. Tinsley, and from which a part
or all of the $635 was raised.)
*3 The answer admitted the truth of the allegations made in the petition, in reference
to the statements of judgments and the issuance of executions.
Jury waived, and case submitted to the court. Executions, referred to in petition,
issued on the judgment in favor of Carey, Reese & Co., introduced in evidence; and
the indorsements on that issued January 9th, 1857, showed a credit indorsed by the
sheriff of $179.01, as set out in the petition, and an order, dated January 19th,
1857, signed by H. S. Parker, attorney for plaintiffs, and directed to the sheriff
of Gonzales county, in whose hands the execution then was, to return the execution
not satisfied; and of the same date was indorsed as follows on the execution: "This
execution is returned by order of the plaintiff's attorney." Signed by the sheriff
. The other execution, which was enjoined, had indorsed on it the above named credit,
and no other; it was issued for the sum of $595.76, with interest thereon.
It was proven by Lewis, deputy sheriff, that Tinsley, one of the defendants in the
execution, about the 19th day of January, 1857, handed him something over $600,
and more than sufficient to satisfy the execution; that it was money received from
the sheriff of Bastrop county, collected in the case of Lovett v. Pennell, Tinsley
et al. That Tinsley ordered him to levy on the same, in the case of Carey, Reese &
Co. v. Lovett, Tinsley, Branch and Pennell; which execution he stated he then held
in his possession; that he took the money, and passed it over to the sheriff, Harris,
together with the execution.
It was proven that Tinsley received money from the sheriff of Bastrop county, in the
month of January, 1857. The amount was more than sufficient to satisfy the execution
in favor of Lovett. Witness, Bouldin, who was present when he received the money,
stated that it was his understanding, that the judgment in favor of Lovett was first
to be settled, and the balance to be applied by him (Tinsley) to the benefit of
Carey, Reese & Co., on an execution in their favor against Pennell, Lovett and
himself. Said witness heard a conversation between H. S. Parker, attorney for
Lovett, and Tinsley, in reference to the getting for, or paying to Parker, the
money due on the judgment in favor of Lovett: this conversation was sometime in
December, 1856, and Tinsley was to have one month within which to get the money.
Tinsley promised to pay the same to Parker within the month. Parker then informed
Tinsley, that the money due on that judgment was coming to him, and Tinsley
promised to pay it over to him. Afterwards, Tinsley referred, in conversation
with witness, to the fact, that he was a witness to his promise to pay the
money received, to Parker, and that he intended to do so. Bouldin also stated,
that he learned from the conversation between Parker and Tinsley, that the
former was acting as Lovett's attorney; and was also to receive the said money,
in his own right, because he had himself advanced the money to Lovett.
*4 The execution in favor of Lovett, against Pennell and Tinsley, was issued to
Bastrop county, on the 10th day of November, 1856, for the sum of $1,230.51,
with interest from May 2d, 1855, and credited by $791.92, paid 5th April, 1856.
Indorsed "satisfied, the 16th day of January, 1857, and amount paid over to
The transfer of the judgment, on which the last named execution issued, from Lovett
to Parker, was proven, dated January 12th, 1857. It was also proven, that the $600
was paid over to Harris, the sheriff, and by him paid to H. S. Parker.
Judgment of the district court for the plaintiffs. Injunction perpetuated as to
Tinsley and Branch, and not as to Pennell and Lovett.
Money received by the agent of the plaintiff's attorney, who had an assignment of the
judgment in his hands, is in the possession of the attorney, and cannot be taken in
execution for the plaintiff's debts.
Where the sheriff has decided that certain property, which was pointed out to him by
a defendant as the property of his codefendant, is not liable to levy, plaintiff need
not move against the sheriff in order to determine whether his decision is correct or
not, but may proceed at once to have the judgment collected.
Where a deputy sheriff, who has in his hands an execution against two defendants,
receives money from one of them, pointed out by him for levy as the property of
his co-defendant, out of whom, as principal, he claims the money is first to be
made, and delivers the same, with the execution, to the sheriff before the return
thereof, and the sheriff finds that the money is not subject to levy, he may decline
to levy thereon.
H. S. Parker, for appellants.
Stewart, for appellees.
The appellees seek to enjoin the judgment of appellants, upon the ground, not that
Tinsley, being one of the defendants therein, had paid the money to the sheriff, but
that he, being in possession of the money, delivered it to the deputy sheriff, and
directed him to levy upon it as the money of Lovett, who was also a defendant, and
one of his principals, in the judgment.
The question is, did Tinsley have possession of the money in such way as to make it
liable to a levy in his hands?
The evidence shows that he received the money for Parker, and that he was Parker's
agent, and not Lovett's agent, to receive the money from the sheriff of Bastrop
county, who had collected it on the judgment in the case of Lovett v. Pennell and
Tinsley. Parker was Lovett's attorney in controlling this judgment, and also had
an assignment, in his own favor, of the money to be collected on the judgment;
and Tinsley had been authorized by him to receive this money from the sheriff of
Bastrop county, and he (Tinsley) had been apprised of Parker's claim, and promised
to pay it over to Parker. Tinsley being defendant in both judgments, it was to his
interest that this money, after satisfying one (that of Lovett v. Pennell and Tinsley)
should be applied to the payment of the other, in which he was surety (Carey, Reese
& Co. v. Lovett, Pennell, Tinsley and Branch).
*5 His possession of the money was that of Parker, being merely his agent, to receive
and bring to him the money collected on the Lovett judgment, from the sheriff of
Bastrop county. The money being delivered over by the deputy to the sheriff,
together with the execution, he had a right not to levy upon it, if he found it
was not subject to levy, under the circumstances under which it came into the
hands of his deputy. And as he did not indorse a levy upon the execution, we
must presume that he did determine not to treat it as money levied on by him,
but to deliver it over to Parker, as the person entitled to its possession. If
he determined right in that matter, Carey, Reese & Co. were not bound to move
against him, for not levying on the money thus placed in his hands, for levy,
as the property of Lovett.
There is no evidence that Tinsley, acting for Parker, in receiving and conveying
this money, had his permission to deliver it to the sheriff as Lovett's money,
to be levied on; but, on the contrary, Tinsley had promised to deliver it to
Parker, and had been apprised that Parker claimed it as his own, for advances
made to Lovett. The sheriff then upon ascertaining, as we may presume he did,
from the evidence before us, that Tinsley had no such authority from Parker, and
that Parker was entitled to the possession of the money, as assignee of Lovett,
took the responsibility to deliver it to Parker, and to decline levying upon it,
as property of Lovett, subject to levy.
From the evidence before us, we are of opinion he did right.
There is nothing in the case to impeach the transfer of the claim from Lovett to
There is a receipt of the deputy sheriff, for two hundred and twenty-five dollars,
claimed as a credit on the judgment in favor of Carey, Reese & Co., which is alleged
by them to have been given by mistake. There is no certain evidence, whether this
should be credited on the judgment or not; and therefore there are no certain data
upon which to render a judgment.
The judgment will be reversed and the cause remanded for further proceedings.
Reversed and remanded.
ORSON CAREY AND ANOTHER v. JOHN T. TINSLEY AND ANOTHER.
22 Tex. 383, 1858 WL 5658 (Tex.)
END OF DOCUMENT
*1 The mere return of a party to his native country does not operate an abandonment
of a domicile he has acquired in a foreign country, unless there be an intention to
change his domicile, and it rests on the party relying on the abandonment to prove it.
5 Tex. 245.
The fact that a party died in itinere on his return with his family to his native
country, is not sufficient to create the presumption of abandonment of a domicile
Where a party pleads certain special matter of defense, a court may exclude evidence
of other special defenses. 11 Tex. 662.
Where an absent defendant was represented by a curator ad hoc, before the passage of
article 127, Hartley's Digest, and judgment is obtained against him, it must be held
until reversed or annulled by competent authority as binding on him and his heirs.
18 Tex. 753; 24 Tex. 468; 28 Tex. 443, 732.
A judgment cannot be impeached in a collateral action by proof that the person for,
or against whom it is rendered, died before its rendition.
Where evidence does not ascertain the amount paid in a purchase, after lapse of time,
it will be presumed that the purchase money was paid, and that the price was an
Where one seeks to avail himself of the illegality of the contract of his ancestor,
to recover land sold in his lifetime, he must restore the price and place the party
against whom he asserts it in statu quo. 1 Tex. 748; 9 Tex. 385; 10 Tex. 113; 16 Tex.
76; 27 Tex. 393.
Error from Austin. Tried below before Hon. J. H. Bell.
Trespass to try title by the plaintiffs, commenced 10th May, 1854, for the league of
land granted to Willis Stanly, in 1831, as his headright. The plaintiff Elizabeth
claims as the surviving widow of Willis Stanly, deceased, and the others as his
heirs. The defendants demurred, pleaded not guilty, limitation, and that Willis
Stanly died an alien, and that the plaintiffs were also aliens at the time of the
death of their ancestor.
The land in controversy was granted to Willis Stanly in 1831; between that time and
1833, when he died, he sold the land to different persons. He died in the winter of
1833, in the state of Louisiana, while on his way to his father's-in-law, in the
state of Arkansas. At the time of his death he had with him some of his family, but
whether or not all, is not shown by the evidence. On the trial the defendants
introduced the record of a decree in a suit by Horatio Chrisman, assignee of Hommedieu,
v. John C. Watrous, curator of Willis Stanly, rendered at the November term, 1839, of
the district court of Austin county, ordering said curator to make a deed to Chrisman,
through whom most of the defendants claim, to thirty-two hundred and forty-four acres
out of the headright of said Willis Stanly, and the deed made in pursuance thereof by
*2 The court charged the jury as follows: "If Stanly, the original grantee of the land
in controversy, left the country in 1832 or 1833, or 1834, with his family, and with
the intention of abandoning the country, then his heirs are not entitled to recover the
land in controversy in this suit, because the same did not pass to them by inheritance.
Whether or not the ancestors of these plaintiffs left the country with the intention of
abandonment is a question for the jury to determine from all the circumstances of the case.
If he left the country with his family, and died out of the country, in the absence of
further proof, the presumption of law would be, that he had abandoned the country; and
such presumption could only be rebutted by proof that he had left the country intending
to return; that he had preserved a home in the country, to which his family returned
after his death; or by proof of other circumstances which would destroy the presumption
The sale of the land by Stanly in the years 1831 or 1832, or 1833, was in contravention
of law, but if he received payment for the land, from those now in possession, or from
those from whom those now in possession claim, his heirs cannot invoke relief from the
illegal contract as against those in possession of the land, without offering to do
justice to them by paying back the purchase money, which was the consideration for the
original, illegal contract, and this rule of the law is binding on married women and
minors. The contract between Stanly and Hommedieu was a contract, the illegality of
which cannot now be inquired into, since the contract was sued on, and a decree of a
court of competent jurisdiction obtained enforcing the same, which decree is conclusive
upon all parties concerned, and can only be attacked for fraud in the procurement of
it." The remainder of the charge was in relation to the pleas of limitation.
There was a verdict for defendant and judgment, from which the plaintiffs prosecuted a
writ of error.
When an absent defendant was represented by a curator ad hoc, before the enactment of
article 127, Hart.Dig., a judgment obtained against him was held binding upon him and
his heirs, until reversed or annulled by competent authority.
The mere fact that a party who had acquired a domicile in a foreign country was returning
with his family to his native country, and died in itinere, is not sufficient to create
the presumption of an abandonment of the foreign domicile, unless it is proved that he
left with the intention of such abandonment; and such intention must be proved by the
party relying on it.
After part performance, a party cannot rescind without returning or tendering the
consideration or benefits received.
After a lapse of 20 years, it will be presumed that an adequate price was paid by
the purchaser for land conveyed to him.
Where an heir attempts to avail himself of the illegality of the contract of his
ancestor to recover lands sold in his lifetime, he must restore the price, and place
the party against whom he asserts his right in statu quo.
The mere facts that one is on his return with his family to his native country, and
that he died on the way, are not sufficient to create a presumption of an abandonment
of the domicile he had acquired in this country, unless it were proven that he left
with an intention of such abandonment.
Where a party pleads certain special matter of defense, a court may exclude evidence
of other special defenses.
Where an absent defendant was represented by a curator ad hoc before the enactment of
Hart.Dig. art. 127, a judgment against him cannot be impeached by proof that he died
before it was rendered.
Where an absent defendant was represented by a curator ad hoc before the enactment of
Hart.Dig. art. 127, a judgment against him cannot be impeached in a collateral action
by proof that he died before it was rendered.
A judgment cannot be impeached in a collateral action by proof that the person for, or
against whom it is rendered, died before its rendition.
Before plaintiff can avail himself of the illegality of a contract of his ancestor for
the sale of land he must restore the price and place defendant in statu quo.
N. Holland and G. W. Smith, for plaintiffs in error. The first instruction is deemed
erroneous, because it is misleading in its nature; and led the jury to believe that
all these plaintiffs claim as heirs of Willis Stanly, deceased; the fact is,
Elizabeth Mills claims in her own right and as the surviving widow of the deceased;
and further, because it is believed not to embrace a correct principle of law. The
fact of leaving the country with his family with the intent to abandon it, could not
effect a change of domicile, until he had acquired another domicile or home in a
foreign country. The proof was that he died in itinere or in Louisiana, on his way to
the home of his father-in-law, who resided in Arkansas. Animo and facto, that is, the
intention and fact of removal effect the change of domicile, and if either be
incomplete then the domicile is not changed.
*3 The other instruction is believed also to be erroneous. This dispenses with the
proof of both the intention and fact of removal in a great measure. The rights of
the citizen are not to be defeated and forfeited by vague and doubtful presumptions
of law. The facts that work a forfeiture of rights should all be clearly and
conclusively proven. Hardy et al. v. De Leon, 5 Tex. 245. It is believed that these
instructions had a material control of the jury, and caused them to find an improper
verdict, at least as to the twelve hundred acres that defendants could show no
The defendants set up their defense, as before stated, specially and under the rule
settled in the case of Rivers v. Foot, 11 Tex. 662, they could not have been heard
to make any other in proof. But if the defendants can ask that the purchase money be
refunded, they should have shown in their pleadings what was paid, and then proved it,
neither of which is done properly. There is no averment of the amount paid. The evidence
is that of Lewis to the declarations made by Stanly; that one-half the league was given
to clear out the league and paying expenses; that a valuable consideration was paid for
the other tract, which may have been from one cent to an indefinite amount. Such
testimony, I presume, will not be regarded as sufficient.
The plaintiffs, like administrators, are not presumed to know the terms and nature of
the transactions of the deceased; but that the defendants who pretend to claim under
these sales, are presumed to be informed of their nature and terms, and should have
set them out in their answer, so that plaintiffs could have offered and refunded the
purchase money, if equitable so to do, and to have had an adjustment of rents, etc.
Frank Lipscomb, for defendants.
I. If plaintiffs in error's ancestor abandoned the country with his family, they are
thereby precluded. As to abandonment of the country, see Holliman v. Peebles, 1 Tex.;
Horton v. Brown, 2 Tex.; Ximines v. State, 1 Tex.; Yates v. Iams, 10 Tex. The moment
a foreign domicile is abandoned the native domicile is re-acquired. The native
domicile easily reverts. Story, Conf. Laws, art. 46. The domicile of a married woman
is the domicile of the husband, and the domicile of minor children is the domicile of
the father. 11 Pick. p. 410; Story, Conf. Laws, p. 53 et seq. If the plaintiffs were
aliens at the death of their ancestor they cannot recover. Yates v. Iams, 10 Tex. and
II. If the plaintiffs in error were aliens at the death of their ancestor, they could
inherit nothing by the Spanish law. Yates v. Iams, 10 Tex. 168, and a case lately decided
from Bastrop, not reported.
III. By lapse of time and other causes plaintiffs have put it out of their power to
restore the parties to their original rights, and on this principle they are checked
by the law as laid down in Hunt v. Turner, 9 Tex. 386, "that a party to an illegal
contract will not be permitted to avail himself of its illegality, until he restores
to the other party all that has been received from him on such illegal contract; he
cannot hold on to the advantages of such a contract, and at the same time be heard
with favor in setting up its nullity." From the lapse of time before the institution
of this suit--nearly or quite twenty years--are not the heirs presumed to have ratified
the sale, though it may be illegal? It is not insisted that the contract to sell, prior
to the 26th March, 1834, was legal, though a colonist might, by the colonization laws,
sell his lands if the purchaser fulfilled all the requirements of the law.
*4 In regard to the proceedings against the curator, Watrous, the same are regular and
in accordance with the law and established practice at that time; and, as said by Judge
Hemphill, in Kegans v. Allcorn, 9 Tex. p. 25, we think the same might be said in this
case: "The security of property, the repose of society, public policy, require that the
proceedings of the courts in former times, under which rights were supposed to have
vested and on the faith of which property has been transmitted, should be upheld whenever
this may be done without doing violence to the established principles and usages of law."
And it would devolve upon the plaintiffs in error to show the invalidity of those
proceedings; not only to show that they were wrong, but actually null-- the same having
been before a court, the competency of whose jurisdiction is presumed.
The judgment of the court against said curator was authorized, and is res adjudicata.
Pothier, Obligations, vol. 1, p. 434, sec. 52; Brown's Syndics v. Ferguson, 4 L. R. 259.
And by that judgment plaintiffs in error are bound (Civ. Code La. art. 9; Id. art. 57);
and to this latter article we call especial attention, as it shows that by the Louisiana
practice, the court clearly had the power to appoint a curator ad hoc, when suit was
instituted against an absentee. In the case at bar the appointment was regularly made,
notice given, appointment accepted, defense made, etc., as the record will show. And
it is insisted that the appointment of a curator would make the judgment valid and
effectual in such a case, even though the absentee was dead at the time of the rendition
of the judgment; besides, the judgment could not be attacked collaterally.
J. H. Robson, also, for appellee. As to the validity and conclusiveness of the decree
against the curator of Willis Stanly, the defendants in error refer the court to the
following authorities: In the case of "Allen v. McClellan," 12 Penn. St. it is said:
"A decree reciting that the former decree was vacated for such causes as fraud is
conclusive, after the time for an appeal has elapsed, though there is nothing on
the record to show that proof of the fraud was made, and although it was admitted,
that when service of notice of the intended application to vacate was made at the
reputed residence of libellant, she was out of the state. Every presumption in favor
of a judgment is strengthened by lapse of time. 4 Dana, 434; 4 Id. 441. If a judgment
is not void on its face its regularity cannot be questioned collaterally. 4 Bibb, 336;
1 J. J. Marsh. p. 195.
In the case of "Kemp's Lessee v. Kennedy," etc. 5 Cranch, 173, Mr. Chief Justice Marshall
says: "The courts of the United States are all of limited jurisdiction, and their
proceedings are erroneous if the jurisdiction be not shown in them. Judgments rendered
in any case may be reversed, but the supreme court is not prepared to say they are
absolute nullities which may be disregarded." Again: "If a judgment be rendered in
favor of or against a dead man, which would be manifestly erroneous, as soon as the
fact shall appear the error could be corrected only by the court which rendered the
judgment. This court could not notice it, because it does not appear on the record.
There must be some remedy for such a case, and there are numerous authorities showing
that a writ of error coram vobis is the usual and perhaps the only one." 1 J. J. Marsh.
pp. 30, 31; 1 Rol. Abr. 747; 3 Salk. 145; 2 Tidd, Prac. 1007.
*5 A material question to be determined arises upon the charge of the court as respects
the abandonment of the country by Stanly, the grantee of the land in controversy. To
constitute an abandonment of the country under the laws of colonization applicable to
this case, a change of the national domicile of the party was essential. And to effect
such change there must have been the concurrence of the act and the will. Judge Story
in his Conflict of Laws (sec. 48) says: "A national character acquired in a foreign
country by residence changes when the party has left the country animo non revertendi,
and is on his return to the country where he had his antecedent domicile. And especially
if he be in itinere to his native country with that intent, his native domicile revives
while he is yet in transitu; for the native domicile easily reverts. But a mere return
to his native country, without an intent to abandon his foreign domicile, does not work
any change of his domicile." The mere return of Stanly to his native country did not
operate abandonment of the domicile he had acquired in this country. The intention to
change his domicile was a necessary constituent of such abandonment, and that it
devolved on the defendants to prove. Ennis v. Smith, 14 How. 422. Having acquired a
residence in this country, the presumption of law is that it was retained. This prima
facie presumption may be repelled by proving that he had taken up his residence
elsewhere. That rebuts the presumption of its continuance. But the mere fact that he
was on his return, with his family, to his native country and died in itinere, is
not sufficient to create the presumption of an abandonment of the domicile he had
acquired in this country; unless it were proven that he left with the intention of such
Where a person lives, is taken prima facie to be his domicile, until other facts
establish the contrary. Id. If Stanly had taken up his residence out of the country,
that would have afforded prima facie proof of a change of domicile. But his last
residence was in this country, and his domicile must be taken to have continued here
until there was proof of an intention to change it; and the burden of proof was on
We therefore think the charge of the court upon this point was erroneous. It relieved
the party asserting the forfeiture from the necessity of proving an essential element
in the fact of abandonment, that of the intention necessary to constitute a change of
domicile. We think, as we have heretofore held, that the ground on which it is
proposed to effect a disfranchisement and divestiture of property and civil rights
ought to be very clearly and satisfactorily established by the party asserting the
forfeiture. 5 Tex. 245. And we are of opinion that the burden of proof was on the
defendants to establish, not only that the ancestor of the plaintiff had left the
country, but that he had done so with the intention of a permanent change of residence,
and that his having gone abroad with his family and there died without other proof of
such intention, was not sufficient. As this opinion will require a reversal of the
judgment, it becomes material to notice the other defenses upon which the decision of
the case may depend upon another trial.
*6 It is objected by the appellant that the defendants did not plead the decree of 1839,
which was given in evidence, nor the equities on which they relied to defeat the
plaintiff's action. The evidence, however, was admitted without objection, and the
defendants may plead these defenses before another trial. If they had not pleaded
specially, their evidence would have been admissible under the plea of "not guilty."
Hunt v. Turner, 9 Tex. 385. But having pleaded certain special matter of defense, the
court might have excluded evidence of other special defenses. Rivers v. Foote, 11 Tex.
We think it must be held that the decree of the district court of Austin county, of 1839,
was a valid and binding judgment, and concluded all inquiry into the legality of the
original contract upon which it was rendered. Grassmeyer v. Beeson, 18 Tex. 753. The
office of a curator ad hoc appears to have been essentially the same as that of a guardian
ad litem, representing an absentee. Partidas, 3, 2, 12; Laws of Coahuila and Texas,
decree 277, art. 98; Grassmeyer v. Beeson, 528, 529, and authorities cited. The appointment
of a curator and the rendition of judgment were before the repeal of the laws which
authorized the appointment. Dig. art. 127, secs. 1, 2. The absent defendant having
been represented by the curator, the judgment, until reversed or annulled by competent
authority, would be held binding upon him and his heirs. It cannot, it would seem, be
impeached in a collateral action by proof that he had died before its rendition. In
Case v. Ribalin (1 J. J. Marsh. 29), the court of appeals of Kentucky held that the
rendition of judgment for or against a dead person is error in fact, only to be corrected
by writ of error coram vobis. The court observed that "if a judgment be rendered in
favor of or against a feme covert, suing or defending as a feme sole, or in favor of,
or against a dead man, which would be manifestly erroneous as soon as the fact should
appear, the error could be corrected only by the court which rendered the judgment."
There must be some remedy for such a case; and there are numerous authorities showing
that a writ of error coram vobis is the usual and, perhaps, the only one. See 1 Rol.
Abr. 747; Cro. Eliz. 105; 3 Salk. 145; 2 Tidd, Pr. 1107; Id. 30. It would seem,
therefore, that a judgment is not void by reason of the death of a party to it before
its rendition, where the fact does not appear by the record; but that it will be held
valid, until avoided by a direct proceeding for that purpose. There was therefore no
error in the ruling of the court upon the effect of the judgment in question. But that
did not dispose of the entire subject matter in controversy. If it had embraced the
entire league, as its effect was a question of law for the court, and not of fact for
the jury, the other rulings in the case might have been held immaterial, and no ground
for reversing the judgment.
*7 But it is material to observe, as to the remainder of the land not disposed of by
the decree of 1839, that the court held, and rightly, that it was obligatory on the
plaintiffs to restore the price and place the defendants in statu quo, before they
could avail themselves of the illegailty of the contract of their ancestor, to
recover back the land he in his lifetime had sold. Hunt v. Turner, 9 Tex. 385.
It appears by the evidence that the ancestor of the plaintiffs had sold the entire
league before leaving the country. That sold to Hommedieu was what remained after
the sale of smaller tracts to others. The inability of the defendants to produce the
deeds or written evidence of the sales was doubtless owing to the fact mentioned by the
witness, that the records were kept at San Felipe and were lost or destroyed when the
town was burned in 1836. Although the evidence did not ascertain the amount of the
price paid, yet it would not be unreasonable, after so great a lapse of time, to
conclude that it was an adequate price for the land at the time. After the lapse of
more than twenty years less strictness of proof will be required than in reference
to more recent transactions, and presumptions will be indulged in favor of parties
who have been permitted to repose in supposed security upon titles fairly acquired.
After such a lapse of time, it is scarcely possible for parties to be reinstated in
the rights they will have lost, or compensated for the injury they will sustain by
a recovery against them by the original grantee or his heirs; to say nothing of the
shocking injustice of permitting the latter to take the benefit of the performance of
the conditions of the grant by the purchaser, and at the same time take advantage of
their own failure to observe and perform the provisions and requirements of the law
which were the inducements to the making of the grant, to dispossess and ruin those
by whose acts they are enabled to assert the title. It is true that time cannot bar
the rights of infants and femes covert. But time may obscure and finally annihilate
the evidence by which the honest purchaser, who paid a fair, it may be a generous
price for the property when it was but little esteemed by the first proprietor who
received it from the bounty of the government, might establish the payment of the
price, the confirmation or renewal of the contract of sale when the legal inhibition
was removed, or other supervening equities, which would be deemed an insuperable
barrier to an action by the grantee or his heirs to dispossess him. Upon a kindred
subject, where it was proposed to annul a judgment of long standing, by evidence
that minors who were affected by it were not served with process, the court of appeals
of Kentucky observed: "It does not appear how long the heirs labored under disabilities.
But no disabilities, which can be presumed to have existed, could materially affect
the point we are now considering; for the chief efficacy of the long lapse of time
does not arise from actual or presumed acquiescence merely, but results principally
from an inflexible rule of law, established for securing the repose of society, and
founded on the presumption, sustained by the experience of mankind, that considering
the nature of the fact attempted to be proved, the kind of evidence offered to prove it,
and the obliterating influence of a lapse of more than twenty years, it is safer, and more
reasonable, that the judgment should stand, and the long possession under it remain
undisturbed, than that both should now be assailed by testimony which, however false,
the adverse party could not be expected to repel. Infancy is saved from the limitation
prescribed for bringing suits, because, in such a case, forbearance operates as evidence
of abandonment, or want of right; and that reason does not apply with full force to
infants, who should not be presumed to have been perfectly acquainted with their rights.
But the rule of evidence, which we have been considering, is, as already suggested,
founded on reasons of policy, from which infancy is not a fit or admitted exception."
Per Robertson, Ch. J. 4 Dana, 442.
*8 If the lapse of more than twenty years from the date of the contract of sale can
have no other effect, it should have that of relieving the purchaser, and those
claiming under him, of the necessity of proving the payment of the purchase money,
and should authorize the presumption that a fair and adequate price was paid, which,
with the use of it, may be equal to the appreciated value of the land. And thus,
without any departure from the principles and usages of the law, if the original grantee
or his heirs will have the land they have once fairly sold for a just price returned to
them, they may be required to restore the price; and the great hardship and wrong done
the purchaser may be in some degree alleviated. It is unnecessary to examine
particularly the evidence in reference to the defense of the statute of limitations.
Considering the disabilities of coverture and infancy under which the plaintiffs are
or have been protected, it does not appear probable that that defense can avail the
defendants, if at all, but for a small part of their possessions. But upon the other
defenses, if properly presented by the pleadings and proof, it may be different. The
judgment is reversed and the cause remanded.
Reversed and remanded.
ELIZABETH MILLS AND OTHERS v. ROBERT ALEXANDER AND OTHERS.
21 Tex. 154, 1858 WL 5428 (Tex.)
END OF DOCUMENT
*1 There is no such offense known to the law, as "an attempt to commit an assault,
with intent to murder."
APPEAL from Bastrop. Tried below before the Hon. Thomas J. Devine.
The appellant was indicted for an assault, with intent to commit murder.
There is no such offense as an attempt to commit an assault with intent to murder.
William G. Webb, for appellant.
Attorney General, for appellee.
On the trial of this cause, the judge instructed the jury, in substance, that they might
find the defendant guilty of "an attempt to commit an assault, with intent to commit
murder," and that the punishment for that offense was fine, and imprisonment in the
county jail, or either, at the discretion of the jury; or by confinement in the
penitentiary, not less than one, nor more than two years. So reads the charge of
the judge, in the record which is before us. In evident response to this portion
of the charge, the jury found the defendant "guilty of an attempt to commit an
assault, with intent to murder," and they assessed his punishment at confinement
in the penitentiary for eighteen months.
The charge of the court is erroneous, and the verdict of the jury is unauthorized by
any law of which we have any knowledge. There is no such offense known to the law as
"an attempt to commit an assault, with intent to murder."
We presume that the able and experienced judge, who tried the case, was prevented by the
hurry of business, or by some other cause, from giving the case a proper consideration,
and that his attention was not called to the error, in time to afford him an opportunity
to correct it. The judgment is reversed and the cause remanded.
Reversed and remanded.
ROBERT P. WHITE v. THE STATE.
22 Tex. 608, 1858 WL 4420 (Tex.)
END OF DOCUMENT
*1 It is only the material traversable facts in the petition, that need be embraced
in the affidavit for an attachment. 13 Tex. 368; 14 Tex. 1; 15 Tex. 568; 16 Tex. 47;
18 Tex. 289.
The nature or character of the debt, or the fact that it is secured by a mortgage,
need not be stated in the affidavit for attachment.
APPEAL from Bastrop. Tried below before the Hon. Alexander W. Terrell.
This was a suit by K. H. Barbee against William Holder, commenced the 7th September,
1857, by attachment, on a promissory note, before its maturity.
The plaintiff alleged in his petition, that the defendant executed to him on the 31st
of October, 1856, his promissory note for $280, payable October 31st, 1857; that the
said note was given in part payment for a wagon and five yoke of oxen; that the defendant,
to secure the payment of this note, had executed to him a mortgage on the said wagon and
oxen; that the mortgage had been duly recorded; that the defendant was insolvent, and
had removed the wagon and oxen, from the county of Bastrop to the county of Harris; had
sold one yoke of the said oxen, and was about selling the others, and the wagon, and
thereby defraud him of his debt. It was further alleged, that the note was "credited
by one mule at seventy dollars, paid the 5th of September, 1857."
The petition was not sworn to, but affidavit was made by the plaintiff, that the
defendant, "was in debt to him in the sum of $210; that the said William Holder was
about to transfer his property, for the purpose of defrauding his creditors, whereby
this plaintiff would lose his debt; that this attachment was not sued out for the
purpose of injuring the said William Holder."
The attachment was issued and levied. The defendant answered the petition, and moved
the court to dismiss the attachment, because the petition was not sworn to; this
motion was sustained by the court, and the attachment and petition were dismissed;
from which judgment the plaintiff appealed.
An affidavit for an attachment against the person in an action of debt is sufficient
if it embraces the material traversable facts set forth in the petition.
The character of the indebtedness need not be averred in an affidavit for an attachment
The fact that a debt to recover which an attachment is issued is secured by mortgage
need not be stated in the attachment affidavit.
Chandler & Turner, Hancock & West, and Blanton, for the appellant.
M'Ginnis & Jones and Petty, for the appellee. The material traversable facts set forth
in the petition, should be sworn to. O. & W. Dig. 116, art. 423; Cheatham v. Riddle, 8
Tex. 162; Watts v. Harding, 5 Id. 386; 13 Id. 368. When this has been done, it will
be sufficient, but in the case at bar, neither the petition nor the matters therein
contained, have been referred to by the affidavit. The affidavit, though upon the same
sheet of paper, makes no reference to the petition, or to any of the matters therein
*2 The indebtedness set up in the petition, with the mortgage to secure its payment,
is surely material, but yet the affidavit sets up a different amount. The former is
$280, evidenced by note, and secured by mortgage, the latter is $210, without stating
whether due by note, account, or otherwise. The one cannot be held to mean the other,
upon any reasonable construction of language.
WHEELER, C. J.
The affidavit upon which the attachment issued, is in conformity to the statute
(O. & W. Dig. art. 43), and, under the repeated decisions of this court, must be
held sufficient to support the attachment. Schrimpf v. M'Ardle, 13 Tex. 368; 16 Id. 47;
Primrose v. Roden, 14 Id. 1; 15 Tex. 568; Wright v. Ragland, 18 Id. 289. It is only
the material traversable facts set forth in the petition, that need be embraced in
the affidavit. We are of opinion that the court erred in dissolving the attachment
and dismissing the petition; for which the judgment must be reversed, and the cause
Reversed and remanded.
K. H. BARBEE v. WILLIAM HOLDER.
24 Tex. 225, 1859 WL 6403 (Tex.)
END OF DOCUMENT
*1 The game of pool is prohibited by the statute, whether it be exhibited, as most
usual, on a billiard table, or on a ten-pin alley, or whether any other evasive
device be adopted for its exhibition.
An indictment is sufficient, although instead of charging that the defendant kept
a pool table, etc., in general terms, it present the facts, which constitute the
elements of the game that was kept.
APPEAL from Bastrop. Tried below before the Hon. Alexander W. Terrell.
The indictment in this case charged, that the appellee "did then and there, in,"
etc., describing the locality, "keep a gaming device for the purpose of gaming,
which gaming device, so kept as aforesaid, by the said Kelly, was a ten-pin alley,
upon which the unlawful game of pool was permitted to be played, by said Kelly."
The indictment, on motion of the defendant, was quashed.
The statute prohibits pool. It is immaterial that it be played on a tenpin alley
instead of on a billiard table.
The indictment need not allege that the defendant kept a pool table. It is enough
if it describes what he did keep, and leaves it to be determined whether it amounts
to a pool table.
Attorney General, for the appellant.
Jones & Petty, and C. C. M'Ginnis, for the appellee.
The indictment contains a description of the game of pool, kept upon a ten-pin alley.
Most usually, in this country, this game is kept and exhibited, upon a billiard table.
The question is, whether this change in the mere structure, upon which the game is
exhibited, will make that a legal game. Pool is expressly named as one of the gaming
tables which are prohibited. O. & W. Dig. 507, art. 414. It is the prohibited game of
pool, that gives character to the gaming device which is described, whether it be
exhibited on a table, a floor, a flat rock, or a ten-pin alley. And whatever evasive
device of that sort might be adopted, it would still be known by the name of pool,
which is a gaming table; and would still be a game which, in common language, would
be said to be "kept or exhibited." Art. 413.
Had the indictment designated it only as a "gaming device," instead of a gaming table,
as contemplated by the statute (art. 415), it might have been insufficient. It describes
the gaming device, because it could not literally be called a table, and then alleges
that the game of pool was played on it. Instead of charging that the defendant kept a
pool-table, etc., in general terms, it presents the facts which constitute the elements
of the game that was kept, and left it to be judged of by the court, upon exception,
if any should be made, whether or not an offense had been set forth.
*2 We think, the indictment amply presents the elements of the offense of keeping a
gaming table, and that the court erred in sustaining exceptions to it. Stearnes v.
The State of Texas, 21 Tex. 692. Judgment reversed and cause remanded.
Reversed and remanded.
THE STATE v. LEVI W. KELLY.
24 Tex. 182, 1859 WL 6385 (Tex.)
END OF DOCUMENT
*1 Under the law of 1841 (which was still in force in Texas in 1867), in relation to
runaway slaves, it was made the duty of the sheriffs of the respective counties to
receive all runaway slaves who were duly committed, and to keep them securely, and to
maintain them. O. & W. Dig. art. 1869.
Where the owner refused to remove the slave, or to provide for his maintenance, he
became liable for his expenses.
The insanity of the slave excused the sheriff from offering the negro at public sale,
as the law then directed. O. & W. Dig. art. 1870.
Where the reason of the law ceases, the law itself ceases.
When the law allowed the sheriff but fifty cents a day for keeping a slave, he could
not recover a higher sum by proving a quantum meruit. O. & W. Dig. arts. 960 and
ERROR from Harris. The case was tried before Hon. PETER W. GRAY, one of the district
Conlie sued Scranton for $301.25, for keeping the slave of Scranton, as jailor, and
for necessaries for said slave, under the law of 1841, with reference to runaway
slaves. O. & W. Dig. arts. 1869 to 1872. The defendant demurred to the petition,
plead the general issue, and that he was not the owner of the slave for more than
three years before the institution of the suit. The facts proved in the case were,
that in 1865 the defendant purchased the negro; that he was subject to fits, and
had been sold in consequence of it; that he had run off, and been committed to jail
in 1858, in accordance with the law at that time. The value of the keeping and of
the necessaries furnished were proved. It was proved on the part of the defense that
the negro was crazy. The jury returned a verdict for the plaintiff for the amount
demanded, for which there was judgment. In arriving at this amount, the jury allowed
more than fifty cents per day for keeping the slave. The law at that time only allowed
fifty cents a day.
The defendant prosecuted error. No briefs have been furnished to the reporter.
Under a statute requiring sheriffs to offer for sale at the end of a certain time
runaway slaves in their custody, if not reclaimed, it is a sufficient excuse for the
omission of the sale that the slave is insane and of no value.
The owner of a runaway slave who is in the hands of the sheriff becomes liable for
the expenses of the slave on his refusal to remove him or to provide for his
When the law allowed the sheriff but fifty cents a day for keeping a slave, he
could not recover a higher sum by proving a quantum meruit.
*2 The petition in this case discloses a good cause of action. The demurrer was properly
overruled. The slave, Jack, having been arrested as a runaway, placed in the custody
of appellee, as sheriff of Bastrop county, it was his duty to keep him securely, and
provide for and maintain him. O. & W. Dig. art. 1869. The plaintiff in error is proved
to have been the owner of the slave, and to have been duly notified of his arrest and
incarceration, and wholly failed to remove him or provide for him. The utter
worthlessness of the slave, arising from his mental insanity, which is alleged and
clearly proved, is a sufficient excuse for the failure of defendant in error, as
sheriff, to offer him for sale at the end of six months from the date of his committal,
as required by law. O. & W. Dig. art. 1870.
His condition was such, that he would have been an onerous charge upon a purchaser,
and to have offered him for sale under such circumstances would have been an idle
ceremony, not required by the law. The requirement to sell is based on the idea that
the negro was of some value, and would bring money on a sale with which to defray
expenses, etc. When he is absolutely and utterly worthless, and worse than worthless,
as the slave in this case is proved to have been, the reason of the law ceases, and
the requirement with it. That the plaintiff in error is liable for necessaries
furnished, and for proper care and attention to his slave, and for his support and
maintenance, is too plain a proposition to require either argument or authority to
sustain it. But the defendant in error received the slave in his official character
as sheriff of Bastrop county, and kept him in the public jail. He was a prisoner for
whose support and maintenance the law allows the sheriff fifty cents per day. O. & W.
Dig. arts. 960, 1870. In his petition, the defendant in error claims $1 per day, and
that amount is allowed in the verdict and judgment, making, for the whole time
charged for, an excess of $97.50 over what he is allowed by law to charge and
receive. The goods furnished and the extra attention bestowed are proved clearly
to have been absolutely necessary, and the charges for them were properly allowed.
There is no error in the judgment, except that it is excessive to the amount of
$97.50, for which it must be reversed, and the case remanded for further proceedings,
unless the defendant in error enter a remittitur of the excess, an opportunity to do
which will be allowed him, if he desires it.
F. SCRANTON v. PRESTON CONLIE.
29 Tex. 237, 1867 WL 4516 (Tex.)
END OF DOCUMENT
*1 Where there are two counts in the indictment, one charging that the defendant did
engage in the sale of spirituous and intoxicating liquors, and the other that he did,
on Sunday, trade lager beer, both to the same party, the indictment is good. Ante,
The object of the legislature was to forbid all secular employments on the Sabbath
(not excepting any) by the act under which the defendant was indicted.
The disregard of the Sabbath constitutes the offense.
To charge the offense in the language of the act is sufficient. Pas. Dig. note 720.
Where it was proved that certain customers bought and paid for lager beer on Sunday,
although numerous witnesses proved that the defendant was in the habit of refusing
pay from his customers on that day, it was right to refuse a motion for a new trial.
APPEAL from Bastrop. The case was tried before Hon. JOHN IRELAND, one of the district
This was another Sunday case. The indictment charged that August Elsner, etc., on the
19th of May, 1867, etc., did then and there, on Sunday, engage in the sale of spirituous
and intoxicating liquors to Rufus Green, against the peace and dignity of the state; and
that Elsner was a grocer, and did then and there, on the Sundays aforesaid, trade lager
beer to Green.
The defendant moved to quash the indictment, because it charged no offense known to the
law, and because it was vague, and otherwise informal, defective, and insufficient. The
court overruled the motion. The jury found the defendant guilty, and assessed his fine
at $15. The defendant moved for a new trial, but was overruled, and he appealed.
There was a bill of exceptions, on the ground that Bruno Elsner had stated, when he let
these parties have the lager beer, that he was not the clerk or agent of the defendant,
which plea the court refused to admit. The proof was that Turner, Green, and John Scott,
a witness, went into the saloon of Elsner on Sunday, and that Green called for lager beer
and young Elsner let him have it, and Green asked what was the price of the beer. The
young man said 40 cents a quart. There was some dispute about the price, and as the
parties left Green left 20 cents for the quart, saying that was the price. The
witnesses went in through the back way, and left the same way. Green stated that
he only paid 20 cents, and that Bruno Elsner let him have the lager beer, but he
was the son of the defendant.
Another witness swore that Elsner, on Sunday, let him have beer, for which he paid
him a dime. He knew of no other selling or trading than his leaving that dime for
him and taking the beer, though he had seen him sometimes refuse to take pay for
the beer on Sunday, and he always said he could not sell on Sunday, and did not keep
his doors open. There was proof tending to show that he had often refused to take
money from his customers on Sunday. One witness swore that he had drank one hundred
and seventeen glasses of Elsner's lager in one day, and it did not intoxicate him,
but he went home sober. There were various witnesses who swore that they drank lager
at the house of the defendant on Sunday, and he would take no money for it. Act.
11th Leg. p. 222, secs. 2, 4.
In an indictment for a statutory offense it is sufficient as a rule to describe the
offense in the words of the statute.
An indictment one of the counts of which charges that the defendant, on "Sunday," etc.,
did engage in the sale of spirituous and intoxicating liquors to, etc., and another
count of which charges that "on the day and year last aforesaid" the defendant was
a "grocer," and did then and there on Sunday trade lager beer to, etc., is not liable
to the objection of charging two offenses.
A young man, standing behind the counter of his father, dealing with his customers,
may be considered as agent, and the father held responsible for his acts in the line
An indictment containing two counts, one charging that defendant did engage in the
sale of spirituous and intoxicating liquors, and the other that he did on Sunday trade
lager beer, both to the same party, is good.
The prosecution proved that certain customers bought and paid for lager beer on Sunday.
Numerous witnesses for the defense proved that defendant was in the habit of
refusing pay from his customers on that day. Held, that the affirmative testimony
was controlling, and it was proper to refuse a motion for a new trial.
On a trial for violating the Sunday law in selling cigars, evidence examined, and
held insufficient to either establish a sale or to connect accused with the
A. D. McGinnis, for appellant. It is respectfully submitted by the appellant that
the indictment in this case is not good, because it is exceedingly vague, defective,
and attempts to charge two offenses against the Sunday law which have entirely
*2 The indictment charges the accused with having engaged in the sale of spirituous
and intoxicating liquors, on Sunday, to Rufus Green, for which the law prescribes a
penalty of not less than $15 and not more than $75, and then proceeds to charge him
with being a grocer, and as such trading to said party lager beer, for which the
accused was liable to a fine not less than $10 nor more than $50. Acts 11th Leg.
secs. 2, 4, p. 222; ante, p. 522.
The court erred in permitting the evidence of John Scott as to what Bruno Elsner
said and did to Rufus Green. Draper v. The State, 22 Tex. 400.
The jury having returned no verdict as to the second count in the indictment, and
the charge in the first count being defective in not alleging the appellant
engaged in the retail of spirituous and intoxicating liquors on Sunday, the case
now before the court cannot be sustained. Acts 11th Leg. sec. 2, above referred to.
E. B. Turner, Attorney General, for the state. For the definition of the offense,
see acts of 16th December, 1863, and amendment made 13th November, 1866. 11th Leg.
222. The indictment charges the offense in the very words of the statute creating
the offense. This is always sufficient. Francis v. The State, 21 Tex. 280. The
question of fact was fairly submitted to the jury, and their finding will not be
Counsel have mistaken the reading of the statute in regard to what constitutes the
offense. It is an offense to retail, and also to sell, liquors in the manner
denounced by the law. A man may be convicted of the one or the other, and that
is the difference between the law of 1863 and that of 1866 upon this point.
It is objected that the indictment charges "two offenses," and is vague, defective,
etc. The first count charges that the defendant, on "Sunday," etc., "did engage in
the sale of spirituous and intoxicating liquors to Rufus Green," etc. The second count,
"on the day and year last aforesaid," the defendant was a "grocer," and did then and
there on Sunday trade lager beer to Rufus Green.
The object of the legislature was to forbid all secular employments on the Sabbath not
excepted in the act under which the defendant is indicted. The disregard of the
Sabbath, the refusal to recognize it as a day sanctified to holy purposes, constitutes
the offense. The particular act alleged is no offense, but becomes so only when done
on the Sabbath. The indictment we think amply sufficient to hold the defendant to
answer. The offense is charged in the language of the statute. 21 Tex. 280.
On the trial, John Scott, a witness for the state, testified that he and others went
into the saloon of defendant and called for lager beer, and young Elsner let them have
it. After drinking, young Elsner was asked the price of beer, and stated that it was
worth 40 cents a quart. To this it was replied, that it was too much. The party laid
down 20 cents on the counter and then left. The witness further said that he had
frequently seen young Elsner behind the counter attending to customers.
*3 To all of which defendant objected, on the ground that he was not present when
the transaction occurred. Objection overruled.
We think that a young man, standing behind the counter of his father, dealing with
his customers, may, without any violent presumption, be regarded as a clerk or agent,
and the father and proprietor held responsible for his acts in the line of duty. It
was in proof by three other witnesses that the defendant in person sold liquor as
It will be observed that the defendant kept the front door closed, but without difficulty
access could be had through his private house to the tap-room. This itself is
suggestive of any other than a pious intent.
Defendant proved by sixteen witnesses, who had frequented his house, that they never
knew him to engage in selling on the Sabbath. On that day his counter was free,
"without money and without price."
This certainly evinces much liberality, and we doubt not that so generous a man
could have increased the number of his witnesses. But the affirmative testimony
of the three gentlemen is controlling and decisive.
AUGUST ELSNER v. THE STATE.
30 Tex. 524, 1867 WL 4654 (Tex.)
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*1 When the case was called for trial the witnesses of the state were absent, and the
prosecuting attorney moved for a continuance, which the accused opposed; the case was
continued, and four days afterwards, the witnesses having appeared, the continuance was
set aside, whereat the accused said he was surprised, and protested, but did not move
a continuance for want of witnesses. There was no error in this. Pas. Dig. art. 2984,
Where the charge defined theft in the language of the code, and the proof was clear that
the property was stolen in one county and sold by the accused in another, there was no
error in the charge, nor was the court obliged to treat the statements of the prisoner,
when selling the property, as confessions. Pas. Dig. arts. 2381, 3061, 3127, notes 683,
When the record does not show whether the prisoner was present when the verdict was
rendered or not, the court will not presume that he was absent. Pas. Dig. arts. 3088,
3089, note 752.
Where the property stolen in one county was the next day sold by the accused in another,
he saying that he had bought the property, and giving reasons, not proved to be true,
why he wanted to sell, there was no error in refusing a new trial. Pas. Dig. art. 3137,
APPEAL from Bastrop. The case was tried before Hon. JOHN IRELAND, one of the district
The defendant was convicted of stealing oxen and other cattle in Caldwell county and
carrying them into Bastrop county, where he sold them.
There was a bill of exceptions, which merely recited what appeared in motions and orders
upon those motions. They gave the following facts: "That on the 17th day of December,
of this year, this case was called for trial, and the state, by attorney, moved the court
to continue this case for the want of witnesses for the state, which application the
court considered and granted, and the case was regularly continued. That on the 21st day
of this month the counsel for the state, by motion, asked the court to set aside the
continuance of this case, granted four days before, to which the defendant, by his
counsel, excepted; because the case had been previously continued by the state until the
next term of this court, and could not re-open the case and call the same for trial at
this term of the court, because it would be a surprise to defendant, unless he consented
for the case to be re-opened, which the defendant refused to do.
Which exceptions were overruled by the court, and forced into trial, or required to show
cause, by affidavit, why he should not be compelled to try this case.
The cause was opened, because it was stated by the court, when the cause was continued,
over the protest of defendant, that if the state's witnesses could be got before the
court adjourned, the cause would be opened and tried; and after the cause was re-opened
defendant offered no reason why the cause should not be tried."
*2 The facts proved were as follows:
"The state introduced, as a witness, A. L. Brock, who testified that in the early part
of this year he missed from his pasture thirteen yoke of work oxen; that witness
examined around the pasture and found where the fence had been let down and put up
recently, and followed the tracks of the oxen, in a northwest direction, a short
distance; the tracks of the oxen were quite plain for five or six miles, but after
that he could only track them when they crossed roads; that the weather was dry, and
little impression was made except where roads were crossed; afterwards the trail of
the oxen turned in the direction of Bastrop; that after following a whole day witness
returned home, and the next day, February 3, came over to Bastrop county; within a
few miles of Bastrop, in Bastrop county, in the edge of the Colorado valley, witness
discovered his oxen in Mr. Fort's pasture and identified them; that witness got
twelve yoke of his oxen from Mr. Fort. Witness, on cross-examination, stated he resided
west of Lockhart, in Caldwell county, and that Blanco county was northwest from his
residence. Witness, being re-examined, stated his oxen were worth $35 a yoke. Witness
also stated he sold one yoke of his missing oxen to Mr. Fort.
A. W. Fort, a witness for the state, testified that in February of this year the
defendant, under the name of W. D. Jackson, sold him thirteen yoke of oxen for $150
in gold and a mule; that the next day after this sale Mr. A. L. Brock came to his
house, claimed twelve of said yoke of oxen witness had bought from defendant, and
carried them away, and described a yoke witness had sold to Durand, of Austin, Texas.
Witness, on cross-examination, stated that defendant told him that he had purchased
the oxen in Blanco county; that defendant expected some friends to have met him here
from Evergreen with money to carry the oxen to a better market, and also to purchase
corn for them; that corn in the Colorado valley was worth $1 per bushel; that defendant
was out of money, and his oxen poor, and was willing to sacrifice the oxen, as he was
here, and was not able to go further with them. Witness did not know the direction from
Brock's house to Blanco county, but knew Brock lived four or five miles west of Lockhart,
in Caldwell county.
____ Durand, a witness for the state, testified that he traded with Mr. Fort for one of
the yoke of oxen Fort bought from defendant; that witness was present when Mr. Fort
bought the oxen from defendant, and heard defendant say he was compelled, on account
of the scarcity of money and the fact that the oxen were poor, the weather cold, and
the oxen falling off every day, to sell them at a sacrifice; that he (defendant) gave
$30 a yoke for said oxen in Blanco county; that at first defendant asked Fort $30 a
yoke for the oxen, but Fort refused to give that, and defendant finally sold all thirteen
yoke of said oxen to Fort for $150 gold and a mule. Witness stated he traded for one
of the yoke of oxen Fort bought from defendant, and described the yoke of oxen as Mr.
Fort described it."
*3 The court, in its charge, defined theft in the language of article 745 of the penal
code (Pas. Dig. art. 2381), and put the hypothesis in the proper language.
The defendant's counsel asked instructions, which treated the statements of the prisoner
to the purchaser of the oxen as confessions, which the court refused. The jury found the
defendant guilty, and assessed the punishment at four years' imprisonment in the
The defendant moved in arrest of judgment and for a new trial, which motions were
overruled, and he appealed.
The record, on appeal, showed that when the cause was called for trial, the witnesses
for the state being absent, the defendant insisted upon a trial; but a continuance was
granted with the express understanding that such continuance should be set aside on
the appearance of the witnesses. Afterwards, the witnesses appearing, the continuance
was set aside, and the defendant protested, but did not move a continuance. Held, that
the court did not err, as defendant should have made a showing if he had ground for a
Where the record does not show whether the prisoner was present when the verdict was
rendered or not, the court will presume, on appeal, that he was absent.
Where in a prosecution for theft the charge defined theft in the language of the code
and the proof was clear that the property was stolen in one county and sold by the accused
in another, there was no error in the charge, nor was the court obliged to treat the
statements of the prisoner, when selling the property, as confessions.
A. D. McGinnis, for appellant. I. The court erred in re-opening the continuance of the
case, against the protest of appellant, and forcing a trial of the same.
II. The court erred in refusing the charges to the jury requested by defendant's counsel.
III. The court erred in overruling the motion of appellant for new trial and in arrest of
IV. The court erred in receiving the verdict of the jury in the absence of appellant and
his counsel, and in not having the jury polled.
On the first point, see Pas. Dig. art. 1461; Sayles, Prac. secs. 476, 477, 478, and 527.
While it is deemed the above references are sufficient to establish the point contended
for, yet the case of McCoy v. Jones, 9 Tex. 363, determines the action of the lower court
to be erroneous.
*4 On the second point, he cited the criminal code, art. 664.
On the third point, it was urged that the record did not show that the prisoner was present
when the jury returned the verdict. Code Cr. Proc. arts. 540, 617, 624, and 625.
The motion in arrest of judgment should have been sustained, because the indictment is
clearly defective, in not stating what Monday in March, 1866, it was found and returned
into court by the grand jury of Bastrop county, so as to enable this court to determine
whether any legal district court was at that time held. It is also suggested the indictment
is defective, because it fails to charge directly that appellant was found with the property
in Bastrop county. Code Cr. Proc. art. 198. But the indictment on its face charges the
theft to have been committed in Caldwell county, where he should have been prosecuted,
unless he had actually been found with the property in Bastrop county. This allegation,
being material to give Bastrop county jurisdiction, should have been expressly charged
in the language of the law.
No brief for the state has been furnished to the reporter??
MORRILL, C. J.
The first error assigned is, that the court erred in re-opening the continuance of the
cause against the protest of Callahan. The record shows that when the cause was called
for trial, the witnesses for the state being absent, the defendant insisted upon a trial,
but a continuance was granted with the express understanding that it should be set aside
on the appearance of the witnesses. When this took place, therefore, the defendant, if
his witnesses were not present, could have made a showing for continuance, if he had any
cause; but he assigned no cause, and we see no cause of error in the court ordering a
The second, third and fourth errors, to the effect that the court erred in his charge to
the jury and in refusing the charges requested, and also in receiving the verdict of the
jury in the absence of the defendant and his counsel, can be disposed of by a statement
of the fact, that the charge given was as favorable to the defendant as the law allowed,
and there was nothing in the record showing the absence of the defendant on the rendition
of the verdict, and we cannot presume either that the court erred in this respect, or,
if it were so, that the counsel for the defendant would have neglected to have so
incorporated in the record, that it could be examined and corrected by this court.
We see no error in the rulings and charge of the court, and the testimony was sufficient
to authorize the verdict of the jury. The judgment is
CALLAHAN, ALIAS W. D. JACKSON, v. THE STATE.
30 Tex. 488, 1867 WL 4639 (Tex.)
END OF DOCUMENT