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Supreme Court of Texas.
SLOCUMB AND ANOTHER
v.
THE STATE.
1853.

*1 Where the Sheriff returned a capias executed by serving it upon the
defendant and taking his bond for his appearance, in pursuance of Article
2889, and the bond was indorsed approved by the Sheriff, and marked "Filed
nunc pro tunc, the 30th December, 1851," signed by the Clerk; Held, That the
bond was sufficiently "returned and certified." (No objection was taken
below.)
A paper may be marked filed nunc pro tunc, so as to correspond with the fact
of filing.
Where a paper was marked "Filed nunc pro tunc the 30th December, 1851," and
the record contained no corresponding order of the Court, nor bill of
exceptions, the Court said that the words "nunc pro tunc" might be rejected
as surplusage.
It is proper to order an alias capias to issue against a defendant in a
criminal case, at the same time that judgment nisi is rendered against him
and the sureties on his bond to appear.
Error from BASTROP. A. W. WINN was indicted, Fall Term, 1851, for assault
and battery. Process was issued 30th December, 1851, and returned "Came to
hand same day issued, and executed the same, serving the within capias on
said WINN and taking his bond for his appearance at the next Term of the
District Court." Then followed a bond by WINN, as principal, and the
plaintiffs in error, as sureties, for WINN's appearance, as aforesaid. The
bond was dated same day the writ issued; was indorsed "approved the 30th
December, 1851, John HEARN, Sheriff B. C.;" and was also indorsed "Filed
nunc pro tunc the 30th December, 1851, Jas. P. WALLACE, Clerk D. C. B. C."
The defendant WINN failing to appear, judgment nisi went against him and the
plaintiffs in error, as his sureties; and a capias was ordered against WINN.
At the next Term, scire facias having been served, the judgment was made
final. The errors assigned will be found in the opinion of the Court.

Where a capias is served upon the defendant in a criminal case by the
sheriff, and a bond taken, and the sheriff certifies on the capias that the
bond has been taken, and the bond is marked "Filed," and signed by the
clerk, then such bond is sufficiently "returned and certified." Such a bond
may be ordered to be filed nunc pro tunc, but, if it is filed on the day of
the execution thereof, there is no good reason for such an order. In this
case the unnecessary words "nunc pro tunc," added by the clerk, were
rejected as surplusage.
Attorney General, for defendant in error.


HEMPHILL, CH. J.
This is a judgment on a bond taken by the Sheriff by virtue of Article 2889.
It is assigned
*2 1st. That the bond was not certified and returned to the District Court
as the law directs.
2d. That it was not filed by the Clerk the day it came to his hands, but was
erroneously ordered by the Court to be filed "nunc pro tunc."
3d. That judgment was improperly rendered against plaintiffs, who were
securities in the bond, after an alias capias had been ordered to issue
against WINN, the principal.
There is nothing substantial in any of these grounds. The statute requires
the bond to be returned and certified to the Court, without stating the
mode, or form, in which this shall be done. Here the Sheriff certifies on
the capias, that he has taken the bond; and the bond is marked filed, by the
Clerk. This is sufficient to show that it is the bond of the parties, given
in the cause, among the papers of which it is found.
There was no error in ordering the bond to be filed "nunc pro tunc." No such
order appears, however, of record. Nor is there anything which shows the
necessity of such order. The bond was executed the 30th December, 1851, and
is marked filed, the same day, with the addition of "nunc pro tunc." This
addition may be rejected as surplusage, as there is no apparent necessity
for any such qualification of the filing.
There is nothing in the fact that an alias capias had been ordered to issue.
It was to the benefit of plaintiffs, as the principal might have been
brought in before the entry of final judgment on the bond.
Judgment affirmed.



Supreme Court of Texas.
WILLIAM PRIMM
v.
JOHN STEWART AND JAMES STEWART.
1851.

*1 The ninetieth section of the act of 1846 to regulate proceedings in the
District Courts is applicable only in case it is proposed to contest the
genuineness of the instrument, and to require the party to prove its
execution.
The admissibility of hearsay evidence of the fact of death is not confined
to cases of pedigree; it is doubtful, however, whether the hearsay testimony
in this case, if it stood alone, would be competent.
The absence of a person, beyond sea or elsewhere, for seven years
successively, without being heard of, authorizes the presumption that he is
dead.
A power of attorney not coupled with an interest is revoked by the death of
the principal.
Appeal from BASTROP. This suit was brought on the 13th day of January, 1849,
by the appellees, to recover of Thomas W. COX, the defendant below, a tract
of land. The appellant PRIMM intervened, claiming title to a portion of the
land in controversy. As a part of his claim of title, he gave in evidence a
power of attorney given by John C. WILLIAMS to Edwin WALLER, dated on the
24th day of February, 1838, and a deed executed by WALLER, under this power
of attorney, to WILLIS on the 17th day of May, 1849. The former was a
general power of attorney, authorizing and empowering the attorney to
transact all the business of the principal, of whatever nature, in the
Republic of Texas; to sell and convey and to lease his lands, adjust and
settle his accounts, collect his debts, take charge of his effects, and to
take control of and manage all his affairs and interests in the Republic.
The deed executed by the attorney under this power purported to be given to
supply the place of one given for the same piece of land executed on the
29th day of September, 1838, and recorded in BASTROP county on the 12th day
of March, 1849, which was defective.
To impeach the validity of this deed, the plaintiff introduced a witness who
testified that he became acquainted with a man of the name of WILLIAMS, in
New Orleans, in 1839, who had had extensive dealings in lands in Texas with
D. C. BARRETT, of Texas; that he had never seen WILLIAMS since 1839, and
that, from information and general report, he (WILLIAMS) had been dead for
six or seven years. Another witness, introduced by the plaintiff, testified
that he knew WILLIAMS in Brazoria county, where he formerly resided, near
the residence of Edwin WALLER; that he was present, in 1837 or 1838, when D.
C. BARRETT executed to said WILLIAMS a deed to a tract of land; that he had
not seen nor heard from WILLIAMS since 1839, except from general rumor and
report that he died seven or eight years ago; witness formerly resided in
Brazoria county, and had been there several times since he removed from that
county. One of the mesne conveyances under which the intervenor claimed was
a deed from D. C. BARRETT to WILLIAMS, dated July 12, 1837.
There was in the record a bill of exceptions, from which it appeared that
"the plaintiff offered to prove that the said WILLIAMS was dead at the time
said deed was executed by said WALLER, to which the intervenor PRIMM
objected, but his objection was overruled," and he excepted. There was a
verdict and judgment for the plaintiff, and the intervenor appealed.

The ninetieth section of the Act of 1846, to regulate proceedings in the
District Courts, Hart.Dig. art. 745, is applicable only in case it is
proposed to contest the genuineness of the instrument, and to require the
party to prove its execution.

One absent seven years without being heard from is presumed to be dead.

It is not in cases of pedigree alone that hearsay evidence of the fact of
death is admissible.

The death of a party revokes a power of attorney given by him, unless the
power was coupled with an interest.
SAYLES, for appellant.
*2 I. By art. 745, Hart. Dig., it is provided that deeds which have been
duly recorded may be read in evidence without proof of execution, upon their
being filed for three days among the papers of the cause, unless the
opposite party shall file an affidavit that the instrument is forged. These
provisions of the statute had been complied with, and the instrument
constituted full proof so far as the execution was concerned; it was the
deed of WILLIAMS, not of WALLER; the plaintiff, by the pleadings and notice,
was apprised that it would be relied upon as such, and an affidavit was
necessary to lay the foundation for proof of the character introduced.
II. The evidence introduced was wholly incompetent for that purpose; it was
hearsay testimony, and that of the most indefinite character. Hearsay
testimony is competent to prove deaths only when it is a question of
pedigree; and, even for that purpose, is received under great restrictions.
In this case the death of WILLIAMS was an important fact, which was capable
of positive proof. Neither of the witnesses were acquainted with him;
neither knew his given name; neither lived in his neighborhood; and neither
knew when or where or from whom he heard the report of his death; yet this
testimony was permitted to go to the jury and was undoubtedly regarded as
conclusive by them. In the case of DUDLEY v. GRAYSON it
was held that the statement of a witness that he had heard that a person was
dead was insufficient. And from an examination of adjudicated cases, it will
be found that hearsay testimony is only admissible when the death is a
question of pedigree, and when, from the circumstances of the case, it is
the best evidence that can be produced.
WEBB & OLDHAM, for appellees.

I. The District Court properly admitted the evidence offered by the
plaintiffs below to prove the death of WILLIAMS before the execution of the
deed by WALLER, under the power of attorney from WILLIAMS to him, to WILLIS.
The objection taken, as shown by the bill of exceptions, was not to the
character of the evidence offered, but was to the right of the plaintiffs to
prove the fact. The death of WILLIAMS revoked his power of attorney to WALLER.

WHEELER, J.
The first objection to the admissibility of the evidence, that is, the
absence of an affidavit that the deed was forged, clearly is not tenable.
The statute is applicable only in case it is proposed to contest the
genuineness of the instrument, and to require the party to prove its
execution. But here the genuineness of the instrument was not contested. Its
execution was not in question. But it was proposed to impeach its validity
by evidence going alone to the question of the authority of the party to
make it. This it certainly was competent to do.
Was the evidence offered, being hearsay, admissible to prove the fact which
it was proposed to prove: that is, the death of WILLIAMS? In the learned
notes to Philips's Evidence, many cases are cited where hearsay has been received to prove the fact of death. Such evidence appears to have been received with less hesitancy where the deceased resided abroad, in a foreign jurisdiction. The fact of such residence abroad seems to have been sometimes considered as a ground for the admission of the evidence. 
*3 Evidence of hearsay to prove the fact of death appears to have been
received in many of the American courts to whose opinions we are accustomed
to pay the greatest deference, and, we think, with reason. For, as has been
said, that a person has been missing at a particular time, accompanied with
a report and general belief of his death, must be, in many cases, not only
the best but the only evidence which can be supposed to exist of his death.
In the Supreme Court of the United States it was held, in the case of
SCOTT's Lessee v. Ratcliffe, that the testimony of a
witness, that, in 1811, she, being in the city where the deceased had
resided, was there told that he was dead, without saying by whom she was
told, was admissible to prove his death--Chief Justice MARSHALL saying, that
the judges were all of the opinion that so much of the testimony of the
witness as went to prove the death was admissible; though there was some
diversity of opinion on another point. 
Nor is the admissibility of such evidence confined, as has been insisted, to
cases where the question is one of pedigree. It seems to have been allowed
irrespective of that question, and in cases where the inquiry was entirely
abstracted from any question of pedigree. 
If, in the present case, the testimony of the two witnesses who were called
to prove the death of WILLIAMS, stood alone, unsupported by other
circumstances, we should doubt its competency to prove that fact. But when
taken in connection with the facts in evidence when it was offered, we think
it was admissible. The terms employed and subjects embraced in the power of
attorney made by WILLIAMS in 1838 render it probable that it was made in
contemplation of his going abroad. No witness testified to his having been
in this country since that period, though he formerly lived in Brazoria
county, where the power of attorney was executed. The deed executed by
WALLER, as his attorney in fact, was made after the commencement of this
suit; and, from its date, and reference to a former defective deed between
the same parties for the same land, said to have been made more than ten
years before, and then lately recorded, there can be little doubt that it
was made in reference to the suit then pending. And if WILLIAMS had been in
the country, or living within the knowledge of the party for whose benefit
the deed was procured, it is quite probable that a resort would have been
had to him, rather than to this old power of attorney, given more than
eleven years before. After so great a lapse of time from its execution, and
such changes in the affairs of this country, there must be much reason to
believe that the power of attorney had long since accomplished all the
purposes for which it had been given, and had been revoked, either by the
act of the party or by the operation of law. The circumstances under which
the evidence was offered rendered its admission proper, if they did not even
justify the conclusion sought to be established, without it. That WILLIAMS
had been absent from the country for many years seems to admit of little
doubt; and he does not appear to have been heard of for more than seven
years, except that he had died. Such an absence, without having been heard
of, would authorize the presumption that he was dead. (YATES v. HOUSTON; Hart. Dig., art. 2386.)
*4 The evidence was, we think, under the circumstances, admissible, and at
least prima facie sufficient to establish the fact which it was proposed to
prove.
We have considered the question, taking the objection most favorably to the
party making it, as going to the admissibility of the evidence offered. The
bill of exceptions, however, is so framed as to leave it doubtful whether
the objection went to the admissibility of the evidence or to the
materiality of the fact proposed to be proved. If the latter only, it has
not been so treated in the argument for the appellant. Nor will it admit of
a question that the death of the principal was a material fact, and that it
operated a complete revocation of the power of attorney. A power of
attorney, not coupled with an interest, is revoked by the death of the
principal. (Story on Agency)
We are of opinion that there is no error in the judgment, and that it be
affirmed.
Judgment affirmed.


Supreme Court of Texas.
RANDON
v.
BARTON.
December Term, 1849.

*1 Wherever it is proper to join several defendants in the same suit, the
suit may be instituted in any county where one of the defendants resides.
Where a divisible obligation to do a thing was given to two, and one of the
obligees, without authority from the other, but professing to have such
authority, assigned it to another: Held, That the assignee could join the
obligees and obligor as defendants in the same suit, and recover one-half of
the obligation from the obligor and damages for the other half from the
assignor.
Where a person undertakes to assign an instrument which he has no right to
assign, he is not entitled to demand due diligence of the assignee to
collect the money or enforce the obligation.
No demand and notice or other evidence of diligence is necessary when from
the facts of the case it is apparant that the party to be charged had no
right to expect it and could not have been injured by the want of it.
A contract for the transfer of land certificates need not be under seal.
The rule respecting the measure of damages for breach of contract to
transfer and deliver land certificates is that which applies to the breach
of contracts for the sale of chattels, not of lands. (Note 58.)
Where contracts for the sale of chattels are broken by the failure of the
vendor to deliver the property according to the terms of the contract, if
the price has not been paid in advance, the measure of damages is the
difference between the price contracted to be paid and the value of the
article at the time when it should have been delivered; but if the price has
been paid in advance, the purchaser is entitled to the advantage of any rise
in the market value of the article which may have taken place up to the time
of the trial. (Note 59.)

Where the suit was for land certificates or their value, and the jury found
for the plaintiff "two thousand and eighty acres of land, at eighteen and
three-quarter cents per acre," the court gave judgment in favor of the
plaintiff for three hundred and ninety dollars: Held, There was no error.
Error from BASTROP. The defendant in error brought suit against the
plaintiff in error jointly with Edward BURLESON and Thomas F. MCKINNEY, in
the District Court for BASTROP county, on the 20th day of July, 1847. The
petition alleged, in substance, that the plaintiff was the owner of a
certain contract in writing, made by BURLESON with MCKINNEY and RANDON, for
the transfer, by the former to the latter, of certain land certificates
described in the petition, and calling for the quantity of four thousand one
hundred and sixty acres of land; that for a valuable consideration the
defendant RANDON contracted to transfer, and did assign to the plaintiff,
the entire interest in said contract, the said RANDON representing that the
entire interest belonged to him, and that MCKINNEY had transferred to him
all the right and interest which he ever had in the contract; that the
plaintiff had presented the contract to BURLESON, the maker, and demanded
the certificates referred to, but that he had refused to deliver or transfer
the certificates, alleging that there still remained in said MCKINNEY a
right to the undivided half of them, and that he had been notified by
MCKINNEY of his interest. The plaintiff alleged that he had sustained
damages, etc., and prayed that the entire interest of all the defendants be
decreed to him; or if, by reason of the claim and rights of the defendant
MCKINNEY, that cannot lawfully be done, that the interest of the defendant
RANDON be adjudged to him, and that he have judgment against said RANDON for
the value of so much in amount of the certificates assumed to be conveyed by
him as he, RANDON, had no authority or right to convey, which he alleged to
be of the value of twenty-five cents per acre. The petition alleged that the
defendant BURLESON resided in the county of BASTROP, MCKINNEY in the county of Galveston, and RANDON in the county of Fort Bend, and concluded with a
prayer for process and for general relief. The contract described in the
petition and made a part of it is set out in the record, and purports to be
made by BURLESON in favor of MCKINNEY and RANDON, and to have been assigned by RANDON to the plaintiff BARTON, as follows: "I have this day transferred the above obligation on Gen. E. BURLESON, for four thousand one hundred and sixty acres of land certicates, to Wayne BARTON, for the valuable
consideration of four hundred dollars, this 18th February, 1847."
*2 D. RANDON."
At the fall Term, 1847, the defendants MCKINNEY and BURLESON answered, and
the plaintiff had judgment against the latter for two thousand and eighty
acres of land certificates, being half the amount claimed in the petition;
and the defendant RANDON having been served with process and failing to
appear, judgment by default was taken against him, and a writ of inquiry
awarded; upon which, after hearing the evidence, the jury returned a verdict
for the plaintiff for two thousand and eighty acres of land, at eighteen and
three- fourths cents per acre, and the court thereupon gave judgment for
$390; to reverse which the defendant RANDON prosecuted this writ of error.

Neither demand nor notice nor other diligence is necessary when the party to
be charged had no right to expect it, and could not have been injured by the
omission of it.

A. contracted to transfer bond certificates to B. and C. B., without
authority, but representing that he had it from C., assigned the contract to
D. D. brought a suit to have the interest of A., B., and C. decreed to him,
or for B.'s interest and damages from him for C.'s, which was allowed.

Where one undertakes to assign an instrument, without right, he may not
demand due diligence of the assignee to collect the money or enforce the
obligation.

The measure of damages for breach of contract to transfer and deliver land
certificates, is that applying to the breach of contracts for the sale of
chattels, not of lands.

A vendor who fails to deliver the goods after having received the price is
liable to the vendee for their highest market value at the place of delivery
at any time between the day stipulated for delivery and the trial.

A contract for the assignment of land certificates, though not under seal,
is good.

An action against joint defendants may be instituted in any county where one
of the defendants resides.
MUNGER, for plaintiff in error. The obligation of RANDON was an independent
one. There was no such privity as justified the joinder of him in a suit
against BURLESON.
*3 II. The contract was for the conveyance of realty, and should have been
sealed.
III. The plaintiff did not use due diligence to enforce the obligation
against the maker. The instrument was assigned on the 18th of February, and
suit was not commenced until the 20th of July thereafter. He was not,
therefore, liable as surety. It will hardly be contended that he can be held
liable in warranty in an action like this.
IV. Neither in law nor equity can the plaintiff recover "the present value
of the certificates." He was at most only entitled to $200 and interest from
the time he paid the money.
V. The court had no jurisdiction of the suit, if for land; no jurisdiction
of the person, if the suit was for damages.
GILLESPIE, for defendant in error. The joinder of the defendants is
authorized upon general principles of law, and seems to be enjoined by the
act of 1846, p. 375, secs. 48, 49.


WHEELER, J.
Of the several errors assigned there are but two which are deemed of a
character to require particular notice, and these are--
1st. That the plaintiff did not show the use of diligence sufficient to
charge the indorser, RANDON.
2d. That the verdict is illegal in having found the present value of the
land certificates.
That the plaintiff could maintain this action against the defendants
jointly, and in the county of the residence of either, cannot admit of a
doubt. (Acts of 1846)
But it is insisted that the plaintiff did not use due diligence to enforce
his contract against the maker. To this objection it is a sufficient answer
that the present is not a case to which the rules which have been invoked
respecting diligence are applicable. The defendant RANDON undertook by his
assignment to transfer an interest which he did not possess and which he had
no right to convey. His assignment, therefore, was a fraud upon the
plaintiff, and he had no right to notice the refusal of the maker to perform
the contract. He had no right to expect that BURLESON would convey the
certificates upon his individual assignment. No demand and notice or other
diligence, therefore, was necessary to charge him. The reason for giving
notice and the necessity of it ceases when from the facts of the case it is
apparent that the party to be charged had no right to expect it and cannot
have been injured by the want of it.
To determine the remaining question, it becomes necessary to ascertain what
was the true measure of damages for the breach of contract complained of.
And it is to be observed that this was not a contract to convey land or any
estate or interest in land, but merely for the transfer of unlocated land
certificates. It is true that the jury in their verdict employed the word
"land," but from the whole verdict taken together and in reference to the
issue it is very clear that they meant land certificates only. The rule,
therefore, respecting the measure of damages applicable to this case is that
which applies to the breach of contracts for the sale of chattels, not of
lands."
*4 When contracts for the sale of chattels are broken by the failure of the
vendor to deliver the property according to the terms of the contract, it is
well settled that as a general rule the measure of damages is the difference
between the price contracted to be paid and the value of the article at the
time when it should be delivered, upon the ground that this is the
plaintiff's real loss, and that with this sum he can go into the market and
supply himself with the same article from another vendor. But where the purchaser has paid the price in advance, or has otherwise, as in the loan of stocks, been deprived of the use of his property, there are different and conflicting decisions upon the question whether the purchaser is limited to the value of the article at the time for delivery, or shall have the advantage of any rise in the market value of the
article which may have taken place up to the time of trial. In England and
New York the latter rule is laid down, on the ground that the purchaser,
having been deprived of the use of his property, is entitled to the best
price he could have obtained for the article up to the time of the
settlement of the question. 
In the case of CLARK v. PINNEY, the distinction between
contracts wholly executory and those where payment has been made was taken
and firmly maintained by the Supreme Court of New York. The action was upon
a contract for value received to deliver on a future day a certain quantity
of salt, at a stipulated price per bushel. The court held that as the goods
had been paid for, the measure of damages was the difference between the
contract price and the highest price at any time between the period
appointed for delivery and the day of trial. After recurring to the
authorities, the court say: "We hold it, therefore, to be settled by
authority, and rightfully settled upon principle, that where a contract is
made for the sale and delivery of goods or chattels, and the price or
consideration is paid in advance, and an action is brought upon the contract
for the non-delivery, the plaintiff is not confined in measuring his damages
to the value of the article on the day when they should have been
delivered." The same rule was laid down in the earlier case of WEST v.
WENTWORTH, Chancellor KENT, in his Commentaries, says: "The general rule is well settled that in a suit by a vendee for a breach of contract on the part of the vendor for not delivering an article sold the measure of damages is the price of the
article at the time of the "breach." This undoubtedly is the rule where the
price has not been paid in advance by the vendee; but, as has been remarked
by Mr. SEDGWICK, the learned commentator has omitted to advert to the
distinction resulting from the payment of the price in advance, which runs
through the English and New York cases, and which seems to us a sound
distinction. In several of the States, however, this distinction has not
been recognized. It seems to have met with the approval of Chief Justice MARSHALL. In an action brought upon a contract for the delivery of cotton at ten cents per pound, which when it was to have been delivered was worth twelve cents, and before the suit was brought had risen to thirty cents per pound, the plaintiffs
insisted that they were entitled to the highest market price up to the
rendition of the judgment. But the unanimous opinion of the court was "that
the price of the article at the time it was to be delivered was the measure
of damages." There had been no money advanced and MARSHALL, Ch. J., said:
"For myself only I can say that I should not think the rule would apply to a
case where advances of money had been made by the purchaser under the
contract. But I am not aware what would be the opinion of the court in such
a case."
*5 This distinction is maintained by the authority of at least the courts of
England and New York, and we think rightly upon principle; and its
application seems peculiarly appropriate in the present case. Here the money
was paid in advance. The contract was for the transfer of land certificates,
and resembles in some respects contracts for the transfer of stock, in
respect to which it seems generally to have been held that the damages
should be calculated at the price on the day of trial. In a case of this
character in the King's Bench, GROSE, J., said: "The true
measure of damages in all these cases is that which will completely
indemnify the plaintiff for the breach of the engagement." And LAWRENCE, J.,
said: "Suppose a bill were filed in equity for a specific performance of an
agreement to replace stock on a given day, which had not been done at the
time: would not a court of equity compel the party to replace it at the then
price of stock, if the market had risen in the meantime?"
The court in the present case decreed a specific performance against the
defendant BURLESON, and the same would unquestionably have been decreed
against RANDON, if the interest had been in him and he had been legally
capacitated to make the transfer. The plaintiff would then have obtained the
certificates specifically. Shall he be placed in a worse condition because
RANDON had not the title or right to make the transfer; or shall this
defendant, for that reason, be placed in a better condition or be permitted
to discharge his liability with a less sum than his codefendant BURLESON? Or
rather shall he make such compensation as will completely indemnify the
plaintiff for the breach of the engagement, by enabling him to go into the
market and purchase an amount of certificates equal to that which the
defendant assumed to transfer to him? This would be most consonant with
justice, and is, it is conceived, the correct rule upon principle and
authority. It accords to all parties the same measure of justice.
We have considered the question upon the supposition that the jury estimated
the value of the certificates at the time of the trial; and we concluded
that it was not improper to do so. But there is no statement of facts; and
as the prayer of the petition is for the "present value" of the
certificates, the estimate may have been of their value at the commencement
of the suit. If so, it would not vary the conclusion at which we have
arrived. There would, perhaps, in that case be less room for doubt as to the
accuracy of that conclusion. (CLARK v. PINNEY)
Judgment affirmed.


LIPSCOMB, J.
I rest my concurrence on the ground that payment had been made under the
contract. If no payment had been made, I should in that event believe that a
different rule of damages would govern the case.
NOTE 58.--JAMES v. DRAKE; JOHNSON v. NEWMAN
*6 NOTR 59.--CALUT v. MCFADDEN; BRASHER v. DAVIDSON; CARTWRIGHT v. MCCOOK


Supreme Court of Texas.
WILLIAM CANNON, Appellant,
v.
THE STATE, Appellee,
December Term, 1848.


*1 Appeal from BASTROP County.
In trials for minor offenses and in civil causes, the separation of the jury
without the permission of the court, before rendering their verdict, will
not, of itself, vitiate the verdict; though it is a misdemeanor for which
the jurors may be punished. An application for a new trial on such grounds
is invariably denied where no injury has ensued. 
The appellant was convicted of playing at cards at the fall term of the
district court, 1848.
The defendant moved for a new trial on the ground of the misconduct of a
juror; and, in support of his motion, read the affidavit of one Wm. R.
CANNON, who was also examined on the application, and who stated, in
substance, that he was the bailiff in charge of the jury; that he left them
in charge of the sheriff, and went in search of the clerk, at the request of
the jury, to return their verdict; and whilst so absent from them, and
before they had returned their verdict, one of them separated himself from
his fellows and went into a store, and whilst there drank spirituous
liquors.
The district attorney thereupon introduced the juror to whose conduct the
affidavit and testimony of CANNON related, and proposed to prove by him the
circumstances of his separation from the jury. To his competency as a
witness the defendant objected, but his objection was overruled by the
court; and the witness testified that when he separated from the jury they
had agreed upon and signed their verdict, but had not returned it; that he
went some distance, to JOHNSON's store, and got his coat, and at the same
time took a drink of spirituous liquor; that while there, he met with the
bailiff, CANNON, who told him it was wrong to be there, and that he replied
that they had agreed on their verdict and found the defendant guilty.
The court refused the application for a new trial, and the defendant
appealed.


The separation of the jury, without permission of the court, before
rendering their verdict, in trials of civil causes, though a misdemeanor,
for which the juries may be punished, will not of itself vitiate the
verdict.

The mere fact that a juror was temporarily separated from the jury during
their deliberations is not ground for a new trial if defendant could not
have been prejudiced thereby.

The affidavits of jurors may be received in support of their verdict, though
not to impeach it.
GILLESPIE for appellant.
BREWSTER, representing attorney general, for appellee.

Mr. Justice WHEELER, after stating the facts, delivered the opinion of the
court.
*2 It is insisted for the appellant that the court erred --
1st. In permitting the juror to testify in support of the verdict.
2d. In refusing to set aside the verdict for the misconduct of the juror.
1. It is a general rule, which has been seldom departed from, that a juror
cannot be compelled, nor will he be permitted, to testify to
his own misconduct or that of his fellow jurors. 
And it would seem upon principle, that where the question is, whether a
juror has been guilty of misconduct, he ought not to be permitted to testify
at all; for his testimony must either inculpate or acquit himself, and thus
an inducement is presented to swerve from the truth. There are, however,
numerous cases in which it has been otherwise decided; and the rule which
they have established is, that the affidavits of jurors may be received in
support of their verdict, though not to impeach it. The ruling of the court, in the present instance, was in conformity to this rule. An affidavit had been read
inculpating the juror and impeaching his verdict; and it has been expressly
decided that a juror who has been implicated in reference to a verdict which
he may have given, is admissible to remove the ground of objection. Had the testimony of the juror been contradicted, or unsupported, it
must have been less satisfactory than that of a disinterested and
indifferent witness. This, however, was not the case. On the contrary, his
testimony fully corroborated that of the witness CANNON; and it is not
perceived that it disclosed any new material fact. The juror states that
before he separated from his fellow jurors they had agreed upon their
verdict; and this fact is also to be inferred from the statement of CANNON.
The alleged misconduct of the juror was his separation from the jury, after
they had retired, and before they returned their verdict; and this
misconduct the juror admited. The defendant, then, was not prejudiced by his
testimony, even had it been improperly received, since it did not impeach,
but conduced to support, the ground of his application for a new trial. In
either view of the testimony of the juror, whether admissible or immaterial,
the reception of it by the court can afford no ground for reversing the
judgment.
2. In support of the principal ground relied on in the application for a new
trial, the misconduct of the juror, the counsel for the appellant has
referred us to two cases; one decided in Virginia and the other in
Tennessee. In the former, The Commonwealth vs. MCCALL, two
of the jurors separated themselves from their fellow jurors during the
trial, and were absent about twenty minutes. A majority of the court were of
opinion that proof of actual tampering, or conversation on the subject, with
a juryman was not necessary to set aside a verdict; and it was resolved that
the separation of the jury was, of itself, sufficient cause for vitiating
and setting aside the verdict. In the latter case, MCLAIN vs. The State, which appears to have been decided mainly upon the authority
of the former, during the trial, which lasted several days, a part of the
jury frequently separated themselves at night from their fellow jurors, for
fifteen or twenty minutes at a time, without being under the charge of an
officer; and it was held that this was such an irregularity as vitiated the
verdict; and that it was not incumbent on the prisoner to prove that the
jury were, in fact, subjected to any improper influence; it was sufficient
that they might have been.
*3 It is to be remarked of these cases, however, that they are to be
distinguished from the present case in having been of the most highly penal
character. They were trials for capital crimes; and the principle is
familiar, that, in a case affecting life, far greater strictness is required
than in trials for offenses of an inferior degree.
In the former of these cases, moreover, there was a divided court, and it
was said that not a single adjudged case in the English books could be
shown, and none was shown, in which the separation of one juryman from his
fellows had been considered sufficient to set aside a verdict.
But to whatever consideration and weight these cases may be entitled (and
standing alone on the point they would be controlling), they are,
nevertheless, opposed to adjudged cases of equal authority, in which it has
been held that a separation of the jury before rendering their verdict, even
in a case of life and death, does not, per se, render the verdict void. And in a later case than that cited from Tennessee, the same court decided that it was not sufficient cause for awarding a new trial, even in a capital case, that the jury separated and mingled with the rest of the community, when it is satisfactorily shown that they were not tampered with. [STONE vs. The State; and see
Commonwealth vs. ROLEY] But whatever conflict of
opinions and decisions there may be respecting the correct rule in a case
affecting life, the doctrine is well settled, that, in trials for minor
offenses and in civil causes, the separation of the jury without the
permission of the court, before rendering their verdict, will not, of
itself, vitiate the verdict, though it is a misdemeanor for which the jurors
may be punished. 
In a late case before the court of appeals of South Carolina this question was considered, and the court quoted and adopted the rule stated in Graham on New Trials, p. 85, sec. 6, where it is said that "upon this point the practice in this country appears to have resolved itself into the exercise of a judicial discretion, confining the
motion for a new trial to the question of abuse, and invariably denying the
application where no injury has ensued."
Regarding this as the generally recognized and settled rule applicable to
cases not more highly penal than the present, we must conclude that the
misconduct complained of in this case, though the proper subject of
animadversion and punishment by the court, was not, of itself, sufficient to
vitiate and avoid the verdict.
*4 We are of opinion, therefore, that the court did not err in refusing the
application for a new trial, and that the judgment be affirmed.

Supreme Court of Texas.
JAMES SMITH
v.
JOSEPH Y. BROWN
December Term, 1848.

*1 Appeal from Comal County.
A fictitious case, brought for the purpose of obtaining the opinion of the
court on the matters presented by it, is a contempt; and will subject the
parties and their attorneys to the severe animadversion of the court.
Wagers, though recoverable at common law, if not on subjects contrary to
public policy, afford no ground of action when entered into simply to obtain
a judicial opinion upon an abstract question of law.
The official acts of public functionaries are not proper subjects for
wagers; and it would be doing great injustice to such functionaries to allow
their conduct to become the subject matter of a gambling contract.
The facts of this case are fully stated in the opinion of the court and the
arguments of the counsel.

A fictitious case, brought for the purpose of obtaining the opinion of the
court on the matters presented by it, is a contempt.

Wagers, though recoverable at common law, if not on subjects contrary to
public policy, afford no ground of action when entered into simply to obtain
a judicial opinion upon an abstract question of law.

The official acts of public functionaries are not proper subjects for
wagers.
HAMILTON and GREEN for appellant.
The judgment below was for the appellee, and he relies upon its affirmance
here, on the ground of the unconstitutionality of the last legislature
apportioning senators and representatives among the several counties of the
state, according to the requirements of the constitution.
The presumption must always be in favor of the validity of law, if the
contrary is not clearly demonstrated. 
The 92d section of the district court act, passed at the first session of
the legislature, provides "that the printed statute books of the state shall
be evidence of the act therein contained;" which, under the pleadings and
proofs submitted by the parties, will entitle the appellant to a reversal of
the judgment. 
The objection to the validity of the law in question, upon the ground of
repugnance to the constitution of the state, is not well taken in this case.
A party who sets up the unconstitutionality of a law must show that it has
infringed upon, and is in derogation of, his private rights; whereas, in
this case, the appellee neither proves or charges any such effect. 
*2 If, then, the appellee cannot set up the want of validity of said law,
upon the ground of its repugnance to the constitution, it follows that he
cannot go behind the law to inquire into the time, manner and circumstances
of its passage and approval. And if he could, an act, such as the
legislature have a right to pass, would not be unconstitutional merely on
account of irregularity in the manner of its passage -- the constitutional
provisions, in this respect, being only declaratory and directory. 
HANCOCK for appellee.
This suit was brought at the last term of the district court, by appellant,
on an obligation made to him by appellee, for the sum of one hundred and
fifty dollars, payable the 6th of November last, if by that time appellant
furnish at the town of New Braunfels, any law showing the next legislature
of the state of Texas will be composed of seventy members in both branches.
Appellant alleges he performed the consideration by producing, at the time
and place mentioned, a law passed by the second legislature of the state,
being an act entitled "An act to apportion senators and representatives of
the legislature among the several counties according to the requirements of
the constitution."
Appellee filed his answer, denying that the purported act produced by
appellant was a law:
First, because it was not passed in accordance with the constitution; and,
with this plea, files a certified copy from the secretary's office, of the
act filed there, with a note thereon, of Hon. John A. GREER, president of
the senate, showing that it was not signed by him till after the final
adjournment.
Second. He denies that any such law as that presented by appellant was ever
passed by the second legislature; but that the same was procured to be
published as a law, through fraud.
Third. That no such act as the one produced was ever enrolled, or reported
upon, by the committee on enrolled bills, as correctly enrolled; and that
this was necessary to have been done, as directed by the rules of the house
of representatives, etc.; which are also filed as part of the answer.
Fourth. That the same was never signed by the speaker of the house or the
president of the senate, when they had any authority to do so.
Fifth. That the said act never received the sanction of both houses of the
legislature.
Sixth. That said act did not receive the approbation of the governor till
after the adjournment of the legislature; nor at a time when he could
rightfully approve bills.
Seventh. That it excludes several counties from representation.
Judgment in favor of the defendant, from which plaintiff appealed.
The facts certified up show that, in the court below, the plaintiff, in
support of his right to recover, produced in evidence the obligation sued
on, and an act of the last legislature, published among the printed laws of
the state, showing that the next session of the legislature will be composed
of seventy members.
*3 Defendant proved, from the journals of the house and senate, that the law
introduced in evidence by the plaintiff differs from the act voted upon by
the legislature for this purpose, in this: that the counties of Harrison and
Upshur were stricken out of the sixth senatorial district in the act really
voted on; and by the chairman of the enrolling committee, that the act
introduced by plaintiff was never reported by said committee as correctly
enrolled, nor any report made thereon by said committee; and by the said
chairman and the assistant clerk of the house, that the same was not
enrolled until the 21st of March, 1848, which was the day after the final
adjournment; and by the same witness, that the said act was not, until that
day, signed by the speaker and president; by the secretary of state, that
the said act was deposited in his office on the 21st of March, by the
enrolling clerk of the house; that it was afterwards taken out of his office
by some one, to him unknown, and on the same day returned by the governor's
private secretary, signed by the speaker, president, and the governor's
approval thereon. The note of the president of the senate, appended to the
act at the time of signing it, and one addressed to the governor by the
speaker of the house, attested by the chief clerk, dated 21st March, 1848,
informing him that he did not sign said act till then, were also in
evidence. Shown by the bill, made a part of defendant's answer, that the
counties of Medina, Gillespie, Kaufman, etc., were not included in said
apportionment bill; and that there was a number of qualified electors
residing in said counties. That the county of Caldwell, a new county taken
from the counties of BASTROP and Gonzales, was attached to the county of
Travis.
The defendant, in his answer, admits that the plaintiff produced an act
appearing among the published laws of the second legislature, which shows
the next legislature will be composed of the number of seventy in both
branches; but denies that the produced act is a law, upon two general
grounds. The first ground based on matters accruing before its publication;
the second, on the constitutionality of the act in its provisions.
On the first ground taken by the pleas filed by the defendant, denying that
the act presented is entitled to the consideration of a law, arises the
question of the power of the courts to go behind the printed statute book,
to ascertain whether an act has been passed in sufficient accordance with
the necessary formalities to make it a law.
It has not often occurred that courts have been called upon to exercise this
power of going behind the law, published under the supervision of the
authorized officers of state, to inquire into matters that transpired during
the progress of its passage, in order to come to their determination of its
validity. Cases have arisen where this power has been invoked; and the
course pursued has invariably been, as far as I am able to learn, such as
the genius of the age and the character of the institutions of our
government would not merely warrant, but seem to demand. In a government
boasting of foundation on laws that extend to all the branches and
departments thereof, equally to the legislative as others, the boast were
idle, indeed, if we deny the existence of a power to carry into execution
these rules for the correction of evils, wherever found to exist. No other
course can ever keep up and perpetuate free institutions than a vigilant and
energetic restraint against all encroachments of power, from whatever source
they may proceed, or whether caused by mistake or design. To limit the power
of inquiry of courts to the law as it may appear upon the statute book,
would leave a space through which oppression and abuse of the most grievous
character might be introduced, without a corrective power to restrain or
protect. But courts, in similar instances, have not considered themselves so
imbecile, or their powers so limited; and when bound to take notice of a
public act, have determined the question by an inspection of the record; for
nul tiel record cannot be pleaded to a statute.
*4 In the case of PURDY vs. The People, WALWORTH,
chancellor, and PAIGE, FRANKLIN, and others, senators, lay down the
doctrine, that for the purpose of ascertaining whether an act was passed as
a majority bill merely, or by a vote of two-thirds, courts may look beyond
the printed statute book to the certificate upon the original engrossed bill
on file with the secretary of state.
And in the same case, it is laid down that courts may resort to the journals
kept by the two houses to ascertain whether an act has been passed by a vote
of two-thirds, where the power of courts to look beyond the printed law to ascertain its validity is clearly and expressly established, in the opinions of the chancellor and the several senators; and also in the opinion delivered by Justice BRONSON, when
this case was before the supreme court, the same power is unequivocally
asserted. 
The opinions in this case, and the number of authorities cited by the
learned judges, seem to put the question of the existence of the power at
rest.
In support of the position assumed by the several judges in this case, the
following authorities are cited: Dwarr. on Stat. 630, 665; Com. Dig. Tit.
""Parliament," R. 5; The Prince's Case, 8 Coke's Rep. 28; REX vs. ROBOTHAM,
3 Burr. 1472; and also a number of cases decided by the New York courts are
cited as recognizing the power.
If, then, it be established that it is within the province, and even the
duty, of the court to look beyond the printed law to the records attesting
its passage, and entitling it to the consideration of authority, the facts
before the court below show that the passage of this act was not only
signalized by unprecedented irregularity, but a wanton disregard of the
necessary prerequisities of both form and substance, to entitle legislative
acts to the force of laws.
In the first place, it is shown by the journals of the two houses that the
act in question differs from the one voted upon by the legislature; or there
is a variance in the act as published from that before the senate, as
appears in the sixth senatorial district. [See Journals of the Senate, pp.
643, 649 and 651, where it appears the counties of Harrison and Upshur were
stricken out of that district, whereas they now appear in the law as forming
a part of it.]
From a certified copy of the bill deposited in the secretary of state's
office, forming a part of the defendant's answer, it is shown it was signed
by the presiding officers of the respective houses, with this variance from
the act really voted on by the legislature. Whether their signatures to acts
that have not passed the legislature at all, or to acts differing in details
from the ones really passed, though having the same object in view, adds any
validity thereto, seems hardly to admit of a question. Take the first
supposition above to be before the court, that the presiding officers of the
legislature have really signed an act upon any given subject which that body
had never acted upon in any way whatever, would any one, for a moment,
contend that the mere fact of the signatures appearing to such an act would
be sufficient to supply the place of all necessary evidence of legislative
action? The bare mention of such a doctrine shows it too monstrous to be
seriously entertained under any conceivable circumstances. If the presiding
officers could not fashion forth an act entire, with the force of a law, how
far can they vary one really passed, by changes and alterations after its
final passage, by their signatures? If the change appears, as in the present
instance, to have been occasioned by some means between the time an act is
finally acted upon by the vote of the legislature and the signing by the
respective officers, how slight soever the change may have affected the
provisions of the act, it is as if not signed by them at all. Art. 3,
section 20 of the state constitution provides that "every bill, having
passed both houses, shall be signed by the speaker and president of their
respective houses." It cannot be contended that if a bill may have undergone
some change in its provisions before it is signed as directed by the above
article, that still the speaker and president sign the act literally as
voted upon (it being out of their power to alter or change), that the
changes will be disregarded, and the bill remain in force in its original
shape. This would be productive of too great uncertainty, and lead to
building up intendment upon intendment, till there would not be left a
traceable concurrence between any of the departments of the law-making
power. The signatures of the presiding officers is, in part, the evidence
that assures the executive that a bill is the act of the legislature; and to
say that the governor's approval has the same intendment back to the literal
bill voted upon, would be to make him approve bills without knowing what
they were.
*5 Under the provisions of the 13th section, 3d article of the state
constitution, power is given to each house to determine the rules of its own
proceedings, etc. With a view to avoid the danger alluded to, from
alterations made either by mistake or design, a set of rules were adopted,
well suited to this end, and which, if observed, would effectually guard
against fraud, imposition or mistake. Among other things provided by the
joint rules and orders of the two houses, the
6. Provides, "After a bill shall have passed both houses, it shall be duly
enrolled on paper by the enrolling clerk of the house, or secretary of the
senate," etc.
7. When bills are enrolled, they shall be examined by a committee of two
from each house.
8. After examination and report, each bill shall be signed in the respective
houses, first by the speaker of the house of representatives, then by the
president of the senate.
9. After a bill shall have been thus signed in each house, it shall be
presented by the said committee to the governor for his approbation, etc.
The facts show that none of the above rules were complied with at any time
before the final adjournment of the last legislature. The question arises,
on each rule, as to the power of the authorized persons to perform the duty
therein designated after the adjournment? And whether any act of the
legislature can become a law, in the absence of a compliance with any one of
them during the existence of the session?
There are several grounds upon which a negative answer would be given to
both of the above propositions. Art. 3, section 14 of the constitution
provides that "each house shall keep a journal of its own proceedings," etc.
In order to facilitate the business of the legislature, certain officers are
appointed to perform the duties prescribed in the foregoing rules; and
during the terms of their offices constitute a part and parcel of the
legislature -- acting as agents or officers, under the supervision of their
respective houses; whose acts, when adopted, become those of the legislature
as much as any act done by either house.
The mere enrolling, by the clerk appointed for that purpose, a bill or act,
is not of itself any evidence that it is the expressed will of the
representatives. Before it can be regarded as such, it must be reported by
the committee appointed for that duty, and their report adopted -- each
member examine for himself -- that it is correctly enrolled, or some other
satisfactory mode pursued to that end. Until such recognition of its correct
enrollment is in some way manifested, the signing of the presiding officers
would be unauthorized.
The validity of the acts of these officers of the legislature, being made to
depend upon the recognition of their correctness by the respective
supervisors in their progress, and the officers being but creatures of the
legislature for the session, all their connection with that body ceased eo
instanti with the adjournment, and any after act of theirs would be a
nullity.
*6 If the foregoing view of the character and power of the officers of the
legislature be correct, any act done by them, after the final adjournment,
would add no more force to a bill than if it had remained unperformed.
The section of the constitution requiring each house to keep a journal of
its proceedings, just referred to, seems so mandatory in its character as to
preclude the idea of the existence of a law, without some corresponding
evidence of its passage can be found upon the journals. For the authority of
the courts to determine upon the proceedings had by legislatures, in passing
acts, see Com. Dig. Tit. Parliament, R. 4, R. 5, and New York authorities
before cited.
The facts established by the journals of the two houses, and the parol
evidence before the court below, proving positively, what the journals do
negatively, show it impossible for the governor to have approved this act
till after the adjournment. As the approval is in blank, we have no means,
except by parol evidence, of ascertaining the precise time at which the
approval was made. The 17th section of article 5 of the constitution
provides for bills presented to the governor, one day before the final
adjournment, becoming laws, but makes no provisions for those that may be
presented after that time (the adjournment). In order for any act to become
a law, as is shown in Com.'s Dig. Tit. above, and the authorities there
cited, there must appear a concurrence of the house of representatives, the
senate and the executive. How the governor could concur with the two houses
after they had adjourned, and the members gone to their respective homes,
seems past conception. There does not appear any difference, in principle,
in the power of the governor to approve a bill one day after the adjournment
and doing so now.
The defense set up in the court below to the act, on the ground that it was
in conflict with the direction of the constitution, specifies the provisions
in the act attaching new counties to those from which they have not been
taken, and excluding others from representation altogether, as instances of
conflict with the constitution. The whole bill is included in the answer,
and properly comes under the supervision of this court, in every particular,
whether specifically pleaded below or not.
Article 7, section 34, constitution, directs that every new county, as to
the right of representation, shall be considered as part of the county or
counties from which it was taken, until entitled by numbers to the right of
separate representation.
This provision is, in several instances, directly violated by annexing new
counties to others of which they had formed no part; and more censurably
violated by associating new counties together, and forming separate
representative districts. This is designated more censurable because it
betrays a studied aim to evade the provisions of the constitution.
*7 Another feature of this bill presents such a striking inconsistency with
other acts of the same legislature, that if one were left solely to form his
conclusion from the acts themselves, he might hesitate to acknowledge them
the legislation of the same body. Among other counties left out of the bill
entirely, is the whole judicial district of Santa Fe, denied a single voice
in the senate -- a section of the state that previous acts show the amiable
determination of taking into full fellow ship. The above section of the
constitution seems so plain and clear, and the sense so distinct and
perfect, that there is no ground left for any other interpretation than that
which naturally arises on the plain, common-sense acceptation of words used.
Judge STORY says, in speaking of the constitution of the United States (and
his language is equally applicable to ours): "The people adopted the
constitution according to the words of the text, in their reasonable
interpretation, and not according to the private interpretation of any
particular man."  Again he remarks: "When the words are plain and clear, and the sense distinct and perfect arising on them, there is generally no necessity to have recourse to other means of interpretation. It is only when there is some ambiguity or doubt arising, from other sources, that interpretation has its proper office." The words used in our state constitution fall properly in the class contemplated by the above commentator. The rule here laid down was strictly followed by the supreme court of the late republic in the case of STOCKTON vs. MONTGOMERY. 
In conclusion, I would respectfully remark that a dissatisfaction with the
general provisions of this bill exercises not the slightest influence over
those who ask the court to pass upon its constitutionality. The complaint
may have been made, that some sections of the state have suffered an unfair
diminution of representation in the general reduction. And were in the case,
it would not be a proper subject for judicial determination. Though it is
believed that this bill distributes the members of the legislature among the
several portions of the state, according to the population, with as much
equality as is practicable. But it is alone upon the insufficiency of the
act, as shown from the journals and records of the two houses, and its
conflict with the provisions of the constitution, that appellee places his
right to an affirmance of the judgment of the court below.


Mr. Justice LIPSCOMB delivered the opinion of the court.
This suit was instituted on an instrument of writing, signed by the
defendant, in the following words, that is to say: "I hereby bind and
obligate myself to pay Josiah SMITH the sum of one hundred and fifty
dollars, if he furnish at the town of New Braunfels, by the 6th day of
November next, any law of the state of Texas, showing that the next
legislature of the said state will be composed of seventy members in both
branches, this the 6th day of September, 1848." The plaintiff alleged that
he had performed the condition by the production of the law; the defendant
denied that the act produced was lawfully and constitutionally passed.
*8 It was manifestly the object of the parties in this suit to obtain a
judicial decision on the constitutionality of the apportionment act of the
last session of the legislature. The suit is not founded on a bona fide
transaction. It is either an entire fiction, or it is a wager, designed to
effect the same object. Fictitious cases are often presented, in the form of
a wager, because every wager is not in contravention of law; but every
fictitious case is a contempt of the court, and when known to be such, has
subjected the parties to the severe animadversion of the court; such as fine
and imprisonment. In the matter of R. J. ELSAW, an attorney, a special case was stated for the opinion of the court; the greater part of the statement was fictitious; the court fined the attorney. The defendant, by affidavit, stated his reasons for wishing to obtain the opinion of the court speedily, and that he was not actuated by
any corrupt or fraudulent motive, and that he had already incurred an
expense of forty pounds in the business. ABBOTT, Chief Justice, said: "It is
impossible to pass over a case of this kind without notice; but as it
appears that the party before the court did not intend any fraud, and that
he has already incurred an expense of forty pounds in the course of the
proceedings, the object of the court, which is to prevent the repetition of
such a practice in future, will be answered by ordering him to pay a fine of
forty pounds, and to be imprisoned until that fine be paid." The case in
which this fiction was attempted to be practiced is entitled FOX vs. DODDS;
and it will be seen, that, on the suspicion of its being a fiction, the
court had directed the master to report whether it was a fiction. And on his
report coming in, the case was stopped, and not permitted to proceed
farther. In the case of COX vs. PHILLIPS, Lord HARDWICKE
held a fictitious action to be a contempt of court, and committed the
parties and their common attorney. In BREWSTER vs. KITCHEN,
which was a feigned issue, Lord Chief Justice HOLT said, if he had not
thought it had been directed out of chancery, he would not have tried it;
and his Lordship added, "Do you bring fob actions to learn the opinion of
the court?" In the case of FLETCHER vs. PECK, which involved very important
principles, Judge JOHNSON said: "I have been very unwilling to proceed to
the decision of this case at all. It appears to me to bear strong evidence
upon the face of it, of being a mere feigned case. It is our duty to decide
on the rights, but not on the speculations, of parties; my confidence,
however, in the respectable gentlemen who have been engaged for the parties,
has induced me to abandon my scruples, in the belief that they would never
consent to impose a mere feigned case upon this court." 
The same confidence in the respectable gentlemen who have been concerned in
this case, in the like manner, forbids the indulgence of a suspicion that
they would impose a feigned case on this court. But notwithstanding the
language in which the obligation is couched, we cannot place any other
construction on it than that it is a wager. No one can believe that it was
designed as a compensation for the trouble and labor of procuring the act of
the legislature, properly authenticated, from the state department; and the
record shows that on the production of the act, as evidence of performance
by the plaintiff, the defendant, in his answer, denied that it was a law,
because not passed in conformity with the constitution; we shall therefore
proceed to consider it as a wager. At common law, wagers were allowed to be
a good ground of action, if not on a subject forbidden by law, or contrary
to policy or to good morals. The case of HENKIN vs. GUERSS, "was an action of assumpsit upon a wager of << PoundsSterling>>>>>300,
upon the practice of the court, whether a person could be lawfully held to
bail on a special original for a debt under << PoundsSterling>>>>>40. It was
entered for trial at the last sittings at Guildhall, before Lord
ELLENBOROUGH, Chief Justice, who, on hearing the nature of the cause,
reprehended the indecorum of the attempt to obtain, in this manner, the
opinion of the court upon a question of law or judicial practice, in which
the parties had no apparent interest other than what the wager itself
created; and his Lordship refused to try the cause, telling the plaintiff's
counsel that he might apply to this court upon the subject, if his client
felt aggrieved by such refusal." On the question being presented to the
other judges, they conversed with the Lord Chief Justice on the propriety of
his refusal to try a cause of this description, and his Lordship added,
"that courts of justice were constituted for the purpose of deciding really
existing questions of right between parties, and were not bound to answer
whatever impertinent questions persons thought proper to ask them, in the
form of an action on a wager. That though there was nothing immoral in the
subject of this wager, yet he considered it as an extremely impudent attempt
to compel the court to give an opinion upon an abstract question of law, not
arising out of pre-existing circumstances, in which the parties had an
interest. And LE BLANC, Justice, said "that if by any other proceedings in
court it appeared that, in truth, no such wager had really been made, the
court would know how to deal with the case." In this case, as presented by
the record, it would be extremely improper to inquire into the conduct of an
independent department of the government on an issue in which the parties
had no interest other than that created by the wager sued for. The wager is
obnoxious to another objection; it implicates the integrity of high
functionaries of the legislative department in the discharge of an official
trust, in a way in which they cannot be heard in their defense. If those
functionaries are justly chargeable with the delinquencies urged in the
record against them, such derelictions are not proper subjects of a wager;
and if not, it would be doing them great injustice to allow their conduct to
become the subject matter of a gambling contract. The ends of public justice
can be attained without resorting to such means. The court below did not err
in refusing to give the plaintiff a judgment. That judgment is affirmed.

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