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Supreme Court of Texas.






*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


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.




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.






*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


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


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.



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


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


Judgment affirmed.



Supreme Court of Texas.




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


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



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


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.




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


*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.




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.





Supreme Court of Texas.



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


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




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



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


*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


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.




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


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


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


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


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


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


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


*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.