Bastrop County, TX
established 1836

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SUPREME COURT RECORDS PAGE 1

File contributed by Lisa Lach and proofed/formated by Dena Stripling

(Cite as: 1869 WL 4827, *1 (Tex.))

FOR EDUCATIONAL USE ONLY

*1 1. A grant by the state to a dead man, though void according to the

common or the civil law for want of a grantee, is valid under the act of

December 24th, 1851, whether made before or after the passage of that act.

2. By force of that statute a patent issued in the name of a dead man inures

to his heirs in virtue of their right of inheritance, unless he had

alienated the land in his life-time--in which latter case the patent inures

to the alienee as against the heirs.

3. If a location made on public land in 1838 was sufficiently specific to

furnish notice to persons of ordinary diligence that an appropriation of the

land was thereby made, it vested the right to the land even before any

survey made or patent issued; and by such a location the land became capable

of alienation immediately, though no survey was then made, and though no

patent issued during the life-time of the locator.

4. A vendor of land who in his deed affirms his seizin or possession of the

land is estopped by his deed from afterwards denying that he had title; and

after his death his heirs are in like manner estopped from denying his

title, and from claiming the land by descent from him, even under a title

acquired in his right after the deed was made by him.

5. When a vendor has conveyed land with a covenant of warranty against his

heirs, the covenant will operate as a rebutter to a claim of his heirs to

the land, even though he conveyed the land wrongfully or before he had any

title to convey.

6. In such a case, it seems, the heirs can not avoid the estoppel by

impeaching the consideration of their ancestor's deed, when they do not

allege that the deed was procured by any fraud or force.

7. Nor can the heir thus estopped maintain the defense of three years'

limitation against the vendee of the ancestor, although patent issued in the

ancestor's name after his death; for in such case the patent, by force of

the act of December 24th, 1851, above cited, inured to the vendee, and not

to the heir, and constituted neither title nor color of title in the latter.

ERROR from Bastrop. Tried below before the Hon. J. J. Thornton.

This suit was brought in the district court of Bastrop county on the 16th of

February, 1857, by R. J. Townes, Robert Mills, and David G. Mills, against

Uriah Gould and Ann Eliza Gould, his wife, and Edward and James McCarty,

defendants. Townes died during the pendency of the suit, and C. S. West, his

executor, became a party in his stead.

The plaintiffs alleged in their petition that on the 2d of September, 1839,

Jacob G. Lentz executed and delivered to Jesse Haldeman a deed for one half

of a league of land in Bastrop county, known as league No. 20. The deed was

set out in full, as follows??

"REPUBLIC OF TEXAS, County of Bastrop.

Know all men by these presents, that I, Jacob G. Lentz, do this day bargain,

sell and convey all my right and title to Jesse Haldeman, one-half league of

land, known as my headright drawn from the Mexican government, the

boundaries as follows, known as league 20, beginning, etc. (here follow

metes and bounds), making the equal half of said league. I, Jacob Lentz, do

bargain and sell the same to Jesse Haldeman, his heirs and assigns, to have

and to hold forever, and to dispose of as he thinks proper. I bind myself,

and heirs, and assigns, to make good this bond to said Haldeman forever,

which I do acknowledge. I do acknowledge I have received five thousand

dollars cash in hand, paid by J. Haldeman, and am satisfied that I have

received the full value thereof. I hereunto set my hand this second day of

September, one thousand eight hundred and thirty-nine, before said witness;"

which deed was recorded in Bastrop county, on or about September 3d, 1840.

*2 The petition alleged that Lentz was living on the league at the date of

the deed, and that he then delivered possession to Haldeman of the half of

the league conveyed by the deed; that on the 24th of June, 1844, Haldeman

sold and conveyed the half league to the plaintiff, Townes, for the price of

one dollar per acre, paid by Townes on or about that date. That Townes

purchased and paid for the land in good faith, and without any notice that

the land was claimed adversely by the defendants. That on or about the 23d

of October, 1848, Townes sold eight hundred acres of the land to the

plaintiffs, Robert and D. G. Mills.

The petition alleged that the defendants, Gould and wife, about 1st of June,

1854, under the pretense that the latter had inherited the land from her

father, the said Jacob G. Lentz, entered on and took possession of three

hundred and fifty-two acres of the half league sold by Lentz to Haldeman,

and subsequently, in August, 1856, undertook to sell and convey the same to

the defendant, Edward McCarty, who sold part of the tract to the defendant,

James McCarty; and that these latter parties withhold possession of the 352

acres from the plaintiffs.

The above outline of the original petition will suffice to indicate the

general nature of the suit, and it seems unnecessary to recapitulate the

several subsequent pleadings. The other heirs of Jacob G. Lentz were

admitted to join Gould and wife in defense to the suit. They denied that

Haldeman had ever paid anything whatever as a consideration for the land,

and alleged that in 1835 Haldeman contracted with Lentz to clear out and

perfect the title of the latter to the league, and for so doing was to be

entitled to one-half of it. They averred that Haldeman did obtain a

pretended title to be issued to Lentz, but that it was issued by one Robert

Peebles (who was, or assumed to be, commissioner of Austin and Williams'

colony) after the closing of the land offices by the act of the

consultation, and was therefore contrary to law and void. That Lentz being

ignorant of the law and of his rights, and believing himself legally

possessed and invested with title, executed the deed to Haldeman; but that,

in fact, the said Lentz never did in his life-time have or acquire any legal

right or title to the land. That after his death, these defendants obtained

a certificate for a league and labor of land, and caused it to be located on

the said league, for which they caused a patent to issue to them.

This patent shows on its face that it issued to "Jacob G. Lentz, his heirs

or assigns," and bore date May 5th, 1847, being some six years after the

death of Lentz.

The defense of limitation of three years was also relied on by the

defendants.

The act of the legislature of December 24th, 1851, respecting patents issued

in the names of deceased persons, being omitted from the digests of our

statutes, is here set out in full:

"AN ACT to render valid and effectual to legal claimants patents for land

which have been issued, or may be issued, in the names of deceased persons.

*3 SECTION 1. Be it enacted by the legislature of the state of Texas, That

all patents for land which have heretofore been issued by the authorities of

the republic or state of Texas in the names of persons then, at the time of

issuing such patents, deceased, and all patents for lands which may be

issued hereafter by authority of the state of Texas in the names of persons

deceased at the time at which said patents may be issued, shall be, to all

intents, and purposes, and effects, as valid and effectual to convey and

secure to the heirs or assigns, as the case may be, of such deceased

persons, the lands as patented, as though such deceased persons had been in

being at the time such patents bear date, provided that nothing in this act

contained shall be so construed as to validate any claim not otherwise just

and legal, but it shall simply mean that a patent issued to one not in being

at the time said patent issued, shall not be void for such cause.

SEC. 2. That this act take effect and be in force from and after its

passage." Approved, December 24, 1851. Pamphlet Acts of 1851, p. 21.

The cause came to trial at the December term, 1867. The plaintiffs rested on

their title derived under the deed of J. G. Lentz to Haldeman, made in 1839.

The defendants were admitted to be the only heirs of Lentz. They introduced

the patent and evidence of sundry witnesses, to prove that no consideration

ever passed from Haldeman to Lentz for the deed or land. Plaintiffs

introduced evidence to show that Haldeman cleared out Lentz's title to the

whole league. In view of the opinion of this court, it is not deemed

material to detail the evidence particularly, and reference is here made to

the opinion for such other facts as have any bearing on the rulings.

The jury returned a verdict for the plaintiffs, and judgment was rendered

accordingly. Defendants moved for a new trial, and on its refusal bring

their writ of error.

An heir estopped to claim land conveyed by his ancestor with a covenant of

warranty against his heirs cannot maintain the defense of three years'

limitation against the vendee of the ancestor, although patent issued in the

ancestor's name after his death; for the patent, by force of the act of

December 24th, 1851, enured to the vendee, and not to the heir, and

constituted neither title nor color of title in the latter.

Where, by deed, a party conveyed land with a covenant of seisin and

possession, the grantor, and parties in privity with him, will be estopped

from afterwards disputing the fact of his seisin and possession at the time

of the conveyance.

The heirs of a person conveying land with a covenant of warranty are

estopped from setting up a want of title in their ancestor.

A subsequently acquired title by the grantor under warranty deed inures to

the benefit of the grantee.

If a location made on public land in 1838 was sufficiently specific to

furnish notice to persons of ordinary diligence that an appropriation of the

land was thereby made, it vested the right to the land even before any

survey made or patent issued; and by such a location the land became capable

of alienation immediately, though no survey was then made, and though no

patent issued during the lifetime of the locator.

By force of Act Dec. 24, 1851, a patent issued in the name of a dead man

inures to his heirs in virtue of their right of inheritance, unless he had

alienated the land in his lifetime, in which latter case the patent inures

to the alienee as against the heirs.

A grant by the state to a dead man, though void according to the common or

the civil law for want of a grantee, is valid under the act of December

24th, 1851, whether made before or after the passage of that act.

Chandler, Turner & Carleton and P. Claiborne, for plaintiffs in error,

discussed the evidence, for the purpose of showing that no consideration for

the land in controversy ever passed from Haldeman to Lentz, and that Lentz

in his lifetime never acquired any title to the land. They then proceeded as

follows to argue that Townes and his vendees were chargeable with notice of

the defects in the title, though they admitted that no actual notice of the

defects had been brought home to them.

*4 But we assume and propose to show, from an unbroken chain of the highest

authorities, that where a vendee purchases from a vendor who has an

equitable or imperfect title, that he takes it, subject to any and every

legal or equitable defect in the title of his vendor; in other words, if his

vendor has anything but a legal title, that he acquires no higher right or

better title than his vendor had, and that whatever would defeat the title

or equity of his vendor, will defeat him; and we commence to discuss this

point with the fact staring us in the face, that J. G. Lentz had no title

when he made the deed to Haldeman, and had none at his death. He had, at

most, but a dormant equity against the government for a league and labor of

land, and the right to locate the league, half of which is the subject of

this controversy, as long as it was vacant.

In the case of Dormer v. Fortescue, Lord Hardwicke, in discussing the

question whether or not a vendee was chargeable with notice of all the

defects in the title of his vendor, when his vendor's title was not a legal

title, said: "But where a man shall be said to be bonoe fidei possessor, is

where the person possessing is ignorant of all facts and circumstances

relating to his adversary's title; which could not be here, for Mr. Justice

Fortescue had all the deeds, and the very settlement on which the title

depended. See 3 Adkyns' Reports, p. 134.

And Lord Chancellor Thurlow held the same doctrine in the case of Coppin v.

Tennyhaugh. 2 Brown, pp. 296, 297.

Again, in the case of Moore v. Bennett, decided one hundred years ago, the

court of chancery said that any title less than legal was an implied notice

to the vendees, and uses the following language: "A makes a conveyance to B,

with power of revocation by will, and limits other uses if A dispose to a

purchaser by the will; another purchaser subsequent is intended to have

notice of the will as well as of the power to revoke, and this is, in law, a

notice, and so it is in all cases where the purchaser can not make out a

title but by a deed which leads him to another fact, the purchaser shall not

be a purchaser without notice of that fact, but shall be cognizant thereof,

for it is crassa negligentia that he sought not after it." See Cas. in Ch.

top page 244, side page 246.

The last cited case we think directly in point. Haldeman of course knew he

had no title; that is, the law forced him to know that Lentz had no title,

and consequently he (Haldeman) acquired none on his part; and the land was a

part of the public domain of Texas. That being so, and the land remaining in

the same condition in September, 1844, when Townes obtained his deed from

Haldeman, he could not make out his title without tracing it back to the

grant extended by Peoples to Lentz, which was void, and not voidable simply.

Haldeman acquired, at most, an equitable right or title to one-half of the

J. G. Lentz headright, provided he had paid for it, which he never did do,

as the proof shows. And we find that the highest tribunals in the United

States have carried this doctrine even further. It was so elaborately

discussed by the supreme court of the United States in the case of Brush v.

Ware, that we respectfully request the court to read that case. See 15 Pet.

p. 93. The same doctrine is held by the supreme court of Tennessee, in the

case of Pierson & Harkness v. Ivey, 1 Yerg. pp. 296 to 302. And again, in

the case of Nelson v. Allen & Harris, 1 Yerg. pp. 360 to 372, in which case

the court reviewed a large number of the authorities upon this point, and

the court is requested to read it.

*5 In the case of Dexter v. Harris, 2 Mason, p. 536, Judge Story, in

discussing this question, says: "The doctrine upon this subject as to

purchasers is this: that they are affected with constructive notice of all

that is apparent upon the face of the title deeds, under which they claim,

and of such other facts, as those already known necessarily put them upon

inquiry for, and as such inquiry, pursued with ordinary diligence and

prudence, would bring to their knowledge."

We might refer the court to quite a number of the decisions of this court

corroborating the authorities that we had cited, and we will refer to the

case of York v. McNutt, 16 Tex. 13. In that case McNutt executed to Hughes

his bond for title, and obligated himself to make title as soon as he

obtained his patent from the government. No other condition was in it.

Hughes transferred the bond to Coe for a valuable consideration, without any

notice of any failure of consideration or fraud, or that the consideration

was a void one. And Coe, in like manner, transferred it to York. Yet the

learned Chief Justice Hemphill said: "It must be admitted that there is

great apparent hardship in affecting subsequent vendees with all the

equities, though latent, which may subsist between the vendor and the first

vendee, where the sale is only of the equitable title, and especially so

where the rule is well established that a subsequent purchaser without

notice will be protected against the equities of the vendor, or those

claiming in priority under him. But it appears very clearly from the

authorities, that the protection given to purchasers for valuable

consideration without notice, extends only to cases where they have taken a

conveyance, or, in other words, where they have purchased the legal title.

Dart, Vend. 462; 4 Desaus. 274; 8 Cranch, 462; 10 Pet. 177; 7 Pet. 252. But

where the purchase is only of the equitable title, it is taken with all its

imperfections and equities, notwithstanding a valuable consideration may

have been given, and there may have been no notice of the equity or defense

against the title. 12 Serg. & R. 389; 2 Watts, 459. In the case of Chew v.

Barnett, 12 Serg. & R. 380, the court say that 'where it is asserted that a

purchaser for a valuable consideration takes the title free of every trust

or equity of which he has no notice, it is intended of the purchase of a

title perfect on its face; for every purchaser of an imperfect title takes

it with all its imperfections on its head. It is his own fault that he

confides in a title which appears defective, and he does so at his peril.'

Under this view of the law, the title of Hughes and of his assignees, Coe

and York, was but a title to go into equity to have the legal estate

conveyed, and in the hands of the assignees was subject to all the defenses

against the original vendee." See 16 Tex. 16, 17.

*6 If the purchasers of that bond were chargeable with the defects in

Hughes' title, surely Townes was chargeable with all the defects and want of

consideration in Haldeman's title. The case cited is so full upon the

subject that we respectfully ask the court to read it.

So far as R. & D. G. Mills' title is concerned, they are in no better

condition than their co-defendant, for they have failed to prove they are

innocent purchasers in good faith, without notice.

In the case of Watkins v. Edwards, 23 Tex. 447, this court said: "It must

appear that the purchase money was bona fide and truly paid. A recital of

the fact in the deed is not sufficient, but it must be proved independently

of the recitals in the deed." See also 23 Tex. 573.

The same principle was also decided by this court at the present term, in

case No. 3152, Harrington v. Williams & Burnett.

There is no proof in the record that Mills ever paid a cent for the land,

except the recitals in their deed; and if they had, they are, like Townes,

chargeable with all the defects in Haldeman's title, for the reasons already

given.

Hancock & West, for defendants in error, filed an elaborate and able

argument on both the facts and the law of the case. They insisted that the

evidence showed a consideration for the conveyance from Lentz to Haldeman,

and that, even if it had not, the burden of proof was on the defendants to

show the contrary, in view of the recitals of the deed. Proceeding in their

argument, they contended:

This was one of those cases in which the court might well have adopted the

rule laid down in McDonald v. Hancock, an old case decided at Austin,

December term, 1845, and reported in Alexander's Digest, page 296, where the

court lays down this very sensible rule: "That it is a matter of little

importance whether the jury understood the charge of the court or not, since

they found according to the law and the evidence."

Even if there was error in the charge, yet if the jury disregarded it, the

judgment will not be reversed. Hubby v. Stokes, 22 Tex. 217; Merriwether v.

Dixon, 28 Tex. 15; Bond v. Mallow, 17 Tex. 637; Hedgepeth v. Robinson, 18

Tex. 871; Robinson v. Varnell, 16 Tex. 387; Weisioger v. Chisholm, 22 Tex.

672; Converse v. McKee, 14 Tex. 30.

Plaintiffs in error asked no instruction either as to failure of

consideration or as to the purchase of an equitable title, and took no

exception to the charge of the court. Hence, they cannot complain. Mills v.

Thatcher, 14 Tex. 16; 3 Tex. 401.

*7 When one who has the equitable estate conveys it by warranty deed, and

subsequently acquires the legal title, that title vests in the vendee by

virtue of the warranty and by estoppel. 3 Washb. Real Prop. 103, and

authorities there cited; 4 Kent, 98; Box v. Lawrence, 14 Tex. 545; Mays v.

Lewis, 4 Tex. 38; Duchess of Kingston's case, 3 Smith, Lead. Cas., where all

the authorities are collected.

As to the effect of the issuance of a patent to a vendor who had previously

sold the land granted him by the government, counsel also cited 10 How. 325;

11 How. 297; 21 How. 240; 9 Wend. 209.

That the patent in the name of Lentz could supply neither title nor color of

title to his heirs, when he had conveyed the land in his life-time, counsel

cited Harris v. Hardeman, 27 Tex. 248; Wright v. Dailey, 26 Tex. 731; Marsh

v. Weir, 21 Tex. 110; Castro v. Wurzbach, 13 Tex. 128; Thompson v. Cragg, 24

Tex. 582; Elliott v. Whitaker, 30 Tex. 411; League v. Atchison, 6 Wall. 118.

Presumptions must be indulged to support the proceedings of the probate

courts in the early days. Baker v. Coe, 20 Tex. 435; Poor v. Boyce, 12 Tex.

440; Dancy v. Stricklinge, 15 Tex. 557.

LINDSAY, J.

It appears from this record that one Jacob G. Lentz, who became a resident

with his family in Texas in the year 1832, and so continued till his death,

in 1841, which gave him a claim under the colonization laws of Mexico--a

claim guarantied by art. XV of the plan of the provisional government, as

well as by the constitution of the republic and of the state--to a headright

of one league of land, as a colonist, sold and conveyed, on the 2d day of

September, 1839, to one Jesse Haldeman, one-half of said league, upon which

he was then settled, and in possession; and for which he subsequently

obtained a grant from the state. The consideration for this sale was

acknowledged in the deed to be five thousand dollars, with which the grantor

therein professed to be fully satisfied. This deed was duly proven by the

two subscribing witnesses, in 1840, and recorded in the proper office in the

same year. It appears also, by this record, that Jacob G. Lentz, after the

opening of the land office (he being one of the preferred class under the

law in the location of claims), went before the board of land commissioners

for Bastrop county, on the 12th day of April, 1838, within the six months

prescribed for the preferred class, and established his right to, and

obtained a certificate for his headright, which was located on the same day,

on the identical land in controversy, as appears by the indorsement thereon

of the surveyor of Bastrop county, the said Lentz then living on, and being

in possession of the league. On the 20th of October, 1840, the clerk of the

county of Bastrop, in which county the land was situate, certified that the

certificate had been examined by the commissioners appointed for the

detection of fraudulent land certificates, and was recommended by them for

patent. On the 5th of January, 1847, the district surveyor of Bastrop county

again surveyed the same league for Jacob G. Lentz, who had then been dead

six or seven years. Upon the return of the field notes to the land office

the patent issued to Jacob G. Lentz, in whose name the certificate had been

granted by the board of land commissioners.

*8 There are a great many other facts suggested by the pleadings and offered

in proof upon the trial; but the court does not deem them at all essential

to the proper elucidation of the rights of the parties in this contest. It

is believed that the substantive facts, which must determine the vital

questions in this controversy, are sufficiently presented, though

epitomized, in this condensed narrative, derived from a most voluminous

record.

By the common law this grant by the state to a dead man would be a nullity,

totally inoperative and void. So, also, would it be by the civil law; as by

each system there can be no grant without a grantee.

But by the act of the 4th legislature, session acts, page 21, approved

December 24, 1851, which seems to have been omitted by the different

digesters of the statutes of the state, but to which the attention of the

court has been called by the learned and critical counsel, such a grant is

made valid, whether the grant was made before or subsequent to the passage

of the act. By the statute, then, the grant or concession is valid, though

made to a dead man, and makes the land granted or conceded an estate of

inheritance which the heirs of the grantee will take as such--not by

concession or grant directly to them, but as inheritors of the estate of the

ancestor.

According to the provisions of the act of the congress of the 14th of

December, 1837, the 11th, 12th, 14th, 15th, 17th and 19th sections of said

act, it is apparent that the certificate was properly obtained from the

board of land commissioners; and the location made upon the land by the

county surveyor of Bastrop county, in the life-time of Jacob G. Lentz,

nearly eighteen months before the date of the deed of conveyance to Jesse

Haldeman. Even when no survey has been made, if such location is

sufficiently specific, "so as to furnish notice to the ordinarily diligent,"

said this court in Lewis v. Durst, 10 Tex. 415, and in Hollingsworth v.

Hols. housen, 17 Tex. 44, "that the appropriation of the land has been

made," the right is vested, as well before as after the survey. In this case

it is error to suppose that the only pretended legal right of Jacob G. Lentz

was founded on the Mexican laws of colonization. Those laws were abrogated

before any legal right accrued to him, though the meritorious cause of that

subsequent legal right was his coming in as a colonist. His legal right had

its foundation in the recognition, by the new political authority, of his

claims upon the former government as a colonist, his residence in the

country at the declaration of independence, and the authentication of the

character of his claim by the official agents of the government, the

obtention of the certificate from the commissioners, and its location upon

the land. These were public official acts, which committed the government to

the fulfillment of its sacred pledge, and which the government had provided

in the act itself might be judicially enforced against its ministerial

agents. This constituted the legal tie, the obligation of the government,

and the right of the citizen. When the certificate was presented by the

holder to the surveyor, he was authorized to survey any land, belonging to

the public domain, pointed out to him by the owner of the certificate; and

it seems, from the indorsement of the surveyor upon the certificate, the

identical land, "League No. 20, on Walnut creek, west of the Colorado

river," was so pointed out to him. It is admitted in the answer of the

defendants that a survey of the land had been previously made, whether by

the official agents of the former, or of the new political authority, is

immaterial, and an attempt made through one Robert Peebles, assuming to act

as commissioner of Austin and Williams' colony, to carry it into grant. This

survey, therefore, had been returned, under the law, with the archives to

the general land office. And according to the case of Chadoin v. McGee, 20

Tex. 476, the applicant had a right to select land already defined by metes

and bounds, which public policy only required as a notification of others

who might be seeking an appropriation of portions of the public domain. This

view was virtually reaffirmed in the same case on its final decision at the

Galveston term, 1868.

*9 Then, upon this state of facts, what was the nature and character of the

interest in the land held by Jacob G. Lentz at that time? In the case of the

Commissioner of the General Land Office v. Smith, 5 Tex. 480, this court

considered a location and survey, by virtue of a valid certificate, a valid

right, a right of property, and the commissioner was compellable to issue a

patent thereon; that it was a subject of taxation, capable of inheritance,

and protected by the constitutional guaranties of the right of property, and

consequently alienable by deed. See, also, 3 How. 459; 1 Pet. 655. Every

presumption is to be indulged in favor of the correctness of the action of

the agents of the government; otherwise there would be great insecurity in

all rights of property. Such indulgence is a necessary maxim in judicial

polity for the stability of all civil affairs. The location was made, but

the field notes were not returned to the land office until long afterwards;

consequently the commissioner could not issue the patent. The surveyor

indorsed on the recommended certificate that he did locate it on the land.

Such location by him could only be by his then making the survey, or by his

adopting a survey which he had previously made--either of which would be an

actual severance of the land from the public domain. By various acts of the

legislature, the time for returning field notes to the land office was

extended from time to time, and the equities of the locators were thus

recognized and preserved. And from the final grant of this identical land to

Jacob G. Lentz, it will be observed that the equity of his claim was

respected, and was the basis of the patent. Certainly the location had never

been abandoned by him; for he was then living, and continued to live upon

the land until his death. Being in the actual possession of the land, with

such a right and such an interest in it, it was, to all intents and

purposes, property, subject to the conditions of bargain and sale, and of

any mode of alienation, which he might choose to adopt. If the circumstances

of the acquisition of this right had transpired subsequent to the act of the

24th of January, 1856, upon the subject of forced heirship, he might have

devised by last will and testament the whole of it to whomsoever he pleased,

and have disinherited those who now claim it as his heirs. He did bargain,

sell, alien and convey one-half of the league, with the right to which he

was thus invested, and of which he was then in possession, to the vendor of

these appellees, for the consideration of five thousand dollars, with which

he acknowledged himself satisfied, and bound himself and heirs to make good

the conveyance.

The subject matter of the sale and conveyance by Jacob G. Lentz to Jesse

Haldeman, was one half of the land contained in "league No. 20"--the

identical land upon which the certificate was laid, and for which the patent

afterwards issued. Even admitting, for a moment, that Jacob G. Lentz had no

title at the time of the sale, would he be permitted, if alive, to deny that

he had title? In his deed, his seizin or possession of the land is

distinctly affirmed; and both he and all in privity with him, are estopped

from afterwards denying that he was so seized, or possessed at the time of

his conveyance. The knowledge or want of knowledge by his vendee of the

nature of the vendor's right, or title or estate, is not of the least moment

in the case, unless the vendor had practiced some fraud in the sale.

Washburn, in his valuable work on Real Property, vol. 3, p. 99, says: "An

estoppel works upon the estate and binds an after-acquired title, as between

parties and privies." It is so decided by the supreme court of the United

States, in the case of Van Rensselaer v. Kearney et al. in 11 How. 325;

also, in the case of the Lessee of French and Wife v. Spencer et al. in 21

How. 228. So that, if Lentz had no title at all at the time of conveyance,

carrying the identical subject matter of the contract into actual grant

afterwards, the title inured to the benefit of his vendee, as against his

heirs, who were privies in estate as well as in blood. The case of

McWilliams v. Nisly & Co. 2 Serg. & R. 507, 517, 518, cited by Washburn,

where the ancestor had conveyed the "premises," the particular land, and his

heirs claimed that when he conveyed he had no title, but acquired one

subsequently, which had descended to them, seems to be almost directly in

point with the present case. In that case, the learned judge pertinently

asks: "Can the heirs recover against his grantees?" and proceeds to answer

the question by saying: "It appears to me, in such a case, they would be

estopped by their father's deed from denying his title; and if there were

occasion for further assurance, equity would compel them to make it." And

his colleague in the same case said: "So, in equity, a grantor conveying

land for which he has no title at the time, shall be considered as trustee

for the grantee, in case, at any time afterwards, he should acquire title.

Chancery would compel them (the heirs) to convey to the defendants" (the

purchasers). The authority is persuasive; and the tone of morality which it

indicates, makes it not unsafe as an exemplar for imitation, when no

positive law forbids judicial interpretation.

*10 But, in addition to all this, there is a covenant of warranty in the

deed against the heirs. In such cases the principle is, if the ancestor has

wrongfully conveyed the land, with warranty, to make the covenant operate as

a rebutter to the claim of the heirs to whom the assets descended, and

thereby prevent circuity of action. Because, if they hold the land, which is

real assets, it should be, in honesty and justice, subjected to the payment

of the damages for the breach of the covenant of warranty. For, if the land

is recovered from the covenantee, he has his right of action to recover from

the heirs upon the covenant of warranty. The heirs being estopped by the

deed of the ancestor to deny his title, they are equally concluded by the

express and solemn recitals in the deed. Persons, not in privity with the

grantor, would not be affected by such recitals. Of the amount of the

consideration, and of its nature and character, which he required for the

conveyance, he was the sole and exclusive judge. No fraud, nor force, nor

duress, is alleged to have been used in the obtention of the deed. If such

an allegation had been made, the burden of proof would have been upon the

defendants. Nothing in the statement of facts conduces, in the slightest

degree, to manifest any such undue advantage.

From the view thus far taken of this case, it will be observed that this is

a contest for land between the heirs of the grantee of the government and

purchasers, deriving title under a deed of conveyance, with a covenant of

warranty, from the ancestor of those heirs, made in his life-time. It is

clear to the mind of the court, from the principles of law adverted to in

this opinion, that the heirs, under this state of case, are precluded from

taking and holding.

But it appears that there was only one of the heirs in the occupancy of any

portion of the land in controversy; and that heir, from the proof, held

actual possession of only a portion of the land, by metes and bounds, as her

share of the inheritance, and against whom, and those holding under her and

her husband, the suit was brought. This heir, in defense, set up the statute

of limitations of three years, having occupied such portion of the land from

the fall of 1853 till the bringing of this suit in 1857. Now, if this heir

was simply attempting to hold by heirship, she was equally estopped by the

deed of the ancestor, and was not in a condition to plead the statute. The

ancestor having disposed of his right in his life-time, and the title, when

the patent issued, having inured to the benefit of his vendee, the heir had

neither title nor color of title by a regular, or an irregular, consecutive

chain of transfer from the sovereignty of the soil. Without such title, or

color of title, the plea is unavailing. If this were a case in which the

doctrine of estoppel did not apply, there would be much force in the very

able and plausible argument of the learned counsel for the appellants, upon

the construction of the the three years' statute of limitations. But the

court is constrained to believe that this is not the character of case in

which repose was sought to be attained by that statute.

*11 Wherefore, the judgment of the court below is affirmed.

Affirmed.

Tex. 1869.

URIAH GOULD AND WIFE v. C. S. WEST, EXECUTOR, ETC.

32 Tex. 338, 1869 WL 4827 (Tex.)

END OF DOCUMENT

Tex.Civ.App. 1894.

MISSOURI PAC. RY. CO v. SIMONS et al.

Appeal from district court, Williamson County; William M. KEY, Judge.

Action by SIMONS & McCARTY against the Missouri Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Where an agency is shown to exist, it is presumed to be general, and not special.

On the question whether one holding the office of chief engineer and superintendent of construction of a railroad company had authority to agree to pay a debt of a railroad contractor, the fact that there was a course of dealing between the engineer and the contractor whereby the former paid out large sums on claims against the contractor, when approved by him, and charged the amounts to the contractor's account, is competent evidence to prove the scope of the agency. S. R. FISHER, for appellant. A. S. FISHER, John H. PARKER, and John C. SOURIES, for appellees.

STOREY, Special Judge.

Appellees brought this suit in the district court of Williamson county against W. E. SPRINGALL and the Missouri Pacific Railway Company to recover the value of certain goods, wares, and merchandise sold and delivered by appellees to SPRINGALL, the contractor for the construction of the Tayler, BASTROP &  Houston Railway, and to recover the amount of a certain time check executed by said SPRINGALL to one L. THOMAS, November 20, 1886, and by him transferred and delivered to plaintiffs. The case was tried before the court without the intervention of a jury, and judgment was rendered for appellees, who were the plaintiffs in the court below, for $1,706, interest and costs. No judgment was rendered against W. E. SPRINGALL, and he recovered his costs of plaintiffs. And from this judgment the Missouri Pacific Railway Company appealed. This judgment was based upon the findings of the court as to the facts and law of the case, which are as follows, viz.:

"Fact: (1) The account sued on is correct, and the several items therein stated were at the times stated, sold to the defendant SPRINGALL, and were worth the several sums charged therein for them. That same is due and unpaid, and plaintiffs have demanded payment of same from both defendants before bringing this suit. (2) The Taylor, BASTROP & Houston Railroad is a domestic corporation incorporated under the laws of Texas, and was such at the date of the institution of this suit, and in 1886, when the same was being constructed between Taylor and BASTROP; and it is the same road referred to in plaintiffs' petition as the "Taylor, Elgin & BASTROP  Road.' (3) Subsequent to the accrual of the account and indebtedness sued on, a contract, founded upon a valuable consideration, was entered into between defendant SPRINGALL and Major WATHEN, acting for the defendant Missouri Pacific Railway Company, in which said WATHEN agreed that said railway company would pay to plaintiffs the amount owing by defendant SPRINGALL on said account. (4) At the time of making the agreement last above referred to, said WATHEN was the chief engineer and superintendent of construction of the defendant Missouri Pacific Railway Company, and, for said company, had charge of the construction of the Taylor,  BASTROP Houston Railroad, then being constructed from Taylor to BASTROP and had authority to enter into said contract for said defendant Missouri Pacific Railway Company. (5) The consideration for the contract stated in the third finding was as follows: The Missouri Pacific Railway Company owed SPRINGALL; and WATHEN, for said company, agreed to pay plaintiffs' claim, and other claims against SPRINGALL, out of its indebtedness to him, and in a settlement with him retained more than enough money to pay plaintiffs' debt. "Law: (1) The defendant Missouri Pacific Railway Company, having agreed with defendant SPRINGALL to pay the account sued on out of money owing by said company to SPRINGALL, said agreement, though verbal, is not within the statute of frauds; and plaintiff, though not a party to the agreement, can sue thereon. (2) Plaintiff is entitled to the judgment for $1,221.70, with interest at 8 per cent. per annum from January 1, 1887, to July 13, 1891, and at 6 per cent. per annum since that date, against the defendant Missouri Pacific Railway Company, and no judgment should be rendered against SPRINGALL."

The only questions submitted for our consideration by appellant are: "(1) Did the court err in the admission of testimony touching the agency of WATHEN for the Missouri Pacific Railway Company, and his authority to bind it by contract to pay the debt of SPRINGALL to plaintiffs? and (2) does the testimony relating to said agency, if properly received, warrant and support the findings that WATHEN was the agent of the Missouri Pacific Railway Company, clothed with authority to bind it, by contract, to pay SPRINGALL's debt to plaintiffs?" And in support of appellant's position the following assignments of error are presented in its brief. All other questions are expressly waived. We quote these assignments as they occur in appellant's brief, as follows, viz.:

"The sixth assignment: The court erred in its third, fourth, and fifth findings of facts, in finding that a contract had been entered into between the Missouri Pacific Railway Company, acting through WATHEN, and SPRINGALL, because the evidence before the court did not establish the agency of Wathen for the Missouri Pacific Railway Company, its nature or scope, and the findings are without evidence to support them."

There is no conflict in the evidence, whatever. The question is as to the admissibility and sufficiency of the evidence. Gen. WALKER and Maj. McLAURIN were the original projectors of the Taylor, BASTROP  & Houston Railway, and the defendant W. E. SPRINGALL was the contractor to build the road from Taylor to BASTROP  Under this contract the railway company was to secure the right of way, and furnish the iron for the construction of the road, while the contractor, SPRINGALL, was to do everything else necessary to complete the road ready for the cars. Under this contract the road was finished up from Taylor to Elgin, or nearly so, and then, about the 16th day of July, A. D. 1886, WALKER & McLAURIN sold out all of said railroad franchises to the Missouri Pacific Railway Company, upon condition, in part, that the Missouri Pacific Railway Company would pay the contractor, SPRINGALL, for all work done and material furnished by him, etc., then estimated at $10,566.33. There was then due by SPRINGALL to subcontractors about $2,000. SPRINGALL then made a new contract with the Missouri Pacific Railway Company, in substance continuing his former contract with WALKER & Co.; that is, to construct the road to BASTROP  etc. This contract, in substance, provided, among other things, that monthly estimates were to be made of the work, price of all material furnished, and upon completion of the work the contractor was to be paid the balance due him on final settlement, after deducting all payments made on monthly estimates made by the engineer; payment to be made at the office of the railway company at Taylor. Upon the contractor rendering clear receipts to the railroad company from all subcontractors and employes on said work, and owners of material used, releasing the railroad company from all liability to said subcontractors, laborers, or owners of material used, etc. It was also provided that a per cent. of the amount due to contractors was to be held back by the company until the final settlement. Their monthly estimates were to be made under the direction of the engineer of the company. When SPRINGALL first began the construction of the road, he made arrangements with appellees and other merchants to let his subcontractors and laborers have supplies on his orders. These orders were never as much as the amounts due the payee. These accounts due the merchants were O. K.'d by SPRINGALL, and paid by the company, and charged up to the contractor, SPRINGALL. This, in substance, was the system begun and obtained during the entire time in the construction of the road from Taylor to BASTROP Maj. WATHEN was the chief engineer and superintendent of construction of this road from the time it was sold to the Missouri Pacific Railway Company, and acted as such. This fact is not left to inference, as contended by appellant, from the acts and declarations of WATHEN. In one place in SPRINGALL's testimony, he says that "Major WATHEN, the chief engineer and superintendent of construction of the Taylor & BASTROP portion of the Missouri Pacific Railway, served me with a notice saying the work was not progressing at a satisfactory rate * * * to insure its completion in accordance with the contract." This resulted in the contractor putting on more teams and laborers. In another place in his testimony, this witness says "that Major WATHEN was at the time the chief engineer and superintendent of construction of this Taylor & BASTROP branch or division of the Missouri Pacific Railway, and he represented the said company in all transactions concerning the building of the railway; that is, this Taylor, BASTROP & Houston branch." These and other statements made by this witness clearly prove that Maj. WATHEN was the chief engineer and superintendent of construction for this new branch of the Missouri Pacific Railway, and he does not cause this fact to be inferred from the acts and declarations of Maj. WATHEN, but states it as a fact. We therefore conclude that the fact that Maj. WATHEN, at that time, was the chief engineer and superintendent of construction, is an established fact, there being no evidence whatever conflicting with the statement made by SPRINGALL.

The next question, as to the extent of the authority of the chief engineer and superintendent of construction to contract and pay debts of the character of the one sued on, is a more difficult question, and, to some extent, involves the question as to whether we can look to the acts and declarations of Maj. WATHEN, to ascertain the extent of his authority.

We are aware that the general rule is that the agency cannot be proved by the acts and declarations of the agent. This is, no doubt, the general rule, and it may extend as well to the proof of the extent of his authority But these are only general rules, and we think, in some character of cases, the rule is somewhat modified; for instance, in a case like this, where the principal is an artificial individual,--a railroad corporation. It works alone through agents, and in the construction of long lines of railroads it spends millions of money. Every dollar it receives and pays out must be received and paid out by an agent. Every contract it makes, and every duty it performs, must be made and performed through some representative or agent. To determine the extent of authority conferred upon such an agent is often difficult, and in a case like this it often becomes necessary to consider the character of the business, the manner in which it is usual to carry on the work, and the manner in which it was carried on, in order to determine or ascertain the powers impliedly conferred upon the agent. Every agency "carries with it, or includes in it, as an incident, all the powers which are necessary or proper or usual as means to effectuate the purpose for which it was created; and, where an agency is once shown to exist, it is presumed to be general, and not special." "As a general rule, the fact of agency cannot be established by proof of the acts of the pretended agent, in absence of evidence tending to show the principal's knowledge of such acts, or assent to them. Yet when the acts are of such a character, and so continued, as to justify a reasonable inference that the principal heard of them, and would not have permitted the same, if unauthorized, the acts themselves are competent evidence of agency," and, we think, are also evidence of the extent of the agent's authority in the creating and paying of debts for the construction of this road. In the case at bar this agent paid out many thousands of dollars on similar accounts, O. K.'d by SPRINGALL; and in those cases, as in this, he retained the amounts out of the money due the contractor, SPRINGALL. And, after the work was completed, upon settlement with SPRINGALL, this agent paid SPRINGALL $8,000, after deducting the amounts of the claim here sued on, which had been O. K.'d by SPRINGALL, and presented to WATHEN for payment. He knew its existence, recognized its validity, deducted it from the amount due the contractor, and agreed that it should be paid. From this manner of conducting the business, and the fact that WATHEN, the chief engineer and superintendent of construction, in the discharge of these duties, ascertained the amount of money due by the railway company, to whom due, and, when ascertained, paid the same,--amounting, as we have said, to many thousands of dollars,--the violent presumption will not be indulged that he was paying this money out of any but the funds of the railway company. On the contrary, these acts of the agent were such "as to justify a reasonable inference that the principal heard of them, and would not have permitted the same, if unauthorized."

Upon the question of agency, and the extent of the agent's authority, the appellant offered no evidence whatever, but rested the case upon the idea that appellees had failed to prove that Maj. WATHEN was its agent clothed with authority to contract for the payment of the debts sued on; and appellant contends that in this case the agency was proved alone by the acts and declarations of the agent himself. But such is not the case. Nowhere in the record do we find a statement made by WATHEN that he is the  agent, nor any statement made by him as to the extent of his authority to create and pay debts for appellant. The proof is positive and uncontradicted that he was the chief engineer and general superintendent of construction for this branch of the Missouri Pacific Railway. No other agent seems to have been upon the ground, or exercised any authority whatever in the construction of this road for appellant; and the authority exercised by him, as detailed by the witness, seems to us to have been entirely within the scope of the authority that must necessarily be delegated to a general superintendent of construction of such a work, and, in the absence of proof to the contrary, we must so hold.

In addition to what we have herein stated as to our conclusions  as to the facts and law of this case, we adopt the conclusions of the trial court, as set out in the first part of this opinion. We find no error in the judgment of the court below, and it is affirmed.

FISHER, C. J., disqualified, and did not sit in this case. KEY, J., did not sit in this case.

Supreme Court of Texas.

JOHN HYDE

v.

THE STATE.

1856.

*1 There is no doubt that, since D'EON's case, it has been the settled

common law practice (in applications for continuances in criminal cases) to

receive counter affidavits to show want of diligence and the absence of any

reasonable expectation that the proposed testimony can be obtained at all,

or at the time to which it is proposed to postpone the trial.

But affidavits to contradict the general oath of materiality seem not to

have been often received.

In the administration of the criminal law, the common law, where not

modified by the constitution or statutes, has been held to furnish the rule

of decision, as well in matters of practice as principle.

To entitle a party to the postponement of the trial on account of the

absence of witnesses, according to the common law, the rule being the same

in civil and criminal cases, three things are necessary:

1st. To satisfy the court that the persons are material witnesses.

2d. To show that the party applying has been guilty of no laches nor

neglect.

3d. To satisfy the court that there is reasonable expectation of his being

able to procure their attendance at the future time to which he prays the

trial to be put off.

And the practice is not materially altered by our statute.

It is not a sufficient answer to an application for a continuance on account

of the absence of the witness, which states what the defendant expects to

prove, in a criminal case, to offer to admit that the witness, if present,

would testify to the facts stated.

Merely causing a witness to be subpoenaed in due time is not all the

diligence which is required of the defendant in a criminal case; if the

witness fails to attend, an attachment should be obtained as soon as his

absence is discovered, or would be discovered by proper diligence, which

would ordinarily be on the first day of the term.

If, upon trial, there had appeared to be cause to apprehend that a

continuance was improperly refused, a new trial must have been granted. But

if, on the contrary, it very satisfactorily appears that the application for

a continuance could not have been well founded in fact, it must afford an

additional reason for refusing a new trial and for refusing to reverse the

judgment on the ground that the continuance was refused.

It is good challenge to a juror for cause on the part of the state in a

capital case, that he has conscientious scruples against finding a prisoner

guilty where the punishment is death.

Appeal from HARRIS. Tried before the Hon. Peter W. GRAY.

Indictment presented June 14, 1855, for murder of Charles BUTLER. Returned,

defendant arrested same day. Tried at fall term, 1855, and convicted. There

was a bill of exceptions to the ruling of the court on an application for a

continuance, as follows: Be it remembered, etc., the defendant moved the

court to grant him a second continuance, and in support thereof his

affidavit marked A: That he cannot go safely to trial at this term for the

want of testimony material to the case, and that he has used due diligence

to procure the same by causing subpoenas to be issued for Milly HYDE, Newton

HYDE and Jasper HYDE, and by sending word to Elizabeth Ann FOGLE and Hiram

FOGLE, of the state of Arkansas, to come here as witnesses; that one of said

FOGLES, to wit: Hiram, is dead, and that a subpoena has been served upon

Milly HYDE, who resides in the county of Travis, and that he has been

informed and believes that the said Newton and Jasper HYDE have also been

subpoenaed; yet, he says, there is no return of its execution, as yet, among

the papers of this case; and defendant further says that he expects to prove

by each of said witnesses that he did not kill the said BUTLER, but that it

was his brother, Benjamin HYDE, who killed him. Defendant says that he used

all the diligence in his power to be used, to procure the attendance of said

witnesses, by causing said writs of subpoena to be issued for those living

in this state; that the said Milly HYDE resides in the county of Travis, and

that the said Newton and Jasper HYDE did also, and now do, unless they have

very recently removed; that they are absent without this defendant's

procurement or consent, and to his great peril; that he cannot further state

the cause of their absence, being ignorant thereof; that he knows of no

other person by whom he can prove the same facts; that he expects to be able

to procure their attendance by the next term of this court; that the said E.

A. FOGLE, according to the best of defendant's information and belief, is

now on his way to attend this trial, and the only reason that this defendant

can conjecture, concerning the absence of said witness, is a temporary want

of money to defray the traveling expenses; and defendant further says, that

although he is and has been since his confinement here without money, yet he

has availed himself of all the exertions known to him to prepare this cause

for trial at this term of the court; and that this continuance is not sought

for delay, but that justice may be done; that said subpoenas were caused to

be issued by him through his counsel; and he refers to the papers in this

case, and also to his former affidavit for reference, and makes the same a

part of this affidavit; and defendant further asks that an attachment may be

issued for the said Milly HYDE, to enforce her attendance, and also that of

the other witnesses. Defendant says that the subpoenas for the said Milly

HYDE, Newton and Jasper HYDE were issued on the 30th of October, 1855, as

will appear by the record, and that double sets of the same were issued for

said witnesses; that said subpoenas were issued to the sheriff of Travis

county, where the said Milly resides, and where also the said Jasper and

Newton resided, as defendant had no doubt. Sworn to December 19, 1855.

*2 The affidavit for a continuance of the previous term was on account of

the absence of Newton and Jasper HYDE, for whom, it was stated, subpoenas

had been issued to BASTROP county, where, it was stated, said witnesses

resided; and also on account of the absence of Milly HYDE, who, it was

stated, resided in Austin county, whither, it was stated, a subpoena had

been sent for her. Said affidavit stated that defendant expected to prove by

each of said witnesses, "that they were present at the time that BUTLER, for

whose murder defendant stands charged, was killed, and that said BUTLER was

not killed by this defendant, nor was he fired upon by this defendant, but

that said BUTLER was killed by one Benjamin HYDE, who was the brother of

this defendant, and while the said BUTLER and defendant's said brother were

in a very angry quarrel, and at a moment when the said BUTLER had his

hatchet raised within striking distance to have killed deponent's said

brother, and with that intent," etc., etc.

The subpoena for Milly HYDE was returned by the sheriff of Travis county,

served on the 26th of September.

Whereupon the state, by her attorney, proposed a counter affidavit of one

Joseph J. YOUNG; and also to admit that Milly HYDE, the only witness

subpoenaed by defendant, would, if present, testify the facts set forth in

defendant's affidavit, to the hearing or receiving of which counter

affidavit the defendant, by counsel, objected, which objection was

overruled, and the affidavit heard as follows: That he has ridden over

BASTROP and Travis counties in this state, and made diligent inquiry and

search for Jasper HYDE and Newton HYDE, the witnesses named in the affidavit

of the defendant for a continuance of the above stated case, and could find

no such person in either of the said counties; two lads or boys, bearing

such names, were formerly in said counties, but are not there now. Affiant

was informed by the step-mother of said boys or lads, that she was told a

man came where they were residing and removed them to parts unknown; and by

diligent inquiry of said step-mother and the neighbors around where the said

boys formerly resided, affiant was unable to gain any intelligence as to

their whereabouts, the step-mother and neighbors all declaring that they had

no knowledge of their present whereabouts. Affiant further declares that it

is the opinion of the neighbors around where said boys formerly resided, as

well as of their step-mother, that they have been removed to the state of

Arkansas, beyond the jurisdiction of the courts of Texas, where their mother

resides. Affiant further avers that said lads or boys are the reputed

children of Ben HYDE, a brother of defendant, and that their reputed

step-mother is Milly HYDE, the other witness named in his affidavit for a

continuance. Affiant further states that he saw Milly HYDE on the 8th day of

the present month, and endeavored to procure her attendance here at the

trial of this defendant during the present term, but she refused to come to

court, alleging as a reason for such refusal, that all she knew about the

charge was against the defendant, and she feared if she testified and he

should be acquitted, he, the defendant, would afterwards take her life for

so doing.

*3 To which defendant, by counsel, excepted; and after consideration of the

affidavits of defendant, and the record in this case, and the said counter

affidavit, and all the circumstances of the case, the court not being

satisfied that the facts alleged by the defendant were true, and it not

appearing that due diligence had been used to procure the attendance of

witnesses, nor that there was a reasonable ground to expect their attendance

at another term; and considering the admission of the facts to be proved by

Milly HYDE as aforesaid, overruled the motion for a continuance and ordered

the trial to proceed; to which ruling the defendant, by counsel, excepted,

etc.

The term of court had commenced on the 10th of December, and no application

for an attachment for Milly HYDE had been made. The case was called for

trial on the 19th. The counsel of defendant had been appointed at the

previous term of the court, except Mr. HENDERSON, who was appointed on the

15th of December.

There was a bill of exceptions also, to the allowance of challenge for cause

to five of the jurors summoned on the special venire, on the ground that in

answer to questions on their voir dire, they stated they had conscientious

scruples against finding a verdict of guilty where the punishment was death.

It appeared from the testimony of three persons who were present, that while

the defendant's brother, Ben HYDE, was cursing BUTLER for putting up his own

fence (it being convenient for the HYDES to come from the woods over part of

BUTLER's lot with their wagon), and just as Ben HYDE had turned to walk

away, being ten paces distant from BUTLER, the defendant walked from the

house, a distance of fifty yards or more, to within a few steps of BUTLER,

and shot him, from which he died about an hour afterwards. This was in 1853.

It appeared from the evidence that Ben HYDE had been killed since the

killing of BUTLER. It was also in evidence that the defendant, being

arrested in Arkansas on a charge of killing Levi YOUNG, in Bastrop county,

declared of his own accord that he had killed BUTLER, but that he was

innocent of the charge of killing YOUNG. It also appeared from the evidence

that the defendant had been a fugitive from justice since the killing of

BUTLER.

To authorize a continuance for absence of a material witness, it must appear

that there is at least reasonable ground to believe that his attendance can

be had at the next term.

A continuance in a criminal case because of the absence of witnesses is

properly denied, where their testimony is inadmissible or immaterial.

The failure to obtain the testimony of an absent witness, however material,

does not require the continuance of a cause unless the applicant has used

due diligence to procure the attendance or obtain the testimony of the

witness.

If a defendant in a criminal case applies for a continuance on the ground of

the absence of a witness, and states what he expects to prove by him, it is

not a sufficient answer for the attorney for the state to admit that if the

witness was present he would so testify.

It is the settled common-law practice, in cases of applications for

continuance in criminal cases, to receive counter affidavits to destroy the

force of the common affidavit.

It is a good cause of challenge by the state that a juror declares, on his

voir dire, that he has conscientious scruples against finding any person

guilty of a crime punishable with death.

J. W. HENDERSON, for appellant.

*4 I. The counter affidavit ought not to have been received. In criminal

cases the accused has a right to be confronted with the witnesses against

him. He had no opportunity to cross-examine the witness who made the counter

affidavit. (CLOUD v. SMITH; Bill of Rights) The only adjudicated cases in which a counter affidavit has been allowed in a criminal case are SMITH's case and D'EON's

case; but in those cases the party had made no effort to

procure the attendance of the witnesses, and there was no reasonable

expectation that they could be obtained, the witnesses not being within the

jurisdiction of the court. (See CALLEN v. KEARNEY)

II. When a subpoena has been served and disobeyed the trial will be put off

until an attachment is issued and time given for its execution and return.

(The People v. BUSH; The People v. BRIGHAM)

III. The statute prescribes what shall be sufficient on a first and second

application for a continuance. In PREWITT v. EVERETT this

court decided that if the affidavit contains the requirements of the

statute, the court has no discretion, but the continuance must be allowed.

IV. The defendant could not know that Milly HYDE, who had been subpoenaed,

would not be in attendance until the trial, and until then she could have no

attachment. And he was entitled, under the bill of rights, to compulsory

process to enforce her attendance.

C. B. SABIN, also for appellant. The admission that if Milly HYDE was

present as a witness she would testify as follows, was

not an unqualified admission of the facts, and it was the prisoner's right

to have the personal attendance of the witness before the jury. The manner

and mode in which the witness gave her testimony was a right the prisoner

had by the law to have her appear before the jury. (LORRAT v. COLEAR; The People v. VERMILYEA)

The court erred in sustaining the peremptory challenge of the jurors for

conscientious scruples. There is no statute allowing it.

Attorney General, for appellee. The affidavit of YOUNG was properly

received. (PAYNE v. OGDEN; People v. VERMILYEA) And

the admission by the state of all that defendant claimed for Milly HYDE's

testimony certainly left the application in question without any ground to

stand upon. The propriety of forcing a party to accept such an admission, I

know, was more than questioned by two of the judges in the case of People v.

VERMILYEA et al., before cited, but it was admitted and sustained by

argument and authority by another judge (SUTHERLAND) in the same case. When

attended, as in this case, by other circumstances of suspicion, that the

application was made for delay, a delay of the trial of this defendant,

which had already been extended for three years, and entirely by his fault

in fleeing and staying away from the country for nearly that length of time

before he could be called upon for trial at all, and when at last he was

brought to justice, it was by no volition of his, but because he happened to

be brought back upon a charge for another offense. When thus at last brought

to the bar of justice to answer upon this charge, he asked and obtained a

postponement of the trial for six months to enable him to procure the

testimony of his sister-in-law and two nephews, living, as he swears, but

three or four days' ride from the place of trial. At the end of six months'

delay his witnesses are still absent. Nor two or three of the most material

of the witnesses for the state appear to reside as far from the place of

trial as he swears his do, and if he is to be indulged in the continuance

claimed under the circumstances here presented, when will it happen that

both parties will be ready for trial? It may be answered that the defendant

will be ready for trial when he has worn out, or finds absent, the witnesses

of the state which holds the affirmative, or the case would be ended when he

has obtained time enough to find a chance of escaping from prison.

WHEELER, J.

*5 The rules governing applications for the continuance of causes, are, in

general, the same both in civil and in criminal cases. (REX v. D'EON; State v. LEWIS; The People v. VERMILYEA) The statutory provisions on the subject do not seem to be materially variant. (Hart. Dig. art. 815; Laws 5th Legis.)

"The rule" (said SUTHERLAND, J., in The People v. VERMILYEA) "is

substantially the same in civil and criminal cases, though in the latter,

the authorities all agree that the matter is to be scanned more closely, on

account of the superior temptation to delay and escape the sentence of the

law." "In cases where the common affidavit applies, the court has no

discretion. The postponement is a matter of right, resting on what has

become a principle of the common law. But where there has been laches, or

there is reason to suspect that the object is delay, the judge at the

circuit may then take into consideration all the circumstances, and grant or

delay the application at his pleasure. Where the subject takes this turn,

the application ceases to be a matter of right, and rests in discretion."

This doctrine seems to be borne out by the authorities. (2 Cow. & Hill's

Notes to Phil. Ev. note 353.) What was said by the learned judge of the

common affidavit applies to the affidavit prescribed by the statute. Where

the want of proper diligence cannot be imputed, and there is no cause to

suspect that the application is for delay, if the affidavit conforms to the

statute, the continuance is a matter of right, and its refusal will be

error. But it is otherwise where it appears that the affidavit is not true

in fact, or there is reason to believe that the object of the application is

delay. (See late cases at Tyler and at this term.) It is the well settled

rule of practice of the common law, that counter affidavits will be received

to destroy the force of the common affidavit. In the leading case of REX v.

D'EON, the issue was on an information for a libel; and in reply to the common affidavit of the absence of witnesses in France, the prosecutor showed by counter affidavits, that the libel was printed in the spring of 1764, several months before which the witnesses named had departed to France, where they resided. The court held that there could be no use in putting off the trial; that on the whole,

comparing the libel and affidavits, the witnesses could not be material. The

defendant had made no effort to procure their attendance, and there was no

reasonable expectation that they could be obtained thereafter. The court

considered either cause sufficient against the rule to postpone the trial.

These causes, neglect and improbability of obtaining the attendance of the

witnesses, have been recognized as the subject of counter affidavits in

subsequent cases. But affidavits to contradict the general oath of

materiality seem not to have been often received. (2 Cow. & H. Notes and cases cited.) There is no doubt that, since D'EON's case, it has

been the settled common law practice to receive counter affidavits to show

want of diligence, and improbability of any reasonable expectation that the

proposed testimony can be obtained at all, or at the time to which it is

proposed to postpone the trial. Such too is the practice in some, probably

most, of the courts of this country. (SMITH's case; The People v. BRIGHAM; The Territory v. NUGENT) In criminal cases, especially, we look to

the common law for the rule of practice, in the absence of statutes. Our

departure from the common law system of pleadings, and blending of cases of

legal and equitable cognizance, has caused a corresponding departure from

the common law practice in civil cases. Not so in criminal. In the

administration of the criminal law, the common law, where not modified by

the constitution or statutes, has been held to furnish the rule of decision,

as well in matters of practice as principle. There we find ample authority

for the practice of receiving counter affidavits in cases like the present.

There was, therefore, no error in receiving the counter affidavit. The

weight to be attached to it, or its credibility, was for the decision of the

judge below. Unless there were reason to believe that he had attached an

undue weight to it, his having entertained it cannot be deemed erroneous.

*6 The question then is, whether, upon the affidavits, the defendant was

entitled to a continuance. We cannot say that he was. In the case of REX v.

D'EON, before cited, the principles upon which the courts are to act in

postponing the trial of the cause, on account of the absence of witnesses,

are clearly laid down, and have since been received as the settled law in

the English and American courts. To entitle the party to a postponement of

the trial three things are necessary: "1st. To satisfy the court that the

persons are material witnesses. 2d. To show that the party applying has been

guilty of no laches nor neglect. 3d. To satisfy the court that there is

reasonable expectation of his being able to procure their attendance at the

future time to which he prays the trial to be put off."  This was a second application for a continuance, for the same cause as the first. Instead of being more explicit, and showing what were the facts of the case, and what means of information his witnesses possessed, as might have been expected if the defendant really believed the witnesses were material to his defense, and that their testimony would be favorable to him, and as has been generrally held to be necessary after the trial has been postponed at the instance of the defendant once or oftener the affidavit is less full and circumstantial than the first, stating only in general terms "that he did not kill the said BUTLER, but that it was his brother, Benjamin HYDE, who killed him." It must be admitted that this is not a very satisfactory statement of the particular facts

proposed to be proved by the witnesses. It is silent as to their means of

information and the occasion and circumstances of the homicide, and

certainly does not contain what the statute seems to contemplate, or what

has generally been required in such cases.  When the subject of the proof and the relations of the parties are considered, it cannot be denied that there was reason to suspect that the object was delay. Where that is the case, all the authorities hold that the application ceases to be a matter of right, but the judge is to take

into consideration all the circumstances and grant or deny the application

as the truth and justice of the case may seem to require. (REX v. D'EON) Many cases might be cited where a postponement has been held

rightly refused on this ground, where the affidavit was quite as full, and

more full and satisfactory than the present. (MOORE's case; BLEDSOE v. The Commonwealth; BELLEW v. The State; KNIGHTt v. The State; Wharton's Am. Cr. L., Motion for Continuance.) Where there is cause to suspect that the object is delay, it is then proper to receive counter affidavits; and looking to the counter

affidavit in this case, we think the court was well warranted in not giving

credit to the affidavit of the defendant. As respects the witnesses who were

beyond the limits of the state, the observations of BREVARD, J., in The

State v. FYLES, may be quoted as applicable to this case. "My

opinion (he said) is, that this motion ought to be rejected. On the

argument, the only ground insisted on was the refusal of the court of

general sessions, for Newberry district, to postpone the trial on affidavits

which stated the absence of material witnesses for the prisoner, who were

beyond the limits of this state. If trials for capital offenses should be

postponed on affidavits of this sort, very few cases would ever be tried at

all, and none at the first court after the arrest of the offender, unless he

should be willing. Affidavits of this kind ought very sparingly to be

admitted. For, in circuit trials, the prisoners from the time of their

commitment may, and ought, to be preparing for their defense. The place

where they ought to be tried is, in most cases, well known, and they have

likewise a reasonable certainty of the time long before the circuit

commences. If the prisoner has had no time or opportunity to prepare for his

defense this will be a good ground for a postponement. It must be admitted

that no crime is so great, no proceeding so instantaneous, but that upon

sufficient grounds the trial may be put off; but three things are necessary:

1. That the witness is really material, and appears to the court so to be.

2. That the party who appears has been guilty of no neglect. 3. That the

witness can be had at the time to which the trial is deferred. (The King v.

D'EON) The witnesses are said to be in Tennessee. No compulsory

process can issue to obtain their testimony. The presumption is that they

would not attend at another court, or they would have attended at the trial

where the life of the defendant is in jeopardy." Similar reasons would apply

to prevent a postponement on account of the witness said to reside in the

state, but who could not be found. The only witness on account of whose

absence there may be cause to doubt whether the defendant was entitled to a

continuance was Milly HYDE, who had been served with a subpoena. She, it

seems, was the widow of the defendant's brother, by whom he expects to prove

that her deceased husband was the guilty party. To say nothing of the

reasonableness of such an expectation, considering the counter affidavit, it

is impossible to say that the court ought to have been satisfied either that

the witness was really material to the defendant, or that he could derive

any benefit from her testimony at any future time to which the trial might

be postponed.

*7 But it is insisted that the court erred in receiving the admissions of

the state's attorney, that the witness, Milly HYDE, would testify as stated

by the defendant. If the application for a continuance were otherwise

sufficient, and it satisfactorily appeared that the defendant was entitled

to a postponement of the trial to obtain her testimony, I should be of

opinion that the admission as to what she would testify would not be a

sufficient ground for refusing the motion. Upon this point, as to whether

any and what admissions will be received as an answer to the motion, there

have been various and conflicting decisions. (The People v. VERMILYEA; Whart. Am. Cr. L.) I do not think such admissions ought to be received as a full and fair substitute for the oral testimony of the witness. Nor does it appear that the court so regarded the admissions in this case. The continuance does not appear to have been refused on that ground. On the contrary, it was placed by the judge on a

quite different ground; that is, that he was not "satisfied that the facts

alleged by the defendant were true." In the case of The People v. VERMILYEA,

the majority of the court, holding that the admissions were improperly

received as an answer to the motion, went on the ground that the application

was otherwise sufficient, and was so pronounced by the judge; and that a

continuance must and would have been granted but for the admissions. So in the case of GOODMAN v. The State.

The court in that case declared themselves of opinion that "the affidavit

did contain sufficient grounds for the continuance of the cause." They said,

moreover, if the circuit court had refused to continue the cause upon the

ground of the insufficiency of the affidavit, they would have hesitated long

before they would, for that reason, have reversed the judgment,

notwithstanding their opinion of the sufficiency of the affidavit. "But

(they say) the record manifests that the circuit court thought as we do,

that the affidavit was sufficient, and refused to continue the cause,

because the attorney general offered to admit, not that the facts stated in

the affidavit were true, but that the witnesses there mentioned would, if

present, testify as stated by the defendant." This, they held, was not

equivalent to the testimony of the witnesses, and therefore not a sufficient

answer to the motion.

The case here was very different. The court deemed the application

insufficient; and on that ground, we think, rightly refused the motion. The

judge mentions more grounds than one which would have been sufficient to

warrant the refusal of the motion; as the want of diligence, or any

reasonable ground to expect the attendance of the witnesses at another term

of the court. But as it is evident the main ground on which the court acted

was the want of verity in the affidavit, and the belief that the application

was for delay, and as we think this ground well founded and sufficient, it

is unnecessary to examine the question of diligence.

*8 It is evident the continuance must have been refused for the other causes

stated by the judge. They, at least, were sufficient to warrant its refusal;

and the fact of receiving and considering the admissions can have done the

accused no injury, and can be no reason for reversing the judgment.

We conclude, upon that single question, and not looking beyond the

application, that the court did not err in refusing a continuance. But in

considering the case upon appeal, where the motion for a new trial brings

before us a statement of the evidence upon the trial, we do not feel bound

to shut our eyes wholly to the facts of the case, in considering whether the

judgment ought to be reversed for the refusal of the court to grant a

continuance. If, upon the trial, there had appeared to be cause to apprehend

that a continuance was improperly refused, a new trial must have been

granted. But if, on the contrary, it very satisfactorily appears that the

application for a continuance could not have been well founded in fact, it

must afford an additional reason for refusing a new trial, or to reverse the

judgment on that ground. We may suppose a case where a sufficient

application for a continuance, on account of the absence of a material

witness, has been improperly overruled. Yet, if it should turn out that,

during the progress of the trial, the witness made his appearance and the

defendant obtained the benefit of his testimony, it cannot be supposed that

the court, upon the motion for a new trial, would not be at liberty to look

beyond the affidavit; or that this court, upon appeal, must shut our eyes to

the fact that the defendant has had the benefit of the testimony of his

witness, and can have sustained no injury by the refusal of his motion for a

continuance. Surely, in such a case, this court would not be required to

reverse the judgment on that ground. Though we have considered the

application for a continuance on its own merits, in the abstract, in order

to be certain that no injustice has been done the defendant in refusing his

motion, we have thought proper to look into the evidence embodied in the

record; and we there find additional cause to be satisfied that the motion

was not improperly refused. We forbear comment upon the evidence. It may

suffice to say that several witnesses, who were eye witnesses of the

homicide, had ample means and opportunity of seeing and observing all that

passed, and could not be mistaken as to the author of it, testified

positively to the fact, with such circumstantial particularity, and just

such diversity as to immaterial matters, which were not likely to make a

strong, permanent impression, as to show that there was no collusion; and

such perfect unanimity as to the material facts, which were calculated to

make a strong, a biding impression upon the memory, as to show that they

were not and could not be mistaken. It thus appears that there were other

witnesses than those named in the affidavit by whom all the facts and

circumstances attending the fatal scene could be abundantly proved; that the

witnesses whose testimony was sought could not, if present, have testified

to the truth of the fact proposed to be proved by them; and that the

affidavit for a continuance, therefore, was not entitled to credit.

*9 We have thus looked into the evidence upon the motion for a new trial,

which necessarily brings it under review; and we advert to it, not as a

ground for affirming the judgment of the court refusing a continuance, but

as placing it beyond doubt that no injustice can have been done the

defendant by refusing his motion, which was rightly refused, on the ground

of its want of legal sufficiency.

The only remaining ground on which a reversal is asked is the ruling of the

court in excusing persons from serving as jurors whose conscientious

scruples in relation to capital punishment were held a sufficient cause for

standing them aside on the motion of the district attorney. This question

was sufficiently examined in the case of WHITE v. The State, at the present

term, where it was held that excluding such persons from the jury was not

error.

We are of opinion that there was no error in the judgment, and that it be

affirmed.

Judgment affirmed.

Supreme Court of Texas.

MAYS AND ANOTHER

v.

MOORE AND OTHERS.

1854.

Unless the supreme court is fully satisfied from the evidence that the trial

court erred in the exercise of its discretion in admitting parol proof of

the existence of a lost or destroyed record, it will not interfere.

Where a witness testified that he had seen a certain order on the records of

the probate court, and that the records were carelessly kept, and he

believed the record of said order had been destroyed, and the clerk

testified that the records were carelessly kept, and some of them mutilated,

but that they were not mutilated for the time when said order should have

been recorded, the evidence of the destruction of the records was not made

out, and oral evidence that such order had been made of record was not

admissible.

The discretion of a court in allowing parol proof of the existence of a lost

or destroyed record must rest upon a reasonable conclusion drawn from all

the evidence on the matter.

It is a matter within the discretion of the court to determine whether a

proper basis has been laid by proving the loss or destruction of a record to

let in parol proof that the record once existed.

*1 Appeal from BASTROP.

HAMILTON & WALTON, for appellants. It is believed that the second assignment

is well taken.

That the appellants had the right to introduce testimony proving the former

existence and contents of the records or papers, and their loss or

destruction, of the County Court of BASTROP county, see 3 Phil. Ev., 1067,

note 723, with authorities cited; 1 Greenl. Ev., 581, with authorities

cited.

A sufficient basis was laid by appellants for the introduction of the

secondary evidence offered. The Court will not hold appellants to the

strictest proof in laying proper foundation for the introduction of such

evidence, because Courts show great liberality where no suspicion hangs over

the party seeking to establish the contents of lost papers or records. It is

not intimated that appellants are chargeable with the loss of the records

and papers.

We have in the testimony positive evidence of the former existence of the

records and papers upon which the validity of appellants' title depends. We

have the further evidence that those records and papers do not exist or

cannot be found in their proper place of deposit. This is, then, certainly

sufficient to admit the secondary evidence to the jury sought to be

introduced as establishing the contents of the records and papers, &c.

The Probate Court is not strictly a Court of record. It is, therefore,

contended that any paper on file in such Court would be as good evidence of

the action of the Court as a record made of these papers would be.

It is contended that all the papers as they are on file are, in fact, the

record of the Court. This position has been sustained by one or more of the

District Judges. We know not with what favor it will meet in this Court. If,

then, the Court papers are in fact the record, proof of the loss of such

papers will admit parol evidence as to their contents, although they had

never been recorded in a bound book, &c. This seems to be a rule which may

well be adopted where so great a necessity exists for it as in our State, in

view of the careless and negligent manner in which our records and Court

papers were kept years since.

Should a different rule than this obtain it would be the source of

interminable litigation. But we are not forced to rely upon this rule,

because the testimony of James SMITH is positive and emphatic as to the

former existence of such orders and papers. William DUNBAR's testimony is

equally positive as to the non-existence of such orders and papers in their

proper deposit.

There is no positive rule as to the amount and character of evidence to be

introduced as a sufficient basis for the introduction of parol testimony

proving the contents of lost papers or records, but each case must stand

upon the circumstances surrounding it, &c.

POAGE and MARSHALL, for appellees.

LIPSCOMB, J.

This suit was brought by the heirs of GARRETSON to recover from the

defendants one-third of a league of land. The defendants set up in defense a

purchase from one SMITH, the administrator of GARRETSON. The first evidence

offered by them is a covenant as follows, i. e.:

*2 "Know all men by these presents that I, James SMITH, administrator of

Jas. GARRETSON, deceased, by virtue of an order of the Probate Court in and

for the county aforesaid, (BASTROP) did expose the within claim at public

sale in the town of Bastrop, on the 28th May, 1838, to the highest bidder,

on a credit of six months, and Thomas H. MAYS being the highest and best

bidder, at the sum of four hundred and fifty dollars, and it was struck down

to him at that sum, for which I bind myself, my assigns, and the heirs and

assigns of Thomas GARRETSON, so far as the ability in me exists as

administrator, to make a good and sufficient title to the said land, if the

said bidder should not receive the patent in his own name, so soon as title

is obtained for the same. Given under my hand in the town of BASTROP this

28th May, 1838.

JAMES SMITH. [L. S.]"

The defendant offered to prove by oral testimony that there had been an

order of sale, that the return of the sale had been made to the Court, and

that the same had been approved by the said Court; which evidence was

rejected by the Court, and there was a verdict and judgment for the

plaintiffs; a motion for a new trial made and overruled, from which the

defendants appealed.

The first assignment of error, that the Court compelled the defendants to

read the whole transcript in evidence of all the matters and things of

record in relation to the succession of the said Thomas GARRETSON, when they

only offered to read two pages of the same, is not supported by the record.

It appears that the whole transcript was read by the defendants without any

ruling of the Court that it should be done, or offer on their part to read

only a part of it.

The second one is, that the Court erred in rejecting the evidence offered to

prove that the order for sale had been made by the Probate Court, the return

of the sale by the administrator, and the approval and confirmation thereof

by the Probate Court. It appears from the record that SMITH, the

administrator, was called by the defendants. He testified that he had sold

the certificate under an order of the Probate Court, and returned to the

Court an account thereof, which was approved and confirmed by the Court;

that he had looked for the order of the Court for the sale and for the

confirmation, and could not find them on the records, though he had seen

them there; that the records have been carelessly kept and much mutilated,

and he believes that the record has been destroyed. DUNBAR, the keeper of

the records and Clerk of the Court, swears that the order and confirmation

cannot be found of record, and confirms the evidence of SMITH, that they had

been carelessly kept and some of them mutilated; but he swears "that he had

examined the minute-book of the Court for 1837 and 1838; that he could find

no mutilation in said minutebook between the period of granting letters of

administration upon the estate of Thomas GARRETSON and the date of transfer

by James SMITH, administrator of said GARRETSON, indorsed on the certificate

aforesaid, and that there was a continuation in said book from page to page

connecting the orders." The minute- book was inspected by the Court, and it

was ruled that the evidence of the destruction of the records was not made

out, and the Court rejected the oral evidence that such orders had been of

record.

*3 It is always a question addressed to the discretion of the Court to

determine whether the basis has been laid by proving the loss or destruction

of a record, to let in proof that such record once did exist. This

discretion is not an arbitrary, capricious discretion, but must be a

reasonable conclusion from the evidence. But unless we were fully satisfied

from the evidence that the Court below erred in the exercise of its

discretion, we would not be authorized to reverse its decision. Parol

evidence to supply record testimony should be received with great caution.

In such cases the temptation to fraud and perjury would be very great, and

the difficulty, if not the impossibility, of a conviction for perjury, and

of rebutting such evidence, would be an encouragement to an unscrupulous

witness. It is a rule of law that affirmative evidence is entitled to more

weight than negative. So one witness might swear to the contents of a

record, and two swear they had never seen such record; the affirmative

witness would prevail against the two negative witnesses, and it would be

almost an impossibility to convict that witness of perjury, if it had been a

perjury, fabricated and perpetrated for the particular occasion. Hence the

necessity that the most satisfactory evidence of the destruction of the

record should be required before parol evidence can be admitted to supply

the contents of the record. The evidence of such mutilation and loss was

rebutted by the evidence of DUNBAR, the Clerk of the Court, and the

inspection of the book itself, that should have contained such record, if it

had existed. We believe that the Judge did not err in his decision rejecting

the evidence offered.

The record presents nothing else for our consideration, and the judgment is

affirmed.

Judgment affirmed.

Supreme Court of Texas.

THE STATE

v.

MATHIAS LINDENBURG.

1854.

An averment that the defendant "well knew" the reverse of the facts to which

he testified, instead of averring the negative of the oath, is sufficient.

*1 Appeal from BASTROP. The defendant was indicted at the Fall term, 1854,

of the District court of BASTROP county, for committing perjury upon the

trial, at the Fall term, 1853, of the same Court, of one Chancy JOHNSON for

gaming. The defendant moved to quash the indictment on various grounds. His

motion was sustained, and the State appealed. That part of the indictment

which averred the materiality of the statement and its falsity was as

follows: "And the grand jurors aforesaid, on their oaths aforesaid, further

present, upon the trial of the said issue so joined between the said State

of Texas and the the said defendant, Chancy JOHNSON, upon the said

indictment, it then and there became and was a material question whether the

said table which the indictment aforesaid charged the said Chancy JOHNSON

with betting at was called Bagatelle, and was a table exhibited for gaming,

and whether money had been bet upon a game played on said table, as was

alleged in said indictment against the said Chancy JOHNSON; and the grand

jurors aforesaid, upon their oaths aforesaid, do further present that the

said Mathias LINDENBURG, so sworn as aforesaid, not having the fear of God

before his eyes, nor regarding the law, being moved and seduced by the

instigation of the devil, and contriving and intending to pervert the due

course of law and justice, and unjustly to aggrieve the State of Texas and

the public in the said issue, and to deprive the said State of Texas and the

public of the benefit of the said indictment, then and there, on the trial

of said issue, upon his oath aforesaid, falsely, corruptly, knowingly,

wilfully, and maliciously, before the said jurors, sworn as aforesaid, and

before Robert J. TOWNS, Judge as aforesaid, did depose and swear, (amongst

other things,) in substance, in the effect following--that is to say, that

he, the said Mathias LINDENBURG, never saw any money bet upon any game

played upon said table as kept in his, said LINDENBURG's, house; that said

table was not a table exhibited for the purpose of allowing persons to bet

upon it as charged in the indictment against the said JOHNSON as aforesaid;

when in truth and in fact the said Mathias LINDENBURG, at the time he took

the said oath on the trial of said indictment of the State of Texas against

the said Chancy JOHNSON, and at the time he deposed on the trial thereof,

well knew all the facts constituting the charge in said indictment, and that

he then and there well knew that he had seen persons betting money upon a

game played upon said table, and that said table was exhibited for the

purpose of allowing persons to game and bet upon it, and that he had heard

the game called Bagatelle, and had himself so called it."

Attorney General, for appellant.

WHEELER, J.

The defendant was indicted for perjury, committed in giving testimony on a

trial upon an indictment for betting at a certain gaming table. The

defendant moved to quash the indictment, and his motion was sustained. Of

the several causes assigned in support of the motion to quash, there is but

one which seems to us at all deserving of notice; that is, that in the

assignment of perjury, instead of simply averring the negative of the oath,

the indictment, in this connection, also avers the knowledge of the

defendant of the matter specially averred as the converse of the oath. Thus,

it is averred that it was a material fact upon the trial that the table was

exhibited for gaming; that the defendant falsely swore that it was not so

exhibited, and instead of averring simply the negative of the oath, that, in

truth, it was so exhibited, the averment is that the defendant "well knew"

that the table was exhibited for gaming. As observed by the Attorney

General, though it was not necessary in connection with the special averment

negativing the oath to aver also the defendant's knowledge, which was

elsewhere sufficiently charged, the averment in this connection did not

impair the force or effect of the special averment of fact in which it was

introduced; and surely it did not vitiate the indictment.

*2 Nor was it necessary that the defendant should have been charged with

swearing falsely as to every matter of fact material to be proved upon the

trial. It is enough that he is charged with having sworn falsely to one

material fact, and that the perjury as to that fact is sufficiently

assigned. The indictment appears to contain every averment necessary to

charge the defendant with the crime of perjury; and we are of opinion that

the Court erred in sustaining the motion to quash. The judgment is therefore

reversed, and the cause remanded for further proceedings.

Reversed and remanded.

NOTE 7.--An indictment for perjury must aver positively that the accused had

knowledge of the falsity of the statement on which the perjury is assigned,

and that he wilfully and deliberately made such statement. The facts

constituting the offense must be averred directly, positively, and with

certainty, and not by way of inference or argument. (The State v. POWELL)