Bastrop County, TX
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*1 It has been heretofore decided by this court, that the delivery of the body of the

defendant is not a good answer to a scire facias on a forfeited recognizance, without

a further showing of excuse for the failure to have the body of the defendant in

court at the proper time; it therefore follows that it is not a good answer to the

scire facias, that the surety after the forfeiture of the recognizance, had caused

the arrest of the defendant, on capias, to answer the charge, and that he was delivered

by habeas corpus to other bail, without a further showing of excuse for the failure to

have the defendant in court at the proper time.

Where a pardon is obtained, it may be filed after judgment in this court, before the

issuance of the mandate, and the judgment will be made to conform to the pardon.

Error from Lavacca. Tried below before the Hon. Fielding Jones.

At the spring term, 1855, plaintiff in error entered into recognizance for the appearance

of William B. Gage to answer a charge of unlawfully altering the mark and brand of a

heifer, the property of William Hudgens, without the consent of said Hudgens. At fall

term, 1855, the recognizance was forfeited, and scire facias ordered to issue thereon.

On the 15th March, 1856, a capias for Gage was issued to Bastrop county, upon which

he was arrested on the 5th April, and being brought before the Hon. Thomas H. DuVal,

by writ of habeas corpus, was admitted to bail, and gave bond with other sureties for

his appearance at Lavacca district court to answer the above charge. At spring term,

1856, on motion of the district attorney, the scire facias served to that term of the

court was quashed, and another ordered returnable to next term. Same term, the second

bond given in Bastrop was forfeited, and scire facias ordered. Fall term, 1856, continued

by consent. To next term plaintiff in error answered the scire facias by plea that he

had used every exertion in his power to have said William B. Gage at this court, as

he agreed to do in his bond, by having a writ issued by the clerk of this court to

the sheriff of Bastrop county, etc., stating the facts as above. To this plea, the

court sustained a demurrer, and judgment on the scire facias was made final.

The surrender of the principal in a forfeited recognizance, after entry of judgment

nisi thereon, will not release the sureties from the penalty of such recognizance.

A remission of forfeiture on a bail bond may be filed after judgment and before mandate,

and the mandate will be conformed to it.

B. F. & W. M. Fly, for plaintiff in error, argued that the surety had done all that the

law could reasonably require, by causing the defendant to be re- arrested, with a view to

deliver him up in answer to the scire facias on his recognizance, which he was prevented

from doing by the delivery of the defendant to other bail on the habeas corpus; and cited

1 Bac. Ab. r. 597; 3 Black. 224, n. 31; State v. Mahon, 3 Harring. 569.

Attorney General, for defendant in error.

ROBERTS, J.

*2 It will be observed that a forfeiture nisi was taken in this case before the capias

was ordered, upon which Gage was apprehended the second time, upon the charge preferred

against him. It is contended that this apprehension of him by the sheriff, placed him

in the custody of the law, and by depriving his bail (Chambless) of the power of control

over his person, relieved him, the bail, from responsibility upon his recognizance.

It cannot be supposed that his being taken upon a capias by the sheriff, would be more

efficient to produce that result, than a surrender of Gage by his bail, at that time,

to a competent court would have been. Putting it, then, on ground so favorable as that

for the plaintiff in error, the question may be asked, would a surrender of Gage made

by his bail, Chambless, to a competent court or officer, at any time after the forfeiture

nisi had been rendered on the recognizance, operate as a release of the bail's liability;

or, in other words, constitute a defense to the scire facias? This has been decided in

the negative by this court in the case of the State v. Warren et al. 17 Tex. 283. To

admit the proposition of plaintiff in error would be making a defense arise out of facts

subsequent to the default, whereas the defense or excuse must exist at or before the

time of the default. The whole question is fully discussed, and so well defined, in

the case cited, that it is only necessary to refer to it in support of the view here

taken. It is not, however, intended to be intimated that the plaintiff is regarded as

occupying as favorable a position, in every respect, as if Gage had been surrendered

to the court by his bail after default. Whether he does or not need not be critically

examined into, as it is immaterial in this case.

We are of the opinion that the court did not err in sustaining the exceptions to the

plea of plaintiff in error.

Judgment affirmed.

Later in the session the following proceedings were had.

ROBERTS, J.

Chambless was bail for Gage and the recognizance was forfeited. Upon error to this

court judgment was affirmed. A remission of the forfeiture (not of the costs) in

favor of Chambless is produced in this court after judgment, under the great seal

of the state, and signed by Governor Pease. Under the constitution and laws this

releases the party Chambless from the recovery of the forfeiture here adjudged,

excepting the costs, of both courts. Hart. Dig. page 66 and art. 1417. The clerk

will make an entry of release, and let his mandate conform to the judgment so

modified.

Tex. 1857.

NATHANIEL CHAMBLESS v. THE STATE.

20 Tex. 197, 1857 WL 5216 (Tex.)

END OF DOCUMENT

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*1 Money received by the agent of an attorney, under an authority to receive and

deliver the same to the attorney, in payment of a judgment controlled by him, and

of which he held, besides, an assignment from the plaintiff therein, is not subject

to levy in the hands of such agent, to satisfy an execution against the plaintiff

in the judgment, on which the money was collected. The possession of the agent, is

the possession of the principal.

Where a deputy sheriff, who has in his hands an execution against two defendants,

receives money from one of them, pointed out by him for levy, as the property of

his co-defendant, and delivers the same, with the execution, to the sheriff, before

the return thereof, and the sheriff finds that the money was not subject to levy,

he may decline to levy upon it, and make his return, without crediting the execution

with such amount.

Where the defendant in an execution points out property of his co-defendant, to satisfy

the execution, and the sheriff refuses to levy, because the property designated is

not subject to such levy; if the sheriff determine rightly, the plaintiff in the

execution is not bound to move against the sheriff, for such failure, in order to

have determined the liabilty of the property to such levy. He may proceed, regardless

thereof, to enforce his judgment.

APPEAL from Gonzales. Tried below before the Hon. Fielding Jones.

Petition for injunction, by appellees, John T. Tinsley and Hugh W. Branch, against

the appellants, Orson Carey and William H. Reese, filed January 30th, 1858, alleging

that, on the 30th day of October, 1855, in the district court of Gonzales county, a

judgment was rendered in favor of said Carey and Reese, against John W. Pennell and

Evan Lovett, for the sum of $595.76, and costs; that Pennell filed his petition for

writ of error; and that petitioners, Tinsley and Branch, were securities on the bond

for writ of error. That on the 22d day of November, 1856, the supreme court affirmed

the judgment against the plaintiff in error, and said petitioners, as securities. That

after the return of the mandate of the supreme court, and the issuance of various

executions on said judgment, on the 9th day of January, 1857, an execution was issued

on the same, directed to the sheriff of Gonzales county, for the amount thereof, and

for costs and damages, against said Pennell and Lovett, and the petitioners; which

execution was placed in the hands of Hugh Lewis, the deputy sheriff, on the day of

its issuance; A. D. Harris being then the sheriff of said county.

That on or about the 19th day of January, 1857, the sheriff, by his said deputy,

levied this execution on $635 in specie, the property of Evan Lovett, and took

possession thereof, by virtue of said execution and levy. That on the day last

aforesaid, the sheriff, by his said deputy, returned the execution, making thereon

this indorsement:

"This execution is returned by order of the plaintiff's attorney, January 19th, 1857.

*2 A. D. HARRIS, Sh'ff G. C.

per H. LEWIS, Dep'y Sh'ff."

And with said return, made the following indorsement on the said execution:

"Received on the within $179.01, of John W. Pennell, by the hand of J. T. Tinsley,

Jan. 16th, 1857.

A. D. HARRIS, Sheriff,

per H. LEWIS, Dep'ty Sh'ff."

The petition for injunction further alleged, that said deputy received from said

Tinsley, two hundred and twenty-five dollars, which was to have been credited on

the execution; and for which he took from said deputy a receipt. The receipt was

described in the petition as follows:

"Received January 20th, 1857, of John W. Pennell, by the hand of J. T. Tinsley,

the sum of two hundred and twenty-five dollars, on execution styled Carey, Reese

& Co. v. John W. Pennell et al.

A. D. HARRIS, Sh'ff G. C.

per H. LEWIS, Dep'y Sh'ff."

That no other credit was indorsed on said execution, than that of $179.01 aforesaid;

that Lovett and Pennell were insolvent; and that on the 29th day of October, 1857,

an alias pluries execution issued, on said judgment, against said Lovett and Pennell,

and petitioners, in favor of the plaintiffs therein for the full amount, less the

credit indorsed thereon as aforesaid, notwithstanding said levy and payments, fully

satisfying the execution and judgment.

That said deputy sheriff took said $635 from the possession of Tinsley; that it

should have been applied to the full satisfaction of the execution, and was, ipso

facto, a discharge of the execution and judgment; and that the return by the sheriff,

of said execution, not satisfied, by order of plaintiff's attorney, Horatio S.

Parker, and the direction, by said attorney, to return the same not satisfied,

were in violation of petitioner's rights. Prayer for injunction against the

execution aforesaid in the hands of the sheriff, and against all further proceedings

under said judgment; also, for process and general relief.

Fiat granted January 26th, 1858.

The answer of defendants denied that the money paid by Tinsley to Lewis, was the

property of Lovett, or subject to attachment or levy for the debts of Lovett; and

alleged that said money was collected by, and in the hands of Tinsley, on a judgment

in favor of said Lovett or Pennell, which judgment had been assigned to H. S. Parker,

by a transfer upon the execution docket, on or about the 12th day of July, 1857;

that Tinsley knew that the money, when collected, was payable to Parker, and that

he promised to pay the same to him, on or about the 1st of January, 1857; that the

money, so paid to Lewis, was to be first applied to the payment of said case of

Lovett or Pennell et al. (assigned as aforesaid to Parker), and the balance on the

said execution in favor of Carey, Reese & Co. (plaintiffs in the execution, sought

to be enjoined); and that the sheriff made the calculation, and after satisfying

said judgment, applied the balance to Carey, Reese & Co., amounting to $179.01;

that if Lewis gave a receipt for more, it was by mistake, and not correct; that

the executions were sent to Bastrop county, for the benefit of and at the urgent

request of Tinsley and Branch, and the defendants were assured that, by so doing,

the money would be collected on the same. (This part of the answer referred to the

execution on the judgment assigned to Parker, which the facts showed was a judgment

in favor of Lovett against J. W. Pennell and J. T. Tinsley, and from which a part

or all of the $635 was raised.)

*3 The answer admitted the truth of the allegations made in the petition, in reference

to the statements of judgments and the issuance of executions.

Jury waived, and case submitted to the court. Executions, referred to in petition,

issued on the judgment in favor of Carey, Reese & Co., introduced in evidence; and

the indorsements on that issued January 9th, 1857, showed a credit indorsed by the

sheriff of $179.01, as set out in the petition, and an order, dated January 19th,

1857, signed by H. S. Parker, attorney for plaintiffs, and directed to the sheriff

of Gonzales county, in whose hands the execution then was, to return the execution

not satisfied; and of the same date was indorsed as follows on the execution: "This

execution is returned by order of the plaintiff's attorney." Signed by the sheriff

. The other execution, which was enjoined, had indorsed on it the above named credit,

and no other; it was issued for the sum of $595.76, with interest thereon.

It was proven by Lewis, deputy sheriff, that Tinsley, one of the defendants in the

execution, about the 19th day of January, 1857, handed him something over $600,

and more than sufficient to satisfy the execution; that it was money received from

the sheriff of Bastrop county, collected in the case of Lovett v. Pennell, Tinsley

et al. That Tinsley ordered him to levy on the same, in the case of Carey, Reese &

Co. v. Lovett, Tinsley, Branch and Pennell; which execution he stated he then held

in his possession; that he took the money, and passed it over to the sheriff, Harris,

together with the execution.

It was proven that Tinsley received money from the sheriff of Bastrop county, in the

month of January, 1857. The amount was more than sufficient to satisfy the execution

in favor of Lovett. Witness, Bouldin, who was present when he received the money,

stated that it was his understanding, that the judgment in favor of Lovett was first

to be settled, and the balance to be applied by him (Tinsley) to the benefit of

Carey, Reese & Co., on an execution in their favor against Pennell, Lovett and

himself. Said witness heard a conversation between H. S. Parker, attorney for

Lovett, and Tinsley, in reference to the getting for, or paying to Parker, the

money due on the judgment in favor of Lovett: this conversation was sometime in

December, 1856, and Tinsley was to have one month within which to get the money.

Tinsley promised to pay the same to Parker within the month. Parker then informed

Tinsley, that the money due on that judgment was coming to him, and Tinsley

promised to pay it over to him. Afterwards, Tinsley referred, in conversation

with witness, to the fact, that he was a witness to his promise to pay the

money received, to Parker, and that he intended to do so. Bouldin also stated,

that he learned from the conversation between Parker and Tinsley, that the

former was acting as Lovett's attorney; and was also to receive the said money,

in his own right, because he had himself advanced the money to Lovett.

*4 The execution in favor of Lovett, against Pennell and Tinsley, was issued to

Bastrop county, on the 10th day of November, 1856, for the sum of $1,230.51,

with interest from May 2d, 1855, and credited by $791.92, paid 5th April, 1856.

Indorsed "satisfied, the 16th day of January, 1857, and amount paid over to

order."

The transfer of the judgment, on which the last named execution issued, from Lovett

to Parker, was proven, dated January 12th, 1857. It was also proven, that the $600

was paid over to Harris, the sheriff, and by him paid to H. S. Parker.

Judgment of the district court for the plaintiffs. Injunction perpetuated as to

Tinsley and Branch, and not as to Pennell and Lovett.

Money received by the agent of the plaintiff's attorney, who had an assignment of the

judgment in his hands, is in the possession of the attorney, and cannot be taken in

execution for the plaintiff's debts.

Where the sheriff has decided that certain property, which was pointed out to him by

a defendant as the property of his codefendant, is not liable to levy, plaintiff need

not move against the sheriff in order to determine whether his decision is correct or

not, but may proceed at once to have the judgment collected.

Where a deputy sheriff, who has in his hands an execution against two defendants,

receives money from one of them, pointed out by him for levy as the property of

his co-defendant, out of whom, as principal, he claims the money is first to be

made, and delivers the same, with the execution, to the sheriff before the return

thereof, and the sheriff finds that the money is not subject to levy, he may decline

to levy thereon.

H. S. Parker, for appellants.

Stewart, for appellees.

ROBERTS, J.

The appellees seek to enjoin the judgment of appellants, upon the ground, not that

Tinsley, being one of the defendants therein, had paid the money to the sheriff, but

that he, being in possession of the money, delivered it to the deputy sheriff, and

directed him to levy upon it as the money of Lovett, who was also a defendant, and

one of his principals, in the judgment.

The question is, did Tinsley have possession of the money in such way as to make it

liable to a levy in his hands?

The evidence shows that he received the money for Parker, and that he was Parker's

agent, and not Lovett's agent, to receive the money from the sheriff of Bastrop

county, who had collected it on the judgment in the case of Lovett v. Pennell and

Tinsley. Parker was Lovett's attorney in controlling this judgment, and also had

an assignment, in his own favor, of the money to be collected on the judgment;

and Tinsley had been authorized by him to receive this money from the sheriff of

Bastrop county, and he (Tinsley) had been apprised of Parker's claim, and promised

to pay it over to Parker. Tinsley being defendant in both judgments, it was to his

interest that this money, after satisfying one (that of Lovett v. Pennell and Tinsley)

should be applied to the payment of the other, in which he was surety (Carey, Reese

& Co. v. Lovett, Pennell, Tinsley and Branch).

*5 His possession of the money was that of Parker, being merely his agent, to receive

and bring to him the money collected on the Lovett judgment, from the sheriff of

Bastrop county. The money being delivered over by the deputy to the sheriff,

together with the execution, he had a right not to levy upon it, if he found it

was not subject to levy, under the circumstances under which it came into the

hands of his deputy. And as he did not indorse a levy upon the execution, we

must presume that he did determine not to treat it as money levied on by him,

but to deliver it over to Parker, as the person entitled to its possession. If

he determined right in that matter, Carey, Reese & Co. were not bound to move

against him, for not levying on the money thus placed in his hands, for levy,

as the property of Lovett.

There is no evidence that Tinsley, acting for Parker, in receiving and conveying

this money, had his permission to deliver it to the sheriff as Lovett's money,

to be levied on; but, on the contrary, Tinsley had promised to deliver it to

Parker, and had been apprised that Parker claimed it as his own, for advances

made to Lovett. The sheriff then upon ascertaining, as we may presume he did,

from the evidence before us, that Tinsley had no such authority from Parker, and

that Parker was entitled to the possession of the money, as assignee of Lovett,

took the responsibility to deliver it to Parker, and to decline levying upon it,

as property of Lovett, subject to levy.

From the evidence before us, we are of opinion he did right.

There is nothing in the case to impeach the transfer of the claim from Lovett to

Parker.

There is a receipt of the deputy sheriff, for two hundred and twenty-five dollars,

claimed as a credit on the judgment in favor of Carey, Reese & Co., which is alleged

by them to have been given by mistake. There is no certain evidence, whether this

should be credited on the judgment or not; and therefore there are no certain data

upon which to render a judgment.

The judgment will be reversed and the cause remanded for further proceedings.

Reversed and remanded.

Tex. 1858.

ORSON CAREY AND ANOTHER v. JOHN T. TINSLEY AND ANOTHER.

22 Tex. 383, 1858 WL 5658 (Tex.)

END OF DOCUMENT

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*1 The mere return of a party to his native country does not operate an abandonment

of a domicile he has acquired in a foreign country, unless there be an intention to

change his domicile, and it rests on the party relying on the abandonment to prove it.

5 Tex. 245.

The fact that a party died in itinere on his return with his family to his native

country, is not sufficient to create the presumption of abandonment of a domicile

acquired elsewhere.

Where a party pleads certain special matter of defense, a court may exclude evidence

of other special defenses. 11 Tex. 662.

Where an absent defendant was represented by a curator ad hoc, before the passage of

article 127, Hartley's Digest, and judgment is obtained against him, it must be held

until reversed or annulled by competent authority as binding on him and his heirs.

18 Tex. 753; 24 Tex. 468; 28 Tex. 443, 732.

A judgment cannot be impeached in a collateral action by proof that the person for,

or against whom it is rendered, died before its rendition.

Where evidence does not ascertain the amount paid in a purchase, after lapse of time,

it will be presumed that the purchase money was paid, and that the price was an

adequate one.

Where one seeks to avail himself of the illegality of the contract of his ancestor,

to recover land sold in his lifetime, he must restore the price and place the party

against whom he asserts it in statu quo. 1 Tex. 748; 9 Tex. 385; 10 Tex. 113; 16 Tex.

76; 27 Tex. 393.

Error from Austin. Tried below before Hon. J. H. Bell.

Trespass to try title by the plaintiffs, commenced 10th May, 1854, for the league of

land granted to Willis Stanly, in 1831, as his headright. The plaintiff Elizabeth

claims as the surviving widow of Willis Stanly, deceased, and the others as his

heirs. The defendants demurred, pleaded not guilty, limitation, and that Willis

Stanly died an alien, and that the plaintiffs were also aliens at the time of the

death of their ancestor.

The land in controversy was granted to Willis Stanly in 1831; between that time and

1833, when he died, he sold the land to different persons. He died in the winter of

1833, in the state of Louisiana, while on his way to his father's-in-law, in the

state of Arkansas. At the time of his death he had with him some of his family, but

whether or not all, is not shown by the evidence. On the trial the defendants

introduced the record of a decree in a suit by Horatio Chrisman, assignee of Hommedieu,

v. John C. Watrous, curator of Willis Stanly, rendered at the November term, 1839, of

the district court of Austin county, ordering said curator to make a deed to Chrisman,

through whom most of the defendants claim, to thirty-two hundred and forty-four acres

out of the headright of said Willis Stanly, and the deed made in pursuance thereof by

the curator.

*2 The court charged the jury as follows: "If Stanly, the original grantee of the land

in controversy, left the country in 1832 or 1833, or 1834, with his family, and with

the intention of abandoning the country, then his heirs are not entitled to recover the

land in controversy in this suit, because the same did not pass to them by inheritance.

Whether or not the ancestors of these plaintiffs left the country with the intention of

abandonment is a question for the jury to determine from all the circumstances of the case.

If he left the country with his family, and died out of the country, in the absence of

further proof, the presumption of law would be, that he had abandoned the country; and

such presumption could only be rebutted by proof that he had left the country intending

to return; that he had preserved a home in the country, to which his family returned

after his death; or by proof of other circumstances which would destroy the presumption

of abandonment.

The sale of the land by Stanly in the years 1831 or 1832, or 1833, was in contravention

of law, but if he received payment for the land, from those now in possession, or from

those from whom those now in possession claim, his heirs cannot invoke relief from the

illegal contract as against those in possession of the land, without offering to do

justice to them by paying back the purchase money, which was the consideration for the

original, illegal contract, and this rule of the law is binding on married women and

minors. The contract between Stanly and Hommedieu was a contract, the illegality of

which cannot now be inquired into, since the contract was sued on, and a decree of a

court of competent jurisdiction obtained enforcing the same, which decree is conclusive

upon all parties concerned, and can only be attacked for fraud in the procurement of

it." The remainder of the charge was in relation to the pleas of limitation.

There was a verdict for defendant and judgment, from which the plaintiffs prosecuted a

writ of error.

When an absent defendant was represented by a curator ad hoc, before the enactment of

article 127, Hart.Dig., a judgment obtained against him was held binding upon him and

his heirs, until reversed or annulled by competent authority.

The mere fact that a party who had acquired a domicile in a foreign country was returning

with his family to his native country, and died in itinere, is not sufficient to create

the presumption of an abandonment of the foreign domicile, unless it is proved that he

left with the intention of such abandonment; and such intention must be proved by the

party relying on it.

After part performance, a party cannot rescind without returning or tendering the

consideration or benefits received.

After a lapse of 20 years, it will be presumed that an adequate price was paid by

the purchaser for land conveyed to him.

Where an heir attempts to avail himself of the illegality of the contract of his

ancestor to recover lands sold in his lifetime, he must restore the price, and place

the party against whom he asserts his right in statu quo.

The mere facts that one is on his return with his family to his native country, and

that he died on the way, are not sufficient to create a presumption of an abandonment

of the domicile he had acquired in this country, unless it were proven that he left

with an intention of such abandonment.

Where a party pleads certain special matter of defense, a court may exclude evidence

of other special defenses.

Where an absent defendant was represented by a curator ad hoc before the enactment of

Hart.Dig. art. 127, a judgment against him cannot be impeached by proof that he died

before it was rendered.

Where an absent defendant was represented by a curator ad hoc before the enactment of

Hart.Dig. art. 127, a judgment against him cannot be impeached in a collateral action

by proof that he died before it was rendered.

A judgment cannot be impeached in a collateral action by proof that the person for, or

against whom it is rendered, died before its rendition.

Before plaintiff can avail himself of the illegality of a contract of his ancestor for

the sale of land he must restore the price and place defendant in statu quo.

N. Holland and G. W. Smith, for plaintiffs in error. The first instruction is deemed

erroneous, because it is misleading in its nature; and led the jury to believe that

all these plaintiffs claim as heirs of Willis Stanly, deceased; the fact is,

Elizabeth Mills claims in her own right and as the surviving widow of the deceased;

and further, because it is believed not to embrace a correct principle of law. The

fact of leaving the country with his family with the intent to abandon it, could not

effect a change of domicile, until he had acquired another domicile or home in a

foreign country. The proof was that he died in itinere or in Louisiana, on his way to

the home of his father-in-law, who resided in Arkansas. Animo and facto, that is, the

intention and fact of removal effect the change of domicile, and if either be

incomplete then the domicile is not changed.

*3 The other instruction is believed also to be erroneous. This dispenses with the

proof of both the intention and fact of removal in a great measure. The rights of

the citizen are not to be defeated and forfeited by vague and doubtful presumptions

of law. The facts that work a forfeiture of rights should all be clearly and

conclusively proven. Hardy et al. v. De Leon, 5 Tex. 245. It is believed that these

instructions had a material control of the jury, and caused them to find an improper

verdict, at least as to the twelve hundred acres that defendants could show no

claim to.

The defendants set up their defense, as before stated, specially and under the rule

settled in the case of Rivers v. Foot, 11 Tex. 662, they could not have been heard

to make any other in proof. But if the defendants can ask that the purchase money be

refunded, they should have shown in their pleadings what was paid, and then proved it,

neither of which is done properly. There is no averment of the amount paid. The evidence

is that of Lewis to the declarations made by Stanly; that one-half the league was given

to clear out the league and paying expenses; that a valuable consideration was paid for

the other tract, which may have been from one cent to an indefinite amount. Such

testimony, I presume, will not be regarded as sufficient.

The plaintiffs, like administrators, are not presumed to know the terms and nature of

the transactions of the deceased; but that the defendants who pretend to claim under

these sales, are presumed to be informed of their nature and terms, and should have

set them out in their answer, so that plaintiffs could have offered and refunded the

purchase money, if equitable so to do, and to have had an adjustment of rents, etc.

Frank Lipscomb, for defendants.

I. If plaintiffs in error's ancestor abandoned the country with his family, they are

thereby precluded. As to abandonment of the country, see Holliman v. Peebles, 1 Tex.;

Horton v. Brown, 2 Tex.; Ximines v. State, 1 Tex.; Yates v. Iams, 10 Tex. The moment

a foreign domicile is abandoned the native domicile is re-acquired. The native

domicile easily reverts. Story, Conf. Laws, art. 46. The domicile of a married woman

is the domicile of the husband, and the domicile of minor children is the domicile of

the father. 11 Pick. p. 410; Story, Conf. Laws, p. 53 et seq. If the plaintiffs were

aliens at the death of their ancestor they cannot recover. Yates v. Iams, 10 Tex. and

other cases.

II. If the plaintiffs in error were aliens at the death of their ancestor, they could

inherit nothing by the Spanish law. Yates v. Iams, 10 Tex. 168, and a case lately decided

from Bastrop, not reported.

III. By lapse of time and other causes plaintiffs have put it out of their power to

restore the parties to their original rights, and on this principle they are checked

by the law as laid down in Hunt v. Turner, 9 Tex. 386, "that a party to an illegal

contract will not be permitted to avail himself of its illegality, until he restores

to the other party all that has been received from him on such illegal contract; he

cannot hold on to the advantages of such a contract, and at the same time be heard

with favor in setting up its nullity." From the lapse of time before the institution

of this suit--nearly or quite twenty years--are not the heirs presumed to have ratified

the sale, though it may be illegal? It is not insisted that the contract to sell, prior

to the 26th March, 1834, was legal, though a colonist might, by the colonization laws,

sell his lands if the purchaser fulfilled all the requirements of the law.

*4 In regard to the proceedings against the curator, Watrous, the same are regular and

in accordance with the law and established practice at that time; and, as said by Judge

Hemphill, in Kegans v. Allcorn, 9 Tex. p. 25, we think the same might be said in this

case: "The security of property, the repose of society, public policy, require that the

proceedings of the courts in former times, under which rights were supposed to have

vested and on the faith of which property has been transmitted, should be upheld whenever

this may be done without doing violence to the established principles and usages of law."

And it would devolve upon the plaintiffs in error to show the invalidity of those

proceedings; not only to show that they were wrong, but actually null-- the same having

been before a court, the competency of whose jurisdiction is presumed.

The judgment of the court against said curator was authorized, and is res adjudicata.

Pothier, Obligations, vol. 1, p. 434, sec. 52; Brown's Syndics v. Ferguson, 4 L. R. 259.

And by that judgment plaintiffs in error are bound (Civ. Code La. art. 9; Id. art. 57);

and to this latter article we call especial attention, as it shows that by the Louisiana

practice, the court clearly had the power to appoint a curator ad hoc, when suit was

instituted against an absentee. In the case at bar the appointment was regularly made,

notice given, appointment accepted, defense made, etc., as the record will show. And

it is insisted that the appointment of a curator would make the judgment valid and

effectual in such a case, even though the absentee was dead at the time of the rendition

of the judgment; besides, the judgment could not be attacked collaterally.

J. H. Robson, also, for appellee. As to the validity and conclusiveness of the decree

against the curator of Willis Stanly, the defendants in error refer the court to the

following authorities: In the case of "Allen v. McClellan," 12 Penn. St. it is said:

"A decree reciting that the former decree was vacated for such causes as fraud is

conclusive, after the time for an appeal has elapsed, though there is nothing on

the record to show that proof of the fraud was made, and although it was admitted,

that when service of notice of the intended application to vacate was made at the

reputed residence of libellant, she was out of the state. Every presumption in favor

of a judgment is strengthened by lapse of time. 4 Dana, 434; 4 Id. 441. If a judgment

is not void on its face its regularity cannot be questioned collaterally. 4 Bibb, 336;

1 J. J. Marsh. p. 195.

In the case of "Kemp's Lessee v. Kennedy," etc. 5 Cranch, 173, Mr. Chief Justice Marshall

says: "The courts of the United States are all of limited jurisdiction, and their

proceedings are erroneous if the jurisdiction be not shown in them. Judgments rendered

in any case may be reversed, but the supreme court is not prepared to say they are

absolute nullities which may be disregarded." Again: "If a judgment be rendered in

favor of or against a dead man, which would be manifestly erroneous, as soon as the

fact shall appear the error could be corrected only by the court which rendered the

judgment. This court could not notice it, because it does not appear on the record.

There must be some remedy for such a case, and there are numerous authorities showing

that a writ of error coram vobis is the usual and perhaps the only one." 1 J. J. Marsh.

pp. 30, 31; 1 Rol. Abr. 747; 3 Salk. 145; 2 Tidd, Prac. 1007.

WHEELER, J.

*5 A material question to be determined arises upon the charge of the court as respects

the abandonment of the country by Stanly, the grantee of the land in controversy. To

constitute an abandonment of the country under the laws of colonization applicable to

this case, a change of the national domicile of the party was essential. And to effect

such change there must have been the concurrence of the act and the will. Judge Story

in his Conflict of Laws (sec. 48) says: "A national character acquired in a foreign

country by residence changes when the party has left the country animo non revertendi,

and is on his return to the country where he had his antecedent domicile. And especially

if he be in itinere to his native country with that intent, his native domicile revives

while he is yet in transitu; for the native domicile easily reverts. But a mere return

to his native country, without an intent to abandon his foreign domicile, does not work

any change of his domicile." The mere return of Stanly to his native country did not

operate abandonment of the domicile he had acquired in this country. The intention to

change his domicile was a necessary constituent of such abandonment, and that it

devolved on the defendants to prove. Ennis v. Smith, 14 How. 422. Having acquired a

residence in this country, the presumption of law is that it was retained. This prima

facie presumption may be repelled by proving that he had taken up his residence

elsewhere. That rebuts the presumption of its continuance. But the mere fact that he

was on his return, with his family, to his native country and died in itinere, is

not sufficient to create the presumption of an abandonment of the domicile he had

acquired in this country; unless it were proven that he left with the intention of such

abandonment.

Where a person lives, is taken prima facie to be his domicile, until other facts

establish the contrary. Id. If Stanly had taken up his residence out of the country,

that would have afforded prima facie proof of a change of domicile. But his last

residence was in this country, and his domicile must be taken to have continued here

until there was proof of an intention to change it; and the burden of proof was on

the defendants.

We therefore think the charge of the court upon this point was erroneous. It relieved

the party asserting the forfeiture from the necessity of proving an essential element

in the fact of abandonment, that of the intention necessary to constitute a change of

domicile. We think, as we have heretofore held, that the ground on which it is

proposed to effect a disfranchisement and divestiture of property and civil rights

ought to be very clearly and satisfactorily established by the party asserting the

forfeiture. 5 Tex. 245. And we are of opinion that the burden of proof was on the

defendants to establish, not only that the ancestor of the plaintiff had left the

country, but that he had done so with the intention of a permanent change of residence,

and that his having gone abroad with his family and there died without other proof of

such intention, was not sufficient. As this opinion will require a reversal of the

judgment, it becomes material to notice the other defenses upon which the decision of

the case may depend upon another trial.

*6 It is objected by the appellant that the defendants did not plead the decree of 1839,

which was given in evidence, nor the equities on which they relied to defeat the

plaintiff's action. The evidence, however, was admitted without objection, and the

defendants may plead these defenses before another trial. If they had not pleaded

specially, their evidence would have been admissible under the plea of "not guilty."

Hunt v. Turner, 9 Tex. 385. But having pleaded certain special matter of defense, the

court might have excluded evidence of other special defenses. Rivers v. Foote, 11 Tex.

662.

We think it must be held that the decree of the district court of Austin county, of 1839,

was a valid and binding judgment, and concluded all inquiry into the legality of the

original contract upon which it was rendered. Grassmeyer v. Beeson, 18 Tex. 753. The

office of a curator ad hoc appears to have been essentially the same as that of a guardian

ad litem, representing an absentee. Partidas, 3, 2, 12; Laws of Coahuila and Texas,

decree 277, art. 98; Grassmeyer v. Beeson, 528, 529, and authorities cited. The appointment

of a curator and the rendition of judgment were before the repeal of the laws which

authorized the appointment. Dig. art. 127, secs. 1, 2. The absent defendant having

been represented by the curator, the judgment, until reversed or annulled by competent

authority, would be held binding upon him and his heirs. It cannot, it would seem, be

impeached in a collateral action by proof that he had died before its rendition. In

Case v. Ribalin (1 J. J. Marsh. 29), the court of appeals of Kentucky held that the

rendition of judgment for or against a dead person is error in fact, only to be corrected

by writ of error coram vobis. The court observed that "if a judgment be rendered in

favor of or against a feme covert, suing or defending as a feme sole, or in favor of,

or against a dead man, which would be manifestly erroneous as soon as the fact should

appear, the error could be corrected only by the court which rendered the judgment."

There must be some remedy for such a case; and there are numerous authorities showing

that a writ of error coram vobis is the usual and, perhaps, the only one. See 1 Rol.

Abr. 747; Cro. Eliz. 105; 3 Salk. 145; 2 Tidd, Pr. 1107; Id. 30. It would seem,

therefore, that a judgment is not void by reason of the death of a party to it before

its rendition, where the fact does not appear by the record; but that it will be held

valid, until avoided by a direct proceeding for that purpose. There was therefore no

error in the ruling of the court upon the effect of the judgment in question. But that

did not dispose of the entire subject matter in controversy. If it had embraced the

entire league, as its effect was a question of law for the court, and not of fact for

the jury, the other rulings in the case might have been held immaterial, and no ground

for reversing the judgment.

*7 But it is material to observe, as to the remainder of the land not disposed of by

the decree of 1839, that the court held, and rightly, that it was obligatory on the

plaintiffs to restore the price and place the defendants in statu quo, before they

could avail themselves of the illegailty of the contract of their ancestor, to

recover back the land he in his lifetime had sold. Hunt v. Turner, 9 Tex. 385.

It appears by the evidence that the ancestor of the plaintiffs had sold the entire

league before leaving the country. That sold to Hommedieu was what remained after

the sale of smaller tracts to others. The inability of the defendants to produce the

deeds or written evidence of the sales was doubtless owing to the fact mentioned by the

witness, that the records were kept at San Felipe and were lost or destroyed when the

town was burned in 1836. Although the evidence did not ascertain the amount of the

price paid, yet it would not be unreasonable, after so great a lapse of time, to

conclude that it was an adequate price for the land at the time. After the lapse of

more than twenty years less strictness of proof will be required than in reference

to more recent transactions, and presumptions will be indulged in favor of parties

who have been permitted to repose in supposed security upon titles fairly acquired.

After such a lapse of time, it is scarcely possible for parties to be reinstated in

the rights they will have lost, or compensated for the injury they will sustain by

a recovery against them by the original grantee or his heirs; to say nothing of the

shocking injustice of permitting the latter to take the benefit of the performance of

the conditions of the grant by the purchaser, and at the same time take advantage of

their own failure to observe and perform the provisions and requirements of the law

which were the inducements to the making of the grant, to dispossess and ruin those

by whose acts they are enabled to assert the title. It is true that time cannot bar

the rights of infants and femes covert. But time may obscure and finally annihilate

the evidence by which the honest purchaser, who paid a fair, it may be a generous

price for the property when it was but little esteemed by the first proprietor who

received it from the bounty of the government, might establish the payment of the

price, the confirmation or renewal of the contract of sale when the legal inhibition

was removed, or other supervening equities, which would be deemed an insuperable

barrier to an action by the grantee or his heirs to dispossess him. Upon a kindred

subject, where it was proposed to annul a judgment of long standing, by evidence

that minors who were affected by it were not served with process, the court of appeals

of Kentucky observed: "It does not appear how long the heirs labored under disabilities.

But no disabilities, which can be presumed to have existed, could materially affect

the point we are now considering; for the chief efficacy of the long lapse of time

does not arise from actual or presumed acquiescence merely, but results principally

from an inflexible rule of law, established for securing the repose of society, and

founded on the presumption, sustained by the experience of mankind, that considering

the nature of the fact attempted to be proved, the kind of evidence offered to prove it,

and the obliterating influence of a lapse of more than twenty years, it is safer, and more

reasonable, that the judgment should stand, and the long possession under it remain

undisturbed, than that both should now be assailed by testimony which, however false,

the adverse party could not be expected to repel. Infancy is saved from the limitation

prescribed for bringing suits, because, in such a case, forbearance operates as evidence

of abandonment, or want of right; and that reason does not apply with full force to

infants, who should not be presumed to have been perfectly acquainted with their rights.

But the rule of evidence, which we have been considering, is, as already suggested,

founded on reasons of policy, from which infancy is not a fit or admitted exception."

Per Robertson, Ch. J. 4 Dana, 442.

*8 If the lapse of more than twenty years from the date of the contract of sale can

have no other effect, it should have that of relieving the purchaser, and those

claiming under him, of the necessity of proving the payment of the purchase money,

and should authorize the presumption that a fair and adequate price was paid, which,

with the use of it, may be equal to the appreciated value of the land. And thus,

without any departure from the principles and usages of the law, if the original grantee

or his heirs will have the land they have once fairly sold for a just price returned to

them, they may be required to restore the price; and the great hardship and wrong done

the purchaser may be in some degree alleviated. It is unnecessary to examine

particularly the evidence in reference to the defense of the statute of limitations.

Considering the disabilities of coverture and infancy under which the plaintiffs are

or have been protected, it does not appear probable that that defense can avail the

defendants, if at all, but for a small part of their possessions. But upon the other

defenses, if properly presented by the pleadings and proof, it may be different. The

judgment is reversed and the cause remanded.

Reversed and remanded.

Tex. 1858.

ELIZABETH MILLS AND OTHERS v. ROBERT ALEXANDER AND OTHERS.

21 Tex. 154, 1858 WL 5428 (Tex.)

END OF DOCUMENT

==

*1 There is no such offense known to the law, as "an attempt to commit an assault,

with intent to murder."

APPEAL from Bastrop. Tried below before the Hon. Thomas J. Devine.

The appellant was indicted for an assault, with intent to commit murder.

There is no such offense as an attempt to commit an assault with intent to murder.

William G. Webb, for appellant.

Attorney General, for appellee.

BELL, J.

On the trial of this cause, the judge instructed the jury, in substance, that they might

find the defendant guilty of "an attempt to commit an assault, with intent to commit

murder," and that the punishment for that offense was fine, and imprisonment in the

county jail, or either, at the discretion of the jury; or by confinement in the

penitentiary, not less than one, nor more than two years. So reads the charge of

the judge, in the record which is before us. In evident response to this portion

of the charge, the jury found the defendant "guilty of an attempt to commit an

assault, with intent to murder," and they assessed his punishment at confinement

in the penitentiary for eighteen months.

The charge of the court is erroneous, and the verdict of the jury is unauthorized by

any law of which we have any knowledge. There is no such offense known to the law as

"an attempt to commit an assault, with intent to murder."

We presume that the able and experienced judge, who tried the case, was prevented by the

hurry of business, or by some other cause, from giving the case a proper consideration,

and that his attention was not called to the error, in time to afford him an opportunity

to correct it. The judgment is reversed and the cause remanded.

Reversed and remanded.

Tex. 1858.

ROBERT P. WHITE v. THE STATE.

22 Tex. 608, 1858 WL 4420 (Tex.)

END OF DOCUMENT

*1 It is only the material traversable facts in the petition, that need be embraced

in the affidavit for an attachment. 13 Tex. 368; 14 Tex. 1; 15 Tex. 568; 16 Tex. 47;

18 Tex. 289.

The nature or character of the debt, or the fact that it is secured by a mortgage,

need not be stated in the affidavit for attachment.

APPEAL from Bastrop. Tried below before the Hon. Alexander W. Terrell.

This was a suit by K. H. Barbee against William Holder, commenced the 7th September,

1857, by attachment, on a promissory note, before its maturity.

The plaintiff alleged in his petition, that the defendant executed to him on the 31st

of October, 1856, his promissory note for $280, payable October 31st, 1857; that the

said note was given in part payment for a wagon and five yoke of oxen; that the defendant,

to secure the payment of this note, had executed to him a mortgage on the said wagon and

oxen; that the mortgage had been duly recorded; that the defendant was insolvent, and

had removed the wagon and oxen, from the county of Bastrop to the county of Harris; had

sold one yoke of the said oxen, and was about selling the others, and the wagon, and

thereby defraud him of his debt. It was further alleged, that the note was "credited

by one mule at seventy dollars, paid the 5th of September, 1857."

The petition was not sworn to, but affidavit was made by the plaintiff, that the

defendant, "was in debt to him in the sum of $210; that the said William Holder was

about to transfer his property, for the purpose of defrauding his creditors, whereby

this plaintiff would lose his debt; that this attachment was not sued out for the

purpose of injuring the said William Holder."

The attachment was issued and levied. The defendant answered the petition, and moved

the court to dismiss the attachment, because the petition was not sworn to; this

motion was sustained by the court, and the attachment and petition were dismissed;

from which judgment the plaintiff appealed.

An affidavit for an attachment against the person in an action of debt is sufficient

if it embraces the material traversable facts set forth in the petition.

The character of the indebtedness need not be averred in an affidavit for an attachment

thereon.

The fact that a debt to recover which an attachment is issued is secured by mortgage

need not be stated in the attachment affidavit.

Chandler & Turner, Hancock & West, and Blanton, for the appellant.

M'Ginnis & Jones and Petty, for the appellee. The material traversable facts set forth

in the petition, should be sworn to. O. & W. Dig. 116, art. 423; Cheatham v. Riddle, 8

Tex. 162; Watts v. Harding, 5 Id. 386; 13 Id. 368. When this has been done, it will

be sufficient, but in the case at bar, neither the petition nor the matters therein

contained, have been referred to by the affidavit. The affidavit, though upon the same

sheet of paper, makes no reference to the petition, or to any of the matters therein

set forth.

*2 The indebtedness set up in the petition, with the mortgage to secure its payment,

is surely material, but yet the affidavit sets up a different amount. The former is

$280, evidenced by note, and secured by mortgage, the latter is $210, without stating

whether due by note, account, or otherwise. The one cannot be held to mean the other,

upon any reasonable construction of language.

WHEELER, C. J.

The affidavit upon which the attachment issued, is in conformity to the statute

(O. & W. Dig. art. 43), and, under the repeated decisions of this court, must be

held sufficient to support the attachment. Schrimpf v. M'Ardle, 13 Tex. 368; 16 Id. 47;

Primrose v. Roden, 14 Id. 1; 15 Tex. 568; Wright v. Ragland, 18 Id. 289. It is only

the material traversable facts set forth in the petition, that need be embraced in

the affidavit. We are of opinion that the court erred in dissolving the attachment

and dismissing the petition; for which the judgment must be reversed, and the cause

remanded.

Reversed and remanded.

Tex. 1859.

K. H. BARBEE v. WILLIAM HOLDER.

24 Tex. 225, 1859 WL 6403 (Tex.)

END OF DOCUMENT

==

*1 The game of pool is prohibited by the statute, whether it be exhibited, as most

usual, on a billiard table, or on a ten-pin alley, or whether any other evasive

device be adopted for its exhibition.

An indictment is sufficient, although instead of charging that the defendant kept

a pool table, etc., in general terms, it present the facts, which constitute the

elements of the game that was kept.

APPEAL from Bastrop. Tried below before the Hon. Alexander W. Terrell.

The indictment in this case charged, that the appellee "did then and there, in,"

etc., describing the locality, "keep a gaming device for the purpose of gaming,

which gaming device, so kept as aforesaid, by the said Kelly, was a ten-pin alley,

upon which the unlawful game of pool was permitted to be played, by said Kelly."

The indictment, on motion of the defendant, was quashed.

The statute prohibits pool. It is immaterial that it be played on a tenpin alley

instead of on a billiard table.

The indictment need not allege that the defendant kept a pool table. It is enough

if it describes what he did keep, and leaves it to be determined whether it amounts

to a pool table.

Attorney General, for the appellant.

Jones & Petty, and C. C. M'Ginnis, for the appellee.

ROBERTS, J.

The indictment contains a description of the game of pool, kept upon a ten-pin alley.

Most usually, in this country, this game is kept and exhibited, upon a billiard table.

The question is, whether this change in the mere structure, upon which the game is

exhibited, will make that a legal game. Pool is expressly named as one of the gaming

tables which are prohibited. O. & W. Dig. 507, art. 414. It is the prohibited game of

pool, that gives character to the gaming device which is described, whether it be

exhibited on a table, a floor, a flat rock, or a ten-pin alley. And whatever evasive

device of that sort might be adopted, it would still be known by the name of pool,

which is a gaming table; and would still be a game which, in common language, would

be said to be "kept or exhibited." Art. 413.

Had the indictment designated it only as a "gaming device," instead of a gaming table,

as contemplated by the statute (art. 415), it might have been insufficient. It describes

the gaming device, because it could not literally be called a table, and then alleges

that the game of pool was played on it. Instead of charging that the defendant kept a

pool-table, etc., in general terms, it presents the facts which constitute the elements

of the game that was kept, and left it to be judged of by the court, upon exception,

if any should be made, whether or not an offense had been set forth.

*2 We think, the indictment amply presents the elements of the offense of keeping a

gaming table, and that the court erred in sustaining exceptions to it. Stearnes v.

The State of Texas, 21 Tex. 692. Judgment reversed and cause remanded.

Reversed and remanded.

Tex. 1859.

THE STATE v. LEVI W. KELLY.

24 Tex. 182, 1859 WL 6385 (Tex.)

END OF DOCUMENT

=

*1 Under the law of 1841 (which was still in force in Texas in 1867), in relation to

runaway slaves, it was made the duty of the sheriffs of the respective counties to

receive all runaway slaves who were duly committed, and to keep them securely, and to

maintain them. O. & W. Dig. art. 1869.

Where the owner refused to remove the slave, or to provide for his maintenance, he

became liable for his expenses.

The insanity of the slave excused the sheriff from offering the negro at public sale,

as the law then directed. O. & W. Dig. art. 1870.

Where the reason of the law ceases, the law itself ceases.

When the law allowed the sheriff but fifty cents a day for keeping a slave, he could

not recover a higher sum by proving a quantum meruit. O. & W. Dig. arts. 960 and

1870.

ERROR from Harris. The case was tried before Hon. PETER W. GRAY, one of the district

judges.

Conlie sued Scranton for $301.25, for keeping the slave of Scranton, as jailor, and

for necessaries for said slave, under the law of 1841, with reference to runaway

slaves. O. & W. Dig. arts. 1869 to 1872. The defendant demurred to the petition,

plead the general issue, and that he was not the owner of the slave for more than

three years before the institution of the suit. The facts proved in the case were,

that in 1865 the defendant purchased the negro; that he was subject to fits, and

had been sold in consequence of it; that he had run off, and been committed to jail

in 1858, in accordance with the law at that time. The value of the keeping and of

the necessaries furnished were proved. It was proved on the part of the defense that

the negro was crazy. The jury returned a verdict for the plaintiff for the amount

demanded, for which there was judgment. In arriving at this amount, the jury allowed

more than fifty cents per day for keeping the slave. The law at that time only allowed

fifty cents a day.

The defendant prosecuted error. No briefs have been furnished to the reporter.

Under a statute requiring sheriffs to offer for sale at the end of a certain time

runaway slaves in their custody, if not reclaimed, it is a sufficient excuse for the

omission of the sale that the slave is insane and of no value.

The owner of a runaway slave who is in the hands of the sheriff becomes liable for

the expenses of the slave on his refusal to remove him or to provide for his

maintenance.

When the law allowed the sheriff but fifty cents a day for keeping a slave, he

could not recover a higher sum by proving a quantum meruit.

COKE, J.

*2 The petition in this case discloses a good cause of action. The demurrer was properly

overruled. The slave, Jack, having been arrested as a runaway, placed in the custody

of appellee, as sheriff of Bastrop county, it was his duty to keep him securely, and

provide for and maintain him. O. & W. Dig. art. 1869. The plaintiff in error is proved

to have been the owner of the slave, and to have been duly notified of his arrest and

incarceration, and wholly failed to remove him or provide for him. The utter

worthlessness of the slave, arising from his mental insanity, which is alleged and

clearly proved, is a sufficient excuse for the failure of defendant in error, as

sheriff, to offer him for sale at the end of six months from the date of his committal,

as required by law. O. & W. Dig. art. 1870.

His condition was such, that he would have been an onerous charge upon a purchaser,

and to have offered him for sale under such circumstances would have been an idle

ceremony, not required by the law. The requirement to sell is based on the idea that

the negro was of some value, and would bring money on a sale with which to defray

expenses, etc. When he is absolutely and utterly worthless, and worse than worthless,

as the slave in this case is proved to have been, the reason of the law ceases, and

the requirement with it. That the plaintiff in error is liable for necessaries

furnished, and for proper care and attention to his slave, and for his support and

maintenance, is too plain a proposition to require either argument or authority to

sustain it. But the defendant in error received the slave in his official character

as sheriff of Bastrop county, and kept him in the public jail. He was a prisoner for

whose support and maintenance the law allows the sheriff fifty cents per day. O. & W.

Dig. arts. 960, 1870. In his petition, the defendant in error claims $1 per day, and

that amount is allowed in the verdict and judgment, making, for the whole time

charged for, an excess of $97.50 over what he is allowed by law to charge and

receive. The goods furnished and the extra attention bestowed are proved clearly

to have been absolutely necessary, and the charges for them were properly allowed.

There is no error in the judgment, except that it is excessive to the amount of

$97.50, for which it must be reversed, and the case remanded for further proceedings,

unless the defendant in error enter a remittitur of the excess, an opportunity to do

which will be allowed him, if he desires it.

Ordered accordingly.

Tex. 1867.

F. SCRANTON v. PRESTON CONLIE.

29 Tex. 237, 1867 WL 4516 (Tex.)

END OF DOCUMENT

=

*1 Where there are two counts in the indictment, one charging that the defendant did

engage in the sale of spirituous and intoxicating liquors, and the other that he did,

on Sunday, trade lager beer, both to the same party, the indictment is good. Ante,

p. 521.

The object of the legislature was to forbid all secular employments on the Sabbath

(not excepting any) by the act under which the defendant was indicted.

The disregard of the Sabbath constitutes the offense.

To charge the offense in the language of the act is sufficient. Pas. Dig. note 720.

Where it was proved that certain customers bought and paid for lager beer on Sunday,

although numerous witnesses proved that the defendant was in the habit of refusing

pay from his customers on that day, it was right to refuse a motion for a new trial.

APPEAL from Bastrop. The case was tried before Hon. JOHN IRELAND, one of the district

judges.

This was another Sunday case. The indictment charged that August Elsner, etc., on the

19th of May, 1867, etc., did then and there, on Sunday, engage in the sale of spirituous

and intoxicating liquors to Rufus Green, against the peace and dignity of the state; and

that Elsner was a grocer, and did then and there, on the Sundays aforesaid, trade lager

beer to Green.

The defendant moved to quash the indictment, because it charged no offense known to the

law, and because it was vague, and otherwise informal, defective, and insufficient. The

court overruled the motion. The jury found the defendant guilty, and assessed his fine

at $15. The defendant moved for a new trial, but was overruled, and he appealed.

There was a bill of exceptions, on the ground that Bruno Elsner had stated, when he let

these parties have the lager beer, that he was not the clerk or agent of the defendant,

which plea the court refused to admit. The proof was that Turner, Green, and John Scott,

a witness, went into the saloon of Elsner on Sunday, and that Green called for lager beer

and young Elsner let him have it, and Green asked what was the price of the beer. The

young man said 40 cents a quart. There was some dispute about the price, and as the

parties left Green left 20 cents for the quart, saying that was the price. The

witnesses went in through the back way, and left the same way. Green stated that

he only paid 20 cents, and that Bruno Elsner let him have the lager beer, but he

was the son of the defendant.

Another witness swore that Elsner, on Sunday, let him have beer, for which he paid

him a dime. He knew of no other selling or trading than his leaving that dime for

him and taking the beer, though he had seen him sometimes refuse to take pay for

the beer on Sunday, and he always said he could not sell on Sunday, and did not keep

his doors open. There was proof tending to show that he had often refused to take

money from his customers on Sunday. One witness swore that he had drank one hundred

and seventeen glasses of Elsner's lager in one day, and it did not intoxicate him,

but he went home sober. There were various witnesses who swore that they drank lager

at the house of the defendant on Sunday, and he would take no money for it. Act.

11th Leg. p. 222, secs. 2, 4.

In an indictment for a statutory offense it is sufficient as a rule to describe the

offense in the words of the statute.

An indictment one of the counts of which charges that the defendant, on "Sunday," etc.,

did engage in the sale of spirituous and intoxicating liquors to, etc., and another

count of which charges that "on the day and year last aforesaid" the defendant was

a "grocer," and did then and there on Sunday trade lager beer to, etc., is not liable

to the objection of charging two offenses.

A young man, standing behind the counter of his father, dealing with his customers,

may be considered as agent, and the father held responsible for his acts in the line

of duty.

An indictment containing two counts, one charging that defendant did engage in the

sale of spirituous and intoxicating liquors, and the other that he did on Sunday trade

lager beer, both to the same party, is good.

The prosecution proved that certain customers bought and paid for lager beer on Sunday.

Numerous witnesses for the defense proved that defendant was in the habit of

refusing pay from his customers on that day. Held, that the affirmative testimony

was controlling, and it was proper to refuse a motion for a new trial.

On a trial for violating the Sunday law in selling cigars, evidence examined, and

held insufficient to either establish a sale or to connect accused with the

transaction.

A. D. McGinnis, for appellant. It is respectfully submitted by the appellant that

the indictment in this case is not good, because it is exceedingly vague, defective,

and attempts to charge two offenses against the Sunday law which have entirely

different penalties.

*2 The indictment charges the accused with having engaged in the sale of spirituous

and intoxicating liquors, on Sunday, to Rufus Green, for which the law prescribes a

penalty of not less than $15 and not more than $75, and then proceeds to charge him

with being a grocer, and as such trading to said party lager beer, for which the

accused was liable to a fine not less than $10 nor more than $50. Acts 11th Leg.

secs. 2, 4, p. 222; ante, p. 522.

The court erred in permitting the evidence of John Scott as to what Bruno Elsner

said and did to Rufus Green. Draper v. The State, 22 Tex. 400.

The jury having returned no verdict as to the second count in the indictment, and

the charge in the first count being defective in not alleging the appellant

engaged in the retail of spirituous and intoxicating liquors on Sunday, the case

now before the court cannot be sustained. Acts 11th Leg. sec. 2, above referred to.

E. B. Turner, Attorney General, for the state. For the definition of the offense,

see acts of 16th December, 1863, and amendment made 13th November, 1866. 11th Leg.

222. The indictment charges the offense in the very words of the statute creating

the offense. This is always sufficient. Francis v. The State, 21 Tex. 280. The

question of fact was fairly submitted to the jury, and their finding will not be

disturbed.

Counsel have mistaken the reading of the statute in regard to what constitutes the

offense. It is an offense to retail, and also to sell, liquors in the manner

denounced by the law. A man may be convicted of the one or the other, and that

is the difference between the law of 1863 and that of 1866 upon this point.

CALDWELL, J.

It is objected that the indictment charges "two offenses," and is vague, defective,

etc. The first count charges that the defendant, on "Sunday," etc., "did engage in

the sale of spirituous and intoxicating liquors to Rufus Green," etc. The second count,

"on the day and year last aforesaid," the defendant was a "grocer," and did then and

there on Sunday trade lager beer to Rufus Green.

The object of the legislature was to forbid all secular employments on the Sabbath not

excepted in the act under which the defendant is indicted. The disregard of the

Sabbath, the refusal to recognize it as a day sanctified to holy purposes, constitutes

the offense. The particular act alleged is no offense, but becomes so only when done

on the Sabbath. The indictment we think amply sufficient to hold the defendant to

answer. The offense is charged in the language of the statute. 21 Tex. 280.

On the trial, John Scott, a witness for the state, testified that he and others went

into the saloon of defendant and called for lager beer, and young Elsner let them have

it. After drinking, young Elsner was asked the price of beer, and stated that it was

worth 40 cents a quart. To this it was replied, that it was too much. The party laid

down 20 cents on the counter and then left. The witness further said that he had

frequently seen young Elsner behind the counter attending to customers.

*3 To all of which defendant objected, on the ground that he was not present when

the transaction occurred. Objection overruled.

We think that a young man, standing behind the counter of his father, dealing with

his customers, may, without any violent presumption, be regarded as a clerk or agent,

and the father and proprietor held responsible for his acts in the line of duty. It

was in proof by three other witnesses that the defendant in person sold liquor as

charged.

It will be observed that the defendant kept the front door closed, but without difficulty

access could be had through his private house to the tap-room. This itself is

suggestive of any other than a pious intent.

Defendant proved by sixteen witnesses, who had frequented his house, that they never

knew him to engage in selling on the Sabbath. On that day his counter was free,

"without money and without price."

This certainly evinces much liberality, and we doubt not that so generous a man

could have increased the number of his witnesses. But the affirmative testimony

of the three gentlemen is controlling and decisive.

Judgment affirmed.

Tex. 1867.

AUGUST ELSNER v. THE STATE.

30 Tex. 524, 1867 WL 4654 (Tex.)

END OF DOCUMENT

=====

*1 When the case was called for trial the witnesses of the state were absent, and the

prosecuting attorney moved for a continuance, which the accused opposed; the case was

continued, and four days afterwards, the witnesses having appeared, the continuance was

set aside, whereat the accused said he was surprised, and protested, but did not move

a continuance for want of witnesses. There was no error in this. Pas. Dig. art. 2984,

2986.

Where the charge defined theft in the language of the code, and the proof was clear that

the property was stolen in one county and sold by the accused in another, there was no

error in the charge, nor was the court obliged to treat the statements of the prisoner,

when selling the property, as confessions. Pas. Dig. arts. 2381, 3061, 3127, notes 683,

761.

When the record does not show whether the prisoner was present when the verdict was

rendered or not, the court will not presume that he was absent. Pas. Dig. arts. 3088,

3089, note 752.

Where the property stolen in one county was the next day sold by the accused in another,

he saying that he had bought the property, and giving reasons, not proved to be true,

why he wanted to sell, there was no error in refusing a new trial. Pas. Dig. art. 3137,

note 762.

APPEAL from Bastrop. The case was tried before Hon. JOHN IRELAND, one of the district

judges.

The defendant was convicted of stealing oxen and other cattle in Caldwell county and

carrying them into Bastrop county, where he sold them.

There was a bill of exceptions, which merely recited what appeared in motions and orders

upon those motions. They gave the following facts: "That on the 17th day of December,

of this year, this case was called for trial, and the state, by attorney, moved the court

to continue this case for the want of witnesses for the state, which application the

court considered and granted, and the case was regularly continued. That on the 21st day

of this month the counsel for the state, by motion, asked the court to set aside the

continuance of this case, granted four days before, to which the defendant, by his

counsel, excepted; because the case had been previously continued by the state until the

next term of this court, and could not re-open the case and call the same for trial at

this term of the court, because it would be a surprise to defendant, unless he consented

for the case to be re-opened, which the defendant refused to do.

Which exceptions were overruled by the court, and forced into trial, or required to show

cause, by affidavit, why he should not be compelled to try this case.

The cause was opened, because it was stated by the court, when the cause was continued,

over the protest of defendant, that if the state's witnesses could be got before the

court adjourned, the cause would be opened and tried; and after the cause was re-opened

defendant offered no reason why the cause should not be tried."

*2 The facts proved were as follows:

"The state introduced, as a witness, A. L. Brock, who testified that in the early part

of this year he missed from his pasture thirteen yoke of work oxen; that witness

examined around the pasture and found where the fence had been let down and put up

recently, and followed the tracks of the oxen, in a northwest direction, a short

distance; the tracks of the oxen were quite plain for five or six miles, but after

that he could only track them when they crossed roads; that the weather was dry, and

little impression was made except where roads were crossed; afterwards the trail of

the oxen turned in the direction of Bastrop; that after following a whole day witness

returned home, and the next day, February 3, came over to Bastrop county; within a

few miles of Bastrop, in Bastrop county, in the edge of the Colorado valley, witness

discovered his oxen in Mr. Fort's pasture and identified them; that witness got

twelve yoke of his oxen from Mr. Fort. Witness, on cross-examination, stated he resided

west of Lockhart, in Caldwell county, and that Blanco county was northwest from his

residence. Witness, being re-examined, stated his oxen were worth $35 a yoke. Witness

also stated he sold one yoke of his missing oxen to Mr. Fort.

A. W. Fort, a witness for the state, testified that in February of this year the

defendant, under the name of W. D. Jackson, sold him thirteen yoke of oxen for $150

in gold and a mule; that the next day after this sale Mr. A. L. Brock came to his

house, claimed twelve of said yoke of oxen witness had bought from defendant, and

carried them away, and described a yoke witness had sold to Durand, of Austin, Texas.

Witness, on cross-examination, stated that defendant told him that he had purchased

the oxen in Blanco county; that defendant expected some friends to have met him here

from Evergreen with money to carry the oxen to a better market, and also to purchase

corn for them; that corn in the Colorado valley was worth $1 per bushel; that defendant

was out of money, and his oxen poor, and was willing to sacrifice the oxen, as he was

here, and was not able to go further with them. Witness did not know the direction from

Brock's house to Blanco county, but knew Brock lived four or five miles west of Lockhart,

in Caldwell county.

____ Durand, a witness for the state, testified that he traded with Mr. Fort for one of

the yoke of oxen Fort bought from defendant; that witness was present when Mr. Fort

bought the oxen from defendant, and heard defendant say he was compelled, on account

of the scarcity of money and the fact that the oxen were poor, the weather cold, and

the oxen falling off every day, to sell them at a sacrifice; that he (defendant) gave

$30 a yoke for said oxen in Blanco county; that at first defendant asked Fort $30 a

yoke for the oxen, but Fort refused to give that, and defendant finally sold all thirteen

yoke of said oxen to Fort for $150 gold and a mule. Witness stated he traded for one

of the yoke of oxen Fort bought from defendant, and described the yoke of oxen as Mr.

Fort described it."

*3 The court, in its charge, defined theft in the language of article 745 of the penal

code (Pas. Dig. art. 2381), and put the hypothesis in the proper language.

The defendant's counsel asked instructions, which treated the statements of the prisoner

to the purchaser of the oxen as confessions, which the court refused. The jury found the

defendant guilty, and assessed the punishment at four years' imprisonment in the

penitentiary.

The defendant moved in arrest of judgment and for a new trial, which motions were

overruled, and he appealed.

The record, on appeal, showed that when the cause was called for trial, the witnesses

for the state being absent, the defendant insisted upon a trial; but a continuance was

granted with the express understanding that such continuance should be set aside on

the appearance of the witnesses. Afterwards, the witnesses appearing, the continuance

was set aside, and the defendant protested, but did not move a continuance. Held, that

the court did not err, as defendant should have made a showing if he had ground for a

continuance.

Where the record does not show whether the prisoner was present when the verdict was

rendered or not, the court will presume, on appeal, that he was absent.

Where in a prosecution for theft the charge defined theft in the language of the code

and the proof was clear that the property was stolen in one county and sold by the accused

in another, there was no error in the charge, nor was the court obliged to treat the

statements of the prisoner, when selling the property, as confessions.

A. D. McGinnis, for appellant. I. The court erred in re-opening the continuance of the

case, against the protest of appellant, and forcing a trial of the same.

II. The court erred in refusing the charges to the jury requested by defendant's counsel.

III. The court erred in overruling the motion of appellant for new trial and in arrest of

judgment.

IV. The court erred in receiving the verdict of the jury in the absence of appellant and

his counsel, and in not having the jury polled.

On the first point, see Pas. Dig. art. 1461; Sayles, Prac. secs. 476, 477, 478, and 527.

While it is deemed the above references are sufficient to establish the point contended

for, yet the case of McCoy v. Jones, 9 Tex. 363, determines the action of the lower court

to be erroneous.

*4 On the second point, he cited the criminal code, art. 664.

On the third point, it was urged that the record did not show that the prisoner was present

when the jury returned the verdict. Code Cr. Proc. arts. 540, 617, 624, and 625.

The motion in arrest of judgment should have been sustained, because the indictment is

clearly defective, in not stating what Monday in March, 1866, it was found and returned

into court by the grand jury of Bastrop county, so as to enable this court to determine

whether any legal district court was at that time held. It is also suggested the indictment

is defective, because it fails to charge directly that appellant was found with the property

in Bastrop county. Code Cr. Proc. art. 198. But the indictment on its face charges the

theft to have been committed in Caldwell county, where he should have been prosecuted,

unless he had actually been found with the property in Bastrop county. This allegation,

being material to give Bastrop county jurisdiction, should have been expressly charged

in the language of the law.

No brief for the state has been furnished to the reporter??

MORRILL, C. J.

The first error assigned is, that the court erred in re-opening the continuance of the

cause against the protest of Callahan. The record shows that when the cause was called

for trial, the witnesses for the state being absent, the defendant insisted upon a trial,

but a continuance was granted with the express understanding that it should be set aside

on the appearance of the witnesses. When this took place, therefore, the defendant, if

his witnesses were not present, could have made a showing for continuance, if he had any

cause; but he assigned no cause, and we see no cause of error in the court ordering a

trial.

The second, third and fourth errors, to the effect that the court erred in his charge to

the jury and in refusing the charges requested, and also in receiving the verdict of the

jury in the absence of the defendant and his counsel, can be disposed of by a statement

of the fact, that the charge given was as favorable to the defendant as the law allowed,

and there was nothing in the record showing the absence of the defendant on the rendition

of the verdict, and we cannot presume either that the court erred in this respect, or,

if it were so, that the counsel for the defendant would have neglected to have so

incorporated in the record, that it could be examined and corrected by this court.

We see no error in the rulings and charge of the court, and the testimony was sufficient

to authorize the verdict of the jury. The judgment is

Affirmed.

Tex. 1867.

CALLAHAN, ALIAS W. D. JACKSON, v. THE STATE.

30 Tex. 488, 1867 WL 4639 (Tex.)

END OF DOCUMENT