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SUPREME COURT RECORDS PAGE
2
File
contributed by Lisa Lach and proofed/formated by Dena Stripling Supreme Court of Texas. SLOCUMB AND ANOTHER v. THE STATE. 1853. *1 Where the Sheriff returned a capias executed
by serving it upon the defendant and taking his bond for his
appearance, in pursuance of Article 2889, and the bond was indorsed approved by the
Sheriff, and marked "Filed nunc pro tunc, the 30th December,
1851," signed by the Clerk; Held, That the bond was sufficiently "returned and certified." (No
objection was taken below.) A paper may be marked filed nunc
pro tunc, so as to correspond with the fact of filing. Where a paper was marked "Filed nunc pro tunc the 30th
December, 1851," and the record contained no corresponding order of
the Court, nor bill of exceptions, the Court said that the words "nunc pro tunc" might be
rejected as surplusage. It is proper to order an alias capias to issue
against a defendant in a criminal case, at the same time that judgment
nisi is rendered against him and the sureties on his bond to appear. Error from BASTROP. A. W. WINN was indicted,
Fall Term, 1851, for assault and battery. Process was issued 30th December, 1851, and
returned "Came to hand same day issued, and executed the same,
serving the within capias on said WINN and taking his bond for his appearance
at the next Term of the District Court." Then followed a bond by
WINN, as principal, and the plaintiffs in error, as sureties, for WINN's appearance, as
aforesaid. The bond was dated same day the writ issued; was
indorsed "approved the 30th December, 1851, John HEARN, Sheriff B. C.;"
and was also indorsed "Filed nunc pro tunc the 30th December,
1851, Jas. P. WALLACE, Clerk D. C. B. C." The defendant WINN failing to appear, judgment
nisi went against him and the plaintiffs in error, as his sureties; and a capias was ordered
against WINN. At the next Term, scire
facias having been served, the judgment was made final. The errors assigned will be found in the opinion of the
Court. Where a capias is served upon the defendant in a
criminal case by the sheriff, and a bond taken, and the sheriff
certifies on the capias that the bond has been taken, and the bond is marked
"Filed," and signed by the clerk, then such bond is sufficiently "returned and
certified." Such a bond may be ordered to be filed nunc
pro tunc, but, if it is filed on the day of the execution thereof, there is no good reason for such an
order. In this case the unnecessary words "nunc pro tunc," added by
the clerk, were rejected as surplusage. Attorney General, for defendant in error. HEMPHILL, CH. J. This is a judgment on a bond taken by the
Sheriff by virtue of Article 2889. It is assigned *2 1st. That the bond was not certified and returned to the
District Court as the law directs. 2d. That it was not filed by the Clerk the day
it came to his hands, but was erroneously ordered by the Court to be filed "nunc pro tunc." 3d. That judgment was improperly rendered
against plaintiffs, who were securities in the bond, after an alias capias
had been ordered to issue against WINN, the principal. There is nothing substantial in any of these
grounds. The statute requires the bond to be returned and certified to the
Court, without stating the mode, or form, in which this shall be done. Here the Sheriff
certifies on the capias, that he has taken the bond; and the
bond is marked filed, by the Clerk. This is sufficient to show that it is the
bond of the parties, given in the cause, among the papers of which it is found. There was no error in ordering the bond to be
filed "nunc pro tunc."
No such order appears, however, of record. Nor is there anything which
shows the necessity of such order. The bond was executed the 30th December,
1851, and is marked filed, the same day, with the addition of "nunc pro tunc." This addition may be rejected as surplusage,
as there is no apparent necessity for any such qualification of the filing. There is nothing in the fact that an alias
capias had been ordered to issue. It was to the benefit of plaintiffs, as the
principal might have been brought in before the entry of final judgment on the bond. Judgment affirmed. Supreme Court of Texas. WILLIAM PRIMM v. JOHN STEWART AND JAMES STEWART. 1851. *1 The ninetieth section of the act of 1846 to
regulate proceedings in the District Courts is applicable only in case it is
proposed to contest the genuineness of the instrument, and to require
the party to prove its execution. The admissibility of hearsay evidence of the
fact of death is not confined to cases of pedigree; it is doubtful, however,
whether the hearsay testimony in this case, if it stood alone, would be competent. The absence of a person, beyond sea or
elsewhere, for seven years successively, without being heard of, authorizes
the presumption that he is dead. A power of attorney not coupled with an interest
is revoked by the death of the principal. Appeal from BASTROP. This suit was brought on
the 13th day of January, 1849, by the appellees, to recover of Thomas W. COX,
the defendant below, a tract of land. The appellant PRIMM intervened, claiming title to
a portion of the land in controversy. As a part of his claim of title, he gave
in evidence a power of attorney given by John C. WILLIAMS to
Edwin WALLER, dated on the 24th day of February, 1838, and a deed executed
by WALLER, under this power of attorney, to WILLIS on the 17th day of May, 1849. The
former was a general power of attorney, authorizing and
empowering the attorney to transact all the business of the principal, of
whatever nature, in the Republic of Texas; to sell and convey and to
lease his lands, adjust and settle his accounts, collect his debts, take
charge of his effects, and to take control of and manage all his affairs and interests in
the Republic. The deed executed by the attorney under this
power purported to be given to supply the place of one given for the same piece
of land executed on the 29th day of September, 1838, and recorded in
BASTROP county on the 12th day of March, 1849, which was defective. To impeach the validity of this deed, the
plaintiff introduced a witness who testified that he became acquainted with a man
of the name of WILLIAMS, in New Orleans, in 1839, who had had extensive
dealings in lands in Texas with D. C. BARRETT, of Texas; that he had never seen
WILLIAMS since 1839, and that, from information and general report, he
(WILLIAMS) had been dead for six or seven years. Another witness, introduced by the
plaintiff, testified that he knew WILLIAMS in Brazoria county, where
he formerly resided, near the residence of Edwin WALLER; that he was present, in 1837
or 1838, when D. C. BARRETT executed to said WILLIAMS a deed to a
tract of land; that he had not seen nor heard from WILLIAMS since 1839,
except from general rumor and report that he died seven or eight years ago;
witness formerly resided in Brazoria county, and had been there several
times since he removed from that county. One of the mesne conveyances under which the intervenor
claimed was a deed from D. C. BARRETT to WILLIAMS, dated July 12,
1837. There was in the record a bill of exceptions,
from which it appeared that "the plaintiff offered to prove that the
said WILLIAMS was dead at the time said deed was executed by said WALLER, to which
the intervenor PRIMM objected, but his objection was overruled," and he excepted.
There was a verdict and judgment for the plaintiff, and the intervenor
appealed. The ninetieth section of the Act of 1846, to
regulate proceedings in the District Courts, Hart.Dig.
art. 745, is applicable only in case it is proposed to contest the genuineness of the
instrument, and to require the party to prove its execution. One absent seven years without being heard from
is presumed to be dead. It is not in cases of pedigree alone that
hearsay evidence of the fact of death is admissible. The death of a party revokes a power of attorney
given by him, unless the power was coupled with an interest. SAYLES, for appellant. *2 I. By art. 745, Hart. Dig., it is provided that deeds which
have been duly recorded may be read in evidence without
proof of execution, upon their being filed for three days among the papers of
the cause, unless the opposite party shall file an affidavit that the instrument is
forged. These provisions of the statute had been complied
with, and the instrument constituted full proof so far as the execution
was concerned; it was the deed of WILLIAMS, not of WALLER; the plaintiff,
by the pleadings and notice, was apprised that it would be relied upon as
such, and an affidavit was necessary to lay the foundation for proof of the character
introduced. II. The evidence introduced was wholly
incompetent for that purpose; it was hearsay testimony, and that of the most indefinite character.
Hearsay testimony is competent to prove deaths only when
it is a question of pedigree; and, even for that purpose, is received under great
restrictions. In this case the death of WILLIAMS was an
important fact, which was capable of positive proof. Neither of the witnesses were acquainted
with him; neither knew his given name; neither lived in
his neighborhood; and neither knew when or where or from whom he heard the
report of his death; yet this testimony was permitted to go to the jury and
was undoubtedly regarded as conclusive by them. In the case of DUDLEY v. GRAYSON it was held that the statement of a witness that he
had heard that a person was dead was insufficient. And from an examination of adjudicated
cases, it will be found that hearsay testimony is only
admissible when the death is a question of pedigree, and when, from the
circumstances of the case, it is the best evidence that can be produced. WEBB & OLDHAM, for appellees. I. The District Court properly admitted the
evidence offered by the plaintiffs below to prove the death of WILLIAMS
before the execution of the deed by WALLER, under the power of attorney from WILLIAMS to
him, to WILLIS. The objection taken, as shown by the bill of
exceptions, was not to the character of the evidence offered, but was to
the right of the plaintiffs to prove the fact. The death of WILLIAMS revoked his power of
attorney to WALLER. WHEELER, J. The first objection to the admissibility of the
evidence, that is, the absence of an affidavit that the deed was forged, clearly is not
tenable. The statute is applicable only in case it is
proposed to contest the genuineness of the instrument, and to require
the party to prove its execution. But here the genuineness of the instrument was not
contested. Its execution was not in question. But it was proposed to impeach its
validity by evidence going alone to the question of the
authority of the party to make it. This it certainly was competent to do. Was the evidence offered, being hearsay,
admissible to prove the fact which it was proposed to prove: that is, the death of WILLIAMS?
In the learned notes to Philips's Evidence, many cases are cited where
hearsay has been received to prove the fact of death. Such evidence appears
to have been received with less hesitancy where the deceased resided abroad,
in a foreign jurisdiction. The fact of such residence abroad seems to have
been sometimes considered as a ground for the admission of the evidence. *3 Evidence of hearsay to prove the fact of
death appears to have been received in many of the American courts to whose
opinions we are accustomed to pay the greatest deference, and, we think, with reason. For,
as has been said, that a person has been missing at a
particular time, accompanied with a report and general belief of his death, must
be, in many cases, not only the best but the only evidence which can be supposed to
exist of his death. In the Supreme Court of the United States it was
held, in the case of SCOTT's Lessee v. Ratcliffe,
that the testimony of a witness, that, in 1811, she, being in the city
where the deceased had resided, was there told that he was dead,
without saying by whom she was told, was admissible to prove his death--Chief
Justice MARSHALL saying, that the judges were all of the opinion that so much
of the testimony of the witness as went to prove the death was
admissible; though there was some diversity of opinion on another point. Nor is the admissibility of such evidence
confined, as has been insisted, to cases where the question is one of pedigree. It seems to have
been allowed irrespective of that question, and in cases
where the inquiry was entirely abstracted from any question of pedigree. If, in the present case, the testimony of the
two witnesses who were called to prove the death of WILLIAMS, stood alone,
unsupported by other circumstances, we should doubt its competency to prove that fact. But
when taken in connection with the facts in evidence
when it was offered, we think it was admissible. The terms employed and subjects embraced
in the power of attorney made by WILLIAMS in 1838 render it
probable that it was made in contemplation of his going abroad. No witness testified to his having
been in this country since that period, though he
formerly lived in Brazoria county, where the power of attorney was executed. The deed
executed by WALLER, as his attorney in fact, was made after
the commencement of this suit; and, from its date, and reference to a
former defective deed between the same parties for the same land, said to have
been made more than ten years before, and then lately recorded, there
can be little doubt that it was made in reference to the suit then pending. And if
WILLIAMS had been in the country, or living within the knowledge of
the party for whose benefit the deed was procured, it is quite probable that
a resort would have been had to him, rather than to this old power of
attorney, given more than eleven years before. After so great a lapse of time from its
execution, and such changes in the affairs of this country,
there must be much reason to believe that the power of attorney had long
since accomplished all the purposes for which it had been given, and had
been revoked, either by the act of the party or by the operation of law. The
circumstances under which the evidence was offered rendered its admission
proper, if they did not even justify the conclusion sought to be established, without it.
That WILLIAMS had been absent from the country for many years
seems to admit of little doubt; and he does not appear to have been heard
of for more than seven years, except that he had died. Such an absence, without
having been heard of, would authorize the presumption that he was dead.
(YATES v. HOUSTON; Hart. Dig., art. 2386.) *4 The evidence was, we think, under the
circumstances, admissible, and at least prima facie sufficient to establish the
fact which it was proposed to prove. We have considered the question, taking the
objection most favorably to the party making it, as going to the admissibility of the evidence
offered. The bill of exceptions, however, is so framed as to
leave it doubtful whether the objection went to the admissibility of the
evidence or to the materiality of the fact proposed to be proved. If the latter only,
it has not been so treated in the argument for the appellant. Nor
will it admit of a question that the death of the principal was a
material fact, and that it operated a complete revocation of the power of attorney. A power
of attorney, not coupled with an interest, is
revoked by the death of the principal. (Story on Agency) We are of opinion that there is no error in the
judgment, and that it be affirmed. Judgment affirmed. Supreme Court of Texas. RANDON v. BARTON. December Term, 1849. *1 Wherever it is proper to join several
defendants in the same suit, the suit may be instituted in any county where one of the
defendants resides. Where a divisible obligation to do a thing was
given to two, and one of the obligees, without authority from the other, but professing to
have such authority, assigned it to another: Held, That
the assignee could join the obligees and obligor as defendants in the same suit, and recover
one-half of the obligation from the obligor and damages for
the other half from the assignor. Where a person undertakes to assign an
instrument which he has no right to assign, he is not entitled to demand due
diligence of the assignee to collect the money or enforce the obligation. No demand and notice or other evidence of
diligence is necessary when from the facts of the case it is apparant
that the party to be charged had no right to expect it and could not have been injured by the want
of it. A contract for the transfer of land certificates
need not be under seal. The rule respecting the measure of damages for
breach of contract to transfer and deliver land certificates is that
which applies to the breach of contracts for the sale of chattels, not of lands. (Note
58.) Where contracts for the sale of chattels are
broken by the failure of the vendor to deliver the property according to the
terms of the contract, if the price has not been paid in advance, the
measure of damages is the difference between the price contracted to be
paid and the value of the article at the time when it should have been
delivered; but if the price has been paid in advance, the purchaser is entitled
to the advantage of any rise in the market value of the article which may
have taken place up to the time of the trial. (Note 59.) Where the suit was for land certificates or
their value, and the jury found for the plaintiff "two thousand and eighty
acres of land, at eighteen and three-quarter cents per acre," the court
gave judgment in favor of the plaintiff for three hundred and ninety dollars: Held, There was no
error. Error from BASTROP. The defendant in error
brought suit against the plaintiff in error jointly with Edward BURLESON
and Thomas F. MCKINNEY, in the District Court for BASTROP county, on the 20th day of
July, 1847. The petition alleged, in substance, that the
plaintiff was the owner of a certain contract in writing, made by BURLESON
with MCKINNEY and RANDON, for the transfer, by the former to the latter, of
certain land certificates described in the petition, and calling for the
quantity of four thousand one hundred and sixty acres of land; that for a
valuable consideration the defendant RANDON contracted to transfer, and did
assign to the plaintiff, the entire interest in said contract, the said
RANDON representing that the entire interest belonged to him, and that
MCKINNEY had transferred to him all the right and interest which he ever had in
the contract; that the plaintiff had presented the contract to
BURLESON, the maker, and demanded the certificates referred to, but that he had
refused to deliver or transfer the certificates, alleging that there still
remained in said MCKINNEY a right to the undivided half of them, and that he
had been notified by MCKINNEY of his interest. The plaintiff alleged
that he had sustained damages, etc., and prayed that the entire
interest of all the defendants be decreed to him; or if, by reason of the claim
and rights of the defendant MCKINNEY, that cannot lawfully be done, that the
interest of the defendant RANDON be adjudged to him, and that he have
judgment against said RANDON for the value of so much in amount of the
certificates assumed to be conveyed by him as he, RANDON, had no authority or right to
convey, which he alleged to be of the value of twenty-five cents per acre. The petition
alleged that the defendant BURLESON resided in the county of
BASTROP, MCKINNEY in the county of Galveston, and RANDON in the county of
Fort Bend, and concluded with a prayer for process and for general relief. The contract
described in the petition and made a part of it is set out in the
record, and purports to be made by BURLESON in favor of MCKINNEY and RANDON,
and to have been assigned by RANDON to the plaintiff BARTON, as follows:
"I have this day transferred the above obligation on Gen. E. BURLESON,
for four thousand one hundred and sixty acres of land certicates,
to Wayne BARTON, for the valuable consideration of four hundred dollars, this 18th February, 1847." *2 D. RANDON." At the fall Term, 1847, the defendants MCKINNEY
and BURLESON answered, and the plaintiff had judgment against the latter
for two thousand and eighty acres of land certificates, being half the
amount claimed in the petition; and the defendant RANDON having been served with
process and failing to appear, judgment by default was taken against
him, and a writ of inquiry awarded; upon which, after hearing the evidence,
the jury returned a verdict for the plaintiff for two thousand and eighty
acres of land, at eighteen and three- fourths cents per acre, and the court
thereupon gave judgment for $390; to reverse which the defendant RANDON
prosecuted this writ of error. Neither demand nor notice nor other diligence is
necessary when the party to be charged had no right to expect it, and could
not have been injured by the omission of it. A. contracted to transfer bond certificates to
B. and C. B., without authority, but representing that he had it from
C., assigned the contract to D. D. brought a suit to have the interest of A.,
B., and C. decreed to him, or for B.'s interest and damages from him for C.'s, which
was allowed. Where one undertakes to assign an instrument,
without right, he may not demand due diligence of the assignee to collect
the money or enforce the obligation. The measure of damages for breach of contract to
transfer and deliver land certificates, is that applying to the breach of
contracts for the sale of chattels, not of lands. A vendor who fails to deliver the goods after
having received the price is liable to the vendee for their highest market
value at the place of delivery at any time between the day stipulated for delivery and the
trial. A contract for the assignment of land
certificates, though not under seal, is good. An action against joint defendants may be
instituted in any county where one of the defendants resides. MUNGER, for plaintiff in error. The obligation
of RANDON was an independent one. There was no such privity as
justified the joinder of him in a suit against BURLESON. *3 II. The contract was for the conveyance of
realty, and should have been sealed. III. The plaintiff did not use due diligence to
enforce the obligation against the maker. The instrument was assigned on the 18th of
February, and suit was not commenced until the 20th of July thereafter. He
was not, therefore, liable as surety. It will hardly be contended that he
can be held liable in warranty in an action like this. IV. Neither in law nor equity can the plaintiff
recover "the present value of the certificates." He was at most only entitled to
$200 and interest from the time he paid the money. V. The court had no jurisdiction of the suit, if
for land; no jurisdiction of the person, if the suit was for damages. GILLESPIE, for defendant in error. The joinder
of the defendants is authorized upon general principles of law, and
seems to be enjoined by the act of 1846, p. 375, secs. 48, 49. WHEELER, J. Of the several errors assigned there are but two
which are deemed of a character to require particular notice, and
these are-- 1st. That the plaintiff did not show the use of
diligence sufficient to charge the indorser, RANDON. 2d. That the verdict is illegal in having found
the present value of the land certificates. That the plaintiff could maintain this action
against the defendants jointly, and in the county of the residence of
either, cannot admit of a doubt. (Acts of 1846) But it is insisted that the plaintiff did not
use due diligence to enforce his contract against the maker. To this objection it is a
sufficient answer that the present is not a case to which the
rules which have been invoked respecting diligence are applicable. The defendant RANDON undertook
by his assignment to transfer an interest which he did
not possess and which he had no right to convey. His assignment, therefore, was a fraud
upon the plaintiff, and he had no right to notice the
refusal of the maker to perform the contract. He had no right to expect that BURLESON would
convey the certificates upon his individual assignment. No demand and notice or
other diligence, therefore, was necessary to charge him. The reason for
giving notice and the necessity of it ceases when from
the facts of the case it is apparent that the party to be charged had no
right to expect it and cannot have been injured by the want of it. To determine the remaining question, it becomes
necessary to ascertain what was the true measure of damages for the breach of contract
complained of. And it is to be observed that this was not a
contract to convey land or any estate or interest in land, but merely for the
transfer of unlocated land certificates. It is true that the jury in their verdict employed the
word "land," but from the whole verdict
taken together and in reference to the issue it is very clear that they meant land certificates only.
The rule, therefore, respecting the measure of damages
applicable to this case is that which applies to the breach of contracts for the
sale of chattels, not of lands." *4 When contracts for the sale of chattels are
broken by the failure of the vendor to deliver the property according to the
terms of the contract, it is well settled that as a general rule the measure
of damages is the difference between the price contracted to be paid and the
value of the article at the time when it should be delivered, upon the
ground that this is the plaintiff's real loss, and that with this sum he
can go into the market and supply himself with the same article from another vendor. But
where the purchaser has paid the price in advance, or has otherwise, as in the
loan of stocks, been deprived of the use of his property, there are different
and conflicting decisions upon the question whether the purchaser is limited
to the value of the article at the time for delivery, or shall have the
advantage of any rise in the market value of the article which may have taken place up to the time of trial. In
England and New York the latter rule is laid down, on the
ground that the purchaser, having been deprived of the use of his property,
is entitled to the best price he could have obtained for the article up
to the time of the settlement of the question. In the case of CLARK v. PINNEY, the distinction
between contracts wholly executory and those where
payment has been made was taken and firmly maintained by the Supreme Court of New York. The
action was upon a contract for value received to deliver on a
future day a certain quantity of salt, at a stipulated price per bushel. The court held
that as the goods had been paid for, the measure of damages was
the difference between the contract price and the highest price at any time
between the period appointed for delivery and the day of trial. After recurring to
the authorities, the court say: "We hold it,
therefore, to be settled by authority, and rightfully settled upon
principle, that where a contract is made for the sale and delivery of goods or
chattels, and the price or consideration is paid in advance, and an action
is brought upon the contract for the non-delivery, the plaintiff is not
confined in measuring his damages to the value of the article on the day when they
should have been delivered." The same rule was laid down in the earlier case
of WEST v. WENTWORTH, Chancellor KENT, in his Commentaries,
says: "The general rule is well settled that in a suit by a vendee for a
breach of contract on the part of the vendor for not delivering an article
sold the measure of damages is the price of the article at the time of the "breach." This undoubtedly
is the rule where the price has not been paid in advance by the
vendee; but, as has been remarked by Mr. SEDGWICK, the learned commentator has
omitted to advert to the distinction resulting from the payment of the
price in advance, which runs through the English and New York cases, and
which seems to us a sound distinction. In several of the States, however, this distinction has
not been recognized. It seems to have met with the approval of
Chief Justice MARSHALL. In an action brought upon a contract for the delivery
of cotton at ten cents per pound, which when it was to have been delivered
was worth twelve cents, and before the suit was brought had risen to thirty
cents per pound, the plaintiffs insisted that they were entitled to the highest
market price up to the rendition of the judgment. But the unanimous opinion of the court
was "that the price of the article at the time it was to
be delivered was the measure of damages." There had been no money advanced and MARSHALL,
Ch. J., said: "For myself only I can say that I should
not think the rule would apply to a case where advances of money had been made by
the purchaser under the contract. But I am not aware what would be the opinion of the
court in such a case." *5 This distinction is maintained by the
authority of at least the courts of England and New York, and we think rightly upon
principle; and its application seems peculiarly appropriate in the present case. Here
the money was paid in advance. The contract was for the transfer of
land certificates, and resembles in some respects contracts for the
transfer of stock, in respect to which it seems generally to have been
held that the damages should be calculated at the price on the day of trial. In a
case of this character in the King's Bench, GROSE, J., said:
"The true measure of damages in all these cases is that
which will completely indemnify the plaintiff for the breach of the engagement."
And LAWRENCE, J., said: "Suppose a bill were filed in equity
for a specific performance of an agreement to replace stock on a given day, which
had not been done at the time: would not a court of equity compel the
party to replace it at the then price of stock, if the market had risen in the meantime?" The court in the present case decreed a specific
performance against the defendant BURLESON, and the same would
unquestionably have been decreed against RANDON, if the interest had been in him
and he had been legally capacitated to make the transfer. The plaintiff would then have
obtained the certificates specifically. Shall he be placed in a worse condition
because RANDON had not the title or right to make the
transfer; or shall this defendant, for that reason, be placed in a
better condition or be permitted to discharge his liability with a less sum than his
codefendant BURLESON? Or rather shall he make such compensation as will
completely indemnify the plaintiff for the breach of the engagement, by
enabling him to go into the market and purchase an amount of certificates
equal to that which the defendant assumed to transfer to him? This would be most consonant
with justice, and is, it is conceived, the correct
rule upon principle and authority. It accords to all parties the same measure of justice. We have considered the question upon the
supposition that the jury estimated the value of the certificates at the time of the
trial; and we concluded that it was not improper to do so. But there is no statement
of facts; and as the prayer of the petition is for the
"present value" of the certificates, the estimate may have been of
their value at the commencement of the suit. If so, it would not vary the conclusion at
which we have arrived. There would, perhaps, in that case be less room for
doubt as to the accuracy of that conclusion. (CLARK v. PINNEY) Judgment affirmed. LIPSCOMB, J. I rest my concurrence on the ground that payment
had been made under the contract. If no payment had been made, I should in that event
believe that a different rule of damages would govern the case. NOTE 58.--JAMES v. DRAKE; JOHNSON v. NEWMAN *6 NOTR 59.--CALUT v. MCFADDEN; BRASHER v.
DAVIDSON; CARTWRIGHT v. MCCOOK Supreme Court of Texas. WILLIAM CANNON, Appellant, v. THE STATE, Appellee, December Term, 1848. *1 Appeal from BASTROP County. In trials for minor offenses and in civil causes, the separation of the jury without the permission of the court, before
rendering their verdict, will not, of itself, vitiate the verdict; though it
is a misdemeanor for which the jurors may be punished. An application for a new trial
on such grounds is invariably denied where no injury has ensued. The appellant was convicted of playing at cards
at the fall term of the district court, 1848. The defendant moved for a new trial on the
ground of the misconduct of a juror; and, in support of his motion, read the affidavit of
one Wm. R. CANNON, who was also examined on the
application, and who stated, in substance, that he was the bailiff in charge of
the jury; that he left them in charge of the sheriff, and went in search of
the clerk, at the request of the jury, to return their verdict; and whilst so
absent from them, and before they had returned their verdict, one of
them separated himself from his fellows and went into a store, and whilst
there drank spirituous liquors. The district attorney thereupon introduced the
juror to whose conduct the affidavit and testimony of CANNON related, and
proposed to prove by him the circumstances of his separation from the jury. To his competency as a witness the defendant objected, but his
objection was overruled by the court; and the witness testified that when he
separated from the jury they had agreed upon and signed their verdict, but
had not returned it; that he went some distance, to JOHNSON's store, and got
his coat, and at the same time took a drink of spirituous liquor; that
while there, he met with the bailiff, CANNON, who told him it was wrong to be
there, and that he replied that they had agreed on their verdict and found the defendant
guilty. The court refused the application for a new
trial, and the defendant appealed. The separation of the jury, without permission
of the court, before rendering their verdict, in trials of civil
causes, though a misdemeanor, for which the juries may be punished, will not
of itself vitiate the verdict. The mere fact that a juror was temporarily
separated from the jury during their deliberations is not ground for a new
trial if defendant could not have been prejudiced thereby. The affidavits of jurors may be received in
support of their verdict, though not to impeach it. GILLESPIE for appellant. BREWSTER, representing attorney general, for
appellee. Mr. Justice WHEELER, after stating the facts,
delivered the opinion of the court. *2 It is insisted for the appellant that the
court erred -- 1st. In permitting the juror to testify in
support of the verdict. 2d. In refusing to set aside the verdict for the
misconduct of the juror. 1. It is a general rule, which has been seldom
departed from, that a juror cannot be compelled, nor will he be permitted,
to testify to his own misconduct or that of his fellow jurors. And it would seem upon principle, that where the
question is, whether a juror has been guilty of misconduct, he ought
not to be permitted to testify at all; for his testimony must either inculpate
or acquit himself, and thus an inducement is presented to swerve from the truth. There
are, however, numerous cases in which it has been otherwise
decided; and the rule which they have established is, that the affidavits of
jurors may be received in support of their verdict, though not to impeach it. The ruling
of the court, in the present instance, was in conformity to this rule. An
affidavit had been read inculpating the juror and impeaching his
verdict; and it has been expressly decided that a juror who has been implicated in
reference to a verdict which he may have given, is admissible to remove the ground of
objection. Had the testimony of the juror been contradicted, or unsupported,
it must have been less satisfactory than that of a
disinterested and indifferent witness. This, however, was not the case. On the
contrary, his testimony fully corroborated that of the witness
CANNON; and it is not perceived that it disclosed any new material fact. The juror
states that before he separated from his fellow jurors they
had agreed upon their verdict; and this fact is also to be inferred from the statement
of CANNON. The alleged misconduct of the juror was his
separation from the jury, after they had retired, and before they returned their
verdict; and this misconduct the juror admited. The
defendant, then, was not prejudiced by his testimony, even had it been improperly received,
since it did not impeach, but conduced to support, the ground of his application for a
new trial. In either view of the testimony of the juror,
whether admissible or immaterial, the reception of it by the court can afford no
ground for reversing the judgment. 2. In support of the principal ground relied on
in the application for a new trial, the misconduct of the juror, the counsel
for the appellant has referred us to two cases; one decided in
Virginia and the other in Tennessee. In the former, The Commonwealth vs.
MCCALL, two of the jurors separated themselves from their
fellow jurors during the trial, and were absent about twenty minutes. A majority of the
court were of opinion that proof of actual tampering, or
conversation on the subject, with a juryman was not necessary to set aside a
verdict; and it was resolved that the separation of the jury was, of itself,
sufficient cause for vitiating and setting aside the verdict. In the latter case, MCLAIN
vs. The State, which appears to have been decided mainly upon the authority of the former, during the trial, which lasted
several days, a part of the jury frequently separated themselves at night
from their fellow jurors, for fifteen or twenty minutes at a time, without
being under the charge of an officer; and it was held that this was such an
irregularity as vitiated the verdict; and that it was not incumbent on the
prisoner to prove that the jury were, in fact, subjected to any improper
influence; it was sufficient that they might have been. *3 It is to be remarked of these cases, however,
that they are to be distinguished from the present case in having
been of the most highly penal character. They were trials for capital crimes; and the principle
is familiar, that, in a case affecting life, far
greater strictness is required than in trials for offenses of an inferior degree. In the former of these cases, moreover, there
was a divided court, and it was said that not a single adjudged case in the
English books could be shown, and none was shown, in which the
separation of one juryman from his fellows had been considered sufficient to set aside a verdict. But to whatever consideration and weight these
cases may be entitled (and standing alone on the point they would be
controlling), they are, nevertheless, opposed to adjudged cases of equal
authority, in which it has been held that a separation of the jury before
rendering their verdict, even in a case of life and death, does not, per se, render the
verdict void. And in a later case than that cited from Tennessee, the same
court decided that it was not sufficient cause for awarding a new trial, even
in a capital case, that the jury separated and mingled with the rest of the
community, when it is satisfactorily shown that they were not tampered with.
[STONE vs. The State; and see Commonwealth vs. ROLEY] But whatever conflict of opinions and decisions there may be respecting
the correct rule in a case affecting life, the doctrine is well settled,
that, in trials for minor offenses and in civil causes,
the separation of the jury without the permission of the court, before rendering their
verdict, will not, of itself, vitiate the verdict, though it is a
misdemeanor for which the jurors may be punished. In a late case before the court of appeals of
South Carolina this question was considered, and the court quoted and adopted
the rule stated in Graham on New Trials, p. 85, sec. 6, where it is said that
"upon this point the practice in this country appears to have resolved
itself into the exercise of a judicial discretion, confining the motion for a new trial to the question of abuse,
and invariably denying the application where no injury has ensued." Regarding this as the generally recognized and
settled rule applicable to cases not more highly penal than the present, we
must conclude that the misconduct complained of in this case, though
the proper subject of animadversion and punishment by the court, was
not, of itself, sufficient to vitiate and avoid the verdict. *4 We are of opinion, therefore, that the court
did not err in refusing the application for a new trial, and that the judgment be affirmed. Supreme Court of Texas. JAMES SMITH v. JOSEPH Y. BROWN December Term, 1848. *1 Appeal from Comal County. A fictitious case, brought for the purpose of
obtaining the opinion of the court on the matters presented by it, is a
contempt; and will subject the parties and their attorneys to the severe animadversion of the
court. Wagers, though recoverable at common law, if not
on subjects contrary to public policy, afford no ground of action when
entered into simply to obtain a judicial opinion upon an abstract question of law. The official acts of public functionaries are
not proper subjects for wagers; and it would be doing great injustice to
such functionaries to allow their conduct to become the subject matter of a gambling
contract. The facts of this case are fully stated in the
opinion of the court and the arguments of the counsel. A fictitious case, brought for the purpose of
obtaining the opinion of the court on the matters presented by it, is a contempt. Wagers, though recoverable at common law, if not
on subjects contrary to public policy, afford no ground of action when
entered into simply to obtain a judicial opinion upon an abstract question of law. The official acts of public functionaries are
not proper subjects for wagers. HAMILTON and GREEN for appellant. The judgment below was for the appellee, and he
relies upon its affirmance here, on the ground of the unconstitutionality
of the last legislature apportioning senators and representatives among
the several counties of the state, according to the requirements of the constitution. The presumption must always be in favor of the
validity of law, if the contrary is not clearly demonstrated. The 92d section of the district court act,
passed at the first session of the legislature, provides "that the printed
statute books of the state shall be evidence of the act therein contained;"
which, under the pleadings and proofs submitted by the parties, will entitle
the appellant to a reversal of the judgment. The objection to the validity of the law in
question, upon the ground of repugnance to the constitution of the state, is not well taken in
this case. A party who sets up the unconstitutionality of a
law must show that it has infringed upon, and is in derogation of, his
private rights; whereas, in this case, the appellee neither proves or charges any such
effect. *2 If, then, the appellee cannot set up the want
of validity of said law, upon the ground of its repugnance to the
constitution, it follows that he cannot go behind the law to inquire into the
time, manner and circumstances of its passage and approval. And if he could, an act, such
as the legislature have a right to pass, would not be
unconstitutional merely on account of irregularity in the manner of its
passage -- the constitutional provisions, in this respect, being only declaratory and directory. HANCOCK for appellee. This suit was brought at the last term of the
district court, by appellant, on an obligation made to him by appellee, for
the sum of one hundred and fifty dollars, payable the 6th of November last,
if by that time appellant furnish at the town of New Braunfels, any law
showing the next legislature of the state of Texas will be composed of seventy members
in both branches. Appellant alleges he performed the consideration
by producing, at the time and place mentioned, a law passed by the second
legislature of the state, being an act entitled "An act to apportion
senators and representatives of the legislature among the several counties
according to the requirements of the constitution." Appellee filed his answer, denying that the
purported act produced by appellant was a law: First, because it was not passed in accordance
with the constitution; and, with this plea, files a certified copy from the
secretary's office, of the act filed there, with a note thereon, of Hon.
John A. GREER, president of the senate, showing that it was not signed by
him till after the final adjournment. Second. He denies that any such law as that
presented by appellant was ever passed by the second legislature; but that the
same was procured to be published as a law, through fraud. Third. That no such act as the one produced was
ever enrolled, or reported upon, by the committee on enrolled bills, as
correctly enrolled; and that this was necessary to have been done, as
directed by the rules of the house of representatives, etc.; which are also filed as part of
the answer. Fourth. That the same was never signed by the
speaker of the house or the president of the senate, when they had any authority to do so. Fifth. That the said act never received the
sanction of both houses of the legislature. Sixth. That said act did not receive the
approbation of the governor till after the adjournment of the legislature; nor at
a time when he could rightfully approve bills. Seventh. That it excludes several counties from
representation. Judgment in favor of the defendant, from which
plaintiff appealed. The facts certified up show that, in the court
below, the plaintiff, in support of his right to recover, produced in evidence
the obligation sued on, and an act of the last legislature,
published among the printed laws of the state, showing that the next session of the
legislature will be composed of seventy members. *3 Defendant proved, from the journals of the
house and senate, that the law introduced in evidence by the plaintiff differs
from the act voted upon by the legislature for this purpose, in this: that
the counties of Harrison and Upshur were stricken out of the sixth senatorial
district in the act really voted on; and by the chairman of the enrolling
committee, that the act introduced by plaintiff was never reported by
said committee as correctly enrolled, nor any report made thereon by said
committee; and by the said chairman and the assistant clerk of the house,
that the same was not enrolled until the 21st of March, 1848, which
was the day after the final adjournment; and by the same witness, that the
said act was not, until that day, signed by the speaker and president; by the
secretary of state, that the said act was deposited in his office on the
21st of March, by the enrolling clerk of the house; that it was
afterwards taken out of his office by some one, to him
unknown, and on the same day returned by the governor's private secretary, signed by the speaker,
president, and the governor's approval thereon. The note of the president of the senate,
appended to the act at the time of signing it, and one addressed
to the governor by the speaker of the house, attested by the chief
clerk, dated 21st March, 1848, informing him that he did not sign said act till
then, were also in evidence. Shown by the bill, made a part of defendant's answer,
that the counties of Medina, Gillespie, Kaufman, etc.,
were not included in said apportionment bill; and that there was a number
of qualified electors residing in said counties. That the county of Caldwell, a new
county taken from the counties of BASTROP and Gonzales, was
attached to the county of Travis. The defendant, in his answer, admits that the
plaintiff produced an act appearing among the published laws of the second
legislature, which shows the next legislature will be composed of the
number of seventy in both branches; but denies that the produced act is a
law, upon two general grounds. The first ground based on matters accruing before its
publication; the second, on the constitutionality of the act in its
provisions. On the first ground taken by the pleas filed by
the defendant, denying that the act presented is entitled to the
consideration of a law, arises the question of the power of the courts to go behind
the printed statute book, to ascertain whether an act has been passed in
sufficient accordance with the necessary formalities to make it a law. It has not often occurred that courts have been
called upon to exercise this power of going behind the law, published under
the supervision of the authorized officers of state, to inquire into
matters that transpired during the progress of its passage, in order to come to
their determination of its validity. Cases have arisen where this power has been invoked;
and the course pursued has invariably been, as far as I
am able to learn, such as the genius of the age and the character of the
institutions of our government would not merely warrant, but seem to demand. In a government boasting of foundation on laws that extend to
all the branches and departments thereof, equally to the legislative
as others, the boast were idle, indeed, if we deny the existence of a
power to carry into execution these rules for the correction of evils, wherever found to
exist. No other course can ever keep up and perpetuate free
institutions than a vigilant and energetic restraint against all encroachments of
power, from whatever source they may proceed, or whether caused by mistake or design. To
limit the power of inquiry of courts to the law as it may appear
upon the statute book, would leave a space through which oppression and
abuse of the most grievous character might be introduced, without a
corrective power to restrain or protect. But courts, in similar instances, have not considered
themselves so imbecile, or their powers so limited; and when
bound to take notice of a public act, have determined the question by an
inspection of the record; for nul tiel record cannot be pleaded
to a statute. *4 In the case of PURDY vs. The People,
WALWORTH, chancellor, and PAIGE, FRANKLIN, and others,
senators, lay down the doctrine, that for the purpose of ascertaining
whether an act was passed as a majority bill merely, or by a vote of
two-thirds, courts may look beyond the printed statute book to the certificate upon
the original engrossed bill on file with the secretary of state. And in the same case, it is laid down that
courts may resort to the journals kept by the two houses to ascertain whether an
act has been passed by a vote of two-thirds, where the power of courts to look
beyond the printed law to ascertain its validity is clearly and expressly
established, in the opinions of the chancellor and the several senators; and
also in the opinion delivered by Justice BRONSON, when this case was before the supreme court, the same
power is unequivocally asserted. The opinions in this case, and the number of
authorities cited by the learned judges, seem to put the question of the
existence of the power at rest. In support of the position assumed by the
several judges in this case, the following authorities are cited: Dwarr. on Stat. 630, 665; Com. Dig. Tit. ""Parliament," R. 5; The Prince's
Case, 8 Coke's Rep. 28; REX vs. ROBOTHAM, 3 Burr. 1472; and also a number of cases decided
by the New York courts are cited as recognizing the power. If, then, it be established that it is within
the province, and even the duty, of the court to look beyond the printed
law to the records attesting its passage, and entitling it to the
consideration of authority, the facts before the court below show that the passage of
this act was not only signalized by unprecedented irregularity, but a
wanton disregard of the necessary prerequisities
of both form and substance, to entitle legislative acts to the force of laws. In the first place, it is shown by the journals
of the two houses that the act in question differs from the one voted upon
by the legislature; or there is a variance in the act as published from that
before the senate, as appears in the sixth senatorial district. [See Journals of the
Senate, pp. 643, 649 and 651, where it appears the counties
of Harrison and Upshur were stricken out of that district, whereas they now
appear in the law as forming a part of it.] From a certified copy of the bill deposited in
the secretary of state's office, forming a part of the defendant's
answer, it is shown it was signed by the presiding officers of the respective
houses, with this variance from the act really voted on by the legislature. Whether their
signatures to acts that have not passed the legislature at all, or
to acts differing in details from the ones really passed, though having the
same object in view, adds any validity thereto, seems hardly to admit of a question. Take the
first supposition above to be before the court, that
the presiding officers of the legislature have really signed an act upon any
given subject which that body had never acted upon in any way whatever, would any one, for a moment, contend that the mere fact of the signatures
appearing to such an act would be sufficient to supply the place of all
necessary evidence of legislative action? The bare mention of such a doctrine shows it too
monstrous to be seriously entertained under any conceivable circumstances. If the
presiding officers could not fashion forth an act entire,
with the force of a law, how far can they vary one really passed, by changes
and alterations after its final passage, by their signatures? If the change appears, as
in the present instance, to have been occasioned by some means
between the time an act is finally acted upon by the vote of the
legislature and the signing by the respective officers, how slight soever the change may have affected the provisions of the act, it is as if not signed by them at all. Art.
3, section 20 of the state constitution provides
that "every bill, having passed both houses, shall be signed by the
speaker and president of their respective houses." It cannot be contended that if a bill may
have undergone some change in its provisions before it is
signed as directed by the above article, that still the speaker and president
sign the act literally as voted upon (it being out of their power to alter
or change), that the changes will be disregarded, and the bill remain
in force in its original shape. This would be productive of too great uncertainty, and
lead to building up intendment upon intendment, till
there would not be left a traceable concurrence between any of the
departments of the law-making power. The signatures of the presiding officers is, in part,
the evidence that assures the executive that a bill is the
act of the legislature; and to say that the governor's approval has the same
intendment back to the literal bill voted upon, would be to make him approve
bills without knowing what they were. *5 Under the provisions of the 13th section, 3d
article of the state constitution, power is given to each house to
determine the rules of its own proceedings, etc. With a view to avoid the danger alluded to, from alterations made either by mistake or design, a
set of rules were adopted, well suited to this end, and which, if observed,
would effectually guard against fraud, imposition or mistake. Among other things
provided by the joint rules and orders of the two houses, the 6. Provides, "After a bill shall have
passed both houses, it shall be duly enrolled on paper by the enrolling clerk of the
house, or secretary of the senate," etc. 7. When bills are enrolled, they shall be
examined by a committee of two from each house. 8. After examination and report, each bill shall
be signed in the respective houses, first by the speaker of the house of
representatives, then by the president of the senate. 9. After a bill shall have been thus signed in
each house, it shall be presented by the said committee to the governor for his
approbation, etc. The facts show that none of the above rules were
complied with at any time before the final adjournment of the last legislature. The
question arises, on each rule, as to the power of the authorized
persons to perform the duty therein designated after the adjournment? And whether any act of
the legislature can become a law, in the absence of
a compliance with any one of them during the existence of the session? There are several grounds upon which a negative
answer would be given to both of the above propositions. Art. 3, section 14 of the
constitution provides that "each house shall keep a journal of its own
proceedings," etc. In order to facilitate the business of the
legislature, certain officers are appointed to perform the duties prescribed in
the foregoing rules; and during the terms of their offices constitute a
part and parcel of the legislature -- acting as agents or officers,
under the supervision of their respective houses; whose acts, when adopted,
become those of the legislature as much as any act done by either house. The mere enrolling, by the clerk appointed for
that purpose, a bill or act, is not of itself any evidence that it is the
expressed will of the representatives. Before it can be regarded as such, it must be reported
by the committee appointed for that duty, and their
report adopted -- each member examine for himself -- that it is
correctly enrolled, or some other satisfactory mode pursued to that end. Until such recognition of its
correct enrollment is in some way manifested, the
signing of the presiding officers would be unauthorized. The validity of the acts of these officers of
the legislature, being made to depend upon the recognition of their correctness
by the respective supervisors in their progress, and the officers
being but creatures of the legislature for the session, all their
connection with that body ceased eo instanti with the adjournment, and any after act of theirs would
be a nullity. *6 If the foregoing view of the character and
power of the officers of the legislature be correct, any act done by them,
after the final adjournment, would add no more force to a bill than if it had remained
unperformed. The section of the constitution requiring each
house to keep a journal of its proceedings, just referred to, seems so
mandatory in its character as to preclude the idea of the existence of a law,
without some corresponding evidence of its passage can be found upon the journals. For the
authority of the courts to determine upon the proceedings had
by legislatures, in passing acts, see Com. Dig. Tit. Parliament, R. 4, R. 5, and New York
authorities before cited. The facts established by the journals of the two
houses, and the parol evidence before the court below, proving
positively, what the journals do negatively, show it impossible for the governor
to have approved this act till after the adjournment. As the approval is in blank, we
have no means, except by parol
evidence, of ascertaining the precise time at which the approval was made. The 17th section of article 5 of the
constitution provides for bills presented to the governor,
one day before the final adjournment, becoming laws, but makes no
provisions for those that may be presented after that time (the adjournment). In order for any act
to become a law, as is shown in Com.'s Dig. Tit. above, and the
authorities there cited, there must appear a concurrence of the
house of representatives, the senate and the executive. How the governor could concur with
the two houses after they had adjourned, and the members gone
to their respective homes, seems past conception. There does not appear any difference,
in principle, in the power of the governor to approve a bill
one day after the adjournment and doing so now. The defense set up in the court below to the
act, on the ground that it was in conflict with the direction of the
constitution, specifies the provisions in the act attaching new counties to those from
which they have not been taken, and excluding others from representation
altogether, as instances of conflict with the constitution. The whole bill is included in the
answer, and properly comes under the supervision of this
court, in every particular, whether specifically pleaded below or not. Article 7, section 34, constitution, directs
that every new county, as to the right of representation, shall be considered
as part of the county or counties from which it was taken, until entitled
by numbers to the right of separate representation. This provision is, in several instances,
directly violated by annexing new counties to others of which they had formed no
part; and more censurably violated by associating new counties together,
and forming separate representative districts. This is designated more censurable because it betrays a studied aim to evade the provisions of the
constitution. *7 Another feature of this bill presents such a
striking inconsistency with other acts of the same legislature, that if one
were left solely to form his conclusion from the acts themselves, he might
hesitate to acknowledge them the legislation of the same body. Among other counties left
out of the bill entirely, is the whole judicial district of
Santa Fe, denied a single voice in the senate -- a section of the state that
previous acts show the amiable determination of taking into full fellow ship. The above section of
the constitution seems so plain and clear, and the
sense so distinct and perfect, that there is no ground left for any
other interpretation than that which naturally arises on the plain, common-sense acceptation
of words used. Judge STORY says, in speaking of the
constitution of the United States (and his language is equally applicable to ours):
"The people adopted the constitution according to the words of the text,
in their reasonable interpretation, and not according to the private
interpretation of any particular man." Again he remarks: "When the words
are plain and clear, and the sense distinct and perfect arising on them,
there is generally no necessity to have recourse to other means of
interpretation. It is only when there is some ambiguity or doubt arising,
from other sources, that interpretation has its proper office." The
words used in our state constitution fall properly in the class contemplated
by the above commentator. The rule here laid down was strictly followed by
the supreme court of the late republic in the case of STOCKTON vs.
MONTGOMERY. In conclusion, I would respectfully remark that
a dissatisfaction with the general provisions of this bill exercises not
the slightest influence over those who ask the court to pass upon its constitutionality.
The complaint may have been made, that some sections of the
state have suffered an unfair diminution of representation in the general reduction. And were in
the case, it would not be a proper subject for judicial
determination. Though it is believed that this bill distributes the members
of the legislature among the several portions of the state, according to the
population, with as much equality as is practicable. But it is alone upon the
insufficiency of the act, as shown from the journals and records of
the two houses, and its conflict with the provisions of the
constitution, that appellee places his right to an affirmance of the judgment of the court below. Mr. Justice LIPSCOMB delivered the opinion of
the court. This suit was instituted on an instrument of
writing, signed by the defendant, in the following words, that is to
say: "I hereby bind and obligate myself to pay Josiah SMITH the sum of
one hundred and fifty dollars, if he furnish at the town of New
Braunfels, by the 6th day of November next, any law of the state of Texas,
showing that the next legislature of the said state will be composed
of seventy members in both branches, this the 6th day of September, 1848." The
plaintiff alleged that he had performed the condition by the production
of the law; the defendant denied that the act produced was lawfully and constitutionally
passed. *8 It was manifestly the object of the parties
in this suit to obtain a judicial decision on the constitutionality of
the apportionment act of the last session of the legislature. The suit is not founded on a
bona fide transaction. It is either an entire fiction, or it is a wager,
designed to effect the same object. Fictitious cases are often presented,
in the form of a wager, because every wager is not in
contravention of law; but every fictitious case is a contempt of the court, and
when known to be such, has subjected the parties to the severe
animadversion of the court; such as fine and imprisonment. In the matter of R. J. ELSAW, an attorney,
a special case was stated for the opinion of the court; the greater part of
the statement was fictitious; the court fined the attorney. The defendant, by
affidavit, stated his reasons for wishing to obtain the opinion of the court
speedily, and that he was not actuated by any corrupt or fraudulent motive, and that he
had already incurred an expense of forty pounds in the business. ABBOTT, Chief Justice,
said: "It is impossible to pass over a case of this kind
without notice; but as it appears that the party before the court did not
intend any fraud, and that he has already incurred an expense of forty
pounds in the course of the proceedings, the object of the court, which is
to prevent the repetition of such a practice in future, will be answered by
ordering him to pay a fine of forty pounds, and to be imprisoned until that fine be
paid." The case in which this fiction was attempted to be practiced
is entitled FOX vs. DODDS; and it will be seen, that, on the suspicion of
its being a fiction, the court had directed the master to report whether it was a
fiction. And on his report coming in, the case was stopped, and not
permitted to proceed farther. In the case of COX vs. PHILLIPS, Lord HARDWICKE held a fictitious action to be a contempt of
court, and committed the parties and their common attorney. In BREWSTER vs. KITCHEN, which was a feigned issue, Lord Chief Justice
HOLT said, if he had not thought it had been directed out of chancery, he
would not have tried it; and his Lordship added, "Do you bring fob
actions to learn the opinion of the court?" In the case of FLETCHER vs. PECK, which
involved very important principles, Judge JOHNSON said: "I have
been very unwilling to proceed to the decision of this case at all. It appears to me to bear
strong evidence upon the face of it, of being a mere feigned case. It is our
duty to decide on the rights, but not on the speculations, of
parties; my confidence, however, in the respectable gentlemen who have
been engaged for the parties, has induced me to abandon my scruples, in the
belief that they would never consent to impose a mere feigned case upon this court." The same confidence in the respectable gentlemen
who have been concerned in this case, in the like manner, forbids the
indulgence of a suspicion that they would impose a feigned case on this court. But
notwithstanding the language in which the obligation is couched, we
cannot place any other construction on it than that it is a wager. No one can believe that
it was designed as a compensation for the trouble and
labor of procuring the act of the legislature, properly authenticated, from
the state department; and the record shows that on the production of the act,
as evidence of performance by the plaintiff, the defendant, in his answer,
denied that it was a law, because not passed in conformity with the
constitution; we shall therefore proceed to consider it as a wager. At common law, wagers were
allowed to be a good ground of action, if not on a subject
forbidden by law, or contrary to policy or to good morals. The case of HENKIN vs. GUERSS,
"was an action of assumpsit upon a wager of << PoundsSterling>>>>>300, upon the practice of the court, whether a person
could be lawfully held to bail on a special original for a debt under << PoundsSterling>>>>>40. It was entered for trial at the last sittings at
Guildhall, before Lord ELLENBOROUGH, Chief Justice, who, on hearing the
nature of the cause, reprehended the indecorum of the attempt to
obtain, in this manner, the opinion of the court upon a question of law or
judicial practice, in which the parties had no apparent interest other than
what the wager itself created; and his Lordship refused to try the
cause, telling the plaintiff's counsel that he might apply to this court upon
the subject, if his client felt aggrieved by such refusal." On the question being
presented to the other judges, they conversed with the Lord Chief
Justice on the propriety of his refusal to try a cause of this description,
and his Lordship added, "that courts of justice were constituted
for the purpose of deciding really existing questions of right between parties, and
were not bound to answer whatever impertinent questions persons thought
proper to ask them, in the form of an action on a wager. That though there was nothing
immoral in the subject of this wager, yet he considered it as
an extremely impudent attempt to compel the court to give an opinion upon an
abstract question of law, not arising out of pre-existing circumstances, in
which the parties had an interest. And LE BLANC, Justice, said "that if by any other
proceedings in court it appeared that, in truth, no such wager
had really been made, the court would know how to deal with the case." In this
case, as presented by the record, it would be extremely improper to
inquire into the conduct of an independent department of the government on an
issue in which the parties had no interest other than that created by the wager sued
for. The wager is obnoxious to another objection; it implicates
the integrity of high functionaries of the legislative department in
the discharge of an official trust, in a way in which they cannot be heard in their
defense. If those functionaries are justly chargeable with the
delinquencies urged in the record against them, such derelictions are not
proper subjects of a wager; and if not, it would be doing them great
injustice to allow their conduct to become the subject matter of a gambling contract. The ends of
public justice can be attained without resorting to such means. The court
below did not err in refusing to give the plaintiff a judgment. That judgment
is affirmed. |
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