Reports of cases argued and decided in the Supreme Court of the State of Texas during December term, 1848. Volume 3. Page: 65
vi, 659 [660] ; 22 cm.View a full description of this book.
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PUNDERSON VS. LOVE. 65
that three several surveys, made by the county surveyor,
marked E, G and H, were given in evidence by the defendant
and objected to by the plaintiff, but the objection overruled;
and it states that they were made exhibits in the defendant's
plea. In the record of the plea but one is referred to, and it is
designated as exhibit A, and each of the three surveys, sent up
as original papers, is marked A. There is so much uncertainty
about these papers, tlat, even if we were disposed to treat them
as records of the case, it would be impossible to understand
what point was presented by them, or what was the decision
of the court on their legal effect. It is usual, when the record
is so defective as not to show error affirmatively, to hold the
appellant responsible, particularly if he had been the plaintiff:
below, and to let the judgment stand. But, inasmuch as the
court below erred in sending up the original papers, I believewe
are bound to send the case back, because the court belowhad
no right or power to order the original papers to be sent
up to this court, whatever may have been the wishes of the
parties on the subject.
The 5th rule is explicit. "No original paper used in the
court below shall be sent up as a part of the record, unless it.
is specially ordered to be sent up by the supreme court." This,
is a salutary rule for the protection of the original papers. In
this case, valuable private papers, belonging to third persons,
have been sent up to this court, exposing the owners to much
trouble, and perhaps irretrievable loss, without any sufficient
guarantee against such loss.
It is objectionable, too, in this: that it leaves the matter to
the clerk to decide what papers had been used on the trial, and
would open an investigation in this court as to whether they
had been used or not. It is true that sometimes, though rarely,
an original paper might be required in this court. The court
below is sometimes called upon to decide for inspection, on the
reading or on the execution of an instrument. The first it
would be most proper to decide on the evidence of experts; in
the latter the judge would be called upon to decide on his own
inspection. Should his judgment be under revision, the pres5
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during December term, 1848. Volume 3., book, 1881; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28571/m1/71/: accessed May 2, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .