Texas State Gazette. (Austin, Tex.), Vol. 2, No. 32, Ed. 1, Saturday, March 29, 1851 Page: 4 of 8
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TEXAS STATE GAZETTE.
MAEd 29
HUn.-Utt-
OPINIONS OF THE
SfflPBEMl COURT OF TEXAS.
1
AT
mill
AUSTIN December Term 1849.
JOSEP.II W. GREEN . JOSIAII IIILL.
From Harrison County.
i J. In nil actions tn rem whore a party comes in nnd answers tlio petition ho
renders tlio claim personal nnd tho attachment tuny bo quashed without dis
missing tlio suiti . p.
' 'J5.'So' ft' tt n llt'gatod transaction is governed by law it fo.jho du(y of the
judge iodcolaro what the law isi it is tho province of tjio jury to decidoMipon
tlio faots from tho evidence delivered in court and not upon the supposed
.Icnowlcdgo of any ono of them not sworn upon the stand.
: ' a.'Whoro it is dent that a motion for n now trial should have been granted
br'whajpo a verdict is contrary to the ovidonce this court will reverse the judg-
inont and remand tho cause lor n now trial.
'-BirscoMn J. delivered the Opinion of the Court.
1 Tins suit was brought by an original attachment sued out by the
appellee ugniust tho appellant: The attachment was levied on a
-wagon and three horses. There woi no citation or personal service
on the defendant. At the return term the defendant by his counsel
'Media motion to quash the attachment and assigned various grounds
-in support of tho motion. At tho same term he answered tho petition
first by a general denial of all and singular the matters and things
in tho petitign contained and secondly set ofT and reconvention.
..After these answers the motion to quash coming on to he heard
the attachment was quashed. The defendant then moved to dismiss
the cause which was overrutcd. The overruling tho motion to dis-
miss the suit after tho attachment was quashed is the first error as-
Signed and wo had a3 well dispose of it before progressing further.
There being no personal service but suit on attachment only it was
in its commencement a proceeding in rem and so continued until
tlio defendant answered to the petition. The action on the petition
'then became a pcrsoiial action. Had not the defendant answered to
tlio potition before tho judgment of the court on his motion to quash
tho attachment was entered tho more fact of quashing the attach-
ment would have dismissed the suit because tho suit was so far against
the property by attwrracnt ; that being quashed there was nothing
remaining of the case in court ; as tho plaintiff had not sued out or
prayed citation for personal services. The defendant had by taking-
issuo on tho petition in Iho mean time made it a personal action.
There was no error then ill overruling the motion to dismiss the suit.
The parties then proceeded to trial and there was a verdict and judg-
ment for tho plaintiff. A motion for a new trial was made by the de-
fendant which being overruled the defendant appealed.
' On tlio trial a bill of exceptions was taken to the charge of the
judge a'nd Signed by him and made a part of the record in the case.
The portion of tho charge believed by tho appellant's counrel to be
erroneous is this' the judgo in giving his charge to the jury said :
"Iam not familiar with the custom of merchants n settling with
insurance offices or what are tho liabilities of insurers in case of
partial loss. 1 sec on the jury planters ana merchants xoho doubt-
less are familiar with transactions of this kind; you will apply
the rides of tho same to the nature of this. hind of transaction."
Wi'his charge is certainly objectionable in this that so far as the
transaction was governed by law it belonged to the judge to declare I
that law ; and so far as the question rested on particular custom that
custom was a fact to bo given in evidence to tho jury and not depen-
dent on tho knowledge any particular jury might havo of such cus-
tom.' If this were permitted each juror might assume to know of
ldspersoiu)l ltnov-lqdgo what the custom was J and no two of them
agree.' If it was supposed that such knowledge was possessed by any
one or more of the jurors it was perfectly competent to make witnesses
dfsuch jurors : thoy would then bo in the hands of each parly to as-
certain tho means of acquiring; a knowledge of such fact on the part
of the juror. The oath of a juror will not permit him to find a Ver-
dict on what ho may think he knows of himself because then he
would bo passing on evidence known to himself and not to his fellow
jurors. If a juror believes himself in possession of a knowledge of
facts calculated to influence his verdict he should make it. known to
tho court ; and if sworn to give it as evidence his fellow jurors will
then have it before them not as what .the juror would tell them in the
jury room but what he had sworn to oil the witness stand This
way of allowing jurors to rely on their own supposed knowledge of
fainsor the knowledge of any member of them without being given
in evidence it is believed moro frequently to occur than it ought.
There is danger of its growing into precedent. It is especially wrong
ill principle aud exceeding pernicious in its tendency as affording a
pretence for disregarding tho evidenco and relying on their own sup-
posed personal Icnowlcdgo of tho fuct discolored by passion aud pre-
' judice and warped by every variety of personal feeling. Jurors cau
not bo too often reminded that they must look to tho judgo for the
layyi and to the evidence for the facts of a case. The distinguished
judgo who gaVo this charge did not intend to be understood in the
bonsd that might be applied to tho language used. He could not
havo meant anything moro than that from the intelligence and prac-
ticaljgood senso of the jury they would be able the better to compre-
hendtand apply the evidence and not to give information to their fellow-jurors
that could only havo been given in the presence of the
judgo under the oath of a witness. If however he intended that the
jury should bo governed by their own personal knowledge of either
law or tliq. facts he erred in sd doing and as the statement of tho evi-
dence sent up slrws that it was not a mere speculative opinion of
tho judgo on an abstract question wo cannot say but it had an inilu-
enqo on-thi) jury as; it seems to be caloulated to havo had that ten-
dency it would afford grounds tfor reversal. Tho next question is
tUd(thoconrt err in overruling tho motion for a new trial '! It will bo
hardly necessary to premise that it has been an established rulo in this
court that where there was a conflict of evidence and tho jury must
froiVijiecessity givo credit to one witness and withhold it. from ano-
ther that a case was presented thereby so peculiarly within their
. province to decide that wo would not reverse a judgment because that
a motion for a now trial had been ovorruled.
Tho statement of facts shows that there was a contest abput the
proceeds of thirteen bales of cotton shipped by the plaintiff for the de-
fendant. In relation to this cotton a'witness introduced by the plain-
tiff testified u that there wa$ something said about the cotton: plain-
tijfsaid he had given him credit for it" Tho defendant introduced
afwitness who testified that tho plaintiff received tho thirteen baled
mentioned in the defendant's answer : that plaintiff was to ship the
6aid cotton to New Orleans and account for the proceeds. The cotton
waishippod and sunk in Lake Caddo; tho plaintiff stated to tho de-
fendant that tho cotton was insured at thirty dollars per bale. Plaintiff
stated to dofendant that ho had been to New Orleans uud had fixed
down tho insurance at thirty dollars per bale and that tho insurance
office had taken sixty days to pay the money. In the account ren-
dered the plaintiff had given credit for less than twenty dollars per
bale. There is no contradiction hero in tho testimony : it is all on one
sido as to tho cotton being arranged with the insurance office at thirty
dollars a btllo ; thoro Was no evidenco to impeach the credibility of the
defendant's witness and it is not perueive& how tho jury could have
disregarded tho evidenco unless under tho instructions given thoy
i'ounuthe'vQrdict'ontho personal knowledge of their ovn'body. Iu
tluUyseoma the veuJuHwa8i decidedly contrary to. tho oyjdeueo on
which cjouiid the defendantjpuglitttbfhava had 'a new. trial
' 'The judgment is reversed and tho cause remanded.
A
ILEND11ICK vs. CANNON.
Error from Howie County.
1 In auit to recorar posscrsion of land or tenements unlawfully detained)
nflcr the expiration of a louse demand is not necessary beforo bringing suit.
2. Where a certain portion of cotton and corn raised upon tho place is to bo
paid as rent therefor it is not necessary for tho plaintiff to prove tho amount
raised thereon but only tho annual value of such land.
3. No judgment enn bo rendered against a surety on nn nppeal bond for an
amount greater tlum tho bond.
Lipscomh J. delivered the Opinion of the Court.
This suit was brought beforo a justice of Bowie county under the
provisions of tin act of the Congress of the Republic " Toprovidc a
summary remedy to enable landlords and lessors to obtain pos-
session of lands or tenements unlawfidly detained or withheld by
tenants" passed the 5th February 1840.
The evidence of the tenancy of Ilendrick the plaintiff in error
under Cannon the defendant in error a contract between the parlies
was introduced by which the premises in question were leased by
Cannon to Ilendrick for a term to expire on the twenty-fifth day of
December 1815. Tho defendant answered denying that the plaintiff:
ever Avas in possession of the premites. lie admits that he entered
into the contract of renting the land ; that he believed at the time of
making such contract that tho premises belonged to the plaintiff but
has discovered that ho is not the owner ; that ho the defendant is the
legal owner. He denies that any demand had ever been made of him
to give up tho possession or that the plaintiff ever attempted to enter
into possession. The jury returned a verdict for the plaintiff and the
defendant appealed to the District Court and gave bond and security
in the sum of four hundred dollars conditioned to perform the judg-
ment the District Court might render. In the District Court there
was a verdict for the plaintiff for his right of possession and for nine
hundred aifd forty-six dollars on which verdict tho court awarded u
judgment that he should have a writ of restitution and also judgment
for nine hundred and forty-six dollars and costs ; and on motion ren-
deied judgment against the security in the appeal bond for the same
amount.
There was a motion made for a new trial and overruled by the
court. The defendant sued out a writ of error returnable to this
court -and he asks the reversal of the judgment on the following
assignment of errors:
First That there was no evidence to show that Green one of the
defendants had anything to do with the land leased or was ever on
the same.
Second That there was no proof of a demand on the part of the
plaintiff for the land leased or of any attempt by him to enter thereon.
Third That the jury was not sworn as the statute prescribed.
Fourth That there was no evidence as to the quantity or value of
the corn and cotton raised on the land leased or that any was raised
consequently that the verdict was unsupported by evidence ; neither
is it warranted by the laws of the contract or of the statute under
which the action was brought.
Fifth The verdict was illegal in not separating the damages from
tho value of the rents and in being excessive and vindictive.
Sixth That the judgement is rendered against the security in the
appeal bond for nine hundred and forty-six dollars and costs when the
amount of the appeal bond is only for four hundred dollars.
We will talco up these assignments m the order they have been
presented : As to the first Green is not included in the verdict of the
jury nor in the judgement of the Court below now sought to be
reversed ; he is not a party in this Court and it cannot be material
whether there was evidence against him or not. He seems to have
been originally a co-defendant but he was not a party to the lease ;
and if his costs have not been allowed to him it is a matter for his
consideration nnd not for the plaintiff in error. On the second as-
signment it is not believed that in a case like the one under conside-
ration that any previous demand Avas necessary. By the stipulations
contained in the lease it was to expire on the 25th day of December
1845. Until that time arrived the defendant's possession Avas a lawful
one; beyond that term it Avas unlawful asjthe tenancy had then ex-
pired by the limitation contained in the deed. There are instances in
Avhich a demand is absolutely necessary before any action can be insti-
tuted to recover the possession such as a tenancy at will or from year
to year until notice to quit. Or if there is a negotiation for a sale of
land and tho vendor should let the vendee into possession and the
hale should fail from any cause the owner cannot recover possession
uiV'd after a demand. (See 2 Stark. 8G5.) In this case the possession
Avas illegal after the expiration of the term fixed by the lease. The
defendant too having in his ansAver attempted to impeach the title of
Ins lessor shows more clearly in this case that there Avas nothing to be
obtained from him by a previous demand.
It is believed there is nothing in the third assignment Avorthy of
court is not materially different from that of the oath of the traverse
jury in the District Court ; and on the trial in the District on appeal
the jury was sworn as in ordinary issues of fact.
'Co understand the" fourth assignment correctly it Avill.be necessary
to refer to the lease under which tho defendant entered into the pos-
session of the premises. It was for the year 1845 and by its terms
the lessor was to receive a certain portion of the corn and cotton made
on the premises for rent. And the counsel for the plaintiff in error
earnestly contended that it should have been proven what amount of
cotton and corn Avas made and the value of each ; and that this should
have formed the basis of the estimate for the jury. We cannot per-
ceive that Avhat Avas made in that year has any relation whatever to
this suit It Avas not brought for that year's rent but for the unlaw-
ful holding over and for tho rents of the timo so unlawfully held over.
And this Avas to be ascertained by evidence to the jury of the annual
value of such land. From the evidence embraced in the statement of
facts it Avas proven to bo Avorth from three to four dollars per acre
per year ; and that there were forty acres of land. The eleventh sec-
tion of the act under Avhich the suit Avas brought provides that if the
defendant shall fail to establish his right of possession he shall be con-
demned to pay the plaintiff three times tho value of tho rents which
may havo accrued besides being liable for all other damages resultiii"-
from tho illegal dotontion. Tho record shows that the tenancy cx-
pired on the 25th December 1845 and the verdict of the jury was
returned in September 1848 showing that the tenant had held over
and deprived the lessbr of the use and rent of his land for three years.
Taking then the facts and applying the law Ave are not authorised
to conclude that the verdict of the jury avus unsupported by evidence
unauthorized by luw or for an amount excessive end vindictive. If
tho Jaw may seem to be a hard one in imposing Such consequences
on a tenant for holding over it will be recollected that the faculty of
its amelioration is not with us; and that it only applies to cases Avhere
atenant is guilty of a moral delinquency and a spirit of treachery to
his lessor condemned and forbiddei in oery age and country.
The fifth assignment is believed to be merely technical. It Avould
certainly bo more in form had the jury called the amount of their iindin"
for rout but it is not material to the interest of tho parties There
can be no doubt that they mean' that the amount so found was for
troblo the value of tho rent of tho land.
m Tho sixth assignment is well taken There can be no doubt that
in rendering judgment against the security for( any amount greater
thnil I1IR hnilfl. tlio onnrt nrrn1 n.l T- 4l.: .1 . . &.vm.
... ...- -.. ..... -. - u im una urror me judgment sofar
as it relates to Kelly the security would havo been reversed had lie
been n party m tho application to this court for a reversal of tho
judgment but he lias not complained or-sought its reversal and has
not joined in the petition for a writ of error or in any way complained
of the judgment being erroneous. It must therefore be affirmed as
to the plaintiff in error and his securities in tho writ of error bond.
Should it be thought necessary to make any order as to tho security
in the appeal from the judgment of the justice of the peace it Avill be
hereafter ordered.
Error from Harris.
DOBBIN Administrator
JOHN L. BRYAN.
1. A fraudulent combination between an administrator and others confeder-
ating to injure tho creditors of nn cstnte is a proper subject for tho jurisdiction
of tho District Court as the uppropriuto remedy can bo administered in that
Court and ns tho Probuto Court from its limited jurisdiction might be unable
.n many cases to protect tho rights and interests that muy bo all'eetud by such
frauds.
2. Multifariousness is an objection which is entitled to no liberality of con-
struction in its favor.
LirscoMB J. delivered the Opinion of tho Court.
The defendant in error filed his petition in the District Court of
Harris county against the plaintiff in error Administrator ol Berry
and against Weir Hoth and Banks. Ho alleged that he hud a claim
against the estate of Berry founded on an instrument in Avriting in
the Avords following i. e. "State of Mississippi Adams county:
Know all men by these presents that I Andrew M. Berry am held
and fully bound to Dr. John L. Bryan in the sum of six thousand
dollars to the Avhich payment avcII and truly to make I bind myse'f
my heirs executors aud administrators firmly by these presents en-
tered into in the town of Natchez in tho county and State aforet-aid
this lGth day of February A. D. 1837."
The condition of the above obligation is such that Avhercas I have
purchased and an now owner of head-right claims to five Spanish
leagues of land purchased of claimants in Col. John Seguiu'b com-
pany Avhich is entitled by the huvs of the Republic of Texas to be
entered in said Republic within the first six months after opening tho
Land Office in said Republic and havo this day sold unto the Miid
John L. Bryan the one-half tho said five leagues of land thus to 1k
entered for the sum of two thousand five hundred dollars to me in
hand paid at and before signing of those presents the receipt Avhereof
is hereby acknowledged. I now hereby bind myself to have located
in as judicious and advantageous a manner in Texas as I should do
for my own private benefit Avithin six months after the opening of
the Land Office in said Republic; to secure the Government titlu
papers and to make a deed or deeds for the aforesaid one-half of the
said five Spanish leagues of laud to him the said John L. Bryan his
heirs and assigns free and clear of any further charge or expense
therefor; then this obligation to be null and void otherwise to remain
in full force and virtue.
In Avitness I hereunto set my hand and seal the day and date above.
Signed ' A. M. BERRY. Seal.
It is alleged that the conditions of this bond have never been com-
plied Avith or performed and that the same remains unsatisfied ; that
Berry departed this life in August 1814. That one John Shackelford
Jr. had been duly appointed his Administrator by the Probate Court
of Harris county ; that petitioner had Avithin the time prescribed by
laAv presented the said bond to tho said Administrator avIio had ac-
knowledged in writing on the same that it Avas unsatisfied. That Shack-
elford had subsequently and before closing the administration resigned
and the defendant Dobbin had been appointed by the said Court Ad-
ministrator dc bonis nou of said estate ; that Dobbin refused to ac-
knowledge the acts of his predecessor and denied plaintiff's claim
and had fraudulently combined Avith Weir Hoth and Bank's to de-
fraud tho creditors of the estate of his intestate and had fraudulently
obtained an order of Sale and by falsely and fraudulently misrepresent-
ing the title and value of the land preventing any other persons from
bidding but his own confederates; that they at this fraudulent tale
had become the purchasers of the lands and slaves belonging to the
succession and that the said sale Avas so fraudulently made to thew
purchasers at prices greatly below the leal value of the property.
That the securities of Dobbin arc worth but little and not able to an-
swer in damages for his mal-administration. He prays that Dobbin
be enjoined from making title to the property so sold and that his
confederates the purchasers be enjoined fiom selling or conveying
any of the said property ; that the sale be annulled and set aside and
that the claim be allowed by the administrator and the land be do-;
cieed to be conveyed to him and damages for tho long detention and"
loss. i
The injunction prayed for Avas granted and Dobbin demurred to the'
petition for Avant of jurisdiction in the Court of the subject matter as
it belonged to the Probate Court lie answered denying all fraud and'
asserting that the sale Avas fairly conducted and he set up the Statute
of Limitation against the claim on which the petition Avas founded.
Weir and llcth answered denying all fraud and combination and
alleging that they had become the purchasers fairly and at fair prices.
Banks answered denying all fraud and combination Avith the other
defendants and denying to have been a purchaser or in any Avay con-
cerned in the sale. The allegations contained in the petition of im-
proper means used by Dobbin and Weir and Hoth to prevent com
petition and other bidders than Weir and Hoth -were fully sustain-
ed by the evidence ; a jury trial Avas waived and the cause submitted
to tne ucuiMon ot the Judge on tho bill answers exhibits and
deuce. The Judge decreed that the sales should m animHpd
set aside: that the iniimctinn slmnM i .... wi . . ti.i-..
Weir and Hoth and dismissed as to Banks; that the claim of tho
petitioner for twenty-five hundred dollars the purchase money with
five per cent interest from the time the money was advanced should
be allowed to the petitioner against the estate of the intestate to bo
paid in the due course of the administration.
The administrator Dobbin has brought the judgment and decree
of the Court below before us for revision by a writ of error.
We will first inquire whether the demurrer to the jurisdiction avus
Avell taken. If the facts stated in the petition are to be considered as
true it seems to me that the jurisdiction of the District Court can
be sustained on two distinct grounds. The first is that the fraudu-
lent combination betwe6n the Administrator and his confederates in
preventing competition and enabling these purchasers to bid in the
property at such an immense inadequacy of price on which grounds
the sales wore sought to be set aside could not have been enquired
into and its results defeated any where but in a jurisdiction Avhere
the principles of equity could be administered and tho appropriate re-
lief aflorded. l l
Fradulent combination has always beeu a fruitful source for tho ex-
ercise of Chancery jurisdiction and nlthough fraud is not a matter
exclusively of cognizance of a court of Chancery because whew
it can bo fairly presented as o fact courts of Imv wnnlrl im .n.nnr.
rent jurisdiction ; yet it most frequently occurs that its consequences
w.. yUmiCU u ueieateu so effectually no whero but in a court
where the principles of equity are administered. '.Che Probato Court
irom the limited jurisdiction it exercises cannot Avell investigate the
fae.k constituting tho fraud; and even if it could set aside a sale on
ttmt ground it could not so well protect tho rights aud various inter-
ests that may have resulted from silch frauds.
The other ground on which it appears that the jurisdiction of the
District Court is clearly sustained is on strict principles of law. The
petitioner haying stated that the claim was disallowed and rejected '
by the administration de bonis non and that he had disclaimed the"
recognition of this claim made by tho former Administrator it scorns
to me that under the statute then in force ' the petitioner Avas com-
pelled to resort to tho District Court for tho establishment of it by an
adjudication of its correctness. It seems to me therefore that the
ei-
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Brewster, H. P. & Hampton, J. W. Texas State Gazette. (Austin, Tex.), Vol. 2, No. 32, Ed. 1, Saturday, March 29, 1851, newspaper, March 29, 1851; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth80972/m1/4/: accessed May 1, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting The Dolph Briscoe Center for American History.