*1 SUPREME COURT. Spencer Lapsley. v. the file the omission to transcript within the first six fault or was not to any on his clays negligence owing part, the him to file at court has allowed the same term, always trial, the without docket for him to the ex- appeal putting appeal. of another pense delay have said, It from what we follows, the case although and dismissed, before us must be docketed this will yet not the United from at States the prevent filing transcript pres- ent the ease for if term, and can docketing delay argument, they the arisen not from fault or any show negli- And so, their if fail to do gence part. they may yet take time another at within five appeal years, bring here the decree of the Court for District examination and re- vision. And if the after the case is docketed and appellee, decree dismissed, the of the District proceeds Court, and upon obtains a land, for the title will still be patent subject the of this if the Government court, decision shall hereafter case within the time limited law. bring up We have deemed it on this occasion enter into proper 'this full rule of court referred on ac- explanation to, count of the multitude of which must appeals unavoidably come California, of up District Courts which, some before -this other, be shape brought ’motions dismiss. Eliphas Lapsley. Spencer, Plaintiff v. John W. Error, judge of the District power Court of the United had in Texas to order States the record a suit in which he was interested to transmitted to Circuit Court of the United States in Louisiana. pleaA abatement, irregular; pleas filed in connection with bar, was plea subject refusal the court below to allow is not to the re- be filed view of this court. A leagues contract sale of eleven issued land in before the revolution, subsequently colonizing grant within located Austin and Williams, without the consent, Secretary State, good with their and certified was signature of the Governor. far grant So as the land was colonizing Robertson, within the consent was necessary, grant having expired. term of his organization Where no of a grant place colonial had introduction of taken settlers, empresario, occupied open public the land no.t sale, consent of person purchaser posses- and the alcalde proper put was a sion. survey That surveyor, was made before directed the order to the grant. Any patent. was not fatal preliminary cured defects were investigated law, fairness cannot at the a third instance of party. A attorney, handwriting a regidor, authenticated proved before held, regidor assisting, witnesses, sufficient.
DECEMBER TERM, 185T. error, writ of from the case Circuit up, by brought This district of the United States for eastern Louisiana. *2 title, action of an trespass try by It was brought Lapsley Court of the District United Spencer, originating against Texas, thence Galveston, which sat at removed to for States which sat at and thence removed Austin, District Court the dis- the Circuit Court of the United for eastern States trict of Louisiana. the case, The narrative of the facts of and of the which points in trial, arose is successively of upon fully given opinion of the which court; and the statement were made points in court, case this renders it the counsel who by argued them. for the reporter repeat
unnecessary in and It was Mr. for the error, Benjamin plaintiff argued by side also defendant, Mr. a brief for the which there was Hughes upon Mr. Hale. Mr. of the court. Justice CAMPBELL delivered the opinion in error, The commenced this suit defendant Lapsley, for 1851, in the District Court of the United States January, Texas, recover a error, plaintiff par against Spencer, and he had suffered. At cel of for ouster land, damages 1851, the demurred to the the defendant term of April appeared description petition, assigning—1st. 2d. is insufficient. The citizenship parties the premises on not averred. 3d. is no endorsement is. There specifically as the statutes of Texas petition, require. an of claims under demurrer, this answer "With pleas containing guilty, statute limitations, that the plaintiff' is conditions, fraudulent, and that a the grant- were not filed. Subsequently conditions performed, at ch. L., 32, of 3d Stat. 1851, to the March, act Congress (9 to the District Court sec. of this cause was 6, transferred p. 618,) court for held Austin. at No order of appears consent. The it is done transfer, it was presumed Austin, At defendants the cause at appeared attorney. November term of order court, in following made the District Court: aforesaid, “This came the his plaintiff day attorney, on siding motion said now pre- plaintiff, by attorney, judge states enters ha interest the record that he upon suit, which, with the in his in the land in in this plaintiff controversy the trial renders it sit in for him to- opinion, improper same; further motion and, thereupon, upon is the United States because there no Circuit Court'of orders, COURT. State, in this that an authenticated copy order, and of action, in this all the record and be forthwith cer- proceedings tified to the Circuit Court the United States for the eastern Louisiana, New Orleans, district of the State that court most convenient the United States Circuit Courts being States.” adjoining make this order is derived supposed act of the 3d from the Congress March, 1821, Stat. at L., (3 which, “That in provides: ch. all suits p. and actions 643,) District United States, which it shall such court is concerned in judge any ways appear been of or has counsel either interest, to, so related party, either with, connected to render it party, improper action, to sit on the trial of him, in such suit or opinion, such shall of either duty application judge, party, fact cause the to be entered on to was then to be certified records of the court.” He order an authenticated of the record required copy to the most convenient Circuit Court of an adja- Circuit State; cent Court shall, such record being *3 thereof, filed the clerk “take thereof, in cognizance as if such suit action had like manner been com- originally court, in that shall proceed menced hear and determine jurisdiction the same such Circuit accordingly; cases, to all shall extend such so removed, Court as were cogni- Court zable in the District from which same was removed.” The record was filed in the Circuit Court in Louisiana, in the cause was April, continued until the term April it came before to trial. In 1856,the April, defendant moved to dismiss the that the was 1st. cause: Because the record shows of the Texas, District Court for before judge the suit had an interest in in land .the 2d. brought, dispute. Said interest said an order disqualified 3d. That his orders judge in the making cause. were void. 4th. That Circuit Court at Orleans had no New jurisdiction. It is to consider quite unimportant whether- a can. judge make and if orders, what in a any, suit any, which he is in in terested. This was much discussed in the Grand Junction Canal v. 12 Company Dimes, Beav., 63; 3 H. L. Ca., 759. The an Congress proceeds act acknowledgment maxim, “that man be a should not his in own judge cause,” and requires in that judge found predicament, on the motion of either to make order for party, an the removal of the cause to another competent jurisdiction. No other order in this cause made was district and he was judge, not author ized act under statute, motion, on except when made motion was the order was entered. The entry TERM, DECEMBER 267 v. Lapslcy. and his order authorized imports verity, the judge record take at New Orleans cognizance Court Circuit cause. the Circuit to amend leave of obtained defendant In the amend after the transfer. third term answer the he action, in bar pleaded ment, after pleas adding col plaintiff vested title was that lusion apparentlegal who were citizens between him three other persons, District Court,) whom was judge (one in a fraudulent establish litigate in the said interested were only persons these' persons defence contained any so far as this statement In grant. As in on file. it action, pleas already was comprehended it suit, objections was open in abatement of plea affidavit, five after pleas an years that it was without pleaded, and that of, filed, in it was pleading and which undisposed bar been had matter, in bar. Such filed, connection with other in the courts, was to the rule and practice contrary Graves, 14 v. How., and 505; disallowed. properly (Shepperd 23; Brander, Tex., Drake v. Bailey Dozier, How., 351; Dallam---, 590.) file a formal defendant for leave to plea then applied before those abatement, the same allegations containing stated; and with the defendant propounded thirty- this plea for its one to obtain evidence to the plaintiff, interrogatories he had and also to the effect affidavit, filed support; not discovered the his plea facts at time pleaded issue made had been the defendant general filed 1851. But bar; no offer to the affidavit withdraw nor did his pleas made; show when nor or what manner his discovery the evidence why file and obtain application plea had date; not been made an earlier it nor why delayed till a a continu time when allowance operate might ance, when for a year case had already pending *4 the the Circuit The Circuit denied application. Court. Court This are addressed to has decided that such applications the and its of the decision judicial discretion inferior here. that the refusal of open for It has decided revision inferior a new an allow a to be amended, court to plea plea re be a new or to filed, or to trial or' continuance, dismissed, be instate cannot cause which been legally a. of Alex in this Ins. Co. for error court. questioned (Marine andria v. Sims 6 Howard Cr., 206; Hodgson, Hundley, R.,C.S. 1.) A these motions had after been disposed fortnight dilatory on its cause merits. the was submitted to the Circuit of, COURT. v.- of of The title consists plaintiff of petition Thomas De
La and two other addressed persons, to the Vega Government of eleven Coahuila and the 14th June, 1830, each to purchase of under lands, vacant section leagues twenty-fourth of the of colonization law Mexico. The Governor responded to the that “he concedes in one sale to each petition, ” the eleven petitioners they solicit; to be selected after leagues the have commissioner of General Supreme Government shall of lands reserved to meet debt sufficiency State. He orders constitutional alcalde of the municipality to which the lands selected possession belong, give of the lands, to settle the class as to leagues, so adjust and'to price, despatch title form. No corresponding further tract. At until took this con place proceedings May, date, one himself and the parties, others, to the Governor the facts represented contained.in memoi’ial, order; former and the executive that no impediment contract, existed to the fulfilment of the pen hap might select lands within an would con parties empresario tract, and therefore that either the alcalde before whom prayed themselves, or in case that he'could present not do might so, that the commissioner .the acts surveys perform might to the and the requisite possession delivery perfection the title. The Governor nominated commissioner for thereupon the distribution lands the lands empresa but, selected the acts if might perform belong, necessary; did not an that the first alcalde of the they respective that, belong empresa, most act, so convenient, municipality, might law and the instructions, according possession might be given. In the M. Samuel Wil following year, October, (3d 1833,) to be La liams, attorney presented fact for professing Vega, authenticated tioned orders before men copies petitions and alcalde of of San de Felipe municipality Austin, solicited the location of contract Brazos purchase lands at a upon the point river, within designated of .Austin colony Williams, would if they consent, referred the order the 2d May, .conferring for that alcalde purpose. prayer granted directed that the petitioner, consent empresarios obtained, and that the should colony should surveyor the lauds at the place classify should survey designated, them that theprice so settled. Wil might empresario, liams, consented himself and as for his attorney partner, returned'the order of surveyor a figurative *5 TERM,
DECEMBER Spencer Lapsley. theOn 4th and of the eleven notes of
plan leagues. in the title alcalde October, 1838, the constitutional despatched orders, consents, contains recital of which form, petitions, and settled, and conferred, survey, price The investiture of the and plaintiff, possession property. trial, connected himself with this conveyances arose, which had and as which no been recorded, question La reference to a from except power attorney Vega in 1840 to under had executed Williams, which deed Menard and for Williams, in trust St. John. Sophia The of title, no evidence defendant documentary produced and relied on a two or of some three possession years. No to the intro- in the Circuit Court taken exception duction dence evi- acts which constitute the various public aof title in La nor was there exception Yega; of the court which the evidence adduced charge of its pronounced to state that It bemay proper authenticity, competent. title, in the Mexican authenticated language, land office of the amended Texas, and the translation in record in this court was used in the Circuit Court conve- nience a title vest But of those only. papers sufficiency want of conformity and their grantee, supposed laws and the debated, of Coahuila were much and reserved has been opinion properly upon .them court. examination of this sell lands to The of the Governor of those States Mexicans, not in quantity, unques- eleven leagues exceeding tionable; and in connection 1830, order petition of such are evidence petition order of May, identified a contract. by in 1830 are sufficiently proceedings dated recitals of the' statements and papers if the Governor’s even we that the absence of were to hold that petition defect. But to the first order is a fatal signature and the of State the Secretary order are executive certified by the Governor documents; as and the sequent treated by official were so they in the sub- alcalde, petitioners, constitutional of State is designated Secretary proceedings. “all to authenticate the confederate States Constitution of circulatéd instructions, laws, decrees, orders, regulations, to a particular Governor or directed towns, among 5r without requisite corporation shall not person,” At of faith. the present productive be obeyed signed by that decree not term of the the we have decided is certified by record, found but which is judge, cannot clerk, parties, has been executed by (Se- signature. for the want collaterally impeached SUPREME COURT. r. combe v. Steele, And the'courts in Texas have de supra.)
cided that titles in form, executed without the requisite number of -witnesses, still valid, there is a though special require ment on the of the subject number of the witnesses in the law. Texas R., We (14 do not feel authorized to 189.) deny faith act certified of State as an official Secretary nor can we paper, assume that the order certified did not re ceive the executive sanction. The Circuit Court insti’ucted the “that the court jury, was to take notice required States of organization Coahuila and Texas, of the officers who were competent the duties perform in the decree of imposed the Governor, of La petition Vega. “ The court that there was no such charged, organization the colonies of or of Austin Robertson, and Williams, as to render it for the indispensable ato commis grantee apply sioner for distribution to of the Governor; perfect that those colonies were not in the sense in empresas that term was used decree; in that and that reference having to the location of the land and the situation of the as parties, is shown the evidence, the alcalde of Austin was a proper officer for the measures for the taking' requisite perfection The land grant.” described the title was situated within the limits of both the colonies before mentioned. The colo contract of 1825; Robertson was its exe granted nization cution was 1830; and it suspended expired, by.limitation, renewed until was not 1834. The 1831, again selection after lands made it had of the renewed. The and before it was expired, of this has been as empresa history judicially certained decided that Court of Texas; and Supreme have also lands in a thus situated be sold colony might without reference to the in such a contract. empresario (Hous 9 1; ton v. 2 Robertson, Texas, Chambers, Jenkins v. 167.) of Austin and Williams was con contract empresario cluded in included land embraced Robertson This colony. their land excluded from contract when Robertson’s contract was was restored in renewed, 1835. appointed of an v. commissioner was Tex., No (Houston Perry, 462.) until 1835. The contract colony September, him to empresario introduce colonists into spe obliged cific district. The to one. colonist was entitled having family land, a small for which he league particular quality, paid sum to the five Government. empresario paid leagues and five labers for Of one hundred families introduced. every after course, of land the limits excess within colony, TERM,
DECEMBER and the remained to the colonists empresario, supplying distribution was an officer The commissioner of Government. who fulfilment Government, superintended He ascertained the character contract by empresario. them and the their shares colonists, allotted to empresario and for that land, appointed surveyors, the final titles. purpose received and executed Usually returns survey, introduced, and until colonists were officer was not appointed the land within The sale of was to be. formed. community disturb the interest of em- the limits of the colony might hence reference of the contracts colonists, presario If there no of sale for execution. commissioner there was no colonists, objection, opposed empresario made, not be nor there no reason sales should was. why a commissioner. for the services of occasion in be made to and no Mexicans, Sales land could only We understand character were quiries required. to their be, Texas to that the the the alcalde Court of decisions of Supreme *7 a and to complete competent proper person the sale, titles had taken a contract of where no colony organization 14 Holbert, R., The case v. Tex. place. Olay sale is dated resembles in purchaser contract of the court. The before was ordered to 1831. The or alcalde put commissioner titles. and issue the corresponding in *n, possess and Williams, of Austin The lands were selected colony and for himself in consented part Williams September, The Johnson,'the ner. The returned surveyor. survey by case, in this alcalde, who officiated completed (Lesassier,) Texas determined title. The Court of Supreme grant v. 512; 16 Jack McGrew, Tex., be valid. son, v. v. Ryon (Watrous 384; 374; 11 Jenkins Tex., Hancock v. 7 Tex., McKenny, 9 Chambers, Tex., 167.) “that further instructed jury, The Circuit Court that the be defeated proof principal not surveyor could grant work or perform making surveys, did in not person the order made before directed to the survey because the entered on the and, alcalde was grant,” surveyor no such evidence of fraud in there was case, that the whole which would serve to defeat it this making action. reference to followed the court in the survey, The charge Court of Texas and of the Supreme adjudications Texas It was a cases. practice analogous .common in an- their to have surveys completed and others empresarios colonists, or the measures requisite of the árrival. of ticipation final title. return of such.sur- for.the procuremeut COURT. 272 v. and their the commissioner veys by surveyor, recognition alcalde, was treated as substantial with compliance law. A of other surveyor might adopt surveys persons. 789; 1 Menard, Tex., v. Howard v. 259; 167; 7 (Jones Perry, Tex., Tex., Horton v. Doswell v. 9 9 Pace, 81; Jenkins v. Chambers, Tex., 20
Lanzo, How. S. C. R.)
In
v.
Anderson, Wheat., 212,
7
Hoofnagle
say:
“It
that a
doubted
land.
de
patent appropriates
Any
fects in the
law are
preliminary steps
required by
cured
It is a
date,
title from its
patent.'
always
been held conclusive
all those whose
did not
against
rights
commence
to its emanation.”
In Boardman v. Reed,
previous
DECEMBER 1857. a third raise- third party or between .can parties, and grantee, fraud as between the and grantor question in ejectment The and thus look reply beyond grant?” grantee, such a permittted we not aware is, proceeding in a court law. enumerated con we the circumstances But do not assert that seen that the have preliminary stitute evidence of fraud. We which it in all is referred and recited to, through title stages the law super officerwhom appointed passed, by every was in accordance and that the intend its perfection, the country. the current and practice of recognised and Texas, of Coahuila the State The title emanated from was a wilderness. Col- when Texas of a century quarter onists-from abroad ago, a. of land was of- invited, were league dollars. Mex- for thirty fered icans were allowed the colonist family, having eleven ordinary leagues purchase or of dollars the arable land for hundred league; one grazing land for one hundred and These eleven dollars. fifty leagues that time, dollars. Since sold for less than twelve hundred were two revolutions in the condition have been ac- of that State and a condition political vast improvement complished, entered land defendant effected. The country and after terminated, revolution after the second dispute He over. entered the contest the burden and heat of without Coahuila and Neither State color of title.. Texas,.has nor the State Texas, nor the Texas, Republic nor have conferred cancel this taken measures to grant, them from to vindicate wrong. on the defendant commission He is a volunteer. favor, such a The this court do litigant. doctrines of the bill exceptions The presented questions remaining to Williams, from La (cid:127)relate of attorney Vega power Williams, Ménard and trust under which for Mrs. jn conveyance was made in Connecticut, John, St. an authentic testimonio of act The produced paper the illustrious Ayuntamiento before the passed regidor and, in turn in second alcalde Vicario, of Leona city of the first al- of the sickness its reason who, jurisdiction, in 1832. donee of this date calde, &c., bears the final title in and solicited located La the land for Vega, land in 1840. Its authenticity 1833, conveyed as is shown La so never been questioned by Vega, far record. and to law, Spanish known to the is an officer regidor Freb., Tapia p. of Coahuila (1 legislation and T.; C. 10; 11; sec. Laws 6; 262, sec. see. Decrees xx. VOL. *9 COURT.
274 Spencer r. James, and was Edwards v. 7 authorized to Tex., dis 383,) the duties recited in act. Evidence was adduced charge witnesses; to the besides, of the regidor assisting handwriting two was made that of them dead, proof the United the limits of States. Considered as other, beyond the the without the act of a of this officer, foreign proof, support Paschal v. Perez, Court of 7 Supreme Tex., is “Its and effect no means a settled say: admissibility ques tion at law, common and on of international principles ju the rules of evidence Whether forum are risprudence. to be try an whether of a observed, or those by coun exclusively foreign are to have was considered Mr. Justice as Story weight, and which was not settled. question, embarrassing (Story’s court in 599, case, Conf. But the and in the case Laws, 634.) of De decide White, Tex., Leon that a testimonio is suf of the established evidence ficiently offi handwriting cer, and the Tex., witnesses. assisting (8 convey 210.) ance to the for the benefit of Mrs. trustees, St. John, alien, invalid, nor can the mode of conveyance impeached party, proceeding. The averment in the of the petition citizenship parties form used in District corresponds commonly of Texas, and which has never been in the various questioned causes which have heretofore before this court from that district. We think that the specific. allegation sufficiently affirmed.
Judgment Mr. Justice DANIEL dissenting. I find differ constrained to with myself my brethren
views haps, prehension have taken of this case—views more accurate, per- own; than my so from yet differing materially my ap- law of the case as to impose, according apprehension, what duty explain endeavoring me is deemed its true aspect. difficulties incident removal or to irregularities modification institutions introduction pre-existing and superior control of really systems seemingly incompat- ible with the former, must the hazard involve necessarily error, and impress therefore the caution with propriety great . respect innovations to be adopted. Wherever exists to harmonize obligation portions previous creation and system of a new exigencies the safest, indeed regime, safe must be found only guide, in the adherence to enlightened.and generally-admitted prin- as a ciples, duties guaranty arid deducible both rights TERM,
DECEMBER v. Lapsley. institutions. In and from from the supervening past following.; conclusions am conducted to such a I those differing *10 guide, reached of this court in have this majority been by case.. a its utmost extent colonial Gov- Conceding make land; head of Texas to conce- ernor or grants political an entire in the too, sake, ding, argument’s exemption from all to below of a produce plaintiff obligation original officer; also, made the suffi- competent admitting, grant by copy still I hold a record, a from the that ciency copy, order must face evidence, to become its to be'a purport upon full and must be verified some competent perfect copy, and claimed or to be a in this person. paper grant, In is its face. the first it is case, out defective with- upon place, be identified date, can or coincident as consequently cause; to time document in this it is not with no signed by any in the name or character whomsoever, person Governor, nor a a nor to be by thority clothed with au- by person professing deputy, ' such an instrument. In its to it structure, com- sign mences as if person, maker by speaking first the is 1839, breaks but off before grant, conclusion, and reaching or converted a into dated une certificate, J incorporated 13th, Vallee, del himself a by Santiago signing Secretary, far as he has this that so it is a document, true stating given a certificate, confession, This is copy. then, terms, that the entire of the Governor is not given, .act but that the document is incomplete. The rule evidence is, regard that must copies, they be must complete,and be authenticated. Records are properly never allowed to be -adduced in evidence, unless per- fect is records. It never nor to read permitted garble them, parts or them, extracts from Yet them, evidence. here we have a record, introduced as a as the act the Gov- paper ernor, when the relied on sustain it proof shows' conclusively that falsified record,, if it- be one, incomplete; is that it in fact is itself; the act of if it Governor, act, is not itself; permitted to but an is speak made to- attempt establish act a that distinct and decla- by wholly independent ration, himself by person styling Secretary. foundation of the Every so plaintiff’s claim, far as it made to rest this or on alleged grant, verity copy, must fail. This defect in the evidence appears have perceived, and its felt; force and hence, effort at or perhaps, the removal thereof, remedy the introduction of a date petition bearing on the 2d of May, 1832, Maria signed Joseph Aguirre, COURT. y.
Spencei* Lapsley. of himself other former parties behalf petition, which, it that had in himself 14th of is recited the Government conceded conditions, certain and his associates on sale on on the land now asked for in this -June, 1880, leagues number set renewed petition, being quantity forth,) (no on which th© states, then further here the conditions concession .fulfilled, been removed or spoken prays having lands, officers proper appointed petitioners possession. petition, put Following of the same date with the is. or decree petition, oi’.der Governor, nor himself Letona, styling signed assuming certified del official but order is by Santiago designation^; Vallee as in his from the archives charge, copy being to take this had been commanded' copy stating he excellent Gov- of the most archives by disposition ernor. 2d recurrence to Upon May, .petition decree order of the Jose de and to the Maria signed same Aguirre, *11 con- neither of these date, it that papers will be perceived refer- tains land. The petition or of any description quantity June, 14th ence as made on the of to alleged grant refers to some act or pro- or decree order (nowhere shown;) Bexar, chief of the of Department ceeding political (no- June, which, where the 2d of record,) exhibited on this of of of cannot be identified with concession course, alleged June; and of a the 14th of date, different viz: of prayer can no and the order of Letona by of petition Aguirre the defects in the first correct be received induction curing, as. of as absence date or sig- alleged grant, nature, supplying or of denomination by official, any grade any any (cid:127) whatsoever’. power material defects have But it has been that these supposed to Lesassier, the act of put been remedied by purporting To them, one of into or rather La possession. Vega, parties, what It ? it be possession suggestion may replied, had Lesassier surely cannot be pretended rightful or authenticate a authority to or to create originate grant. n’pt claimants, nor decide He could upon determine rights He -had extent of made the Government. .concessions by matters; he these no or judicial discretionary powers touching execute agent, aministerial subordinate merely is his it seen that in orders superiors; accordingly has constant reference he account of his proceeding these as the decrees, only orders recognising either whatever, no effect could have His acts all. acting course or and of decrees, orders or to those confirm invalidate DECEMBER TERM, 1857. could defect not in their supply any insufficiency provisions, or in the authentication of them. ... This to be the act of is in Lesassier, paper, purporting itself defective as to of its it is not proof verity; introduced aas a record, from nor established copy upon proof signaturethereto; nor upon testimony assisting wit
nesses execution; at its nor is the absence of those witnesses accounted for. In the next with to the deduction title place, from respect La it is to whom said was made a the Govern Vega, ment, -the decrees The first in the de just step examined. of this title is the raignment from La ticity styled paper attorney "Williams, 5th, dated The authen May Vega of this rests no foundation of evi and paper legitimate dence. It cannot considered as possessing dignity of a a a record, nor of from record. It not verity is shown copy that the Texas recorded; laws of without' required such a it could not be made in requisition acceptation legal mere will record, or act of a private This person. paper does not to have been on record, and if in truth appear placed it had been recorded in a sense, still is there no proper legal said to have-been taken from or certified copy record, by any custodian of the legal record or document.' This original Gonzales, Juan who certifies that it
paper signed archives, not but copied, from the public original,with' which he that it This certificate is an assertion says agrees. the document certified not from a record—“that copied it is not the the certificate was not and did original, to be of the xeeutionof the purport proof Where, original. then, is found of this either instrument, proof respect its as a from a as record, record, dignity copy truth of it's execution the thereto ? It has parties seen, then, document is that this neither record- nor a from a copy (cid:127) record. The and that the cer instrument language *12 alike, tificate conclusion; contradict be Gonzales such the any certificate it to declares and private copy paper, more. “The next to this inquiry pertinent alleged nothing power is as to in Gonzales to copies any certify records, and still more to certify copies private papers he the execution of did possession parties papers, — - not see—and certificate to conclude all by or prevent such execution, or jides into the of their of the bona with inquiry which to fact have Here is no there ce preten they prepared. instrumentary of executionof the The wit proof power. alleged nesses, termed, as witnesses they present the exeeur there tion of the in this to instrument, appear instance (and SUPREME COURT. r.
(cid:127)have been called, nor was reason three,) any assigned absence; for their seem not to have been even they thought of; and to with those who are called the wit- respect assistant nesses—the witnesses to the certificate of Q-onzales although — it-is sworn Hewetson that- one of these witnesses dead, - M, and commission or otherwise was made to resided in other, Morel, Mexico, J. no. effort by nór procure testimony, was there it. The proof impracticability procuring -with this' connected irregularities alleged power attorney seem to me and too too liable to abuse, obviously glaring, gross and tend to too to be strongly injury rights property, tolerated in and courts correct safe rules of evi- governed by - dence. the defendant objections below to urged by legality of the documents above commented and to rele- upon, their to-the issue between vancy have been parties, appear reserved in and and. sufficiently fifth substantially fourth bills of defendant, me that exception, those satisfy documents should have been ruled out of the cause.
It seems to me that there was error in the instruction of the court to the that there was no fraud in the transactions jury, which the title to the land in had been controversy alleged or obtained transmitted to the plaintiff. In this could succeed or -action, should plaintiff have virtue, valid, succeeded in of a title, none legal, perfect other adverse with was title claim until a possession, right, clear, .fair, honest, title paramount legal, plaintiff If, shown. therefore, documents which the claim of haye should based been found to with plaintiff was cany either in the manner of their them, their upon- procure- face'or this would have ment, fraud, been suffi- badges cient their A blemish, objection validity. defect, or in that fair and necessarily title, which infirmity, legal the defendant, all presumed but possession legal against claimant, true could be would be displaced, rightful the circumstances fatal. What were the fabrication attending relied of the documents or the procuring plaintiff, manner in which were transmitted to him, were, seems me, to the consideration subjects exclusively appropriate in this case was not one of solely upon inquiry jury. arising instruments; the construction of written it em- braced makers of the. exercise of also conduct of been the have agents alleged instruments; those of these duties in discharge them; ascribed powers honesty faith to have dealt them, of those good professing and to have transmitted have derived founded upon rights
DECEMBER TERM, 1857. y. transactions. These in considerations, those connection with as to dates, deviations incongruities apparent from and in the official conduct of those proceedings, regular through the title is traced usual, whom appear from what is plaintiff, to be from of fraud in fact and inseparable inquiry in whom and should been submitted to the intent, have jury, were withdrawn instruction of the court. It is in true, that courts whose proceedings unquestionably are the rules of at the common law, mat- regulated pleading ter in abatementis not allowed to be after in pleaded pleading bar, unless, indeed, the matter tendered in arisen, or shall have come shall abatement have knowledge pleader, continuance; darrein and when such matter is puis defence, allowed in all that relied has been on in bar is con- previously sidered as Such, however, relinquished. represented as not rule been the Texas. There it-has adopted having been said that a defendant and in both bar abate- may plead ment. In this ithe matter case, tendered was accompanied by bar; of its since the issue in but no discovery evi- affidavit dence the record of an offer to withdraw the lat- appears upon ter; am I aware of the of a formal nor necessity proffer effect. The matter tendered should, abatement if material, admitted; be and where so the matter admitted, previously relied on in bar is and without ne- consequence, legal any for an order the defendant, cessity express waived. thereby It is true that the decision of the Circuit Court this rejecting here, is not matter reversal but plea consent acqui- escence of the himself under an party artificial sheltering in a in which rule, was controversy impugned faith good of that is matter least, be party, regret, alto- cannot indifferent in an an examination inquiry into gether seeking fairness of transactions involved. The removal of this from one district of eaiise Texas to portion another, in district the facts neither which conceded as judge, upon take him, it, known to we competent cognizance to have consent. told be taken presumed place Upon fact a consent can inferred, what such be record does not disclose; and it is difficult to conceive reason any existing such There the defendant below for consent. are presumptions, however, connected with removal withinthe district, from can which there be no escape. must First. It the district presumed judge ah initio interest cognizant acknowledged subject
in controversy. It must that he also Secondly. presumed cognizant absolute reason of that disqualification, by interest, from n COURT.' y. et al.
Mussina et al. Cavazos cause; any plea decision holding making another it from one within point that the removal *14 act. an useless as it irregular illegal district himself to be It must be knowing presumed, Thirdly. no to retain have power he could legitimate thus disqualified, ;-that such a for several cause under his own control years as it was and that his retention oppressive illegal; might, n only law him as a imposed upon which' power removal of the cause, of an immediate upon duty, tribunal institution, disqualifications its he knew existed with reference to a exempt himself. It may truly mistaken and unfortunate course to have been a thought those to whom confided, the interests of the district judge and insist investi- seek, did upon nay, challenge a propriety, it under the stress of rather than exclude gation, pleading, formula if which was of doubtful application a- different not' might this case. By proceeding, they irregular met have openly directly charges alleged, might removed to which suppression inquiry implications, have have of truth. semblance imparted stated, hereinabove and with a view considerations Upon as to the law and the facts to the more thorough investigation has disclosed, this cause than the record before us it is of opinion my that the of the Circuit Court should be judgment reversed, and remanded to that court for new this cause trial to be had therein. Ex parte Angela in the matter Mussina Jacob Tarneva, Garcia de et al. v. Rafael Appellants, Lafon et wife, Cavazos al. Garcia judge upon Texas, why A rule district cause laid State to show appeal case; a certain not be for him to allow an should issued mandamus case, hut an examination of mandamus refused. "Watrous, On motion for a rule on the C. Hon. John judge dis- District of the United eastern States cause,, trict of to show &c. Texas, the said Mussina Mr. of counsel for Jacob Benjamin, aforesaid, and de Tarneva, Garcia Lafon appellants Angela two cause, moved above-entitled defendants Hon. C. Watrous, court for a rule John judge s eastern district Court of the United State District on the cause, him to show first-Monday requiring