52 U.S. 493 (1851), Randon v. Toby

Citation:52 U.S. 493, 13 L.Ed. 784
Party Name:TAVID RANDON, PLAINTIFF IN ERROR, v. THOMAS TOBY.
Case Date:March 07, 1851
Court:United States Supreme Court
 
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Page 493

52 U.S. 493 (1851)

13 L.Ed. 784

TAVID RANDON, PLAINTIFF IN ERROR,

v.

THOMAS TOBY.

United States Supreme Court.

March 07, 1851

THIS case was brought up, by writ of error, from the District Court of the United States for Texas.

It was a suit brought by Toby, a citizen of Louisiana, by way of petition, upon two promissory notes executed by Randon. The notes are stated in the first bill of exception. The reporter will not undertake to trace the history of the suit, and refers to the opinion of the court for his reasons for not doing so. The following table will present a summary view of the condition in which the pleadings were finally placed:----

1847, January 4, petition filed.

1847, February 4, demurrer, plea of limitations, and answer filed by defendant.

1848, February 10, petition amended.

1848, February 28, answer amended, and says notes given for purchase of African negroes, &c.

1848, March 11, defendant withdraws part of first plea, and demurs and excepts to part of petition.

1848, May 15, plaintiff further amends petition.

1848, May 31, defendant further answers plaintiff's amendment, craves oyer, & c.

1848, June 5, defendant amends two pleas and files three further answers.

1848, June 8, plaintiff further amends petition.

1848, June 8, defendant amends answer.

1848, June 9, defendant demurs.

1848, June 12, plaintiff further amends petition.

1848, December 14, defendant further amends answer.

1848, December 15, plaintiff files exceptions to demurrers and pleas.

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1848, December 19, defendant further amends answer.

1848, December 19, defendant amends again.

1848, December 22, plaintiff files two demurrers.

1848, December 23, trial.

The trial is thus stated in the record:----

'And thereafter, to wit, on the 23d day of December, in the year of our Lord 1848, being a day of the December term of the said court, the following judgment was rendered in the said cause, to wit:----

'THOMAS TOBY v. DAVID RANDON.

'This day came the parties aforesaid by their attorneys, and upon motion of defendant by attorney, it is ordered that he have leave to amend his answer herein, by filing pleas marked numbers eleven, twelve, thirteen, fourteen, and fifteen; and thereupon, plaintiff excepted to said pleas, and said exceptions were argued; and because it seems to the court, that the exceptions to pleas number eleven and thirteen are well taken, it is ordered that the same be allowed; but because, as to pleas number twelve, fourteen, and fifteen, the said exceptions are not well taken, it is ordered that the same be disallowed; and on further motion of said defendant by counsel, it is ordered that he have leave to amend his said answer, by filing pleas sixteen, seventeen, eighteen, and nineteen, and thereupon the plaintiff excepted to said pleas, and said exceptions were argued; and because it seems to the court that the exceptions to pleas sixteen, eighteen, and nineteen are well taken, it is ordered that the same be allowed; but because, as to plea number seventeen, the said exceptions are not well taken, it is ordered that the same be disallowed; and the parties being now at issue, it is ordered that a jury come here, &c.; whereupon came a jury of lawful men, to wit, F. S. Stockdale, Aidan Pullam, James L. Smithers, John P. Roan, James G. Heard, Israel Savage, J. H. McGill, J. S. Stafferd, Angus McNeill, Frederick Rankin, Augustus Hotchkiss, and J. C. Shaw, who, being sworn well and truly to try the issue joined, upon their oath do say, 'We, the jury, find the issues joined in favor of the plaintiff, and assess his damages, by reason of the breaches of promise in the petition mentioned, to $5,758.04.'

'And thereupon, to wit, on the day and year aforesaid, and before the jury aforesaid had retired, the said defendant by his said attorneys excepted to several opinions of the court given upon the trial of the said cause, and tendered eight bills of exceptions, which were received, signed, and sealed by the court, and ordered to be made part of the record in the said cause, and are in the words and figures following, to wit:----

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(These bills of exceptions filled seventy-eight pages of the printed record. The following is an abstract of them.)

First Bill.

'Be it remembered, that by the rules of this court the practice and proceedings on the common law side thereof are governed by the laws and rules regulating practice and proceedings in the courts of the State of Texas, except so far as the same may, by some order of this court, or by the laws of the United States, be altered or modified; and that, by the laws of the said State, proceedings are by petition and answer, or plea or pleas, and, if the plaintiff thinks it proper, a special replication to any of the pleas of the defendant may, both by the practice of the courts of the said State, as well as by the general orders of this court, be filed with the effect of a like replication at common law, but no replication is required by the rules; and this cause came on to be tried before the court and jury, on the petition of the plaintiff as amended, and the following pleas of the defendant, which on argument were adjudged sufficient, and were sustained against the exceptions or demurrers of the plaintiff, to wit, pleas numbered two, three, four, five, six, eight, nine, ten, twelve, fourteen, fifteen, and seventeen; the following pleas, numbered seven, thirteen, sixteen, and eighteen, having been on argument adjudged insufficient. And on the trial of the said cause, the plaintiff, to sustain the issues joined, gave in evidence the two promissory notes sued on, in words and figures following, to wit:----

"$1,781 45/100.

Galveston, June 21, 1841.

"Twenty-four months from date, I promise to pay to the order of Thomas Toby, Esq., one thousand seven hundred and eighty-one and 45/100 dollars, value received, with interest from the 14th of April, 1841, until paid.

D. RANDON.'

"$1,781 45/100.

Galveston, June 21, 1841.

"Twelve months from date, I promise to pay to Thomas Toby, Esq., or order, one thousand seven hundred and eighty-one and 45/100 dollars, value received, with interest from the 14th of April, 1841, until paid.

D. RANDON.'

'Which promissory note was marked 2.

'The plaintiff then offered in evidence the following instrument in writing, marked No. 3:----

"This instrument of March 14th, 1844, witnesseth, that whereas McKinney & Williams of Galveston, and Thomas F. McKinney, agent of Thomas Toby, of New Orleans, hold several notes drawn by me, and past due, and Thomas F.

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McKinney, some two years since, did agree for McKinney & Williams and the said Thomas Toby to grant me further indulgence on said notes over and above the time of their maturity, and I did then say, promise, and agree that I would deliver to him, the said Thomas F. McKinney, each and every year, all the one half of every crop of cotton in payment, first of the amount due the said McKinney and Williams, if there be any thing due them over and above the amount of purchase of negroes bought of them, and then in extinguishment of said amount of purchase of negroes, of which my note to said Toby is part of consideration; and I further agree and oblige myself, that any surplus I may have from the proceeds of the other half of my crops, over and above my wants, exclusive of any speculations or purchase of negroes, shall also be turned over as above; and I further bind and obligate myself, my heirs, assigns, and administrators, that no advantage shall be taken, or any plea of statute of limitations be made, to avoid the payment of said notes, but they shall be and remain in as full force and effect as though they were renewed.

D. RANDON.'

'To the admissibility of which said writing, the defendant, by his counsel, objected, as not sufficient to take the said promissory note, marked 2, out of the statute of limitations. But the court overruled the said objection, made by the counsel of the defendant, and permitted the said writing to be read in evidence to the jury; to which opinion and ruling of the court, permitting the said writing to be read in evidence to the jury, the defendant, by his counsel, excepted, and tendered this his first bill of exceptions, which he prays may be signed, sealed, and made a part of the record in the cause, which is done accordingly.

'JOHN C. WATROUS.

'Saturday, December 23d, 1848.'

Second Bill.

'Be it remembered, that after the jury were sworn to try the issues in this cause, the plaintiff, to maintain the said issues on his part, introduced the evidence contained in the bill of exceptions number one, heretofore filed in this cause; and thereupon the said plaintiff closed the evidence on his part; and the said defendant, to maintain the said issues on his part, gave in evidence the deposition of John Randon, as follows, to wit:----

"The witness was present at the house of David Randon, about the 1st of November, 1846, when Ephraim McLean came there with a power of attorney from Thomas F. McKinney, authorizing the said McLean to settle all business between the said David Randon and the said Thomas F. McKinney,

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and the firm of McKinney & Williams, and for the purpose of so settling such business, and the said McLean stated that such was the purpose of his visit. After the settlement between Randon and McLean was agreed upon, witness came to Galveston at the instance of the said David Randon, for the purpose of receiving from Thomas F. McKinney a receipt in full of all claims held by the said McKinney against the said David...

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