Borden v. Houston

• Decision Date: 31 December 1847
• Citation: 2 Tex. 594
• Parties: GAIL BORDEN ET AL. v. SAM HOUSTON, PRESIDENT
• Court: Texas Supreme Court

2 Tex. 594

GAIL BORDEN ET AL.

v.SAM HOUSTON, PRESIDENT

Supreme Court of Texas.

December Term, 1847.

Appeal from Harris County.

Every presumption is with the judgment rendered in the court below, and the party who seeks to reverse it takes upon himself the burden of showing that error has been committed, and in what it consists. [ Ante, 581; 8 Tex. 143.]

Where a judge is required to exercise a discretion, and there are no prescribed rules to regulate and control it, it can have no other limit than his own moral sense of justice.

In a suit against an officer and his sureties on his official bond, neither he nor his sureties can controvert his appointment and official character as recited in the bond.

The liability of a surety cannot be extended by implication beyond the precise terms of his contract; but it is no change of the contract, or extension of the liability, to require the principal, who is an agent for the collection of public dues, to receive them in a different kind of funds from such as were receivable at the time of his appointment.

An agent cannot avail himself of his agency to do for his own benefit that which injures or affects his principal.

A party who is sued by the government cannot set off claims which he holds against the government, unless expressly authorized by statute. [ Post, 616; 10 Tex. 315.]

Under the constitution of the republic of Texas, no statute could have the effect of making the bonds or promissory notes of the government “a lawful tender.”

The failure of a party to except to the pleadings of his adversary will not authorize a judgment upon a petition or answer, which discloses no cause of action or ground of defense, though its verity, in fact, be admitted or proved. [3 Tex. 335;19 Tex. 280;25 Tex. 252.]

This suit was brought in the county of Galveston by the appellee on behalf of the republic of Texas against the appellants, the collector of customs for the district of Galveston, and his sureties, on their bond to secure to the government the faithful performance of the official duties of the collector.

The bond is set out in the petition, bears date on the 15th day of January, 1842, and stipulates for the payment to the president of the republic and his successors in office of the sum of twenty-five thousand dollars, “lawful money of said republic.” It recites the fact of the appointment of the appellant, Gail Borden, to the office of collector, and is conditioned that he has and “shall continue truly and faithfully to discharge all the duties of the said office, according to law.” The petition alleges that the appellant was appointed collector, etc., on the 15th day of January, 1842; that he thereupon executed his bond and entered upon the duties of his office.

The breach of covenant assigned is, that he, the collector, has not truly and lawfully discharged the duties of his office according to law, and has broken his covenant and obligation, in this, that on the 13th day of April, 1843, there remained in his hands, as collector, twenty-four thousand eight hundred and sixteen dollars and seventeen cents, in exchequer bills, alleged to be of the value of as many dollars, and also two thousand fifty-two dollars and sixty-two cents, in par funds, which sums he has refused to pay over to the proper officer of the government, to the damage of the plaintiff twenty-five thousand dollars.

At the spring term, 1844, the defendants answered by a general denial, and subsequently the defendants, McKinney & Williams, filed an amended answer, alleging that the republic of Texas is indebted to them in “divers large sums of money” (shown by exhibits), for the promissory notes and bonds of the republic owned and held by them, and also upon two certificates of stock in the consolidated fund, etc., for five thousand dollars each; and further that they, as agents of one H. H. Williams, are the holders of six thousand shares in the consolidated fund, created by the act of June 7, 1837, the whole amounting to a sum exceeding the demand of the plaintiff.

The answer concludes with a prayer “that the plaintiff be ordered to receive the notes, bonds and certificates herein before set forth, or so much thereof as may be necessary, in full satisfaction and discharge of the obligation set forth in the plaintiff's petition,” and for judgment for the excess above the plaintiff's demand.

The petition was filed in the office of the clerk of the district court of Galveston county on the 10th day of April, 1844. It appears that a change of venue having been awarded, transferring the cause for trial to the county of Harris, it was entered upon the docket of that court on the 16th day of May, 1845, at the instance of the plaintiff, “the original papers in the suit and a certified transcript of the record appertaining thereto, containing the order of transfer, being forwarded from the district court of Galveston county.”

The cause appears to have been once continued on the affidavit of one of the defendants, in the county of Galveston. And after it was entered upon the docket of the district court of Harris county, the defendants moved a second continuance, founded on the affidavit of an attorney of the court, setting forth, in substance, that he was of counsel for the defendants, and the only one then present, and alleging his inability to attend the trial at that time. This application having been overruled, another attorney of the court, on behalf of the defendants, moved the court “to rescind the order placing the cause on the docket for trial at this term,” assigning the following causes:

“1st. That the order placing the case on the docket for trial at this term was made without motion duly made, and notice to the defendants or their counsel.

2d. That being moved from Galveston at a term holden contemporaneously with this, it cannot reasonably or legally be placed on docket for trial at this term, but must operate a continuance; whereupon the defendants pray that the order be rescinded, or at least that a continuance be entered.”

This motion was also overruled, and the defendants then again moved a continuance, founded on the affidavit of one of the defendants, alleging for cause the absence of material witnesses. This application was also overruled by the court. There were exceptions to the petition, which were also overruled. To these several rulings of the court the defendants took their bill of exceptions. The cause then proceeded to trial, and the plaintiff gave in evidence the bond of the defendants on which the suit was instituted, and proof of its authentication; a statement of the account of the collector, showing the amount of exchequer and par money of the government in his hands, his admission of its correctness, and proof of the market value of exchequer bills.

On the part of the defendant certain promissory notes and bonds of the republic of Texas, and two certificates of stock in the consolidated fund of Texas, created under the act of June 7, 1837, being the same set forth in the answer, were submitted to go in evidence; the plaintiff's counsel agreeing that they should be so submitted, waiving proof of their execution, if they should be adjudged otherwise legally admissible.

Various objections to the admissibility of the plaintiff's evidence were made and overruled, and these rulings were made the subject of exceptions, but they were not deemed by this court of a character to require particular notice.

The defendants submitted seventeen propositions which they asked the court to give in charge to the jury, several of which were accordingly given, but others were refused. Those refused contain in substance the following propositions:

1st. That in order to prove the official character of the collector, it was incumbent on the plaintiff to introduce his commission as the best evidence.

2d. That the sureties of the collector were not responsible for the value of exchequer bills received by him as collector, and withheld from the government, these bills having been received by virtue of laws passed subsequently to the date of the obligation of the sureties. That laws changing the currency in which the collector is required to receive the public dues, passed subsequently to the execution of his bond, change the contract of his sureties, and thereby release them from responsibility in consequence of their undertaking as his sureties. 3d. That the promissory notes, bonds and certificates of stock, etc., constitute under the pleadings a legal offset.

4th. That the promissory notes, etc., are, under the pleadings, a legal tender in this case.

5th. That although the facts set forth in the answer of the defendants do not amount in law to a justification, yet if proved as pleaded, the facts so proved do maintain the issue on the part of the defendants, who are entitled thereupon to a verdict and judgment in their favor.

There was a verdict for the plaintiff for twenty-one thousand nine hundred aud five dollars and forty-two cents principal, and three thousand five hundred and four dollars and eighty-six cents interest, upon which the court gave judgment and the defendants appealed.

Jones, Butler and Baker, for appellants.¹

Harris, Attorney General, and E. Allen, for appellee.¹

Mr. Justice WHEELER, after having stated the facts of the case as they are recited in the commencement of this report, delivered the opinion of the court.

A preliminary objection is now urged to the authority of the district court sitting in Harris county to entertain jurisdiction of this case. This objection is based upon the absence of anything in the record to show that the court in Galveston acted rightly in awarding a change of venue.

The objection, in effect, assumes that this court will reverse the judgment of the district court, unless it affirmatively appear that that court did not err; whereas, to authorize a reversal, it must appear affirmatively that the court did err in its proceedings and...