Courand v. Vollmer

• Decision Date: 31 October 1868
• Citation: 31 Tex. 397
• Parties: JOSEPH COURAND v. JOHN VOLLMER.
• Court: Texas Supreme Court

31 Tex. 397

JOSEPH COURAND

v.JOHN VOLLMER.

Supreme Court of Texas.

October, 1868.

The 13th section of the IVth article of the constitution of the republic reads as follows: “The congress shall, as early as practicable, introduce, by statute, the common law of England, with such modifications as our circumstances, in their judgment, may require; and in all criminal cases the common law shall be the rule of decision.” Pas. Dig. art. IV, sec. 13, note 138, p. 34. And the 1st section of the act of 30th January, 1840, reads as follows: “The common law of England (so far as it is not inconsistent with the constitution or the acts of congress now in force) shall, together with such acts, be the rule of decision in this republic, and shall continue in full force until altered or repealed by congress.” Pas. Dig. art. 978, note 418. The whole system of the common law of England was not adopted by this act, but simply that portion of it which related to the rule of decision. Foster v. Champlin, 29 Tex. 22;29 Tex. 22, 37.

Before the revolution, on the 2d of March, 1836, the Mexican civil law and the decrees of Mexico and Coahuila and Texas, were the rule of action, and these laws remained in force until repealed.

The common-law act substituted the common law of England in place of the civil law as a rule of decision, and for this only; not as a rule of practice, except when something was to be decided.

No English statute was ever enforced in this state except such as have been re-enacted.

The English common law required a bond to be under seal, but this had no application to a bond in Texas.

The district court act of 1846 requires an appeal bond, but to effect the same thing by a writ of error it requires an obligation, while to obtain a distress warrant an instrument must be signed; the form in the attachment act uses a seal or scroll. Pas. Dig. arts. 163, 1491, 1495, 5034; Read v. Levy, 30 Tex. 848.

From the fact that the act about conveyances required that a deed should be under seal, it is to be inferred that the same solemnity was not required for a bond. Pas. Dig. art. 997.

The act of 1858, concerning seals, reads as follows; “No scroll or private seal shall be necessary to the validity of any contract, bond or conveyance, whether respecting real or personal property, except such as are made by corporations; nor shall the addition or omission of a scroll or seal in any way affect the force and effect of the same; and every contract in writing hereafter made shall be held to impart a consideration as fully and in the same manner as sealed instruments have heretofore done.” Pas. Dig. art. 5087, note 1114. This act repeals the common-law act, as to contracts concerning property, and in its spirit extends to all money obligations, and was intended to dispense with all sealed instruments.

The words “whether real or personal property” apply to conveyances only.

The act regulating the writ of certiorari requires a bond, but it is not necessary that the bond should contain a seal. Pas. Dig. art. 468, note 331.

LINDSAY, dissenting, held that the scroll or seal was only dispensed with in private instruments, not in judicial proceedings.

APPEAL from Medina. The case was tried before Hon. GEORGE H. NOONAN, one of the district judges. The facts are sufficiently stated in the opinion of the court.

The only question was as to the necessity of a bond for certiorari being under the statute, which uses the word “bond.” Pas. Dig. art. 468, note 331. The chief justice followed the views in Foster v. Champlin, 29 Tex. 22, and Russell v. McCampbell, 29 Tex. 37. Mr. Justice LINDSAY followed Read v. Levy, 30 Tex. 738. The question will doubtless be settled by legislation.

No briefs have been furnished to the reporter.

MORRILL, C. J.

This suit was brought before a justice's court, and transferred to the district court by certiorari.

The appellee moved in the district court to dismiss the cause, because the obligors in the bond for the certiorari did not add a scroll or seal to their names, and therefore the bond was defective.

The motion was sustained by the district court, and the decision of the judge in this respect is the error assigned in this court.

The constitution of the republic of Texas (art. IV, sec. 13) provides that “the congress shall, as early as practicable, introduce by statute the common law of England, with such modifications as our circumstances in their judgment may require; and in all criminal cases the common law shall be the rule of decision.” Pas. Dig. p. 34, sec. 13, note 138. Accordingly, on the 20th January, 1840, the congress passed the following act:

“The common law of England (so far as it is not inconsistent with the constitution or the acts of congress now in force) shall be the rule of decision in this republic, and shall continue in force until altered or repealed by congress.” Pas. Dig. art. 978, note 418.

It is perfectly apparent that the whole system of the common law of England was not adopted by this act, but simply that portion of it which related to ““the rule of decision.” The substratum of the law of the parent country was the civil law. This, together with the statutes in force in Mexico and in Coahuila and Texas on the 2d March, 1836, were the laws in force when Texas became a separate government, and remained such until repealed. The constitution of 1836 and the acts of three different congresses had already furnished a collection of laws sufficient for a superstructure, but the basis or foundation of the judicial system was the civil law, and it was this which formed the rule of decision up to January, 1840.

This act, therefore, substituted the common law of England in place of the civil law as “the rule of decision,” and for this only. It did not adopt the common law of England as a rule of practice, or to be used except when something was to be decided. This, of course, contemplated judicial decisions, and was intended for the direction of the judiciary to resort to the unwritten law of England in those cases where the statutes are silent. Unlike most of the other states of the United States, the state of Texas, or the territory of which it is composed, never was under the jurisdiction of England, and therefore none of the English statutes ever were in force in this state except as they have been specially enacted. The congress of the republic of Texas and the legislature of the state of Texas have adopted as law a portion of an act of 13 and 27 Elizabeth, and one section of an act of 29 Charles II, and the whole unwritten or antestatute law of England, so far as it forms or can form, in the absence of statute law, “a rule of decision.” And it would be just as improper to say that, because the legislature enacted the 4th section of the statute of frauds, the whole act was adopted, as to say that the common law of England was adopted for any and all purposes, because it was adopted as a “rule of decision.”

We have thus far proceeded as if the act introduced the common law as a rule of decision without exception. But the act itself expressly excepts even this when it is inconsistent with the constitution or laws in force. When, therefore, such a state of things exists by the laws in force as would cause an inconsistency, or a want of necessity to resort to the common law, it is not in force.

By the common law of England, upon the death of a person, his personal property all descended to his executor and his real estate to his heirs. Kent, 420; 3 Black, 430. And unless the ancestor, in entering into an obligation to pay a certain sum of money, made a sealed instrument, there called a bond, by which he bound his heirs, etc., the heirs could inherit the real estate unincumbered with the obligation. In this state it is not so. An instrument in writing, or even a parol engagement, made by an ancestor to pay a certain sum of money, if it could be collected of the party primarily liable, would make all his real and personal estate liable. It is therefore inconsistent with the laws that have been in force ever since Texas has existed as a state to require a sealed instrument here as in England.

The first act of the congress of Texas, passed in December, 1836, page 203 of the Acts, provided that any party may appeal from a judgment of the district court to the supreme court on entering into bonds, with security, etc. In construing and defining the word “bond” in that act, no reference could be had to the common law of England, which required a seal, any more than to the ancient Jewish law, which required a man to pluck off “his shoe and [give] gave it to his neighbor, and this was testimony in Israel.” Ruth, iv, 7.

A bond is what binds. Therefore, any instrument in writing that legally binds a party to do a certain thing may be called a bond. A bond by the acts did not require a seal; and as it would be inconsistent with the act...