Reynolds v. Crump

• Decision Date: 01 January 1851
• Citation: 6 Tex. 34
• Parties: ENNIS AND REYNOLDS, ADM'RS, v. CRUMP.
• Court: Texas Supreme Court

6 Tex. 34

ENNIS AND REYNOLDS, ADM'RS,

v.CRUMP.

Supreme Court of Texas.

1851.

Under the statute of 1848, (Hart. Dig., art. 804,) as under the statute of 1840 on the same subject, where the party litigates in the capacity of executor or administrator for the benefit of the estate which he represents, it is his privilege to appeal without giving bond.

The mere change of phraseology in the revision of a statute before in force will not work a change in the law previously declared, unless it indisputably appear that such was the intention of the Legislature.

Appeal from Austin. Motion to dismiss. The appellants, as administrators for George W. Reynolds, deceased, sued the appellee and another upon a promissory note made by the appellee and others, and indorsed to the plaintiffs as administrators of G. W. Reynolds, their intestate.

There was a judgment for the defendant, and the plaintiffs appealed. No appeal-bond was given, and the appellee moved to dismiss the appeal for the want of a bond.

Munger, for appellants.

E. M. Pease, for appellee.

WHEELER, J.

The question is, was it necessary for the appellants, being administrators, to have given an appeal-bond? And we are of the opinion that it was not.

The act of 1840 (4 Stat., 129, sec. 58) provided that “in all cases of appeal from any court in the Republic it shall not be necessary for executors, administrators, or guardians to give the bond and security required of appellants in other cases.”

Under this statute it was considered the privilege of persons litigating in the capacity of executors, &c., to appeal without giving bond. (1 Tex. R., 199.)

The act of 1848, sec. 4, which is a revision of the former act, employs a somewhat different phraseology. Its language is that the “executors, administrators,” &c., “shall not be ruled to give security for costs in any suit to recover money due or property belonging to the estate. And no security shall be exacted of executors or administrators of deceased persons' estates, in appeals taken, in suing for such money or property, or in defending suits brought against such estates for money or property.” (Hart. Dig., art. 804.)

This statute was not intended, we think, to change the rule upon this subject as understood and practised under the former law. That the mere change of phraseology in the revision of a statute before in force will not work a change in the law previously declared, unless it indisputably appear that such was the intention of ...