Stephen Bishop v. Petty

• Citation: 28 Tex. 294
• Court: Supreme Court of Texas
• Decision Date: 31 October 1866
• Parties: STEPHEN BISHOP ET AL. v. JONES & PETTY.

28 Tex. 294

STEPHEN BISHOP ET AL.

v.JONES & PETTY.

Supreme Court of Texas.

October, 1866.

The rule of international comity, conceding to citizens of one friendly state or nation the right to prosecute suits in the courts of another, is, and in its nature can only be, a rule for peace. The status of war between previously friendly nationalities puts a termination to rights of this character until the restoration of peace; and there cannot be a “war for arms and a peace for commerce” co-existing between states or their respective citizens. It is a well established general rule, therefore, that resident citizens of one of the belligerents cannot bring or prosecute suits in the courts of the other.

To a suit instituted in March, 1861, on a note, the defendants plead that the usees and real plaintiffs were citizens of the United States and alien enemies, the sufficiency of which plea, as a legal defense, when filed, was not questioned either in the court below or this court.

A court of this state should not, on the 16th day of April, 1861, have decided, as a matter within its judicial knowledge, that war then existed between the United States and the Confederate States; and it was not error for the court below to exclude evidence then offered for the purpose of proving the existence of such a war, which evidence consisted of newspapers announcing the bombardment of Fort Sumter by authority of the Confederate government, and other intelligence then current and affirming the pendency of hostilities.

Although, in a popular sense, the late war may be said to have commenced at a period anterior to the date last mentioned, yet that sense is not synonymous with the legal signification of the term “war.” The mere suspension of the relations of peace usually subsisting between two nations does not constitute war between them. Commerce may be interdicted without producing war; and although reprisals and embargoes are forcible measures of redress, yet they do not, per se, constitute war. Even hostile attacks and armed invasions, although accompanied by destruction of life and property, and made by authorized officers of one government on the soil or jurisdiction of another, do not inevitably inaugurate war; for it may be that they will be atoned for and adjusted without war ensuing.

War, in its legal sense, has been aptly defined to be “the state of nations between whom there is an interruption of all pacific relations, and a general contestation of arms authorized by the sovereigns.”

Though a previous declaration or notice is not indispensable before the commencement of war, yet there can be no war of which a court can take judicial notice until the war-making power of the government has, by some act or announcement, created or recognized the existence of a state of war. In the Confederate States, the war-making power was lodged in the congress; and until it exercised that power, either by declaration or recognition of a state of war, the courts, no matter how imminent war might appear, could not say that amicable relations would not be restored without actual war.

If the congress, when it did act upon the subject, had declared that war had existed from some anterior period, the courts would follow such a declaration, and, on the question subsequently arising before them, would take judicial notice of the existence of the war from the date thus fixed by congress. But the courts could not, previous to such action by congress, recognize the existence of war as a matter within their judicial knowledge.

The plea of “alien enemy” is merely dilatory, and at most can only operate to suspend the plaintiff's action until the determination of the war. Though it must be sustained when properly presented, yet it is called in the books an odious plea, and will not be aided by construction.

The judgment of the court below, rendered in foreclosing a mortgage, and enforcing a vendor's lien, directed the issuance of an order of sale to the sheriff, “commanding him to seize and sell” the property “according to law, and apply the proceeds to the satisfaction of this judgment:” Held, that the judgment was in substantial, though not literal, conformity with the 119th section of the statute, which provides that judgments in such cases shall be rendered for an order to the sheriff “directing him to sell” the property, if found, “as under execution.” Pas. Dig. art. 1480, note 576.

It being objected in this court, though not in the court below, that there is a trivial excess in the amount of the judgment appealed from, but no calculation demonstrating the excess being submitted, the court declines to make a computation for the purpose of ascertaining the truth of the objection. If the excess had been shown, and the plaintiff declined to remit it, this court would correct the judgment at the cost of the appellants.

APPEAL from Bastrop. The case was tried before Hon. A. W. TERRELL, one of the district judges.

Few records are more painfully suggestive than that which furnishes this precedent. On the 7th of October, 1857, L. C. Cunningham & H. Crocheron, of Bastrop county, Texas, sold to Stephen Bishop, N. M. Brice, and Benjamin Lyman a thousand acres of land, upon which was situated a saw and grist-mill, for the sum of $18,800, and in part payment the defendants executed their note of that date for $6,000, payable to Cunningham & Crocheron on the 1st of May, 1858, with ten per centum interest after maturity. The note reserved the vendor's lien upon the land and appurtenances sold. As further security, Stephen Bishop, one of the defendants, executed his mortgage upon sixteen slaves, which he warranted “to be sound in body and mind and slaves for life.” There were some immaterial stipulations about indulgence. The note was indorsed by Cunningham & Co. to J. H. Foushee, on the 16th of January, 1861, and on the same day Foushee indorsed it to Jones & Petty, the plaintiffs, without recourse.

On the 8th of March, 1861, Jones & Petty, as indorsees and holders, sued the makers. The defendants plead the general issue, and also plead that Jones & Petty were not the real owners of the note, but in truth held it for the use and benefit of alien enemies of the United States of North America; that the United States is, and all the time has been since the institution of this suit, in a state of war against the Confederate States of North America, of which the defendants are citizens; that said United States is, and all the time since the institution of this suit has been, holding out and occupying a hostile attitude towards the Confederate States, in this: the political authorities of said United States have failed and refused to acknowledge the independence and existence of said Confederacy; they have assumed to have the right to exercise jurisdiction over it; they are assuming to exercise the right to collect the revenue and impost duties belonging to it; they have been, since the institution of this suit, levying war, raising troops, and making every preparation for an invasion upon this Confederacy; sending armed fleets to the ports and in the seas of the Confederate States; blockading the ports thereof; preying upon the commerce of said Confederate States; attempting to collect the revenue thereof; holding and occupying the forts, arsenals, and dock-yards belonging to and within the limits of said Confederate States, with armed troops and all munitions of war, with the belligerent purpose of destroying the nationality and independence of the Confederate States, and subjecting them to the government of the United States; that the real owners and usees are alien enemies, residing in the United States, and whose names are unknown to the defendants, and that they are foreigners and aliens to the Confederate States, and that such usees, being alien enemies, are incapable of suing in this court.

The plaintiffs proved the note and indorsements, the vendors' lien, and the mortgage declared on. The case was submitted to the court without a jury, who rendered a judgment for $7,211, with ten per cent. interest, with a decree of foreclosure and an order to sell the land and negroes.

Under the statute which authorizes calling the adverse party to the stand as a witness (Pas. Dig. art. 3754, note 857), the defendants introduced George W. Jones, one of the plaintiffs, with the view of proving that the plaintiffs, Jones & Petty, were not the real owners of the note sued on, that they held the mere naked legal possession thereof, for the use and benefit of parties who were, and had been since the institution of the suit, resident citizens of the United States of America. The court excluded the evidence, upon the ground that the defendants must first establish that war existed between the United States and the Confederate States before they would be permitted to introduce the testimony offered, to which ruling of the court the defendants excepted.

Thereupon the defendants insisted that war then existed between the Confederate States and the United States, and had continually since the institution of the suit, and that the court had judicial notice of the existence of said war, and all the current history of the country; and in proof that the court had this judicial notice, the defendants offered as evidence the public newspapers of the day, giving a full history of the current events of the time, all of which the court excluded, and rendered judgment for plaintiffs, and the defendants excepted.

Those things which the defendants urged that the court should know judicially, and which doubtless proved a state of war, were, that Abraham Lincoln was elected president by the constitutional number of votes on the first Tuesday in November, 1860; that thereat the leaders and people of certain southern states resolved that they would not live under a government presided over by an abolitionist; that the legislature of South Carolina, being then in session,...