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Syllabus.

to amend their pleadings, and if need be to take further proofs. Error was also committed by the Circuit Court in affirming the decree of the District Court, as it is plain it should have been reversed. For these reasons the decree of the Circuit Court is in all things REVERSED, and the cause remanded for further proceedings

IN CONFORMITY TO THIS OPINION.

CORNETT v. WILLIAMS.

1. Under the act of July 2d, 1864, providing that in civil actions in courts of the United States there shall be no exclusion of any witness, "because he is a party to or interested in the issue tried;" witnesses may, other things allowing, testify (without any order of court) by deposition. And if not satisfied with a deposition which they have given, have a right, without order of court, to give a second one.

2. What evidence so far tended to prove, on the part of a person who, during the late rebellion, removed his slaves from loyal parts of the country to parts in rebellion, a purpose to sell them in these last, and justified a charge on an assumption of possibility, that the jury might find the purpose to have existed. This matter passed upon.

3. When, under the what is known in Texas as its "Sequestration Act," a person has brought suit to recover land, and the marshal, in pursuance of the writ of sequestration, takes possession of the land, it is in the custody of the law. But when replevied (as the said act allows it to be), it passes from the possession of the law into the possession of the party replevying.

4. The rule established by this court as to the introduction of secondary evidence that it must be the best which the party has it in his power to produce is to be so applied as to promote the ends of justice and guard against frauds, surprise, and imposition. The court has not gone to the length of the English adjudications, that there are no degrees in secondary evidence. Hence, where the records of a court were all burnt during the rebellion, what appeared to be a copy of an officially certified copy was held properly received; the certified copy, if any existed, not being in the party's custody or plain control, and there being no positive evidence that it existed, though there was evidence tending to show that it did. There is nothing in the act of Congress of March 3d, 1871 (16 Stat. at Large, 474), providing for putting in a permanent form proof of the contents of judicial records, nor in the statute of Texas of 11th

Statement of the case.

February, 1850 (Paschall's Digest, Article 4969), on the same subject, which changes this rule.

5. Where a county court having jurisdiction to authorize a sale of a decedent's estate for his debts does authorize it, and the sale is made, the sale must be presumed in this court to have been regularly made. In the absence of fraud, the question of its propriety is not open to examination otherwise than in an appellate court in a proceeding had directly for that purpose.

6. Certain instructions quoted further on (infra, pp. 285–238) on the subject of fraud approved; though the case was declared hardly sufficient to require them.

ERROR to the Circuit Court for the Western District of Texas, in which court Henry Williams brought trespass to try title against one Cornett, to settle the question of ownership of a certain league of land in Bastrop County, in the said State, which had formerly belonged to Samuel Williams.* The plaintiff claimed under a sale made by an administrator of the estate of the said Samuel, through the proper court, for payment of debt; the defendant through deeds from his heirs at law. The more particular,case was thus:

Samuel Williams, of the said Bastrop County, and engaged in business there, having become indebted to his brother Henry, resident in Baltimore, Maryland, the said brother brought suit against him, and on the 20th June, 1850, obtained a judgment against him in the District Court of the United States in Texas for $26,736; and on the 12th July, 1858, to keep alive the evidences of the debt, brought a second suit on this judgment so obtained, and recovered judgment on it for $43,936. These facts were testified to by W. B. Ballinger, Esq., a member of the bar of Texas of high standing; his "office registry" being produced as the evidence of the dates and amounts of the two judgments;

These two brothers were called, in different parts of the record,—the last Samuel May Williams, S. M. Williams, Samuel M. Williams, and Samuel Williams; the other Henry H. Williams, Henry Williams, and in other ways. There being two other parties Williams (J. H. and W. H.) in the case, I have spoken in my statement of the case and in the report of the argument, of the two brothers constantly by their first names only; that is to say, as Samuel and Henry.

Statement of the case.

the judicial records, as hereafter mentioned, having themselves been destroyed.

Soon after the entry of the second judgment Samuel Williams died, leaving this league of land, and some other lands; and not long afterwards-about the year 1859Henry being in Texas, applied to Mr. Ballinger for counsel as to what further steps, if any, he had best follow to secure his debt against the estate of his brother now lately deceased. Mr. Ballinger told him to get a certified copy of the judgment, make affidavit to it, and present it to the administrators of the estate of Samuel Williams; and supposed, as he testified, that he would do this.

This advice of Mr. Ballinger was founded apparently on what seems to be the law of Texas,* under which any claim against the estate of a deceased person, in order to be ranked as a just debt against it, must be duly sworn to and presented to the administrator for allowance, and to the chief justice (who is the probate judge) for approval.

It did not appear that Mr. Ballinger ever saw this certified copy, such as he had directed Heury Williams to get and present; but another witness (F. W. Chandler), a member of the bar, testified that he had had in his possession such a copy of the judgment; that J. H. Williams (the son of Henry Williams) had made several copies of it in his presence; and that the original (that is to say, the copy officially certified) had been lost in the mail in crossing Cummins's Creek. One of the copies thus made was sent to Mr. Ballinger; but Mr. Ballinger could not say that the copy was accurate, and noted that the amount found due by the clerk and that for which the judgment was given varied; Mr. Ballinger's own memorandum, as found in his office register, agreeing in amount and date with the latter. The copy thus sent to Mr. Ballinger, and which was received in evidence under objection, set forth that the clerk of the court in which the judgment was had, had assessed the damages at $43,966.34; and that it was, therefore, considered by the court that the plaintiff recover of the defendant $43,936.34.

* Act of March 20th, 1848, Paschal's Digest, Article 1811.

Statement of the case.

In 1861 the civil war broke out, lasting till the spring of 1865. In 1862 all the original records of the Federal courts in Texas were burned.

Early in the war, J. H. Williams, a son of Henry, already mentioned as of Baltimore, went to Texas, and with his cousin H. H. Williams, a son of Samuel, bought out the right of the other heirs of Samuel to this league of land, and went on it to live. Having done this the two cousins formed partnership, built a cloth factory, and made a contract with a the Confederate government to supply to it military cloth for the Confederate troops. J. H. Williams stated in testimony that he was at the time aware of the incumbrance of his father's judgment on the land, but considered the estate of his uncle so wealthy "that any idea of the land being needed to pay a debt of the estate never occurred to him but as a possibility too remote to be worth consideration.”

While the cousins, J. H. and W. H. Williams, were engaged in manufacturing military cloths for the Confederate troops, under their contract, already mentioned, with the Confederate government, a certain Cornett appeared, in October, 1863, in Texas, with a large number of slaves, some mules, and a wagon. Cornett had been a resident and a slaveholder in Missouri, disaffected to the Federal government; and the testimony tended to show that in the autumn of 1861, that State being in a very disturbed condition, owing to the war, and the government troops gradually driving out those of the Confederate States, a son of Cornett said to his father that the Federal army was approaching; that if they did not remove their slaves soon they would lose them all; that thereupon Cornett got his slaves together, and handcuffing or tying with strings some who hid themselves and did not want to go, set off for the South, and after about five weeks of forced journeyings, following the Confederate troops night and day, arrived in Texas; that he hired some of his slaves out for short times, sold certain ones, and in the autumn of 1863 sold all the rest (the bulk of them), and the mules and wagon, to the cousins Williams, they having made the purchase, as one of them tes

Statement of the case.

tified, "for the purpose of enabling us to comply with our contract with the Confederate government;" "a thing," continued the witness, "which the said Cornett knew at the time of our purchase and must have known before, it having been matter of common notoriety; and he having further kuown it from our own statements made to him at the time."

By way of payment for the negroes, mules and wagon, the cousins Williams executed, in February, 1864 (though the sale was in the autumn of 1863), their note to Cornett for $9600 (the $9000 having been the price of the negroes and the $600 the price of the mules and wagon), and to secure the payment of the note conveyed the league of land that they had bought from the heirs of Samuel Williams to one Wildbahn, in trust to secure their note to Cornett, and with power in the trustee to sell if the note was not paid.

In the spring of 1865 the supremacy of the Federal arms became complete; slavery was abolished, and the slaves bought by the cousins Williams of no more value to them.

Henry Williams, the father of J. H. Williams, who was still alive and had been during the war at the North, constituted, in 1865, his son, J. H. Williams, yet in Texas, his general agent there; and peace being now restored and intercourse between all parts of the country, the son (who, as already mentioned, had with his cousin mortgaged the league to Cornett, to secure the purchase-money of the slaves), acting as his father's agent, at the January Term, 1866, applied through counsel, Mr. Mott, to the County Court of Galveston, for an order that the administrator of Samuel Williams be cited to appear and show cause why "he should not make application to the court for an order to sell enough of the property of said estate to pay a judgment obtained by the said Henry Williams against the said Samuel, to the amount of $40,000; which said judgment was allowed and approved as a valid claim against said estate, in October, 1859, with eight per cent. interest per annum," &c.

The application thus made to the court was under and in pursuance with the 1315th article of Paschal's Digest, which

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