Noah Haynes Swayne

“ It is argued by the defendants that the plaintiff, Henry Williams, is concluded by the sequestration suit, because the defendants were tenants under him, and one of them was his general agent in Texas. But I instruct you that he is not concluded. He was no party to the suit, and did not undertake the defence of it. A landlord may, if he chooses, come in and defend an action brought against his tenant for the land, but he is not bound to do it. The tenant may be under such complications that the landlord's defence would be prejudiced thereby. ”

“ The statute of Texas does not require the evidence upon which the judgment of the court proceeded to be set forth in the record. Such a statement can do no good, and its omission does no harm.
As regards public officers, 'acts done which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter.' [19] 'Facts presumed are as effectually established as facts proved, where no presumption is allowed.' In the case of Ward's Lessee v. Barrows, [20] a sale for taxes came under examination. ”

“ The practice adopted in the case at bar enables a party, after he has had time to weigh the effects of his evidence, to amend and supply what it yet needs to carry the case. Such a practice leads to perjury, and is not conducive to the ends of justice. The statute of 1789, authorizing evidence to be taken ex parte, has always been rigidly construed. [2]
2. The court erred in its charge as to the construction of the deed executed by the trustee to Cornett, for the land claimed. ”

“ The court, therefore, charged upon a state of facts on which there was no evidence. This is error. [3]
3. The court erred in the effect which it gave in its charge to the proceedings and judgment, in the sequestration suit of Cornett v. J. H. and W. H. Williams.
The proceedings in the sequestration suit were introduced in evidence for two purposes: one, to show a former recovery that was so binding and conclusive on the plaintiff, Henry Williams, as to prevent his obtaining a judgment in his favor in the present action. ”

“ Until so allowed and approved they have no legal validity and cannot be recognized as debts against the estate. If disallowed, or not approved, they must be sued upon within three months. If sued without a refusal to allow or approve, there can be no recovery. The absence of such fact is fatal to the action. [16]
The order of sale sets forth that the claim had been allowed by the administrator, but is silent as to its approval by the judge. ”

“ The fraud alleged to have been attempted was a sale of the land in suit, to defeat the previously acquired rights of Cornett, under the order of the Probate Court, obtained by fraud, on an old, obsolete debt, which, after sleeping peacefully for sixteen years without so much as an execution having issued, without being approved and ranked as a debt, by collusion between the defendant in error, acting through his son and agent, and the administrator, was revived and made the means of defrauding Cornett of his property. ”

“ The settled rule of law is that jurisdiction having attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud. Every intendment is made to support the proceeding. It is regarded as if it were regular in all things and irreversible for error. In the absence of fraud no question can be collaterally entertained as to anything lying within the jurisdictional sphere of the oriainal case. ”

“ The thirtieth section of the Judiciary Act of 1789, authorizing the taking of depositions de bene esse, evidently intended, by its terms, that after the taking of the deposition, it should be returned into court, and remain sealed until published in open court. ”