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TAVID RANDON, PLAINTIFF IN ERROR, v. THOMAS TOBY.

December 1, 1850

TAVID RANDON, PLAINTIFF IN ERROR,
v.
THOMAS TOBY.



THIS case was brought up, by writ of error, from the District Court of the United States for Texas.

It was a suit brought by Toby, a citizen of Louisiana, by way of petition, upon two promissory notes executed by Randon. The notes are stated in the first bill of exception. The reporter will not undertake to trace the history of the suit, and refers to the opinion of the court for his reasons for not doing so. The following table will present a summary view of the condition in which the pleadings were finally placed:––

1847, January 4, petition filed.

1847, February 4, demurrer, plea of limitations, and answer filed by defendant.

1848, February 10, petition amended.

1848, February 28, answer amended, and says notes given for purchase of African negroes, &c.

1848, March 11, defendant withdraws part of first plea, and demurs and excepts to part of petition.

1848, May 15, plaintiff further amends petition.

1848, May 31, defendant further answers plaintiff's amendment, craves oyer, & c.

1848, June 5, defendant amends two pleas and files three further answers.

1848, June 8, plaintiff further amends petition.

1848, June 8, defendant amends answer.

1848, June 9, defendant demurs.

1848, June 12, plaintiff further amends petition.

1848, December 14, defendant further amends answer.

1848, December 15, plaintiff files exceptions to demurrers and pleas.

1848, December 19, defendant further amends answer.

1848, December 19, defendant amends again.

1848, December 22, plaintiff files two demurrers.

1848, December 23, trial.

The trial is thus stated in the record:––

'And thereafter, to wit, on the 23d day of December, in the year of our Lord 1848, being a day of the December term of the said court, the following judgment was rendered in the said cause, to wit:––

'THOMAS TOBY v. DAVID RANDON.

'This day came the parties aforesaid by their attorneys, and upon motion of defendant by attorney, it is ordered that he have leave to amend his answer herein, by filing pleas marked numbers eleven, twelve, thirteen, fourteen, and fifteen; and thereupon, plaintiff excepted to said pleas, and said exceptions were argued; and because it seems to the court, that the exceptions to pleas number eleven and thirteen are well taken, it is ordered that the same be allowed; but because, as to pleas number twelve, fourteen, and fifteen, the said exceptions are not well taken, it is ordered that the same be disallowed; and on further motion of said defendant by counsel, it is ordered that he have leave to amend his said answer, by filing pleas sixteen, seventeen, eighteen, and nineteen, and thereupon the plaintiff excepted to said pleas, and said exceptions were argued; and because it seems to the court that the exceptions to pleas sixteen, eighteen, and nineteen are well taken, it is ordered that the same be allowed; but because, as to plea number seventeen, the said exceptions are not well taken, it is ordered that the same be disallowed; and the parties being now at issue, it is ordered that a jury come here, &c.; whereupon came a jury of lawful men, to wit, F. S. Stockdale, Aidan Pullam, James L. Smithers, John P. Roan, James G. Heard, Israel Savage, J. H. McGill, J. S. Stafferd, Angus McNeill, Frederick Rankin, Augustus Hotchkiss, and J. C. Shaw, who, being sworn well and truly to try the issue joined, upon their oath do say, 'We, the jury, find the issues joined in favor of the plaintiff, and assess his damages, by reason of the breaches of promise in the petition mentioned, to $5,758.04.'

'And thereupon, to wit, on the day and year aforesaid, and before the jury aforesaid had retired, the said defendant by his said attorneys excepted to several opinions of the court given upon the trial of the said cause, and tendered eight bills of exceptions, which were received, signed, and sealed by the court, and ordered to be made part of the record in the said cause, and are in the words and figures following, to wit:––(These bills of exceptions filled seventy-eight pages of the printed record. The following is an abstract of them.)

First Bill.

'Be it remembered, that by the rules of this court the practice and proceedings on the common law side thereof are governed by the laws and rules regulating practice and proceedings in the courts of the State of Texas, except so far as the same may, by some order of this court, or by the laws of the United States, be altered or modified; and that, by the laws of the said State, proceedings are by petition and answer, or plea or pleas, and, if the plaintiff thinks it proper, a special replication to any of the pleas of the defendant may, both by the practice of the courts of the said State, as well as by the general orders of this court, be filed with the effect of a like replication at common law, but no replication is required by the rules; and this cause came on to be tried before the court and jury, on the petition of the plaintiff as amended, and the following pleas of the defendant, which on argument were adjudged sufficient, and were sustained against the exceptions or demurrers of the plaintiff, to wit, pleas numbered two, three, four, five, six, eight, nine, ten, twelve, fourteen, fifteen, and seventeen; the following pleas, numbered seven, thirteen, sixteen, and eighteen, having been on argument adjudged insufficient. And on the trial of the said cause, the plaintiff, to sustain the issues joined, gave in evidence the two promissory notes sued on, in words and figures following, to wit:––

"$1,781 45/100.

Galveston, June 21, 1841.

"Twenty-four months from date, I promise to pay to the order of Thomas Toby, Esq., one thousand seven hundred and eighty-one and 45/100 dollars, value received, with interest from the 14th of April, 1841, until paid.

D. RANDON.'

"$1,781 45/100.

Galveston, June 21, 1841.

"Twelve months from date, I promise to pay to Thomas Toby, Esq., or order, one thousand seven hundred and eighty-one and 45/100 dollars, value received, with interest from the 14th of April, 1841, until paid.

D. RANDON.'

'Which promissory note was marked 2.

'The plaintiff then offered in evidence the following instrument in writing, marked No. 3:––

"This instrument of March 14th, 1844, witnesseth, that whereas McKinney & Williams of Galveston, and Thomas F. McKinney, agent of Thomas Toby, of New Orleans, hold several notes drawn by me, and past due, and Thomas F. McKinney, some two years since, did agree for McKinney & Williams and the said Thomas Toby to grant me further indulgence on said notes over and above the time of their maturity, and I did then say, promise, and agree that I would deliver to him, the said Thomas F. McKinney, each and every year, all the one half of every crop of cotton in payment, first of the amount due the said McKinney and Williams, if there be any thing due them over and above the amount of purchase of negroes bought of them, and then in extinguishment of said amount of purchase of negroes, of which my note to said Toby is part of consideration; and I further agree and oblige myself, that any surplus I may have from the proceeds of the other half of my crops, over and above my wants, exclusive of any speculations or purchase of negroes, shall also be turned over as above; and I further bind and obligate myself, my heirs, assigns, and administrators, that no advantage shall be taken, or any plea of statute of limitations be made, to avoid the payment of said notes, but they shall be and remain in as full force and effect as though they were renewed.

D. RANDON.'

'To the admissibility of which said writing, the defendant, by his counsel, objected, as not sufficient to take the said promissory note, marked 2, out of the statute of limitations. But the court overruled the said objection, made by the counsel of the defendant, and permitted the said writing to be read in evidence to the jury; to which opinion and ruling of the court, permitting the said writing to be read in evidence to the jury, the defendant, by his counsel, excepted, and tendered this his first bill of exceptions, which he prays may be signed, sealed, and made a part of the record in the cause, which is done accordingly.

'JOHN C. WATROUS.

'Saturday, December 23d, 1848.'

Second Bill.

'Be it remembered, that after the jury were sworn to try the issues in this cause, the plaintiff, to maintain the said issues on his part, introduced the evidence contained in the bill of exceptions number one, heretofore filed in this cause; and thereupon the said plaintiff closed the evidence on his part; and the said defendant, to maintain the said issues on his part, gave in evidence the deposition of John Randon, as follows, to wit:––

"The witness was present at the house of David Randon, about the 1st of November, 1846, when Ephraim McLean came there with a power of attorney from Thomas F. McKinney, authorizing the said McLean to settle all business between the said David Randon and the said Thomas F. McKinney, and the firm of McKinney & Williams, and for the purpose of so settling such business, and the said McLean stated that such was the purpose of his visit. After the settlement between Randon and McLean was agreed upon, witness came to Galveston at the instance of the said David Randon, for the purpose of receiving from Thomas F. McKinney a receipt in full of all claims held by the said McKinney against the said David Randon, and also a cotton obligation. The said McLean knew that the respondent was coming, and what he was coming for, and knew that the respondent came to obtain the receipt and the cotton obligation, and the said McLean consented thereto.

"When I arrived in Galveston, I remained a day or two, and did not see McKinney; during the time I saw McLean, and he handed me the receipt; I asked him where the obligation was, and he told me he hadn't got it. I told him that I must have it, because I was instructed to get that particularly by my uncle, David Randon. I rode out to Mr. McKinney's house, and demanded of him the cotton obligation, which he held against David Randon, and which I was requested to get. As near as I recollect, he said to me, 'I remember the obligation, but it is either lost or mislaid; but it is of no consequence in this settlement, for the receipt which I have given McLean for you includes all.' I rather insisted on his looking for it, but he said he wouldn't know where to look for it, as he had been sick for some time, and his papers were mislaid. He seemed to have no objections in the least to giving up the obligation, if he could have found it; he did not suggest any rights which he or any one else had, growing out of the said obligation. Mr. McKinney said the receipt included all, and that the obligation was of no consequence, therefore, to David Randon. David Randon sent to McKinney all the African negroes he had, except two; I think he sent twenty-one; he retained two; one he retained in accordance with the settlement, and the other he purchased and gave his note for.'

'Cross-examination.–'The settlement, so far as witness knew, was not reduced to writing; he was present a part, but not all, of the time when the negotiation between Randon and McLean for a settlement was going on; McLean delivered to Randon some notes, but nothing else, so far as witness knew; did not know what notes they were; has heard from David Randon that they were his notes, held by Thomas F. McKinney; witness demanded of Thomas F. McKinney the cotton obligation; did not demand the Toby notes.'

'The counsel for the plaintiff objected to the reading of the foregoing testimony of John Randon.

'And the said defendant, further to maintain the said issues on his part, offered in evidence the following instrument in writing, and to prove the signature to the same to be the handwriting of Thomas F. McKinney:––

"Galveston, November 11th, 1846.

"Know all men by these presents, that a settlement made a few days since with David Randon, by E. McLean, representing McKinney & Williams, and Thomas F. McKinney, was a full and final settlement of all notes and accounts held by the said firm, or the said McKinney, against said Randon; and the said McKinney & Williams do hereby grant to him, the said Randon, a full release and acquittance of all notes and accounts, according to the tenor of said settlement; it being understood that there is now no unsettled note or account between us, except some land obligations of small value, and an obligation given to E. McLean, in the name of Thomas F. McKinney, for $700, or a return of a negro man, Sam, or one of equal value, which obligation bears date 9th November, 1846.

THOMAS F. McKINNEY,

For himself and McKinney & Williams.'

'Whereupon the counsel for the said plaintiff moved the court to exclude the said instrument in writing from going to the jury as evidence in this cause, because the same was not pertinent to any of the issues therein; and the court sustained the objection of the said counsel for the plaintiff, and excluded the said instrument of writing from going to the jury; to which opinion of the court, sustaining the said objection, and excluding the said instrument in writing so offered as evidence, the defendant, by his counsel, excepted; and tendered this his second bill of exceptions, which he prays may be signed, sealed, and made part of the record in this cause, and the same is now done accordingly.

'JOHN C. WATROUS.

'Saturday, December 23d, 1848.'

Third Bill.

'Be it remembered, that on the trial of this cause, after the jury were sworn to try the issues joined, the plaintiff and defendant, to maintain the said issues on their respective parts, introduced the evidence contained in the former bills of exceptions, numbers one and two; and thereupon the said defendant, further to maintain the said issues on his part, gave in evidence a series of accounts which were proved by Thomas F. McKinney to be accounts current in the handwriting of the clerks of the firm of McKinney & Williams, and of Thomas F. McKinney; the accounts, rendered the 30th of August, 1846, showed a balance at that date in favor of McKinney & Williams against David Randon, of $11,997.42; and a balance at the same date in favor of David Randon against Thomas F. McKinney, of $2,648.51, which was transferred to the credit of David Randon with the firm of McKinney & Williams, and left the balance due them from Randon $9,348.91.'

(These accounts extended over ten pages of the printed record, and Thomas F. McKinney was then examined on the part of the defendant. Being cross-examined by the plaintiff.)

"To what note or notes, from David Randon to Thomas Toby, the instrument in writing, dated March 14th, 1844, and filed with the plaintiff's amendment to his petition, marked No. 3, and fully set forth in the bill of exceptions number one, referred.' And the said Thomans F. McKinney thereupon stated, and gave in evidence before the jury, that the said writing referred to both of the promissory notes sued on, being the same filed with the amended petition, marked 1 and 2, and fully set forth in the bill of exceptions No. 1, heretofore filed in this cause. Whereupon the counsel for the defendant insisted before the court, and moved the court that the said evidence of the said McKinney should be ruled out and withdrawn from the jury, because the same was contradictory to the said writing marked No. 3, as aforesaid, which it pretended to explain,–the said writing referring only to one note from David Randon to Thomas Toby.

'But the court overruled the said motion of the said defendant's counsel, and permitted the said evidence of the said McKinney to remain before the jury. To which opinion and ruling of the court overruling the said motion, and permitting the said evidence to remain before the jury, the said defendant, by his counsel, excepted, and tendered this his third bill of exceptions, which he prays may be signed, sealed, and made a part of the record in this cause; which is done accordingly.

'JOHN C. WATROUS.

'Saturday, December 23d, 1848.'

Fourth Bill.

'Be it remembered, that on the trial of this cause, after the jury were sworn to try the issue joined, the plaintiff and defendant, to maintain the said issues on their respective parts, gave the evidence which is contained in the bills of exceptions, numbers one, two, and three, heretofore filed in this cause; whereupon the said plaintiff, further to maintain his said issues, examined Thomas F. McKinney, who gave in evidence as follows:'––(The evidence of McKinney related to the alleged settlement and exhibit No. 3, and defendant then offered a copy of the record in bankruptcy of Toby in Louisiana. This record occupied forty-eight printed pages.)

'And the defendant offered evidence to prove that the Thomas Toby therein named was the plaintiff in this cause; but the counsel for the plaintiff objected to the introduction of such copy as evidence before the jury, as being insufficient to sustain any of the pleas of the said defendant; and such objection was sustained by the court, and the copy aforesaid was not allowed to be introduced as evidence on the part of the said defendant; to which opinion of the court, sustaining the said objection made by the counsel for the plaintiff, and refusing to allow the said copy to go to the jury as evidence, the defendant, by his counsel, excepted, and tendered this his fourth bill of exceptions; which he prays may be signed, sealed, and made part of the record in this cause, and the same is now done accordingly.

'JOHN C. WATROUS.

'Saturday, December ...


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