Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 94
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94 FRANKLIN V. TIERNAN. [Austin Term,
Statement of the case.
thereof, and the entries of payments, which appeared in pencil writing
in the original record.
The deposition of John M. Swisher was to the effect that he was
assistant clerk in the treasury department of the republic of Texas
from 1839 to 1841, in which latter year he was appointed chief clerk,
from which position he resigned about October 1, 1841. He had, as
chief clerk, general supervision of the records and archives of that
department, including the records of the sale of lots on Galveston
Island (which sales were made by authority of an act of congress
passed June 12, 1837). Ile identified the book in the comptroller's
office, a copy of a portion of which was annexed as an exhibit to
that officer's deposition, as the record book used in the treasury
during the time he was chief clerk. The greater portion of it was
in the handwriting of William H. Sandusky, who wrote a peculiar
hand which the witness knew as well as his own. The numbers of
lots, purchasers' names, amount of purchase and headings of the
different columns of the entire record were in Sandusky's handwriting.
The witness also identified the record by several entries in his
own handwriting and also several written by one William Sevey,
who preceded him as chief clerk, and by H. Kloppenberg, his successor.
The pencil figures opposite a large number of lots, including
those sued for, in the column of payments, were in Sandusky's
handwriting. In this book a register of sales of all the lots in the
city of Austin was kept, and it was used until 1863, when the last
of those lots were sold.
The charges asked by defendants and refused were as follows:
"The jury are instructed that if they find from the evidence that the
property in controversy was sold to James S. Holman by the republic
of Texas, in pursuance of 'the act of 1837, directing the secretary
of the treasury to sell the land upon the Island of Galveston,
except the league and labor previously granted to Menard, then you
will find in favor of defendants."
"The jury are instructed that the exhibit attached to the comptroller's
deposition is a duly certified copy of an official archive or
record of the secretary of the treasury's office, and is competent
evidence of the sale of the lots in controversy to James S. Holman
and of the payment by him of the purchase money."
The charge asked by plaintiff, and given, was: "The tabular statement
annexed as an exhibit to the comptroller's deposition is admissible
as evidence before the jury, but the jury are judges of the
credibility of the evidence."
Exceptions were taken to the refusal to give the charges asked by
the defendants.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/116/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .