Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 52
vii, 332 p. ; 22 cm.View a full description of this book.
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103-104 SUPREME COURT.
IHanks v. Horton.
NOTE.-On an application for a rehearing this case was held under advisemen nt til the
December Term, 1849, when it was decided on the 22d day of February, 1850, the court adhering
to their first opinion.
NOTE 12.-Mirs v. Mitchell, 1 T., 443; Jones v. Black, 1 T., 527; Elliott v, Mitchell, 28 T., 105;
Wheeler v. Styles, 28 T., 240.
NoTE 13.-McMahan v. Rice, 1C T., 335.
NOTE 14.-Stephens v. Sherrod, 6 T., 294; 3Mead v. Randolph, 8 T., 191; Horme v. Puckett, 22
T., 201; uffier v. Womack, 30 T., 332; Boutright v. Peck, 33 T., 68; Beale v. Ryan, 40 T., 399;
Gibbs v. Penny, 4:3 T., 560.
NOTE 15.-Wells v. Barnett, 7 T., 584.
NOTE 16.-Briscoe v. Bronaugh, I T., 326; Edrington v. Kiger, 4 T., 89; Cummins v. Rice, 19
T., 225; Patton v. Gregory, 21 T., 513; Montgomery v. Culton, 23 T'., 15): Baldridge v. Gordon,
24 T., 288. Where it is not a case of conflict but of entire deficiency of evidence, a new trial
ought to be granted. (Rowe v. Collier, 25 T. Supp., 252; Moore v. Anderson, 30 T., 224.)
HANKS AND ANOTHER V. HORTON, ADMIR.
Quere whether an appeal' will lie from the forfeiture of a statutory bond, concerning which it
is provided that in case of forfeiture it shall have the force and effect of a judgment, where
there is no formal entry of judgment.
The construction of involuntary bonds or those taken under color of office is more rigorous
than that of bonds taken voluntarily.
Where a bond departs substantially in the condition from the terms prescribed by the statute,
it will not have the attributes intended to be imparted by the statute.
Error from San Augustille. On the 16tl clay of August , 1841, Isaac Campbell
filed his petition, and obtained an injunction against a judgment recovered
against him acnd Thomas Garner by Alexander Hortol, as administrator.
Upon obtaining said injunction Campbell elltered into bond with tile plaintiffs
ill error as his sureties, payable to the defendant in error in the sum of one
thousand three hundred dollars, conditioned, "that if the said Isaac Campbell
shall prosecute his suit with effect, or in case he fail thelein shall well and
truly pay and satisfy unto the said Alexander Horton, administrator aforesaid,
his leirs and assigns, all such costs and damages as may be recovered against
the said Isaac Campbell in any sllit or suits whicl) may thereafter be brought
for wrongfully suing out the said i' 'unction, then this obligation to be void-1'
&c. On the 22d of October. 1842, tne injunction was dissolved anld judgmt.,1t
rendered against Campbell [104] for the costs of the suit. 'Tlie record was
removed into this court by the sureties upon the injunction bond.
Special court composed of HEMPHILL, Chief Justice, and JOHN E. CRAVENS
and J. M. ARDREY, Special Judges.
Mayfield, for plaintiff in error.
Wheeler, for defendant ill error.
CRAVENS, S. J. A preliminary question arises on a motion to dismiss the
writ of errol. The defendant has assigned several grounds in support of his
motion. It will be necessary for us to notice but one. It is objected " that
the record shows 'that there has been rendered no final or other judgment
ag-ainst Wyatt Hanks and Donald McDonald, who prosecute this writ of error"
in favor of the said Alexander Horton, administrator.
There must be a judgment of an inferior court rendered before there can be
an exercise of jurisdiction in this court. (21 Welnd. 11., 667.)
The provision of law under which this bond was given is found in the fifth
section of an act to regulate the granting and trials of injunctions. which requires
the complainant to enter into bonds with security before the clerk of
the court whence the injunction issues for the payment into court of the sum
complained of, and all costs, upon the dissolution of the injunction; and it is
also further provided that the bonds taken inder the provisions of this act
"shall have the force and effect of a judgment; and the party or parties whose
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/60/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .