Page:Life and Select Literary Remains of Sam Houston of Texas (1884).djvu/575

 which said power of attorney defendants believe to be a forgery, and having so filed their plea by their attorney, which said power of attorney has never been filed among the papers of said cause, although the same constitutes a part of the deposition of the said Hewitson, and that the same is yet in the possession of the plaintiff 's attorney; and thereupon moved the court to require and cause the said power of attorney to be regularly filed among the papers of said cause, or to be deposited with the clerk in his special charge and keeping, subject to the inspecting of the parties, that the defendants may have an opportunity of sustaining their plea of forgery aforesaid by procuring witnesses to inspect said power of attorney. The plaintiff's counsel being present in court, accepted service of this motion, and waived time to show cause."

Minutes, April Term, 1856.

", Monday, June 7, 1856.

"The rule herein taken by the defendant upon the plaintiff, to show cause why he should not file the original of a certain power of attorney, having been argued and submitted on a former day, and the court having considered the same, doth now order that the said rule be discharged." In the course of the debate in the House, with respect to the charges against Judge Watrous, considerable stress appears to have been laid on the decision of the Supreme Court, of Lapsley vs. Spencer, by which the question as to the power of attorney in that case was settled. From the dissenting opinion, however, of Mr. Justice Daniel, the all-important fact is developed, that the question of fraud, with respect to the power of attorney, had been taken from the jury by the ruling of the court. He says: "It seems to me that there was error in the instruction of the court to the jury: that there was no fraud in the transactions by which the alleged title to the land in controversy had been obtained, or transmitted to the plaintiff." This fact is of the highest importance. The opinion of Mr. Justice Daniel to which I have referred, and which manifests careful and special study of the questions connected with the power of attorney contains so clear a judgment on the subject, that I may conclude what I have to say on it by quoting a portion of the learned judge's remarks. He says: "In the next place, with respect to the deduction of title from La Vega, to whom, it is said, a grant was made by the government, by the decrees first examined. The first step in the deraignment of this title is the paper, styled the power of attorney, from La Vega to Williams, dated May 5, 1832. The authenticity of this paper rests upon no foundation of legitimate evidence. It can not be considered as possessing the dignity and verity of a record, nor of a copy from a record. It is not shown that the laws of Texas required it to be recorded; and without such a requisition it could not be made, in legal acceptation, a record, by the mere will or act of a private