
    Smith and another v. The State.
    The acts upon the subject of fees-of office passed since the act of the 4th of February, 1841, supplementary to an act to detect fraudulent land certificates, &e., do not affect the 7th section of that act, which provides that the successful claimant shall pay to the clerk, upon the receipt of the certificate, “ten dollars in treasury notes, which shall cover all costs in and about said suit.”
    No provision has ever been made for the issue of a certificate by any board of land commissioners in favor of one who holds what purports on its face to be a perfect title, with the exception of the ease where there is a conflict between two grants. (Sec. 38 of the general land law of 1837.)
    The act of February 4,1811, supplementary to an act to detect fraudulent land certificates. &c., referred to certificates which were issued in a class of cases provided for by the general land laws on the subject of imperfect rights; aud the District Court had no jurisdiction to establish a certificate or claim in any other case.- It had no jurisdiction, therefore, to establish the claim of any one who had obtained a title purporting on its face to be perfect.
    Error from Nacogdoches. James Smith, one of the appellants, brought suit In 1S4I to establish a headright certificate as assignee of Francisco Valmora. In his petition lie alleged that lie was the true and lawful owner by assignment from Francisco Valmora, and to whom, in favor of petitioner as assignee, a ■certificate for one league and labor of land, numbered fifty-seven, and dated in this court, was isstied by the board of land commissioners of Nacogdoches, .acting under the provisions of the land law passed December 14,1S1Í7 ; that by virtue of the assignment he was entitled to the amount of one league aud labor of land as the headright of said Valmora; and that the certificate for the same was not reported as genuine by the commissioners appointed to investigate tlie land offices. There was a prayer that the. Republic, by 1 he district .attorney, be cited, and for a decree and 'judgment in favor of the plaintiff. There was a trial and a verdict in favor of the plaintiff for one league and labor ■of laud. This verdict was set aside on the motion of the district attorney, and a new trial awarded. There was a rule upon the plaintiff to give security for costs, and he entered into bond and security’Ofch November, 1S43, with Crain, his co-appellant, and others as suret ies for the costs. On the 20th September, 1847, the following instrument was filed :
    “ Sello Tercero, Dos Beales, [Seal,] Pam el Bcrnis de 1834 y 1833.
    “In the town of Nacogdoches, on the 27th day of July, one thousand eight hundred and thirty-five. Know all men by these presents that I, Francisco Valmora, of this municipality, for and in consideration of tito, sum of four hundred and fifty dollars, to me in hand paid by James Smith, of the same place, have this day bargained, sold, and conveyed to the said James Smith, his heirs and assigns, all of one league and labor of land, the amount to which lam entitled under the colonization laws of the Republic of Mexico and State of Coahuila and Texas, to have and to hold the same, with all thereto appertaining, to the said James Smith, his heirs and assigns, forever, in fee-simple; aud I will forever warrant and defend the same to him, his heirs and assigns. And I further acknowledge myself held and firmly bound unto the said Janies Smitl), his heirs and assigns, in the full sum of ten thousand dollars, to be void on condition I make the said James Smith good and lawful title to the said league and labor of land so soon as title is extended to me by a commissioner legally authorized to grant titles. And I hereby nominate and appoint said ■James Smith my true and lawful attorney, for me and in my name to apply for and receive an order of survey, have located aud obtain a title for the said league and labor of land, for me and in my name the same to sell, alienate, convey, and in my name good and lawful titles to make to anyone he may •choose for the same; ratifying and confirming all he may do in the premises, .and declaring the same to ho as legal and binding to all intents as if done by vine in person; waiving all laws and parts of laws which might favor me in this matter. Witness my hand and seal the day and date above written.
    “ FRANCISCO Xj VALMORA. [SEAL.]
    “In presence of four subscribing witnesses.”
    This contract was proved by two of the subscribing witnesses on the 27th day of March, 1838, and admitted to record the same day in the proper office of Nacogdoches county. At the Spring Term of the court, 1849, a copy of a. complete title to one sitio of laud to Francisco Valmora was filed. The final title, on the application of the grantee, was executed and extended to him by Charles S. Taylor on the 10th day of September, 1835. The petition for the land signed by Valmora was dated Nacogdoches, 28th July, 1835. At the same term the plaintiff, on leave obtained, amended his petition, and in substance alleged that he purchased the headright, certificate of Valmora on or about the-of July, 1835, at which time Valmora resided in the county of Nacogdoches, where he continued to reside until 1840; that he was a resident citizen of Texas at the date of the declaration of independence; that he was a married man and the head of a family; that he did not leave the country during the campaign of the spring of 1836 to avoid a participation in the struggle ; that he did not refuse to participate in the war; that he did not aid or assist the enemy; that he has not nor has petitioner received his quantum of land, and that he is entitled by the laws of the country to one league and labor of land, for which ho now sues, and prays the same be granted' to him,' by the decree of the court. The facts set forth in the amended petition above are sworn to by the petitioner. The district attorney demurred to the petition. June, 1849, the presiding judge, O. M. Roberts, having been of counsel in the case, it was agreed that David S. Kaufman, esq., should be substituted in his place. The demurrer was overruled by the court; and the parties went to trial, and the jury returned the following verdict: “We, the jury, are of the opinion that the title issued to Francisco Valmora by C. S. Taylor, commissioner for the State of Coahuila and Texas, September 10th, 1835, is a genuine title, but so vague in its description of the land it purports to identify and grant as to make it impossible for any person to fix the location or to find' the land therein specified. In consequence of which we would recommend that the Commissioner of the General Land Office be authorized to annul said' title by C. S. Taylor, commissioner, and grant a certificate for one league and’ labor of land to James Smith, as assignee of Francisco Valmora.” Upon which verdict the following order or decree was taken: “Therefore it is considered, ordered, and adjudged by the court that a certificate do issue from the proper-authority to the said James Smith, assignee of Francisco Valmora, in accordance witiv law, and that the said plaintiff Smith and his securities, Walter Murray, Isaac G. Parker, and Joel B. Crain, do pay all costs of this proceeding to be taxed, including fifteen cents per hundred words for the complete record.” From which judgment Smith, the plaintiff, and Crain, one of the securities, brought the case by writ of error into this court.
    
      J. P. Henderson, for plaintiff in error.
    The court erred in rendering judgment against the sureties. The bond for costs was given November 9, 1843, at which time there was no law which authorized a summary judgment to be-rendered against the sureties of a party for costs.
    The court erred also in rendering judgment against the plaintiff Smith and his sureties for all the costs in the case, including fifteen cents per hundred words of the complete record. The plaintiff having recovered judgment fort-lie thing sued for, no judgment for costs eonld be legally rendered against, him, except so far as it was authorized by the act of 1841, under which the suit, was brought. That act provides that the successful claimant shall,. upon receipt'of the certificate, pay to the clerk ten dollars in Texas treasury notes, which shall cover all costs in the suit.
    The order that fifteen cents per hundred words of the complete record should* be taxed in the bill of costs is also erroneous. There is no law requiring clerks to make up complete records.
    
      Jennings and Ardrey, representing the officers of the court ou the question of costs. It is contended by counsel for plaintiff in error that under the 7th section of tiro act of 5th February, 1841, the plaintiff in error being the successful party against the State, the officers of court liad no right to demand of him any other amount as fees of office than the ten dollars of Texas promissory notes which the statute says shall cover all the cost of suit in the case. In connection with this statute, it must be borne in mind that at the time of its passage all Government officers except district judges and chief justices of County Courts were required by law not to demand any other currency for the fe.es of then- office than the promissory notes of the Government. (Acta-of 1839, p. 74.) This act continued in force until that of the 18th of January, 1842, was approved; by the 6th section of which latter act “the act of 1839* and all laws and parts of laws heretofore enacted for establishing the fees of' officers herein named” were repealed. By the 1st section of the act of 18th January, 1842, it was made unlawful for the officers therein named to demand any other fees than those named in the said act. (Acts of 1842, p. 50, sec. Í.) This law continued in force until the act of 20th March, 1848, (Acts of 1S48, p. 310,) went into force and effect, which was on the 1st of August, 1S48; and by tlie 24th section of tills latter act that of the 18th January, 1842, and all other laws respecting fees were repealed. If an officer, under the law of 1848, demanded any other fees of office than those contained in that act, he was subject to indictment. It cannot, in face of those prohibitory laws, be contended that after the repeal of a law establishing fees of office, the fees accruing to the officers can be recovered and collected under that repealed law. The repeal of those laws under which the official services were rendered did not take away the right of officers to receive compensation for their services, because that law would impair the obligation of contracts and be unconstitutional; but the new law established the'measure and rate of compensation for those services, and the amount of compensation is to be determined by the law-in force at the time of the rendition of the services. After the repeal of the 7th section of the act 5th February, 1841, by the law of 1S4-2, for the services rendered by the district clerks and sheriffs, they were entitled to receive compensation according to the act 18th January, 1842, up to the time of its repeal, and for services rendered after that term, under the law of the 20th March, 1848. For all services rendered by them after the passage of the act 5th February, 1841, until the adoption of that of 18th January, 1842, the officers of court could only recover for their services at the rate of ten dollars-in the promissory notes for the whole suit. But it will be perceived that services of the officers were required by the plaintiff during the existence of the act of 5th February, 1841, the act of 18th January, 1842, and that of the 20th March, 184S, until the rendition of the judgment in June, 1849.
    We then contend, as the judgment was rendered in June, 1849, and after the law of 20th March, 1S4S, went into effect, that the officers of the court are entitled to the remedies provided by that law for the collection of their fees, and that the amount of those fees must be taxed and charged according to the law in force at the time of their rendition, and not under the 7th section of the act 5th February, 1841, as is contended for by plaintiff in error. Under the 21st section of the act 20th March, 1848, it was competent for the cleric of the court to issue an execution upon the cost bond for the fees that were not paid by the party from whom they were due upon the determination of the suit. Under the 5th section of the act 5th February, 1841, it was competent for the district attorney to demand security lor costs, and the cost bond being' given under that rule by the 2d section of tlie aet oí Legislature approved 16th March, 1848, pp. 106, 107, the bond so given acquired the force and effect of a judgment against all tlie obligors, which would sustain tlie execution issued under the 21st section of the act 20th March, 1848. By the 126th section of the act 13th May, 1840, p. 395, and the 63d section of same act, p. 379, Smith, tlie plaintiff in error, was responsible to the officers of court for their fees, and to the witnesses by tlie said 63d section.
    These are, then, the laws under whicli the clerks of the District Court claim to tax and collect the fees duo them for their services and the construction whicli they have given to those statutes. In this case the State is not entitled to recover costs eo nomine from the plaintiff, according to the rule that it never pays costs unless they are expressly given against the State by some express statute; and therefore tlie judgment against the plaintiff for costs is void. And if an execution issued upon it, the party should have resorted to his remedy by application to the judge of tlie District Court for supersedeas or a motion to quash, and not by writ of error.
   Lipscomb, J.

By the 7th section of an act supplementary to an act to detect fraudulent land certificates, and to provide for issuing patents to legal claimants, passed 4th February, 1841, (Acts of 1841, p. 172,) it is provided “that it shall be the duty of the successful claimant, upon his receipt of his certificate from the clerk of the District Court, as before provided, to pay to the. said clerk the sum of ten dollars in Texas treasury notes, which shall cover all costs in and about said suit.” The terms in which this section are expressed are plain and unambiguous, and leave no room for construction. The sum of ten dollars in Texas treasury notes is the only amount authorized to be received for the costs from the claimant when successful; and this not by the judgment or execution, but as a condition precedent to his recovering his certificate. The means of coercion is not by execution, but is in the hands of the clerk and not a subject of taxation in a bill of costs.

The power of the Legislature to fix the amount of costs cannot be disputed. It may have been, and perhaps was, thought that it was a hardship on a party claimant whose claim was genuine to be driven to the trouble and expense of establishing his right the second lime. Hence the indulgence to him that his costs should be fixed and certain to the small amount of ten dollars in treasury notes, no more and no less. And if there was such a judgment in this case as to authorize us (o revise it, we should be constrained to reverse it, so far at least as it is against the plaintiff for costs.

But other considerations have forced themselves on our consideration. Is the subject-matter of the finding of the jury such as the court below could adjudicate on, and is the judgment rendered on that verdict such as ought or can be revised ? The proceedings purport to be, according to the allegations contained in the plaintiff’s petition, founded on the 1st section of the statute before referred to; and we will recite the section. It is in the following words: “ That any individual holding or owning any headlight certificate issued by any board of land commissioners of the Republic of Texas, which certificate may not have been recommended as genuine and legal by the general and local commissioners appointed under the act to which this is a supplement, may file his petition under oath in the District Court of the enmity where such certificates were issued, setting forth the grounds on which he founds his claim, and also stating that lie is entitled to the amount of laud claimed by virtue of his emigration to this country, or by virtue of the assignment of the headright claim of an actual emigrant and citizen of the country ; of which petition there need not be any service, but. the same, shall be filed in the office of the clerk of the District Court at least five days before tlie commencement of tlie term of the court at which it may be tried, to which the general issue shall he considered as pleaded by the Republic. Whereupon a jury shall be impaneled as in other cases, and only oral testimony heard to try said cause; and should the jury And in favor of the claimant, it shall be the duty of the clerk to make out a certificate to that effect under the seal of the court and approved by the presiding judge; which certificate shall be handed over to the successful claimant.” It may be remarked here that the certificates referred to in the section just cited are such as were issued on a class of cases provided for by the general land laws on the subject of imperfect rights, and were to be used as a means of procuring patents from the Commissioner of the General Land Office. These laws need not be particularly referred to. It is sufficient to say that in no case is there any provision by law for the issuance of a.certificate by any board in favor of one who holds what purports on its face to be a perfect title, with the exception of the case where there is a conflict between two grants. (See. 38 of the general land law 14th December, 1837.) Any other certificate than those provided for by law would be a nullity and not coming within the the provisions of the laws to detect fraudulent certificates, and as such their not being reported genuine by the general and local board of commissioners could not make them more worthless; and the report in their favor could not have imparted any validity to them. The record and the finding of the jury, if they prove anything, show that the claim in this case was not such as would have authorized any board to have issued a certificate. If there is any merit in the claim, it is not provided for by law and does not come within the provisions of the section of the act we have cited. It is therefore not a case in which the State has consented to be sued.

The return of the jury is a wide departure from the object for which they were impaneled. Their duty was merely to find in favor of or against the claimant. They did neither. They have recommended things to be done that could not in law be done. They recommend that the title issued by Taylor, as commissioner, which seems on its face to be a perfect title, should be canceled by the Commissioner of the General Land Office, and that lie should issue, a certificate in favor of the plaintiff. The law did not authorize the. commissioner to do this, nor was it in the powerof the court to order him to do so. It was a master not within the special jurisdiction conferred by the first section of the act we have examined and cited. But this finding or return of the jury cannot he called a verdict. It was not responsive to the issue, and neither found for nor against the claimant, and was a nullity, and should have been only regarded by the court, if at all, as a subject of animadversion for an omission of duty'in not disposing of the issue submitted to them.

What purports to be the judgment of the court on this singular and extraordinary revelation from the jury box is equally objectionable. It is ambiguous, vague, and uncertain, rendering confusion worse confounded. It. does not follow the return of the jury. It assumes the fact that the jury had found for the plaintiff in favor of his claim. Now, the jury lias done no such thing. It then orders and adjudicates certain things to be done. What they are, and how to be done is beyond my comprehension and wholly unknown to the. provision of the act under which the cause purported to be tried. The statute is clear as to what shall he done. When the verdict is in favor of the claimant the clerk hands him the certificate, approved by the judge, on the payment of the ten dollars by the plaintiff or successful claimant.

The action of the court is certain in nothing but in the matter of the ' costs, and in that there is manifest error. If the verdict had been for the plaintiff, and judgment in conformity with the law on that verdict, yet. from (lie facts as they appear from the record, we would have been bound to reverse the judgment,because those facts show that the plaintiff’s claim is not provided ¿or by Uio law under which the proceedings were liad. But believing the return of the jury to be a nullity, and what purports to be a judgment to be-also a nullity, we cannot reverse, but must dismiss the cause from the docket.

Writ of error dismissed.  