
    JANUARY TERM, 1841.
    No. I.
    Bailey v. Haddy, Administratrix, etc.
    (See .)
    
      Appeal from Austin County.
    
    
      
      .—Bailey v. Haddy, Administratrix, etc., p. 376.
      Adoption of the common law by Act of January 20, 1840 (Gammel’s Laws of Texas, vol. 2, p. 177), brought with it the writ of error. Moore v. Harris, 1 T., 36. With us it is not the institution of a new suit but only a mode of' appeal. Andrews v. Andrews, Dal., 427; Creek v. Rogers, 1 T., 440; Smith v. Gerlach, 2 T., 424; Luckett v. Townsend, 3 T., 119; Lacey v. Ashe, 21 T., 394; Rodgers v. Alexander, 35 T., 116; Hart v. Mills, 38 T., 513; Magee v. Chadoin, 44 T., 488; Harle v. Langdon, 60 T., 555; Moore v. Moore, 67 T., 293; T. T. Ry Co. v. Jackson, 85 T., 605; G. H. & W. Ry Co. v. Lacy, 7 T. C. A., 63; Hart v. State, 13 T. App., 555. As a general rule appellate courts only have appellate jurisdiction and powers incident thereto. Republic v. Laughlin, Dal., 412; Nash v. Republic, Dal., 631; Dewees v. Hudgeons, 1 T., 192; Chambers v. Hodges, 3 T., 517; Burke v. Mathews, 37 T., 73; City of Brownsville v. Basse, 43 T., 440; Bennett v. Waddell, 54 T., 273; Wells v. Marshall, 62 T., 28; Darnell v. Lyon, 85 T., 455. It is within the power of appellate courts to devise means to enforce their jurisdiction and to adopt rules and mode of appeal when the statute is deficient. Wheeler v. State, 8 T., 228; Teas v. Robinson, 11 T., 774; St. Clair v. Hotchkiss, 28 T., 474; Simmons v. Fisher, 46 T., 126, 131; Vance v. State, 34 T. Cr., 395, 399. Judgment will not be reversed on ground that the verdict is not supported by the evidence where motion for new trial has not been made. Foster v. Smith, 1 T., 70; Reynolds v .Williams, 1 T., 311; Tarpley v. Poage, 2 T., 139, 152; Smith v. Sherwood, 2 T., 460, 464; Hart v. Ware, 8 T., 115; King v. Gray, 17 T., 62; Wilson v. Gordon, 20 T., 568; Pyron v. Grinder, 25 T. Supp., 159; Cain v. Mack, 33 T., 135; Jacobs v. Hawkins, 63 T., 1; Clark v. Pearce, 80 T., 146; Degender v. McLeary, 85 T., 171; Calbraith v. Townsend, 1 T. C. A., 447; Putnam v. Capps, 6 T. C. A., 610; I. & G. N. Ry. Co. v. Douglas, 7 T. C. A., 554; Sears v. Green, 1 U. C., 733. Errors not objected to in trial court can not be raised on appeal. Edwards v. Peoples, Dal., 359; Mann v. Thruston, Dal., 370; Wescott v. Menard, Dal., 503; Darly v. Chevallier, Dal., 555; Hansborough v. Towns, 1 T., 58; Crosby v. Houston, 1 T., 203; Burton v. Anderson, 1 T., 93; O’Connor v. Towns, 1 T., 107; Jones v. Black, 1 T., 527; Cloud v. Smith, 1 T., 611; Swenson v. Walker, 3 T., 93, 110; Hopkins v. Donaho, 4 T., 336; Coles v. Perry, 7 T., 109; Davenport v. Lackie, 8 T., 351; Pierson v. Burney, 15 T., 272; Shelby v. Burtis, 18 T., 644; Bullock v. Hayter, 24 T., 9; Robinson v. Mattison, 25 T. Supp., 451; Elliot v. Mitchell, 28 T., 105; Allen v. Taylor, 31 T., 124; Andrews v. Jones, 36 T., 149; Hughes v. Roper, 42 T., 116; Carter v. Eames, 44 T., 544; Johnson v. Blunt, 48 T., 38; Ragsdale v. Robinson, 48 T., 379; Life Ins. Co. v. Ray, 50 T., 511; Urquhart v. Womack, 53 T., 616; Brooks v. Clark, 57 T., 105; Caruth v. Grigsby, 57 T., 259; Farley v. Deslonde, 58 T., 588; Long v. Garnett, 59 T., 229; Langton v. Marshall, 59 T., 269; Flanagan v. Pearson, 61 T., 302; Gaines v. Nat. Exchange Bank, 64 T., 18; Ford v. Cowen, 64 T., 129; Blum v. Golden, 66 T., 621; Cannon v. Cannon, 66 T., 682; Tevis v. French, 71 T., 59; Ellis v. Garvey, 76 T., 371; Shornick v. Bennett, 77 T., 244; Brown v. Perez, 79 T., 157; Cason v. Conner, 83 T., 26; Hanrick v. Curley, 93 T., 458; Lytle v. Custead, 4 T. C. A., 490; Baker v. Collins, 4 T. C. A., 520; Spencer v. James, 10 T. C. A., 327; Eastham v. Sims, 11 T. C. A., 133; Prestage v. Loving, 1 App. C., sec. 707; Adams v. Duggan, 1 App. C., sec. 1268; Sears v. Green, 1 U. C., 734. When the record is silent, it will be presumed that sufficient evidence was before the jury to warrant their verdict. Campbell v. Skidmore, 1 T., 475; Portis v. Hill, 30 T., 529; Bailey v. Hearne, 1 App. C., sec. 969; Bradford v. Mann, 1 TJ. C., 228; Alexander v. Mulhall, 1 U. C., 769; Darragh v. Kaufman, 2 U. C., 97. The jury are presumed to find with reference to the facts in the pleadings and the charge of the court. Darden v. Mathews, 22 T., 320; Patterson v. Allen, 50 T., 23; Traylor v. Townsend, 61 T., 144; Dodd v. Gaines, 82 T., 429; Evans v. Revees, 6 T. C. A., 254; Ackerman v. Ackerman, 22 T. C. A., 612; Clendenning v. Mathews, 1 App. C., sec. 905; Marshall v. State, 4 T. App., 549; Hutto v. State, 7 T. App., 44; Vincent v. State, 10 T. App., 330. The same sanctity is not given to verdicts when the evidence is by deposition, as when it is oral. Strozier v. Lewey, 3 App. C., sec. 129. Presumptions are indulged to support a judgment when the trial is upon an agreed statement of facts. Henderson v. Samuels, 7 T. C. A., 351.
    
   HUTCHINSON, Justice.

The appellee sued the appellant in the District Court of Austin County, for a trespass in burning her dwelling, etc. The answer denied the petition generally. Verdict and judgment were rendered for the plaintiff, from which the defendant appeals. With the transcript there is a statement without date or reference to the court, but certified by the judge as containing, in substance, the testimony given at the trial. For the appellant it is urged that the plaintiff did not show title or possession, the proof being that Elizabeth Haddy’s house was burnt, and her claim being in a fiducial character. For the appellee it is insisted that the evidence supports the petition; and if not, that a new trial ought to have been asked, and that being omitted, the verdict should not be disturbed.

The plaintiff claims in her petition the dwelling, etc., as belonging to the succession she represented, and that to it the entire injury resulted. If the statement could be properly taken as an appendix to the transcript, it professes only to give the testimony in substance and not in detail. If it had been certified to contain all of the facts proved, or that there was no other evidence, or that the plaintiff in any specified particular had failed by proof to sustain her petition, we should have some tangible matter on which to question the verdict. If objection to the relevancy or sufficiency of proof was made below, it does not appear here; and if indeed none was made, why interrupt the verdict? There was evidence that an injury was committed to the plaintiff, either in her natural or fiduciary capacity, which she averred was to her in the latter; and by her suit and recovery in the latter she became precluded from subsequent recovery in the former capacity. In an appellate court, no presumption against a verdict is indulged, whilst all reasonable inferences in support of it are allowable.

There are also other important principles on whose application this cause depends—principles arising from the structure, powers, and course of this court and the necessity of a compatible practice in the subordinate tribunals. By the Constitution, article 4, section 8, this court is invested with appellate jurisdiction only; but that (according to the original instrument itself) is to be coextensive with the ^Republic. ' By the Act of December 15, 1836, section 3, page 79, it is to hear and determine all causes and controversies, civil and criminal, removed from the subordinate courts, by appeal, or other legal process, and which are cognizable here according to the Constitution and laws. The ninth section of that act directed that in all cases of appeal the trial should be on the facts as found by a jury; and if not sufficiently stated, that the cause should be remanded for new trial. The Act of December 22, 1836, section 46, page 211, required the facts to be so found and reported in the verdict, to be made part of the record; that on an appeal, the facts so found should be conclusive; and that the judgment of the appellate court should be rendered thereon. This last section, however, was repealed by the Act of December 18, 1837, section 6, page 95. The Act of February 5, 1840, section 12, page 89, requires the decision here to be as if there had been no defect of form, provided the record presents sufficient matter of substance to enable the court to decide the cause on its merits, and provided that no prejudice be done to the parties in their right to a trial by jury. The ninth and eleventh declarations of right declare, that the right of trial by jury shall remain inviolate; and that all courts shall be open, and a remedy afforded the citizen for any injury to his estate, person or reputation. By the Constitution, article 4, section 13, Congress was required to adopt the common law; the Act of December 20, 1836, section 41, page 156, adopted it in relation to juries and evidence; and the Act of January 20, 1840, section 1, page 3, adopted that body of law generally, where not inconsistent with the Constitution and statutes mentioned. By the first section of the Act of December 18, 1837, page 94, the trial here is to be on the facts as agreed on or certified by the judge of the court below; and if not so fully and clearly stated as to enable this court to give its judgment, the cause is to be remanded. The thirty-seventh section of the Act of February 5, 1840, page 92, now requires the facts to be agreed on, or certified before the rising of the court below.

From these constituent and legislative provisions we deduce:

1. This court is exclusively an appellate tribunal, constituted and required to review and correct the errors of the courts of original jurisdiction in their application of the laws, and to conform the verdicts of juries to those rules of civil conduct, exerting control over verdicts with great caution and never to the denial of the redress, or exoneration afforded by them, except in plain instances of illegality or abuse. This principle may require a brief illustration. The idea imported by the term appellate jurisdiction is clearly expressed by a learned American jurist: “An appeal is a process of civil law origin, and removes a cause entirely, subjecting the facts as well as the law to a review and retrial. A writ of error is a process of common law origin, and it removes nothing for re-examination but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury.” 3 Story’s Com. Eq., 627. Our statute in reference to the mode of removing causes into this court, by using the terms, “by appeal or other legal process,” evidently contemplated some other mode than that by appeal; but considering that the common law, in regard to civil prosecution, except as to the pleadings and where a legislative provision intervenes, has been introduced, the writ of error may be regarded as a process of removal; though to what extent, or under what regulation and limitations, need not be here decided. The only mode mentioned in the statutes is that by appeal; and in order to give to this court the indispensable revisory power over the action of the courts below, that mode must embrace all the functions of a writ of error as well as those of an appeal in its most restricted sense. In regard to the facts, they are no longer imperatively to be found by a jury, but are to be agreed on or certified. The Act of 1840 puts causes in this court broadly on their merits with the limitation ever to be regarded, that trial by jury is to remain inviolate.

2. When, in the court below, a jury intervenes, their verdict may be general; or, according to common law, they may find the facts specially, and submit to the court what shall be the result. If the verdict be general and a review of it is desired, and the evidence on which it is rendered shall be required in the review, it ought to be clearly and fully agreed on, or certified.

3. If on a trial the law be given to the jury in favor of a party and the verdict is against that party, he ought, if he feels aggrieved, to apply for a new trial. That remedy is immediate and less expensive than a resort to this court. If, contrary to what would be probable in such case, the application is rejected, still the grounds of it, the evidence, if involved in the question and the action of the court, can be removed here for review.

4. When, on a trial below, the opinion or action of the court is adverse to a party and he deems it erroneous, he will not be considered at fault for not asking a new trial, but should save the questions or points and evidence involved and resort to this court; or ask a new trial, and if refused, resort here.

5. But when there is a general verdict, without any point or question raised below, as is the case now in consideration—and after looking into the record, as we must, and as we have done in this instance, we perceive no substantial ground of illegality or injustice; the verdict ought to be sustained; a vague statement of the testimony ought not to overturn it. The statutes referred to, of later date than the judgments below, have no influence on the result of this opinion. It was, before the verdict, and still is a prominent policy of our municipal system to afford to the suitor the benefit of the verdict of the peers of his vicinage, who have before them the witnesses in person, and who can derive—and justly, too—conclusions from facts and circumstances which the judge may overlook, or not remember, or be quite unable to transmit in any graphic representation. To reverse a judgment on the facts only as certified, they ought to be certified as the only facts proved; and then the illegality or abuse of the verdict ought to be manifest. The institution of jury trial has perhaps seldom or never been fully appreciated. It has been often eulogized in sounding phrase, and often decried and derided. An occasional corrupt or biased or silly verdict is not enough for condemnation; and when it is said the institution interposes chances of justice and checks against venality and oppression, the measure of just praise is not filled. Its immeasurable benefits, like the perennial springs of the earth, flow from the fact that considerable portions of the communities at stated periods are called into the courts to sit as judges of contested facts, and under the ministry of the courts to apply the laws. There the Constitution and principles of the civil code are discussed, explained and enforced, and the jurors return into the bosom of society instructed and enlightened, and disseminate the knowledge acquired; and do we not perceive, without further illustration, that to these nurseries of jurisprudence and of the rights of man, more than to all other causes, the Anglo-Saxon race has been pre-eminent for- free institutions and all the political, civil and social virtues that elevate mankind? Let us then preserve and transmit this mode of trial not only inviolate, but if possible purified and perfected.

This cause coming on to be heard on the transcript of the record and certified evidence, and the same being inspected and the arguments of counsel heard, because it seems to the court that there is no error and that the verdict and judgment herein in the court below ought to be sustained, it is therefore considered by the court that the same be in all things affirmed, and that the appellee recover of the appellant her costs in this behalf in this court expended. Let this affirmance be certified below for execution.

Affirmed.  