
    Hagerty's Ex’ors v. Scott and Wife
    The absence of a particular attorney, the loading counsel in a case, who has prepared and studied tho ease and has the papers, and on account of whose absence important testimony had not been obtained, is no ground for a continuance, where such absence was anticipated by the party and his attorney several weeks before court, no matter how important the business may have been which called the attorney away.
    If the progress of the trial discloses that a party has suffered injustice by being compelled to go to trial unprepared, although his showing for a continuance was insufficient, the court below may, on motion, grant a new trial (Note 98 )
    Wherever absent, evidence is involved in a motion for a new trial or a second continuance its purport should he stated, in order to onable. the court to determine on its importance.
    The revision and correction of the settlement of a guardian’s account in the District Court, upon proof of fraud or mistake, under tho 39th section of the act of 1818, (Hart. Dig., art. 1570.) is an original proceeding; and tho certiorari, being designed only to bring up the record of the Probate Court, is unnecessary, where a complete transcript of the proceeding of that court is filed with the petition.
    'The limitation of two years within which suit may be brought in the District Court to revise the settlement- of a guardian’s account does not begin to run until the account has been, confirmed by the Probate Court. (Hart. Dig., art. 1570.) Nor, as against the ward, until the latter became of age; nor, where tho new guardian is tho wife of the former one, until the removal of tho disability of coverture.
    A petition, under the 39th section of the act of 1848, (Hart. Dig., art. 1570,) which sets up a failure of the. guardiau to account for certain property belonging to the ward, which came to his hands, is sufficient.
    
      Quero 9 How the depositions of witnesses residing in the Creek Nation, where there arc no courts, «fee.., are to be taken. It seems they may be taken, upon proper notice, in Arkansas, if tho witnesses will voluntarily attend.
    Objections to the form and manner of taking depositions cannot be heard unless they are in writing, and notice thereof is given to tho opposite counsel before the trial of the suit commences. (Hart. Dig., art. 733.) (Note 99.)
    'The grounds of objection to the admissibility of evidence which is received should be distinctly stated at the time and be shown by tho bill of exceptions.
    It is not error to refuse to give a charge which is inapplicable to the facts proved; and where it was proved that tho written law of the Crook Nation made the “ nearest relativos ” the heirs, and that the received construction of those terms — there being no courts — preferred brothers and sisters to parents, it was held that the following instruction asked was applicable: that if a foreign written law had been proved, and a custom conflicting with the written law, they were bound by the written law.
    •See this ease for what is said upon a point made as to the refusal of the court to charge the jury, as requested, upon a foreign law, and also upon a point made as to the charge of the court upon a foreign law, the charge being made at the request of the party objecting to its terms.
    Appeal from Naeog'doclies. Tho appellees sued the appellants, alleging that Benjamin and Rebecca Ilawldns, husband and wife, natives and members of ■the Creek Nation of Indians, wore married iu 1830, and previous to 183-1 had two children, to wit, William and plaintiff, Louisa; that iu September, 1803, William died (without issue, intestate, and having no brother or sister except Louisa) in the Creek Nation, in the Territory of Arkansas; that at the time of his death, the said William owned and possessed the following-named slaves, ■naming them, eight in number; that by the laws and customs of tlie Creek Nation the said negroes, upon the death of the said William, became the sole property oí the said Louisa; that about December, 1833, the said Benjamin and Rebecca removed to Texas, and brought with them the said Louisa, and also said slaves and their increase; that said Benjamin died in Texas in the fall oí 1830; tiiat in Maxell, 1838, the said Rebecca intermarried, in Nacog-doches county, with Spire M. Hagerty; that on the 8th October, 1838, the said Ilagerty was duly qualified, in Nacogdoches county, as guardian of the person and estate of said Louisa; that said ilagerty took possession of said slaves and their natural increase, refused to [527] return them to the Probate Court as the property of said Louisa, and “wrongfully and fraudulently kept and held “ them in liis possession, and appropriated their labor and profits to his own “use from the date of his appointment to the 4th day of July, 18-10,” and also “ failed to account to said Probate Court for the hire and profits of said slaves, or “any part thereof;” that the natural increase of said named slaves, from September, 1833, the time of said William’s death, to the 8th October, 1838, is as follows, to wit, &e.; tiiat the labor and services of said slaves while in the possession of said Hagerty were worth, to wit, &e.; that on the 8th October, 1838, the said Ilagerty took into bis possession certain other negroes, the property of the said Louisa, to wit, &c., (5,) which said negroes lie returned in his inventory as the property of the said Louisa; that on the 8th October, 1838, said Ilagerty took into his possession certain other negroes belonging to said Louisa, to wit, &c., (G,) which last-mentioned negroes the said Ilagerty did not inventory and return to the Probate Court as said Louisa’s property, but kept them in his possession until tlio 4th July, 1819, receiving and appropriating to his own use the labor and services of said slaves; that on the 1st April, ISIS, the said I-Iagerty made a return to the Probate Court of all of said last-named eleven negroes, and charged himself with their hire from the 1st January, 1839, to the 1st December, 1817, at the aggregate price of $2,520; that he failed to hire out said negroes, as by law lie was bound to do, and that tlieir labor was worth as follows, &c., ($11,11S 50;) that the said Hagerty refused to lend out the money at interest, to which the said Louisa was entitled for the hire of said slaves, and refused to account to her for the same, to her damages ten thousand dollars; that said Hagerty never rendered an account of liis guardianship until the 1st April, 1848, and in his account then rendered made false and fraudulent charges against the said Louisa, as follows, (here followed a long specification of the charges, &e.;) that the County Court of JSTaeogdoches county erroneously received, approved, and allowed the said several accounts, and on the 24th September, 1849, made a final settlement with said Hagerty as guardian of said Louisa, and then erroneously and finally discharged and released him from liis said guardianship; tiiat said Ilagerty died about the 7th December, 1819, leaving a will, by which the defendants were appointed his executors, and tiiat they, although often requested so to do, had refused to correct the errors and fraudulent acts and doings of the said Ilag-erty in said guardianship. With the petition issued a transcript of the papers and proceedings of the guardianship in the County Court.
    The defendants answered first by general and special exceptions to the petition; second, by a denial of all the allegations in the petition except tlieir fiduciary capacity and the alleged guardianship of Hagerty; third, by adopting as part of their answer the transcript of the Comity Court, made a part also or the petition; and fourth, the statute of limitations.
    In August, 184S, on the petition of the plaintiff Louisa, she being then over fourteen years of age, Mrs. Rebecca Hagerty, her mother, was appointed her guardian and qualified.
    At December Term, 1851, the case was continued by consent. At June Term, 1852, it ivas continued by the defendants. At December Term, 1852, tlie defendants moved for a continuance, which was overruled. (See the opinion for the showing.) A trial was had, verdict and j ndgment for the plaintiff for . Motion for new trial by defendant overruled, and notice of appeal to the Supreme Court. The allegations of the petition, so far as facts were concerned, were proved.
    
      It was proved "by the depositions read at the trial that according to the laws of the Creek Nation, one’s “nearest relatives ” are his heirs, and that the interpretation of “nearest relatives,” as there received, preferred brothers aud sisters to parents. Many bills of exception were taken to the admission of evidence, but none of them disclosed the particular grounds of objection, and' the testimony was revelant in every instance.
    IF. P. Hill and G. M. Adams, for appellants.
    
      Henderson Jones and T. J. <§• J. H. Rogers, for appellees.
   Lipscomb, J.

The first ground presented on which the appellants ask a-reversal of the judgment of the court below which we will examine is the refusal of the court to grant a continuance on the application and affidavit o£ the appellants, who were the defendants.

This application for a continuance was predicated upon a statement made by 31. P. Hill, Esq.., admitted to be received as on oath by the parties. It shows that lie was of counsel for the defendants; that lie had bestowed much study on the case, and that he was convinced that no lawyer could master the questions presented in the time from his making this statement aud the meeting of tiio court; and that lie had the papers in the case and had made preparation to take the evidence by commission of witness, but that he liad not time to liave them executed; that'lie was compelled to leave for the purpose of attending to important business in the Supreme Court of the United States. This statement was made about a month before the court, and the affidavit for the continuance about two weeks before court.

Wo believe that whatever the appearance of individual hardship may be in this case, the court did not err in overruling the motion of the appellants for a continuance. .If it were admitted that the fact of the counsel employed and. previously attending to the case voluntarily absenting himself from court for the reason that important professional business required his attention in another court, would be sufficient ground for obtaining the continuance of a cause, it would lie often resorted to, greatly to the hindrance aud delay of suits and to-the prejudice of t.he rights of the adverse party: If, however, it had appeared in the progress of the trial that was had, after refusing to allow the continuance,, that the party had sullerrd by the absence of counsel, aud from his inability to procure any important documentary evidence that had been placed in the hands of such absent counsel, an appeal should have been made on this ground to the court trying the case for a new trial. That court was better qualified for deciding the question whether the party had not liada fair trial on tlie merits of his case for the want of such evidence, and could have decided whether diligence had been used in efforts to obtain it from tire counsel with whom it liad been deposited. But it does not appear that any such papers were wanting on the trial; and the case was on the part of .the appellants ably.represeiited by counsel who contested every ground of the plaintiff’s cause of action, and reserved every question ruled against the defendants for the revision of this court. It is not, therefore, perceived nor believed that the appellants sustained any injury from the absence of the able counsel originally employed. The absence of necessary papers is the strongest ground offered for a continuance, but the showing was not sufficient if such grounds would,, in general, be good. The affidavit should have stated what was the purport of such papers to have enabled the court to have determined on their importance.

The second assignment is, that the court erred in overruling the defendant's-general and special exceptions to the plaintiffs’ petition.

This assignment presents three distinct propositions. The first is, that an. original suit in the District Court is not the mode intended' by the statute for revir-iug and correcting the proceedings of the Probate Court in matters relating to the settlement of guardians'; secondly, that the suit was not instituted within the time prescribed by the statute, after the settlement made with the Probate Court by the guardians; and, thirdly, that the petition shows no cause oí action.

To the first, it may be answered that the right of a party interested in an •estate to bring suit against the administrator in the District Court lias been several times recognized by (his court, (see Wilson and Wife v. Chevaillier, Adm’r, 1 Tex. R., 161; and Bryan v. Dobbin, 5 Tex. R., 276 ;) and that tlie right to obtain a writ of certiorari, provided by our act of 1848, does not take away the right (o sue by an original suit in tlie District Court, proceedings under Unit statute being really an original proceeding, and tlie allow.ance of a certiorari designed only to bring up the record of the Probate Court to be used in tlie District Court, as far as may be necessary to a fair investigation and trial of tlie case in tlie District Court, on tlie trial da novo.

To tlie second tlie answer may be, first, that tlie statute did not begin to run in favor of the guardian on tlie appointment of a new guardian, but from his final settlement with the Probate Court, and that commencing there the bar was not completed at the commencement of the suit; and, secondly, that as the new guardian was the wife of the former, he could not avail himself of the laches of his wife not suing him, nor claim tlie statute until the disability of the coverture of the wife, or the infancy of the ward (which appears from tlie record) had boon removed, especially as the new guardian was his wife.

The third proposition embraced in the assignment wc have been discussing •clearly .is against the appellant; the petition does set out a good cause of action.

The third assignment of error is tlie overruling tlie exceptions of the defeud-•auts to the introduction of the depositions of Polly McIntosh, Beniamin Marshall, William Drew, Jeremiah Cates, and Daniel McIntosh, as evidence, and in permitting tlie same or any of them to be read in evidence. The ground of tliis exception is, that the notice to the opposite party showed that the witnesses lived in tlie Creek Natiou, whilst the commission was directed to tlie clerk of tlie Circuit Court of Crawford county, in Arkansas, before whom, in tlie said court, tlie depositions were taken. Tlie notice was that tlie witnesses’ depositions would betaken before tlie aforesaid clerk in tlie said county and State. We cannot believe it to be very material where tlie permanent residence of the witness may be, further than to inform the opposite party of tlie identity of the witness whose deposition is to be taken. The place and person before whom it is to be taken are more essential to be known. And as to the witnesses residing in the Creek Nation it may have been more convenient to attend before tlie officer designated and before whom the •depositions were taken (.han to have attended before any other competent authority for taking the depositions. Again, if we can judicially know that tlie Creek Nation, as denominated in the notice, is not within the territorial limits of the county of Crawford, in the State of Arkansas, we can also know the difficulties that would be presented in having the depositions properly taken and authenticated within the known limits of the Creek Nation; and that the comity ■of Crawford, from its proximity to the nation, would afford greater facilities within its limits for having tlie testimony taken and authenticated if the witnesses would give their attendance before the officer at tlie place designated voluntarily, because there could be no compulsory process to enforce their .attendance.

But the exception, if material, seems to come within the provisions of article 733 of the Digest, which is as follows: “No objection to the form of depositions “or to tlie manner of taking them in any suit shall be heard, unless they are “in writing and notice thereof is given to the opposite counsel before the trial •“of tlie suit commences, provided said depositions shall have been filed in tlie “court at least one entire day before the day on which tlie trial commences.” It does not appear that tlie objections were taken under the provisions of the statute, and they were rightly overruled.

Tlie fourth assignment is to the overruling defendant’s exception to the reading of tlie answers of Holly McIntosh and others to tlie second interrogatory to him and them propounded, and to the introduction of tlie copy of the testamentary law of the Creek Nation, marked “Exhibit B.” It appears from the record that when tlie evidence was offered to be read the appellants ■objected ¡o its being- read, without stating any grounds of their objection. It may have been to the manner or form ; and if so, notice should have been given by filing the exception under article 733 of the Digest, cited above. Objections to evidence ought, at the time, show the grounds of tlie objection. If this was not required an objection might be raised in this court that had l-eally never been presented to the court below. If testimony appears to be competent testimony, tending to jrrove any material fact alleged, and it is objected to, the court should be poiuted to the particular ground of tlie objection. This has been tlie acknowledged doctrino of this court. This view of the objection presented by this assignment will embrace tlie objections presented by tlie appellants’ assignments, 5, G, 7, 8, i), 10, 11, inclusive. The objection'was general. We do not wish it to he understood that the objections taken in this court, if they had been taken in the court below, would liave been valid. We only decide that not having been made specially and with certainty at tlie time the evidence was received, they cannot be l-aisecl here.

The twelfth assignment of error is, that tlie court erred in refusing to charge the jury that if a foreign written law had been proven, and a custom conflicting with the written law, they are bound by the written law.

The court did not err iu refusing- to give tlie second charge prayed, because it was abstract and not applicable to the facts in proof, and courts arc not bound to respond to an abstract proposition. -It assumes a conflict, when none is shown by tlie evidence.

The thirteenth assignment is, that the court erred in refusing to charge the jury, “That the terms ‘nearest relatives,’ used in a law as applied to the dis- “ tribution of property, does not exclude tlie mother and g-ive a preference to “brothers and sisters.” This charge prayed by the appellants is obnoxious to tlie same objection as the preceding one. It presents ail abstract proposition. Had tlie court been called upon to give a construction to a statute of our own State using those terms, and the evidence and the cause of action required a construction, it should have been given; but it is not shown what law is meant, or wliat relation it is to the case, and the charge was therefore properly refused.

The fourteenth assignment is but a repetition of tlie last, and need not be further noticed.

The fifteenth assignment is, that tlie court erred in charging tlie jury as to what was tlie law of the Creek Nation of Indians in Arkansas in 1833 and 1834. Tlie appellants, (defendants,) on the trial in the court below, asked the court to instruct tlie jury wliat was tlie law of the Creek Nation of Indians iu Arkansas in A. I). 1833 and 1834. This was the fourth instruction asked. The three first have been noticed by us. The record of the hill of exceptions shows that, as to the last, the court charged the laws of the Creole Nation as asked, ■and this bill of exceptions was signed by the presiding- judge.

The hill of exceptions shows that the charge was given as asked; hut tlie manner in which it was asked does not furnish any satisfactory information of what tlie defendants asked. Had they asked the charge of the court that tlie law was this or that, tlie record showing that the clnirge was made as asked would have been certain enough. But the court was asked to charge the jury wliat was the law of the Creek Nation, not what it was on any particular subject. And the court surely could not be called upon to charge .the jury on the whole corpus of jurisprudence of the Creek Nation. But the court responded to the request, as will appear from the following- extract from the statement of facts iu the record, page 95 : “The court, in charging on the fourth point “prayed, charged that tlie law of tlie Creek Nation of Indians iu 1833 and 1834 “was, where a person died intestate, possessed of property, never having been -“married and without issue, tlie brothers ami sisters inherited the property in “exclusion of other relatives, and refused to charge tlie other three points as •“prayed for, to which charge as to the other three tlie defendants excepted.

“The court had charged the jury upon the law of the case before the “defendants’ attorney requested the above charge, and had left it witli the “jury, under the proof, to say what was the law of the Creek Nation of Indi-“aus at the time of the death of William Hawkins, which course taken by the “court was at the request of the plaintiffs, and was not objected to at the “time. But after said first charge was given the defendants asked the court “to charge the jury as appears in said writing above inserted.” It is not material to inquire how far we look to the statement of facts to ascertain the charge of the court, or its refusal to charge when presented by a bill of exceptions that makes no reference to trie statement of facts, because, let the hill of exceptions and statement of facts be connected intimately as appellants could ask, they cannot make it available, because it shows that the charge was made-at the defendants’ request, and not excepted to. This only excepted to the-refusal of the court to give the three first charges asked, but did not except to-the one given. They were, therefore, satisfied with it, and cannot now rely on it for a reversal of the judgment.

The sixteenth assignment presents the same point as the preceding one, and need not be further noticed.

The seventeenth, and last, is that the court erred in not granting a new trial on the motion of the defendants (the appellants.) On a tedious' but patient examination of the record, we can perceive nothing to authorize a disturbance of the verdict of the jury, and believe, therefore, the court below did not err in refusing to grant a new trial, and tile judgment is affirmed.

Judgment affirmed.

Note 98. — Chilson v. Reeves, 29 T., 275.

Note 99. — Croft v. Rains, ante 520.  