272
WRITINGS OF SAM HOUSTON, 1859
dated the 5th day of May, 1832, authorizing Samuel M. Williams to sell the land in controversy; which said power of attorney defendants believe to be a forgery, and have 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 attor- ney; 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 foregery aforesaid by procuring witnesses to inspect said power of attorney. The plaintiff's counsel being persent in court, accepted service of this motion, and waived them to show cause. "Minutes, AP'ril term, 1856 New Orleans, Monday, June 9, 1856. John W. Lapsley vs. D. R. Mitchell and Warren } 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, how- ever, 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 transac- tions by which the allleged title to the land in controversy had been obtained, or transmitted to the plaintiff."
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