The political and personal rivalry between Sam Houston and Mirabeau B. Lamar, the first and second presidents of the Republic of Texas, is well known.1 What is not so well known is that the two men once squared off in a Harris County district court over damaged furniture in the presidential mansion. The case ultimately was decided by the Supreme Court of the Republic of Texas2 in an opinion written by Chief Justice John Hemphill, the “John Marshall of Texas.”3 Nonetheless, because of an historical accident that led to a 140-year delay in publication of the supreme court’s opinion,4 as well as the damage that more than 150 years’ exposure to Houston’s climate inflicts on case files,5 details of this courtroom battle almost vanished from the historical record.

This article pieces together the story behind Sam Houston v. Mirabeau B. Lamar, taking advantage of important Harris County district court records that recently have been rescued from the brink of oblivion. The result is not just an interesting sidelight on two famous men, but a glimpse into the routine practice of law in a very different legal world.

 

Background

Houston v. Lamar is a simple case set against a complicated political backdrop. The Republic’s second capital (after a three-month stint in what is now the town of West Columbia) bore President Sam Houston’s name.6 However, the president’s accommodations left something to be desired. For most of Houston’s first administration, he lived in a rented two-room log house.7 When naturalist John James Audubon visited, he saw a “muddy and filthy” floor and “camp beds, trunks, and different materials . . . strewn about.”8

Things got better, though. In November 1837, Congress appropriated funds for a more suitable residence.9 The move could not come too soon for Sam Houston, who had complained: “It is late at night, and I am freezing in a miserable open house, four windows in it and not one pane of glass nor shutter. . . . The Palace is not yet finished, but it is said to be in progress and will soon be completed. I have sent to New York for magnificent furniture, and when it arrives what a beautiful contrast shall I enjoy.”10

The “Palace,” built at the southwest corner of Main and Preston Streets in part with lumber from trees felled at Market Square,11 was a vast improvement on President Houston’s earlier residence. Houston did not have much time to enjoy his more elegant digs, though. A president could not serve consecutive terms. So Mirabeau B. Lamar assumed the presidency in December 1838.12

Lamar also did not occupy the mansion for long. In the fall of 1839, the capital moved from Houston to Waterloo, later renamed Austin.13 The seat of government returned to Houston for the first part of Sam Houston’s second term, thence to Washington-on-the-Brazos, where it remained until Austin became the post-statehood capital in 1846.14

 

Lawsuit and Trial

Houston sued Lamar on March 6, 1839.15 He claimed Lamar damaged or destroyed $2,000 worth of Houston’s furniture after promising to buy it — about $40,000 in today’s dollars.16 Houston also submitted an unsworn inventory that listed damaged and missing items (including such items as moss mattresses, mosquito netting, nutcrackers, curtain rings and a coffee pot).

Lamar answered with the equivalent of a modern general denial and “put himself upon the country” (i.e., asked for a jury trial). The court continued the case five times17 on motions of both parties.18  It finally came to trial April 12, 1843.19

It is hard to identify the parties’ lawyers. Houston’s 1839 petition was signed “Sam Houston by attorney.” The trial lawyer (who almost certainly did not file the lawsuit because he did not enter practice until later in the year) apparently was Constantine W. Buckley.20  Buckley later served as a district judge and, in 1858, gained the dubious distinction of being the first candidate defeated in a contested election for the Texas Supreme Court,21 amid allegations of drunkenness and corruption.

Lamar’s original answer was filed by John R. Reid, a reputable lawyer whom Lamar later appointed district attorney.22 But the identity of Lamar’s trial lawyer is not clear. Benjamin J. Tankersley is a strong candidate. He was present at that court session23 and certainly was involved in the appeal.24 If Tankersley was Lamar’s trial lawyer, it was not the beginning of a beautiful friendship: Lamar later accused him of “treachery and dishonesty,” and expressed the fervent wish that “the unfaithful Tankersley can be brought to justice.”25

At trial, Houston offered one witness and Lamar none. That was not either party’s original plan, however. When the case was first set for trial, Houston subpoenaed four witnesses: the two appraisers, another man who had been present when the appraisal was done, and a fourth whose connection with the litigation is not immediately clear.26

Lamar also planned to call at least one witness. In May 1840, he secured a continuance because one William D. Redd was not available for trial, being on “official duty of much importance” with the Texas Army in San Antonio at the time. Under the rules, Lamar was supposed to spell out “what he expects to prove by the absent witness.”27 Unfortunately, Lamar’s continuance affidavit did not follow that rule, which makes it hard to tell exactly what Redd would have contributed.

Whatever his likely testimony, Captain Redd would have fared far better had he set aside his “official business” to attend the trial in Houston. Lamar’s continuance affidavit is dated May 4. Three days later, Wells was shot and killed in a duel with a fellow officer.28

Houston had better luck. He apparently re-subpoenaed only one of his original four witnesses, but that man was alive and available for trial. Stephen Z. Hoyle served in both Lamar’s and Houston’s administrations.29 At the time of the furniture incident, Hoyle held an appointment from Lamar as enrolling clerk of the Fourth Congress. Hoyle served as messenger and middleman for Houston and Lamar’s furniture negotiations, and he was present when the damage was appraised.30

 

The Jury

Some information about the jury panel also is available. During the Republic, all property-holding males could serve31 if they were over 21 and did not have a serious felony record (defined as crimes punishable by “stripes, pillory, or burning in the hand”32).

Most of the jurors probably leaned toward Houston, as did the verdict. President Lamar left office under a cloud, due in part to the disastrous Santa Fe military expedition and in part to the nation’s near-bankruptcy.33 Closer to home, the government’s transfer to Austin had not been good for local business.34

Jury foreman Benjamin A. Shepherd and juror W.J. Hutchins were merchants35 who, along with better-known entrepreneurs like William March Rice36 incorporated the Republic’s first railroad — the Buffalo Bayou, Brazos and Colorado.37 Newcomer Robert Lockhart38 also was doing well; by 1856 he owned a grist mill39 and (like jurors Shepherd and Hutchins) lived in one of the town’s larger homes.40 C.F. Duer was a successful small businessman.41 Another juror, Robert Dunman, also seemed to be a man of some substance, as his house was one of the polling locations for the 1843 election.42

As to whether two other jurors were men of substance, the historical record can be read more than one way: Delinquent tax notices at the time of trial showed that Joshua Barr owned at least $2,400 worth of land, and Lardner C. Stanley’s land was worth $2,500.43 One should not read too much about wealth or social standing into tax delinquencies, though: Sam Houston was on the delinquency rolls one week, though he apparently paid by the time the next edition was published, and Lamar lost at least one parcel of his land at a tax sale.44

A stroll through early court reports reveals that the Houston v. Lamar jury had considerable collective expertise in debtor-creditor matters, and says something about the sheer litigiousness of early Texans as well. Fully half the jury panel appeared as litigants before the Texas Supreme Court, some more than once. E.C. Reynolds led the pack; as co-administrator of an estate, he racked up five court appearances in the first six years of statehood, mostly as a creditor.45 Juror Shepherd was in the “exchange and collection” business,46 and appears twice in the reports.47 Jurors Hutchins48 and Lockhart49 also collected a debt on occasion.

The Houston v. Lamar jurors did not always show up on the creditor side of the docket, though. The Texas Supreme Court let Stanley avoid payment of a $242 debt because it stemmed from an underlying usurious loan.50 Juror Dunman was not so lucky: The court ruled his horse-racing bet legal, forcing him to pay off to the tune of “twenty good cows and calves.”51

We can even get some direct insight into the mind of one juror, a transplanted German named Christian Friedrich Duer.52  Duer was an educated, literate man53 who kept an on-and-off diary. The trial took place during April 1843, one of Duer’s “off” months. But he picked up again in May.

Duer clearly favored Houston over Lamar. Houston’s many enemies, Duer noted in a neatly numbered list, comprised disappointed office seekers, “Broken down Gentlemen . . . above earning their bread in an honest way,” and large speculative landowners.54 Sam Houston’s “most honest & most justifiable” enemies, in Duer’s opinion, were the “population of the upper Colorado . . . who by the removal of the seat of government from Austin touched their interest & of course drew their wrath upon himself.”55 Interestingly, one of the land speculators Duer singled out for scorn was Lamar’s friend and political ally James Love, who signed as surety on Lamar’s appeal bond.56

 

Judgment

At first glance, the jury’s verdict and judgment in Houston v. Lamar does not appear informative. While the law required jurors to “report in their verdict all the material facts in the case,”57 this particular jury merely announced who won how much, and the amount of prejudgment interest that was owed.58 These bare numbers still shed considerable light on what happened.

Taking things out of order for simplicity’s sake, the idea of awarding prejudgment interest may have originated with the jury: Houston did not request interest and that statement of facts does not mention any supporting evidence or argument. The exact amount — $234.1359 — also presents a minor puzzle. That figure does not correspond to the statutory eight percent interest rate60 or to any number in the case file. But the jury surely did not pluck so precise a figure from thin air.

Houston’s petition said Lamar took possession of the furniture January 12, 1839. The case went to trial April 12, 1843 — exactly four years and three months later.61 The jury’s $234.12 figure works out to just one penny more than four and one quarter years’ interest on the jury’s $1,101.73 damage figure,62 which seems close enough for pre-calculator days.

The answer to one riddle, though, just raises more questions. The Republic of Texas permitted contract interest only on written obligations63 and apparently did not authorize general prejudgment interest at all.64 Moreover, the first statute authorizing interest was not enacted until more than two years after Lamar agreed to buy the furniture or compensate Houston for damages.65 And one ordinarily would expect the judge, not the jury, to be doing the calculations. In any event, Houston’s lawyer probably knew the jury’s interest award would not hold up on appeal; he voluntarily remitted the interest one day after trial.66

The source of the $1,101.73 damage award67 is easier to identify, but still raises questions. The amount does not match Houston’s petition, which asked for $2,000 “or as much thereof as may be found due,” broken down as $1,500 for damaged and $500 for missing furniture. Nor does it match the testimony. Witness Hoyle testified the furniture cost $2,200, all told. Taken with the witness’s 50 percent damage estimate, that worked out to $1,100 in damages. This figure is within $1.03 of the jury’s verdict, but only by coincidence.

The jury’s number actually came from an exhibit to Houston’s petition. That appraisal references $1,724.09 in invoices (not the $2,000 mentioned in Houston’s petition or the $2,200 testified to by Hoyle). The appraisers listed and valued specific items of damaged and missing furniture, then (mis)totaled the amount68 to $734.49. A cover sheet tacked on 50 percent for “the amount of difference in prices here and in N. Orleans,” bringing the adjusted total to the jury’s $1,101.73.

Lamar moved for a new trial, which was overruled on the condition that Houston remit an additional $350.69 Lamar still appealed.

 

Appeal

Because the briefs have disappeared and the supreme court’s opinion is compressed into a few uninformative sentences, it is hard to tell exactly what Lamar’s attorney argued on appeal. But the case file provides some hints. One cautionary point: The statement of facts, though approved by the judge, probably was prepared by Lamar’s attorney70 and therefore might favor his position.

According to the statement of facts, Hoyle testified that he personally relayed messages between Houston and Lamar. Lamar agreed to return the furniture and pay damages and to have third parties “ascertain the damage.” This uncontroverted evidence from a credible source gave Lamar little opportunity to argue liability.

Instead, Lamar attacked Houston’s pleadings. At Lamar’s request, the judge instructed the jury that if they found appraisers were appointed to assess the damage, they must render judgment for Lamar because “the Plff should have sued on the amt of damages so ascertained.”

Houston’s petition certainly had its problems: What lawyer today would begin a paragraph with “For that whereas heretofore to wit some time in December 1838”? But under modern rules of liberal construction,71 Houston’s petition fairly encompassed a claim for damages based on the appraisal. The petition began with a complaint of “loss and distruction [sic] of and damage done to firnature [sic],” asked that the contemporaneously filed appraisal “be regarded as a portion of this petition,” and concluded with a prayer for a $2,000 judgment “or as much thereof as may be found due.”

A knowledgeable reader might object that pleading was a highly technical art form in the 19th century, and that old-style common-law pleading required (among many other things) the election of a single issue for trial.72 This was true of most jurisdictions in the early 1840s, and might have been in the mind of Alabama-trained trial judge Patrick C. Jack73 when he instructed the jury. The Republic of Texas pioneered liberal pleading, though, and Houston’s petition surely met the statutory minimum even then.74

  Lamar’s appeal most likely hinged on the quantum of damage and quality of proof. Hoyle believed (apparently based on his review of invoices) that the furniture cost about $2,200 and “from his own knowledge thinks the damage was about fifty percent.” But Hoyle “[c]ould not say of his knowledge what [the] furniture was worth in New Orleans or in the City of Houston” and he “could not state the amt of damage such articles sustained.” Today, Hoyle’s testimony might be subject to Daubert75 and hearsay76 challenges. But the testimony apparently came in without objection and conceivably could have supported a jury verdict.

At Lamar’s request, Judge Jack instructed the jury to disregard “the account filed with Plffs petition as the amount of arbitration,” and to ignore any testimony regarding lost or missing furniture “because the witness did not specify the articles lost or missing or their value.” One wonders how any jury so instructed could rule for Sam Houston: If the jury could not consider the written account, and Houston’s only witness did not establish the nature and value of the missing items or distinguish missing from damaged items, there arguably was no record evidence to support any verdict for Houston.

Making matters worse, the jury’s award matches to the penny the amount listed in the written account — the same document Judge Jack specifically instructed them to disregard. Accordingly, one might also reasonably ask why Judge Jack ordered only a partial remittitur instead of granting Lamar a new trial or judgment notwithstanding the verdict.

The answer may lie in a less formal approach to litigation, characterized by practicality, a willingness to overlook “technical” errors and a deferential attitude toward jury verdicts. Taking the last point first, while wearing his other hat as a member of the Supreme Court one year before Houston v. Lamar went to trial,77 Judge Jack expressed the court’s reluctance to set aside a jury verdict even when the evidence was “neither conclusive or satisfactory,” because only questions of fact were presented.78 This was such a case.

Judge Jack’s decision to let the judgment stand also may have reflected a practical assessment of the equities. Lamar probably did agree to pay for damaged furniture and did consent to the appraisal. The issue seems to have been whether Lamar was responsible for missing items, as well. The appraisers set out the damaged and missing items and their value on an item-by-item basis. If one subtracts the value of missing items from the overall appraisal, the total comes within a few dollars of the judgment — once $350 was remitted. Moreover, formalities aside, no one seemed to doubt the appraisal’s authenticity.  To the contrary, because at least some members of this small-town jury must have known the appraisers personally, their willingness to accept the appraisers’ numbers even in the face of the court’s contrary instruction speaks volumes. A new trial would have been a useless, expensive and time-consuming formality.

The Texas Supreme Court’s opinion summed it up: “The question was one of fact depending on evidence and its determination properly within the province of the Jury. The objection in law to the verdict as allowing interest was removed by its remission and there was no such excess in the assessment as would authorize the finding of the Jury to be disturbed especially after the release of nearly one third of the judgment.”79

 

Aftermath

In January 1846, Lamar’s lawyer wrote to tell him of the Texas Supreme Court’s judgment, adding: “Much to my mortification, it will be necessary for you to be prepared to meet it, as you will receive no quarter. I am satisfied that Houston will harass you as much as it is in his power.”80 He was right. In February, Harris County District Court Clerk Francis R. Lubbock (who later would become governor) issued a writ of execution, thriftily using an old Republic of Texas form. But, as has been said: “Winning a judgment may be only half the battle — collecting it, the other half!”81

In one sense, Lamar already had won the collection phase of the fight. Lamar never seriously disputed that he owed Houston at least the fair value of the damaged furniture. Yet he managed to delay final judgment for more than seven years, during which time Houston received neither pre- nor post-judgment interest.82  Assuming Lamar could have earned the statutory eight percent rate of return on his money during that time (and some people were doing far better83), and considering that the purchasing power of the dollar declined some 20 percent84 during that period, Lamar arguably was showing a tidy profit from litigation delay.

That, however, was only the beginning. The writ was returned with the notation “not satisfied, no property to be found of Defendant.” Lamar certainly had assets in Houston during this time but might have been hiding them, perhaps even with his lawyer’s connivance.85

Houston sold his judgment to Ira Lewis in February 1846.86 Lamar paid Lewis $200 in April 1848 and agreed to transfer land at a fair valuation to pay the rest of the judgment, more or less like the furniture damage deal with Houston.87 Nearly a decade later, Lamar and Lewis were still haggling over that “fair valuation.”88

Lewis’s efforts to collect the Houston v. Lamar judgment also spawned collateral litigation that found its way to the Supreme Court of Texas.89 When Houston sold Lewis the Lamar judgment, he stated the amount as “eleven hundred and one dollars and seventy-three cents, with interest.”90 That description greatly overstated the value of the judgment, because it failed to mention Houston’s remittitur of all interest and $350 of the principal. Lewis sued Houston and lost. The Texas Supreme Court saw the recital as descriptive, not contractual. Moreover, because Lewis could have discovered the discrepancy by checking district court records, the suit was time-barred.91

The writer, and any persevering reader, owe Lewis a posthumous debt for helping to end this article on a suitably ironic note. The sorry tale of Houston v. Lamar can be told, and Lewis’ complaints put in proper context, only because of heroic efforts to preserve Harris County District Court records and make those records, together with a forgotten batch of Texas Supreme Court opinions, accessible to the general public. But if Lewis had timely consulted the same records, or had the Texas Supreme Court timely published its opinion,92 the story would not be quite as interesting.

Lewis probably would have preferred the money.

Professor James W. Paulsen teaches at South Texas College of Law and is a member of The Houston Lawyer’s editorial board.

 

Editor’s Note:

Professor Paulsen gratefully acknowledges the assistance of Francisco Heredia, Historical Documents Team Leader at the Harris County District Clerk’s Office; Ellen K. Brown, Associate Director and Archivist of the Texas Collection at Baylor University; and the staffs of the Fred
Parks Library at the South Texas College of Law, the Texas and Local History Room at the Houston Public Library, and the Lorenzo de Zavala State Archives and Library, Austin.

 

Endnotes

1. However, the rumor that Lamar once challenged Houston to a duel (or vice versa) has been persuasively questioned.  SeeWilliam Ransom Hogan, The Texas Republic: A Social and Economic History 288-89 (1969).   2. Lamar v. Houston (Tex. 1845), 65 Tex. L. Rev. 382 (Paulsen rep. 1986).   3.Thomas W. Cutrer & John Hemphill, 3 New Handbook of Texas 550, 550 (1996).   4.See generally Jim Paulsen & James Hambleton, Whatever Happened to 1845? The Missing Decisions of the Texas Supreme Court, 48 Tex. B.J. 830 (1985); James W. Paulsen, A Short History of the Supreme Court of the Republic of Texas, 65 Tex. L. Rev. 274-76 (1986).   5.See, e.g., Kimberly Piña, Court Records Display Unusual Sentencing, Hous. Chron., Aug. 24, 2006, at 1 (describing prior deterioration “because of the high acidity of the paper and ink”); Nick Georgandis, The Case of Sam Houston Versus Mirabeau B. Lamar, Katy (Texas) Times, Aug. 13, 2006 (quoting former Harris County District Clerk Charles Bacarisse as stating, “We were losing our records to rot and destruction”).   6.See, e.g., John G. Johnson, Capitals, 1 New Handbook of Texas 965 (1996); Jean & Price Daniel & Dorothy Blodgett, The Texas Governor’s Mansion: A History of the House and Its Occupants 19 (1984).   7.J. Daniel, P. Daniel & D. Blodgett, supra note 6 at 19.   8.Id.   9. Act of Nov. 18, 1837, 1 H. Gammel, Laws of Texas 1363 (1898); J. Daniel, P. Daniel & D. Blodget, supra note 6 at 20-21.   10. Barrie M. Scardino, The Development of Houston Architecture, in Dorothy Knox Howe Houghton, Barrie M. Scardino, Sadie Gwin Blackburn & Katherine S. Howe, Houston’s Forgotten Heritage: Landscapes, Houses, Interiors 67 (1998) (hereinafter “Forgotten Heritage”).   11.Id.   12.Herbert Gambrell, Mirabeau Buonaparte Lamar, 4 New Handbook of Texas 37, 38 (1996).   13.See Johnson, supra note 6 at 965.  One reason for the move undoubtedly was Houston’s climate.  The inventory of damaged and missing furniture in this case includes “6 Linen mosquito nett.” Wire screens were not introduced to Houston until 1894.  Katherine S. Howe, Interiors, in Forgotten Heritage, supra note 10 at 279.   14.See id. at 965-66.   15. Petition at 4, Case File.  To save space, and because the case file is small, further footnoting of file materials will be held to a minimum.   16.See www.measuringworth.com (site visited Dec. 12, 2007).  Lawsuit damages were calculated in U.S. dollars instead of the Republic’s currency.  See Petition, Ex. A at 1, Case File.   17.See Minute Book B at 182 (June 10, 1839), 302 (May 18, 1840), 572 (Dec. 23, 1840); Minute Book C at 242 (Dec. 20, 1841), 273 (May 17, 1942).  The case also was ordered to “lie over” during the 1841 term.  Minute Book C at 70 (Nov. 19, 1841).   18. Lamar almost certainly requested the June 1839 continuance.  The lawsuit had only recently been filed, and the records contain executed subpoenas for four plaintiffs’ witnesses.  Lamar definitely requested the May 1840 continuance.  The specific language of Lamar’s continuance affidavit supports the view that Lamar also filed the first motion.  Compare Affidavit (stating inter alia that Lamar “cannot safely go to trial” without the witness and that he “expects to procure” the witness’s testimony “by the next term of this Court”) withRep. Dist. Ct. R. 21, 65 Tex. L. Rev. at 460-61 (providing that on the second application for a continuance, a party must aver inter alia that he “cannot safely go to trial” without the testimony, and that he “expects to be able to procure” the testimony “by the next term of the court”).  The December 1840 continuance was granted by consent and Houston requested the December 1841 continuance.  See Minute Book B at 572, C at 242.  The origin of the May 1842 continuance order is unknown.   19. Minute Book D at 164.   20.See Minute Book D at 167 (reporting an appearance by C.W. Buckley to announce the remittitur of interest).   21.See generallyStephen L. Hardin, Constantine W. Buckley, 1 New Handbook of Texas 803 (1996).   22.See, e.g., Andrew Forest Muir, Augustus M. Tomkins, Frontier Prosecutor, 54 Sw. Hist. Q. 316, 321 (1951); Harold Schoen, The Free Negro in the Republic of Texas, Chapter V, 40 Sw. Hist. Q. 267, 270 (1937).   23.See Meeting of the Bar, Telegraph & Tex. Register, May 10, 1843, at 1 (reporting April 6, 1843, resolution proposed by B.C. Tankersley).   24.See letter from Benjamin F. Tankersley to Mirabeau B. Lamar (Jan. 14, 1846) (reporting case result), Papers of Mirabeau B. Lamar, No. 3114 (Texas State Archives), 65 Tex. L. Rev. at 385.   25. Memorandum from Mirabeau B. Lamar to Isaac G. Williams (Sep. 12, 1857), Papers of Mirabeau Buonaparte Lamar, No. 3303 (available in Texas State Archives, Austin).   26. For whatever it is worth, proposed witness Thomas J. Stansbury was listed in an 1843 delinquent tax notice as having unpaid taxes of $8 on real estate valued at $1,600.  Pay Your Taxes!, Telegraph & Tex. Register (Houston), March 29, 1843, at 4.   27.Rep. Dist. Ct. R. 21, 65 Tex. L. Rev. at 460-61.   28.Id. at 121.  Redd’s antagonist, Col. Lysander Wells, died of his wounds shortly thereafter.  Wells was one of Houston’s “favorites,” Thomas W. Cuttrer, Dueling in the Republic of Texas, in 2 New Handbook of Texas 717, 717 (1996), but the duel seems unrelated to politics.  It may have been sparked by comments about the virtue of a young woman then residing in Redd’s quarters, by unjustified aspersions on Redd’s bravery, or both.  Ironically, Lamar had only a few months earlier signed legislation strengthening penalties for the “inhumane and detestable practice” of dueling, which would have included loss of commission and prison term for both participants, had either survived.  See Act of Jan. 28, 1840, in 2 H. Gammel, Laws of Texas 332, 332-33 (1898).   29.Stephen Z. Hoyle, in 3 New Handbook of Texas754, 754 (1996).   30. Statement of Facts at 1-2, Case File.   31. Act of Dec. 22, 1836, § 31, 2 H. Gammel, Laws of Texas 1258, 1267 (1898).  Section 31 actually said “every freeholder or householder” was to be put on the jury rolls, but § 41 prohibited anyone “who is not a free-holder” from serving.  See id.§ 41.  The act did not in so many words prohibit women from serving; it apparently was one of those things so obvious that it did not need to be mentioned.  Moreover, the statute used gendered language.  See,e.g., id. § 34 (prohibiting service on any juror “during his attendance”).   32.Id.   33. Gambrell, supra note 12 at 38.   34.Cf.Margaret Swett Henson, A Brief History of Harris County, in Forgotten Heritage, supra note 10 at 6 (stating that “[a]lthough the loss of the government offices hurt Houston’s economy at first, the town steadily grew as more businesses located along Buffalo Bayou”).   35.See id. at 119 (describing Hutchins as a “pioneer merchant”).   36.See id. at 7.  Hutchins made another fortune as a blockade runner during the Civil War.  See id. at 8.   37. P. Briscoe, The First Texas Railroad, 7 Sw. Hist. Q. 279, 282 (1898).   38.Scardino, Forgotten Heritage,  supra note 10 at 25.   39.Houston City Directory 33 (1856).   40.Scardino, Forgotten Heritage,  supra note 10at 70.   41. Archibald E. Gordon, The Life and Diaries of Christian Friedrich Duer 16 (MA Thesis, Baylor University 1964).  As Duer put it, “Business in the little store is going on pretty fair.”  Id.   42. Adele B. Looscan, Harris County, 1822-1845, 18 Sw. Hist. Q. 399, 404 (1998).   43.Pay Your Taxes!, Telegraph & Tex. Register (Houston), Mar. 29, 1843, at 4 (showing the two men owed $12 and $12.50, respectively).   44.See Memorandum from Mirabeau B. Lamar to Isaac G. Williams at 1 (Sep. 12, 1857), Papers of Mirabeau B. Lamar, No. 3303 (available at Texas State Archives).   45. Ennis & Reynolds v. Crump, 6 Tex. 85 (1851) (suit to collect); Janes v. Adm’rs of Reynolds, 2 Tex. 250 (1847) (same); Gayle & Gayle v. Ennis & Reynolds, 1 Tex. 184 (1846) (administrator suit as individual assignees, against makers); Ennis & Reynolds v. Cocke, 2 Tex. 592 (1847) (estate defendant, in suit by surety); cf. Pitts v. Ennis & Reynolds, 1 Tex. 604 (1846) (contract matter).   46. Shepherd v. Levinson, 27 Tex. 484, 486 (1864).   47.Id.; see also Galveston & Red River Ry. Co. v. Shepherd, 21 Tex. 274 (1858).   48. Hutchins v. Flintge, 2 Tex. 473 (1847) (suing as assignee of debt).   49.See Dewees v. Lockhart, 1 Tex. 535 (1846).   50. Stanley v. Westrop, 16 Tex. 200 (1856).   51. Dunman v. Strother, 1 Tex. 89 (1846).   52. Gordon, supra note 46 at 3.   53.Id. at 23.   54.Id. at 179-80.   55.Id. at 179.   56.Id. at 180.   57. Act of Dec. 22, 1836 § 46, 2 H. Gammel, Laws of Texas 1258, 1271 (1898).   58. Minute Book D at 164 (Apr. 12, 1843).   59. Minute Book D at 164.   60.See generally Act of Jan. 18, 1840, § 5, 2 H. Gammel, Laws of Texas 182, 182 (1898) (authorizing interest only “from and after the date of judgment”); see also Trott v. Patton, Dallam 522 (Tex. 1843) (declining to apply rate to an out-of-state obligation with a lower rate of interest).   61. Minute Book D at 164 (April 12, 1843).   62.See id.   63.See, e.g., Act of Jan. 18, 1840, § 3, 2 H. Gammel, Laws of Texas 182, 182 (1898) (authorizing “the parties to any written contract” to agree to interest not exceeding twelve percent per year).   64.See id. § 5 (authorizing interest only “from and after the date of judgment”); cf. Hill v. M’Dermott, Dallam 419, 423-24 (Tex. 1841) (holding a “deed of pledge” or mortgage void as usurious”).   65.Cf.McKinney v. Bradbury, Dallam 441, 445 (Tex. 1841) (commenting that “no doubt can be entertained that it was illegal for the jury to have allowed interest” in an action on a stated account because “it is certain that we may search in vain for the law in force in this republic that does in any manner authorize any such finding”).   66. Minute Book D at 167 (Apr. 13, 1843).   67. Minute Book D at 164.   68. This writer’s tally is $779.99.  The discrepancy probably stems from the appraisers’ failure to include two line items — 80 yards of matting and one gross of lamp wicks with a cutter — in the total.  The appraisers also were off by a negligible amount (25 cents) in their calculation of 75 percent damages to items covered by one invoice.   69. The new trial filing and remittitur are stated as facts by the Supreme Court of Texas.  SeeLamar v. Houston, 65 Tex. L. Rev. at 382.  The clerk’s notes on the original petition’s cover indicate a new trial motion was filed April 12, 1837 (the judgment date) and that $350 was remitted April 20.   70. The rules provided that the appellant (in this case, Lamar) should take the lead in drafting a statement of facts.  If the parties could agree, both would sign.  If not, the appellee was to prepare an alternative statement.  The two drafts were to be presented to the judge, who would choose one.  Rep. Dist. Ct. R. 29, 65 Tex. L. Rev. at 29.  This statement was not signed by agreement.  See Statement of Facts, Case File.  In addition to some general language that appears more favorable to Lamar than otherwise (e.g., Houston’s witness “[c]ould not say of his own knowledge what the furniture was worth in New Orleans or in the City of Houston”), the statement’s concluding language begins: “Whereupon the deft excepts and prays thus.”  Id.   71.See, e.g., Tex. R. Civ. P. 45 (stating that “[a]ll pleadings shall be construed so as to do substantial justice”).   72.See, e.g., Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 915 (1987).   73.See generally James W. Paulsen, The Judges of the Supreme Court of the Republic of Texas, 65 Tex. L. Rev. 305, 336 (1986).   74.See, e.g., Act of Dec. 22, 1836, § 8, 1 H. Gammel, Laws of Texas 1258, 1261 (1898) (stating that the plaintiff’s petition should contain “a full and clear statement of the names of the parties, whether plaintiff or defendant, with the cause of action, and the nature of relief, which he requests of the court”); Hamilton v. Black, Dallam 586, 587 (Tex. 1844) (stating that a petition required “only a statement of the names of the parties, plaintiff and defendant; a full and fair exposition of his cause of action, and finally the relief which he asks”); Fowler v. Poor, Dallam 401, 402-03 (Tex. 1841) (commenting that the petition and answer system was “highly appreciated by the legislative power of this republic”); but see Whiting v. Turley, Dallam 453 (Tex. 1842) (expressing serious reservations about the petition and answer system of pleading).   75.SeeDaubert v. Merrell Dow Pharms., Inc. 509 U.S. 579 (1993) (requiring judges to scrutinize expert evidence for reliability).   76. Hoyle formed his conclusion that the furniture cost $2,200 “[f]rom the invoices” he examined, which do not seem to have been introduced into evidence.   77. Every district judge served as a part-time member of the supreme court; only the chief justice had a full-time job.  See, e.g., Paulsen, supra note 4 at 295-301.   78.Butler v. Moreton, Dallam 459, 459 (Tex. 1842); see also generallyButler v. Moreton, Dallam 459, 459 (Tex. 1842); Fulton v. Craddock, Dallam 458 (Tex. 1842).   79.Lamar v. Houston, 65 Tex. L. Rev. at 382-83.  The supreme court’s reference to the “assessment” indicates the court considered the appraisal admissible evidence.  The court may have done so because the statement of facts does not indicate any specific objection was made to its admissibility.  SeeRep. S. Ct. R. 7, 65 Tex. L. Rev. at 454 (stating that any objection “to the admissibility as evidence, of any deposition, grant, deed or other exhibit found in the record, unless objection was taken thereto in the court below, and regularly entered among the proceedings”).   80. Letter from Benjamin F. Tankersley to Mirabeau B. Lamar (Jan. 14, 1846), Papers of Mirabeau B. Lamar, No. 3114 (available in Texas State Archives, Austin).   81.Hugh M. Ray & Robin Russell, Texas Practice Guide: Creditors Rights § 1.1, at 1-1 (1999).   82.See Cost Bill and Execution Writ (July 9, 1846), Case File (omitting any figure from the interest line).   83. The promissory note Juror Stanley avoided on usury grounds originated in a loan that accrued interest at the rate of two-and-one-half percent per month.  See Stanley v. Westrop, 16 Tex. 200 (1856).   84.See www.measuringworth.com (site visited Dec. 12, 2007) (indicating that $751.73 in 1839 dollars would be worth only $617.55 in 1846 dollars).   85. The Lamar papers contain a fascinating memorandum complaining of probable trial attorney Benjamin Tankersley’s conduct.  Lamar explained that when he moved to Austin, he left his Houston area “cottage” in Tankersley’s care.  However, Tankersley collected the rents for himself, then sold the property.  See Memorandum from Mirabeau B. Lamar to Isaac G. Williams (Sep. 12, 1857), Papers of Mirabeau Buonaparte Lamar, No. 3302 (available in Texas State Archives, Austin).  One wonders how anyone could sell real estate, even in the free-wheeling days of the Republic or early statehood, without some plausible claim of title.   86.Lewis v. Houston, 11 Tex. 642, 642 (Tex. 1854).   87. Letter from B. Gillespie to James W. Webb (Apr. 6, 1848), Papers of Mirabeau Buonaparte Lamar, No. 3120 (available in Texas State Archives, Austin).   88. Memorandum from Mirabeau B. Lamar to Isaac G. Williams (Sep. 12, 1857), id. (No. 3301).   89. Lewis v. Houston, 11 Tex. 642 (Tex. 1854).   90.Id. at 842.   91.Id. at 643-44.   92. The Texas Supreme Court’s opinion in Houston v. Lamar prominently mentions the two remittiturs.  See 65 Tex. L. Rev. at 382.