Williams v. The State.

GOULD, J. The evidence is direct and uncontradicted that appellant did shoot and wound Dick Wilson, but is conflicting as to the circumstances under which it was done. If Wilson was to be believed, the shot was fired without any justification or excuse whatever. If, however, Esther Williams, the step-daughter of defendant, told the truth, Wilson, immediately preceding the shot, was advancing on defendant with a knife in his hand and using language indicating his readiness for a fight. There was no question as to who did the shooting, and we are unable to see that in a case like this evidence that defendant had forfeited his bail bond, and that, in connection with other prisoners, he escaped from jail by passing out, ought to have been admitted. To the admission of evidence of the forfeiture objection was made and was overruled.

When the guilt of a defendant is sought to be established by circumstantial testimony, evidence that he endeavored to escape when he found himself charged with the offense is admissible as tending to show a consciousness of guilt. Roscoe on Crim. Ev. 17. Some cases established by direct evidence are cited by the attorney-general where subsequent efforts to escape were allowed to be proved; but it may be questioned whether they can be maintained on principle. Porter v. State, 2 Carter (Ind.), 435; Whaley v. State, 11 Ga. 123; 4 Gratt. 541; Fanning v. The State, 14 Mo. 386. No authority has been cited, however, for the admissibility of evidence of the forfeiture of defendant's bond for his appearance as having any legitimate bearing on the question of guilt. We are of opinion that this evidence, and that in regard to the escape, if the latter had been objected to, should have been excluded; and as we cannot say that it may not have injured the defendant and had some weight with the jury, we think this error requires a reversal of the case. Cooper v. State, 19 Tex. 449. The judgment is reversed and the case remanded.

Reversed and remanded.

Elliott v. Booth.

ELLIOTT V. BOOTH.

(44 Tex. 180.)

Bankruptcy - Vendor's lien - Jurisdiction.

The jurisdiction of a State court to enforce a vendor's lien is not ousted by the vendee's bankruptcy and discharge.

A

CTION to foreclose a vendor's lien for the purchase-money held by the appellant, as administrator of Polly Elliott, upon a certain tract of land described in the petition which, in the lifetime of the intestate, had been sold by her to said Booth.

The defendant Booth, on the 22d day of November, 1870, filed a general denial, general demurrer, and pleaded his discharge in bankruptcy from all debts which were provable on the 29th of December, 1868.

The appellant then filed, March 12, 1871, an amended petition, making the defendant, B. C. H. Johnson, a party defendant, alleging in substance that the defendant Booth had, before going into bankruptcy, sold to defendant Johnson the land in dispute; that he had taken from Johnson an obligation to pay the debt to appellant's intestate; that he had demanded this paper, but it was refused him, and that it was held either by Booth or Johnson; that they had confederated together to deprive plaintiff of his rights, and that Booth had not in his schedules in bankruptcy either returned the vendor's lien on the land held by Polly Elliott or the obligation of Johnson, and he prayed that he have judgment against Booth establishing the debt, but waiving any personal judgment against him, and also that he have judgment against Johnson, the vendee of Booth, for foreclosure of the lien upon land for the purchase-money shown to be due and unpaid.

The defendant Johnson, on the 2d of August, 1871, filed a general exception to the amended petition, and also several special exceptions.

1. Because the petition did not show any privity in the contract between Booth and Johnson in the agreement for the latter to pay the remainder of the purchase-money.

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Elliott v. Booth.

2. That the only remedy against the land was against Booth or his assignee in the bankrupt court for failing to return the obliga tion of Johnson on his schedule in bankruptcy.

3. That if there was any remedy it was in the United States court in bankruptcy, and not in the State court.

He also filed a general denial of the allegations of the petition. An amended petition was filed by the plaintiff April 5, 1872, setting forth the obligation between Booth and Johnson, to wit, that the latter was bound to pay the remainder of the purchasemoney on the land.

At the May term, 1873, the demurrers of the defendant Johnson were submitted to the court and overruled. Thereupon the cause was submitted to the jury upon special issues, who found thereon as follows:

1. The amount of the debt for purchase-money due to be $1,205.76.

2. The note was executed, etc., as set out in the petition.

3. That it was given for the purchase-money of the land described.

4. That Johnson had notice when he bought the land, and that the purchase-money was not paid; and

5. That Booth was discharged in bankruptcy December 9, 1869. Upon this finding the court rendered judgment against the plaintiff, decreeing costs against the estate of Polly Elliott.

Motion for a new trial was made, and also motion to reform judgment on the finding of the jury, which were overruled. The plaintiff appealed, and assigned as error the rendering of judgment for defendants and the refusal of the court to grant motion for new trial and to reform judgment.

James H. Jones, for appellant, cited the following authorities : Bump on Bankruptcy (3d ed.), 79; Bankrupt Law, § 33; Bump's Law Practice of Bankruptcy (3d ed.), 392; Stoddard v. Locke, 5 Am. Rep. 310; Bentley v. Wells, 14 id. 54; Cole v. Duncan, 58 Ill. 176; 1 Story's Eq. (4th ed.), § 351.

Walton, Green & Hill, also for appellant, cited the following authorities: Bates v. Tappan, 3 B. R. 159; s. c., 99 Mass. 376; Bowman v. Harding, 4 B. R. 5; 56 Me. 559; Samson v. Burton et al., 4 B. R. 1; Leighton v. Kelsey et al., id. 155; 57 Me. 85; Perry

v. Somerly, id. 552; Stoddard v. Locke, 43 Vt. 574; Daggett v. Cook, 37 Conn. 341; Baum v. Stern, 1 S. C. (Richardson); Beardsley v. Hall, 36 Conn. 276-277; Claffin v. Crogan, 38 N. H. 411; Jones v. Lellyett & Smith, 39 Ga. 64; Stoddard v. Locke, 43 Vt. 574 (reported in 5 Am. Rep. 310); Pick et al. v. Jenness, 7 How. 612; Bowman v. Harding, 56 Me.; Kittredge v. Warren, 14 N. H. 509; Leighton v. Kelsey, 57 Me. 85; Addison & Calhoun v. Crow & Jarvis, 5 Dana (Ky.), 276; Seymour v. Browning, 17 Ohio, 362; McLean, Assignee, v. Rockey, 3 McLean's C. C. 235.

Steadman & Bagley and Baldwin S. Moore, for appellee.

REEVES, A. J. The appellees contend that Booth's discharge in bankruptcy satisfied or extinguished the debt due from him to Elliott, and that the vendor's lien, which was but an incident to the debt, was thereby extinguished.

The tract of land on which the lien is claimed was sold and conveyed by William Elliott and wife to Z. Booth on the 28th day of December, 1866. The note on which the suit was brought bears the same date, is payable to William Elliott or bearer, and was given for the balance of the purchase-money on the land. The original petition was filed June 23, 1870, about six months after Booth was discharged in bankruptcy.

Booth demurred to the petition and pleaded his certificate of discharge.

The plaintiff, by a supplemental petition, alleged the sale and conveyance of the land by Booth to B. C. H. Johnson on January 26, 1867, and averred that Johnson had agreed and bound himself in writing to pay Booth's note to Elliott. The alleged agreement was set out in the petition, but not offered in evidence on the trial. Johnson is charged with notice that the note for the purchasemoney was unpaid, and a lien on the land at the time of his purchase from Booth. The plaintiff, in his petition, admitted the discharge of Booth, but averred that Booth was not the owner of the land at the time he made his application for bankruptcy, and charged that he had not reported the land as any part of his estate. to the bankrupt court, and that he had also failed to report Johnson's obligation to pay the note sued on.

Johnson answered by a general demurrer, and specially that the plaintiff's remedy was against Booth or his assignee, or against

Elliott v. Booth.

him, Johnson, in the bankrupt court, denying the jurisdiction of the State court, and by a separate plea denied the allegations of the plaintiff's petition.

The demurrer being overruled, the cause was submitted to a jury, under instructions from the court to return a special verdict. The jury returned the following verdict on the special issues submitted by the court:

1. We, the jury, find the amount of the note described in the petition, principal and interest, to May 7, 1873, twelve hundred and five dollars and seventy-six cents.

2. We, the jury, find that said note was executed and delivered and promised to be paid as described in said petition.

3. We, the jury, find that said note was given to secure the purchase-money for the land described in the petition.

4. We, the jury, find that Johnson did have notice when he purchased said land that the purchase-money from Booth to Elliott was not paid.

5. We, the jury, find that Booth was discharged in bankruptcy on the 9th day of December, 1869.

The judgment of the court on the verdict was for the defendants; and the plaintiff's motion to render judgment for him and his motion for a new trial being overruled, he appealed.

The discharge of Booth in bankruptcy, and which the plaintiff admitted, was a protection as to Booth. The effect of the discharge on Elliott's lien is the only question in the case.

A discharge in bankruptcy, with certain exceptions, releases the bankrupt from all debts and liabilities which were or might have been proved against his estate. It does not, however, release any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, indorser, surety, or otherwise.

Under this provision of the bankrupt act (§ 33) it has been held that a creditor may sue any one liable for the same debt, and that the suit is not affected by the bankruptcy proceeding. In re Levy et al., 1 B. R. 66; Payne et al. v. Able, 4 id. 67; Citizens' National Bank v. Leming et al., 8 I. R. R. 282.

It clearly appears that the discharge is limited in its effect to the bankrupt, and that it cannot avail as a defense to another who may be bound with him for the debt.

It is urged by appellee Johnson that if Elliott had foreclosed his lien in the bankrupt court, that he, Johnson, would have been