Duncan research files of
1850 Matagorda Co. TX Census (and from Lucille Mehrkam 10/1983)
Pg.385, #88-88, James DUNCAN 59 VA farmer $1200
Abigah HANSON (m) 73 NH
Lewis SWAN 38 MA sailor $0
(MAD: perhaps born Buckingham Co. VA; see Callaway Co. MO)
Pg.388, #136-136, John DUNCAN 55 PA planter $100,000
Thos. 21, S.J. (f) 16 AL
Jack 11, M.F. (f) 10 TX
Saml. 5 TX
John JONES 40 Unk. herdsman $0
John WALNUT 30 NY carpenter $0
(MAD: ?? 1830 Mobile Co. AL census; ?? son of Samuel Duncan d. 1826 Fayette Co. KY ??)
1860 Matagorda Co. TX Census (and from Lucille Mehrkam 5/1984)
Pg.490, #11-5, William A. HELBERT 42 MD stockraiser $3000-$3600
Louisiana (f) 27 TN
Josephus DUNCAN 13 TN
Pg.499, #149-139, John DUNCAN 62 PA planter $150,000-$128,000
Jack (m) 21 TX
Mary 19 TX (not mar/in/year)
W.F. TAYLER (m) 35 GA overseer
F.F. SWANN (m) 51 MA (blank) $4700
Pg.506, #268-258, A. DePELCHIN (m) 29 BELGIUM music teacher $2000-$1000
Nancy De" (DePELCHIN) 29 NY
Stephen W. 8/12 NY
C.W. WRIGHT (f) 48 CT school teacher
Lucretia DUNCAN 11 IL
1870 Matagorda Co. TX Census (and part also from Lucille Mehrkam 5/1984)
(MAD: all those born in Africa or whose children were born in Africa were marked as "parents of foreign birth")
Pg.503, #94-94, DUNCAN, Alvey (f) 35 TX BLACK farm hand $0-$0
Pg.503, #96-96, SMITH, Lavinia (f) 22 TX BLACK farm hand $0-$0
DUNCAN, Calvin 15 TX BLACK farm hand
Hiram 9 TX BLACK
Joseph 7 TX BLACK
William 4 TX BLACK
Pg.504, #123-123, DUNCAN, Joseph 50 Africa BLACK farm hand $0-$0
FORREST, Jane 24 VA BLACK
Sylva (f) 3 TX BLACK
Pg.504, #124-124, DUNCAN, Surry (m) 70 Africa BLACK at home $0-$0
Pg.505, #125-125, DUNCAN, Jno. (m) 55 Africa BLACK farm hand $0-$400
Cladda (f) 45 Africa BLACK
Matilda 20, Albert 18 TX BLACKS farm hands
Rebecca 16 TX BLACK farm hand
Frances (f) 8, Daniel 6 TX BLACKS at home
Pg.505, #126-126, DUNCAN, Shade (m) 60 Africa BLACK farm hand $0-$110
Pg.505, #127-127, DUNCAN, Parlo (Parto?) (m) 60 Africa BLACK farm hand $0-$0
Frimaka (f) 50 Africa BLACK farm hand
Mayfaa (f) 60 Africa BLACK farm hand
Pg.505, #131-131, DUNCAN, Dada (m) 45 Africa BLACK farm hand $0-$185
Ishtaka (f) 40 Africa BLACK farm hand
Pg.505, #134-134, DUNCAN, Annie 20 NC BLACK farm hand $0-$0
MARK, Annie 18 AR BLACK farm hand
THOMPSON, Henry 19 NC BLACK farm hand
Pg.505, #136-136, DUNCAN, Coley (m) 55 Africa BLACK farm hand $0-$100
Winney (f) 35 TX BLACK farm hand
Pg.505, #138-138, DUNCAN, Henry 50 Africa BLACK farm hand $0-$0
Rose 40 Africa BLACK farm hand
Pg.505, #143-143, DUNCAN, Byan (m) 35 Africa BLACK farm hand $0-$400
Pg.505, #144-144, DUNCAN, Malaka (f) 40 Africa BLACK farm hand $0-$0
Eliza (f) 17 TX BLACK farm hand
Moses 10, Natt (m) 10/12 b.Aug. TX BLACK
Pg.505, #149-149, DUNCAN, John 82 MD (white) Retired Planter $15,500-$2,010
John 26 TX Planter $7788-$0
WALCOTT, Dexter 47 MS planter $3000-$500
Sallie 36 AL housekeeper $5000-$0
William 9, Dexter 6 TX
LYNCH, James 40 LA engineer $0-$0, par. of foreign birth
WOOTEN, Edward 60 VA brick layer $0-$0
Pg.506, #156-156, DUNCAN, Barney 45 Africa BLACK farm hand $0-$100
Julia 22 TX BLACK house keeper
Eliza 12, Phillis 4, Jackaway (m) 3 TX BLACKS
Pg.506, #159-159, DUNCAN, Oliver 42 Africa BLACK farm hand $0-$150
Julia 40 VA BLACK farm hand
WHITE, Hester (f) 18 SC BLACK farm hand
Lucy 7/12 b. Nov. TX BLACK
CLAIBORNE, Munroe (m) 5 TX BLACK
Pg.510, #250-250, DUNCAN, Parto (m) 60 Africa BLACK farm hand $0-$100
Fymaka (f) 60 Africa BLACK housekeeper
WOCHO, Robert 60 Africa BLACK farm hand
Pg.511, #253-253, DUNCAN, Batta (m) 60 Africa BLACK farm hand $0-$125
Kiffee (f) 60 Africa BLACK house keeper
Matagorda Co. TX Index to Probate Records, vol.1 1837-1913 (FHL film 1,011,113; SLC 6/2009)
#082, Duncan, Julia, decd, adm/exec.gdn Wm. L. Sartwell:
Pet. Appmt of adms. &c, C-69
Decree & filing of new bond, C-74
Acknowledged & approved claim, C-78
Citation, answer & decree, C-79/80
Confirmation of sale, C-85
Petition for final settlement, C-88
Administrators notice, C-90
Final settlement, C-90/91
#097, Duncan, James, adm/exec/gdn Joseph Theall:
Decree granting letters of admin, C-394/395
Decree for sale of property, D-3
Return sale, D-13
Confirmation of sale, D-14
Decree approving a/c current, D-54
Duncan, John Sr., decd, estate of, (MAD: after 1872), adm/ex/gdn John Duncan Jr.
Apptmt. of admr. pro tem, G-106
Admrs bond fixed, $12,280.00, G-119
Report of admr. approved, G-126
Claim of attys approved, $250.00, G-147
Matagorda Co. TX Probate Minutes v.A-C 1837-1858 (FHL film 1,011,113; SLC 6/2009)
C-69: Petition of Wm. L. Sartwell of Matagorda Co. TX, that 3 May 1846, Mrs. Julia Duncan, a resident of said county and wife of John Duncan of said county, died intestate; she left large possessions consisting of undivided half of community of acquests and gains acquired during their residence in said county, petition for administration, signed Jas. Denison, atty for petitioner. Letters issued Nov. 24, 1851. Appraisers appointed. C-74: Inventory filed 29 Dec. 1851. C-78: Petition of John Duncan of same county, the estate of Julia Duncan, decd, former wife of this petitioner, is indebted to this petitioner in the sum of $24,705.00; the money was part of a sum belonging to this petitioner individually and expended in the purchase of community property during the lifetime of said Julia Duncan his wife now deceased; the property in the inventory was her share of community property. C-80: Accounting $60,000 furnished by petitioner expended to purchase money property in Texas after removal to Texas in 1837 ... 1/2 crop of rice in 1846 ... and debts in 1846. Land in ... Brazoria, Wharton, Calhoun, Bastrop, Burlison Co. and Matagorda Co.
C-394: April 26, 1858, county court; petition of Joseph Theall; James Duncan recently died, citizen of county, owned small amount of real and personal property. He is indebted to petitioner. Asks for letters of administration. (quit)
Matagorda Co. TX Deed Indexes 1837-1898; pg.41 (FHL film 1,011,101; SLC 6/2009)
Book-page, grantor/grantee, date of instrument, date of filing, date of record
1-46: Duncan, Eliza to Wm. N. Nye, certificate of marriage, Feb. 18, 1836, filed same date, recorded Feb. 21, 1836, English.
A-59: Duncan, John to Silas Dinsmore, 3/4 league except 110 acres (Baxter League Mouth of Caney), May 2, 1837, --, May 11, 1837, English
A-304: Duncan, John to Owen H. Stout, Division of League No.17, Caney, Upper 1/2 Stout, August 20, 1837, August 26, 1837, Sept. 6, 1837
B-337: Duncan, John to Silas Dinsmore, General Power of Attorney, April 3, 1838, April 3, 1838, April 25, 1838
B-404: Duncan, John to Thomas Bridges, land in League 18 Trespalaceos, May 14, 1838, same, May 16, 1838.
D-61: Duncan, James to John Nowlan, bond for title to 500 acres out of League 2 Peninsula, March 26, 1839, April 2, 1839, April 2, 1839
D-91: Duncan and Robertson to Allen Farquhar, 2 town lots in Palacios, April 16, 1839, April 22, 1839, April 22, 1839
E-1: Duncan, James to Stewart and McCamly, 400 acres out of League #2 Peninsula, Nov. 1, 1839, Nov. 9, 1839, Nov. 9, 1839
E-11: Duncan, James to Saml. B. Brigham, 200 acres out of League #2 Peninsula, Nov. 13, 1839, Nov. 15, 1839, Nov. 16, 1839
E-65: Duncan, John et al to J.E. Robertson et al, agreement about the town of Palacios, May 16, 1839, March 27, 1840, March 27, 1840
E-97: Duncan, James to Galen Hodges, 150 acres off of League #2 Peninsula, Nov. 4, 1839, May 29, 1840, May 29, 1840
Quit, more James Duncan, John Duncan, one Julia Duncan, not copied
A-32: Duncan, John from Thomas McCoy, 266-2/3 acres out of the Thos. McCoy 1/2 League Caney, April 5, 1837, blank, April 12, 1837.
Many more John Duncans, not copied
G-345: Duncan, James from S. Hughes, 2871 acres land, Peninsula, Nov. 14, 1848, Nov. 22, 1848, same
G-490: Duncan, James from State of TX, 1 Lea & Lab Peninsula, Jan. 15, 1847, July 19, 1849, same
H-310: Duncan, John from Julia Duncan by admr, lands in Mat. & other counties, Feb. 24, 1852, Mch 20, 1852, Mch 22, 1852
More John Duncans and a few more James Duncans, not copied
K-313: Duncan, John Jr. from John Duncan Sr., deed to Caney land, no dates (after 1858)
M-380/381, Duncan, John and John Jr. grantees
Matagorda Co. TX Deeds (SLC 9/11/2010)
A-30/33: 5 April 1837, Thomas McCoy of Matagorda Co. TX to John Duncan, 266 acres and 2/3 acre fronting 400 varas on Cedar Lake, bounded on SW by upper line of said McCoy's half league and on SE by a line running parallel with said NW line and running back toward Caney so as to contain the said 266-2/3 acres, for $3 per acre, in aggregate sum of $800 paid. Wit. Isaac Vandorn, Wm. Baxter. Rec. 12 April 1857. (FHL film 1,011,102; transcribed/typed book)
D-61: 26 March 1839, James Duncan of Matagorda Co. TX to John Nowlan, bond for $625, sold for $312.50, 500 acres off League No.2 on the Peninsula in Matagorda Co., beg. S corner of League 1, run in direct line from Gulf Shore to Bay of Matagorda, having as much width in front as in rear, to make up the 500 acres; Duncan to make title to Nowlan when Duncan receives patent or title from this Republic as Citizen and Head of a family. Wit. Thomas M. Dennis, H.L. Cook. Rec. April 2, 1839. (FHL film 1,011,103)
E-65/66: #998. 16 May 1839, Agreement between John Duncan for himself and John T. Gray, D. Davis D. Baker and Isaac E. Robertson, all of Matagorda Co. TX, parties in interest in the League of Land #17 at the junction of the Bays of Matagorda and Trespalacios. The above parties have formed themselves into a company to be styled the Palacios Company and to hold shares as follows: John Duncan and John T. Gray to have 2/6 or two entire shares and 1/12 or 1/2 share of entire interest in the League. D. Davis D. Baker has 1/6 and 1/24 or 1 entire share and 1 quarter share. Isaac E. Robertson has 2/6 and 1/24 interest; or 2 and 1/4 shares of all interest in or growing out of said League 17. The notes in the hands of Mr. Brigham taken for lots sold in the Town of Palacios shall be taken into possession as soon as practicable ... survey of the Town shall be completed ... notice to John Duncan shall be considered notice to John T. Gray. Suit now pending in the District Court effecting the interest of the League 17 brot in the name of R.R. Royall and D. Davis D. Baker against John Duncan and I.E. Robertson shall be dismissed by the said Baker on his part, ... $1200 to be paid to Henry L. Bays in equal shares by said Duncan, Gray, Robertson and Baker. R.R. Royall gave a draft to S. Rhoads Fisher for $1,000 as payment for a supposed quarter interest in League 17, remains unpaid, if Royal can't pay, then Duncan, Gray, Robertson and Baker will pay in equal shares. (MAD: more not copied) John Duncan and John T. Gray are to pay D. Davis D. Baker $1500 when John Duncan returns from Mobile, and the further sum of $1500 in 12 months from this date. ... /s/ John Duncan, Isaac E. Robertson, D. Davis D. Baker; wit. L. Ramey, H.L. Bays. Recorded 27 March 1840. (FHL film 1,011,103)
G-345/346: #2607. 14 Nov. 1848, Susannah (X) Hughs of Brazoria Co. TX, for $1 paid by James Duncan of Matagorda Co. TX, sell to James Duncan the following premises in Matagorda Co. on the Peninsula, to wit, 2871 acres, being the same land purchased by me from the said James Duncan on 15 June 1846 and recorded in Book G pg.10 & 11 on 25 June 1846, said land bounded on SE by Gulf on Mexico, on SW by lands owned by Mrs. Nancy Love, on NW by Matagorda Bay and on NE by lands heretofore sold by the said James Duncan. /s/ Susanna (X) Hughes. Wit. Alphons Rice, M.B. Williamson. Recorded 22 Nov. 1848. (FHL film 1,011,104)
G-346: #2608. 16 Oct. 1848, Robert J. Towns of Brazoria Co. TX in consideration of the sale by John Duncan of Matagorda Co. of one league of land on the Colorado river in Fayette Co. the headright of Perry B. Iles made to me, and for $1 paid by said John Duncan, sell to said Duncan certain tracts or parcels of land: the lower quarter of league of land on W bank of Bernard in Brazoria Co. known as the league granted to John H. Moore and Gray; the undivided half of the quarter of said league next above the said lower quarter, and the lower 1/3 of the league on W bank of the Colorado river in Matagorda Co. granted to H.H. League, commencing at the mouth of Jennings Creek, running down the River to the lower line of the league, then westwardly along said lower line 4780 varas to the corner of said league, then northwardly along said line 2214 varas to a corner and then eastwardly 4049 varas to the beginning. /s/ R.J. Towns. Wit. A.P. Crittenden, E.T. Austin. Rec. 4 Dec. 1848. (FHL film 1,011,104)
G-490/491: #2782. State of TX to Jas. Duncan. No.77. Vol.6. J. Pinckney Henderson, Governor of State of TX, grant to James Duncan one league and one labor of land in Matagorda District beg. at south corner of League No.1 surveyed for heirs of Benjamin Wightman decd at a cypress stake on a sand bank 100 varas from low water mark of the Gulf, then S 25 deg. E to the said low water mark, then S 62 deg. W 980 varas, S 62-1/2 deg. W 980 varas, S 63 deg. W 890 varas, S 63-1/2 deg. W 2430 varas, S 64-1/2 deg. W 2990 varas, S 64 deg. W 1530 varas, S 65 deg. W 830 varas, S 65-1/2 deg. W 1280 varas, S 65 deg. W 690 varas, S 66 deg. W 510 varas, S 65 deg. W 600 varas, in all 13,710 varas to the east corner of Sam Loves League No.3 at a post on the sand bank 100 varas from low water mark, marked II. Then N 25 deg. W 2097 varas to a post on the Bay marked II. Then with the meanders of the Bay Eastward 13710 to the West corner of League No.1 Peninsula Survey, at a post from which Dressing Point bears N 16 deg. W, then S 25 deg. E along the West end line of said League No.1 1950 varas to the beg., I do hereby issue this Letter Patent. 15 Jan. 1847. Recorded 19 July 1849. (FHL film 1,011,104)
H-310/312: #3357. William L. Sartwell, administrator of the succession of Julia Duncan decd. appointed by County Court of Matagorda Co., by virtue of a decree of said court 30 Dec. 1851, after advertisement, on first Tuesday in Feb. 1852, offered for sale to highest bidder for cash, property belonging to succession of Julia Duncan decd, when John Duncan became the purchaser as last and highest bidder of the undivided 1/2 of 3090 acres in Matagorda Co. on Caney Creek, originally granted to I. Foster, for $1549.50; and the undivided half of 2214 acres in Matagorda Co. on Caney Creek originally granted to Wm. Baxter, for $415.12; and undivided half of 206 acres in Matagorda Co. on Cedar Lake originally granted to McCoy & Decrow, for $206.00; and undivided half of 2159 acres in Matagorda Co. on Live Oak originally granted to Williams & Flowers, at $1 per acre amounting to the sum of $1079.50; the undivided half of 4611 acres of land in Matagorda Co. on Live Oak originally granted to S. Williams for $1305.50; the undivided half of 1373 acres in Matagorda Co. on Caney Creek originally granted to A.C. Buckner for $2059.50; the undivided half of 500 acres in Matagorda Co. originally granted to Isaac Vandorn for $750.00; the undivided half of 740 acres in Matagorda Co. on Trespalacios Bay originally granted to I.E. Robertson for $625; the undivided half of 1,666 acres in Matagorda Co. on Trespalacios Creek originally granted to George J. Williams for $208.25; the undivided half of 177 acres in Matagorda Co. on Trespalacios Bay originally granted to James Hughson for $350; the undivided half of 4205 acres in Matagorda Co. on Turtle Bay originally granted to John Duncan for $575.63; the undivided half of 4 acres of land in Matagorda Co. on the Colorado river originally granted to Henry Williams for $25; the undivided half of 640 acres in Matagorda Co. in Bay Prairie originally granted to R.S. Briggs for $80; the undivided half of 1280 acres in Matagorda Co. in Bay Prairie originally granted to William Brown for $160; the undivided half of 640 acres in Matagorda Co. in Bay Prairie originally granted to J. Whitworth for $80; the undivided half of 1107 acres in Brazoria Co. on Linvill bayou originally granted to W.C. Carson at $1 per acre amounting to $553.50; the undivided half of 2214 acres in Wharton Co. on the Colorado river originally granted to J. Tumlinson for $2214; the undivided half of of 333 acres in Calhoun Co. on Matagorda Bay originally granted to James Hughson for $41.63; the undivided half of 4428 acres in Bastrop Co. on Rabbs Creek originally granted to J.D.G. Vanellman for $553.50; the undivided half of 4428 acres in Bastrop Co. on Colorado river originally granted to Perry B. Iles for $553.50; undivided half of 2214 acres in Burlison Co. on Elm Creek originally granted to David Clark for $276.75; undivided half of 2214 acres in Burlison Co. on Yegua Creek originally granted to Orvil Perry for $276.75; also undivided half of 500 head of cattle in Matagorda Co. for $750. On 23 Feb. 1852, I, William L. Sartwell Admin., filed in the County Court a return of sale, the Chief Justice confirmed it and ordered a conveyance be made to the purchaser; now William L. Sartwell as Administrator in consideration of $14,965.38, convey to said John Duncan all the interest of said Julia Duncan deceased to the described property. 24 Feb. 1852. /s/ W.L. Sartwell. Wit. Jas. H. Selkirk, Galen Hodges. Recorded 22 March 1852. (FHL film 1,011,104; SLC 9/11/2010)
"Reports of Cases Argued and Decided in The Supreme Court of the United States, Book XIV, Containing Howard 13, 14, 15, and 16" by Stephen K. Williams; Vol.14 Lawyers Edition pgs.518 to 521; Vol.14 Howard, December term 1852, pgs.505 to 511 (El Dorado Co. CA Law Library 12/2003)
ABRAM SHEPPARD and JOHN DUNCAN, Plaintiffs in error, v. PEYTON S. GRAVES; Supreme Court of the United States; 55 U.S. 505; 14 L. Ed. 518; 14 HOW 505; February 23, 1853, Decided; December 1852 Term.
THIS case was brought up, by writ of error, from the District Court of the United States for the District of Texas.
The facts are all set forth in the opinion of the court.
(MAD: arguments of counsel not included here)
Mr. Justice DANIEL delivered the opinion of the court.
The defendant in error, in conformity with a mode of practice in the State of Texas, instituted an action at law against the plaintiffs in error upon their promissory note. That note was in the words following:
"On the first day of January, 1850, we jointly and severally promise to pay to Peyton S. Graves, or order, at the counting house of R. & D. G. Mills, in Brazoria County, the sum of $1,845.94, for value received, with eight per cent. interest thereon, from the first day of January, till paid. ABM. SHEPPARD. JOHN DUNCAN. Matagorda, Sept'r 23d, 1844."
The petition sets forth, that Peyton S. Graves, a citizen and inhabitant of Louisiana, represents, that Abram Sheppard and John Duncan, both citizens and residents of the county of Matagorda, in the State of Texas, are jointly and severally indebted to the petitioner in the sum of $1,845.94, with interest thereon, at eight per cent. per annum, from the first day of January, 1844, until paid -- for that heretofore, to wit, at Matagorda, in the State of Texas, on the 23d day of September, 1844, the said Sheppard, who signs his name Abm. Sheppard, and the said Duncan, executed and delivered to the petitioner, their joint and several promissory note, dated September 23d, 1844, and signed Abm. Sheppard and John Duncan, by which, &c.
Upon the summons issued against each of the defendants, the marshal returns, that he had executed the summons on the 12th of October, 1850, serving each of them with a certified copy of the petition and summons, and with regard to Duncan, the return farther states that the original summons, was also exhibited to him. The plaintiffs in error appeared to the action, and attempted to interpose several defences in the nature of pleas in abatement. They first allege jointly, that the court could not take cognizance of the cause, because the plaintiff below, was not, at the commencement of the suit, a citizen of Louisiana, but of the State of Texas.
The defendant Sheppard, then pleads separately, that the marshal's return upon the summons was not legal, and should be quashed, because it does not state, that the marshal had delivered to the defendant in person, a copy of the citation, and of the petition accompanying it; and that the return was not made and signed by the deputy purporting to make and sign the same.
The defendant Duncan also pleads separately in abatement, that the citation calls upon him to answer the complaint against him and Abraham Sheppard, whereas the true name of said Sheppard is Abram, and not Abraham; and he also insists upon the insufficiency of the return to the summons, because, as he alleges, that return does not state that the marshal delivered to him in person, a copy of the citation, or of the petition accompanying it.
In addition to these pleas in abatement, the defendants below interposed a defence upon the merits in the nature of the general issue, by which they deny all and singular the matters stated in the petition, and say that they are not indebted to the plaintiff as he has alleged, and in this defence they conclude to the country, whilst in the introduction thereto, they declare that they do not waive their several pleas in abatement, but fully rely upon the same. After this series of heterogeneous defences, the plaintiff moved the court to strike out the plea to the jurisdiction and all the other pleas in abatement tendered by the defendants, assigning, as the grounds of this motion, that those pleas were not filed within the time required by law.
Upon the trial of the cause, the court seems to have considered the case as standing before it upon all the defences attempted, but ruled out the several pleas in abatement, though whether for the insufficiency of those pleas in point of law, for the want of proof to sustain them, or for their irregularity in the order of pleading, does not certainly appear from this record. The jury upon the issue joined upon the merits, rendered a verdict for the plaintiff for the sum of $2,788.89, for which judgment was given with costs.
The incongruities in practice, which mark the progress of this case in the court below, are much to be regretted, as having a tendency to confound the proceedings in courts of justice; proceedings calculated to define and distinguish the rights of parties litigant, and to conduct the courts to a correct adjudication upon those rights; proceedings indeed founded upon, and as it were sanctified by, an experience of their usefulness, and even of their necessity. Thus it has ever been received as a canon of pleading, that matters which appertain solely to the jurisdiction of a court, or to the disabilities of the suitor, should never be blended with questions which enter essentially into the subject-matter of the controversy; and that all defences involving inquiries into that subject-matter imply, nay admit, the competency of the parties to institute such inquiries, and the authority of the court to adjudicate upon them. Hence it is, that pleas to the jurisdiction or in abatement, are deemed inconsistent with those which appertain to the merits of a cause; they are tried upon different views as to the relations of the parties, and result in different conclusions. A striking illustration of the mischiefs flowing from the departure from the rule just stated, is seen in the practice attempted in the case before us. If it could be imagined that the plea to the jurisdiction and the plea to the merits, could be regularly committed to the jury at the same time, the verdict might involve the following absurdities. Should the finding be for the plaintiff, the judgment would, as to the defendant, be upon one issue, that of respondeas ouster, and upon the other, that he pay the debt, as to the justice of which he was commanded to answer over.Should the finding be for the defendant, the judgment upon one issue must be that the debt was not due, and upon the other, that the court called upon so to pronounce, had no authority over the case. So that in either aspect there must, under this proceeding, be made and determined one issue, which is incongruous with and immaterial to the other. A practice, thus fraught with confusion and perplexity, and one endangering the rights of suitors, it is exceedingly desirable should be reformed, and we are aware of no standard of reformation and improvement more safe or more convenient than that which is supplied by the time-tested rules of the common law. And by one of those rules, believed to be without an exception, it is ordained, that objections to the jurisdiction of the court, or to the competency of the parties, are matters pleadable in abatement only, and that if after such matters relied on, a defence be interposed in bar and going to the merits of the controversy, the grounds alleged in abatement become thereby immaterial, and are waived.
With respect to the exception taken to the ruling of the District Court, as to the obligation of the defendant to prove his averment of the plaintiff's residence in the State of Texas, and not of Louisiana, as set forth in the petition, were the decision of this question deemed requisite here, we should say that the true doctrine applicable to the question is this: that although in the courts of the United States it is necessary to set forth the grounds of their cognizance as courts of limited jurisdiction, yet wherever jurisdiction shall be averred in the pleadings, in conformity with the laws creating those courts, it must be taken prima facie as existing, and that it is incumbent on him who would impeach that jurisdiction for causes dehors the pleading, to allege and prove such causes; that the necessity for the allegation and the burden of sustaining it by proof, both rest upon the party taking the exception. Such, we think, would be the proper rule resulting from the intrinsic character of the exception, and such we consider the doctrine enunciated in the cases of Conrad v. The Atlantic Insurance Company, in 1 Pet. 386, and D'Wolf v. Rabaud et al. Id. 476.
This doctrine we are unwilling to disturb. The cases just referred to, as well as those of Sims v. Hundley, in 6 Howard, and Smith v. Kernochen, (7 Id. 198,) expressly affirm the commonlaw principle of pleading, herein before mentioned, that the question of the residence or of the right of the parties to sue, as incident to residence, cannot be inquired into under the general issue.
The plea of a misnomer of the defendant Sheppard, by the insertion of two superfluous letters in his christian name, and the still more captious and unmeaning distinction attempted between serving the defendants with a certified copy of the petition and summons in this suit, and a delivery of that petition and summons to the defendants in person, is disposed of by the same rule which displaces, as irrelevant and immaterial, the exception taken to the jurisdiction.
The question of variance between the note and the description of it in the petition, it is not easy to comprehend, unless indeed it is intended by the defendants to insist, that a note should have its date inserted at its beginning only, and cannot be dated at the terminationof it; for the note at the bottom bears upon it the date as well as the place of its execution, viz. Matagorda, September 23, 1844, and the description and the petition accord with both these facts. It is true, the petition contains a recital that Matagorda is within the State of Texas, but by no extreme of cavil can this recital be converted into a misdescription of the note. Upon the whole case, we think the judgment of the District Court was correct, and we accordingly order it to be affirmed.
This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Texas, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and the same is hereby, affirmed, with costs and interest, until the same is paid, at the same rate per annum that similar judgments bear in the courts of the State of Texas.
"Reports of Cases Argued and Decided in The Supreme Court of the United States, Book XIV, Containing Howard 13, 14, 15, and 16" by Stephen K. Williams; Vol.14 Lawyers Edition pg.521; Vol.14 Howard, December term 1852, pgs.512 to 513 (El Dorado Co. CA Law Library 12/2003)
ABRAM SHEPPARD and JOHN DUNCAN, Plaintiffs in error, v. PEYTON S. GRAVES; Supreme Court of the United States; 55 U.S. 512; 14 L. Ed. 521; 14 HOW 512; February 23, 1853, Decided; December 1952 Term.
This case was brought up by writ of error, from the District Court of the United States for the District of Texas. The parties were the same as those in the preceding case, and the point upon which the decision of the court turned was the same as one of those decided in the preceding case.
Mr. Justice DANIEL delivered the opinion of the court.
This is a suit between the parties to the case No. 65, and is in all its features essentially the same with the former case with one exception, which will be pointed out.
In this suit, as in No. 65, the defendants below demurred to the petition, pleaded in abatement to the regularity of the service of process, to the disability of the plaintiff of the score of residence, and then interposed a defence in the nature of the general issue, but tendered no proofs in support of their defences, either in abatement or in bar. The plaintiff, to sustain the jurisdiction of the court upon the question of residence, and to meet the pleas in abatement, offered to read the deposition of two witnesses Rugely and Blair, residents of the city of New Orleans, in the State of Louisiana, taken de bene esse before a Commissioner in the city of New Orleans, under the act of Congress of 1789. The reading of these depositions was objected to by the defendants, because the Commissioner did not certify that the witnesses resided at a greater distance than one hundred miles from the place of trial, but stated only that they were residents of the city of New Orleans, within the Eastern District of the State of Louisiana, and beyond the jurisdiction of the District Court of Texas. The court permitted the introduction of oral evidence to prove that the city of New Orleans was at a greater distance than one hundred miles from Galveston, the place of trial; and ruling also that the court itself knew judicially the mail routes and distances thereof, and that New Orleans, the place of taking said depositions, was more than one hundred miles from Galveston, the place of trial, permitted the depositions to be read in evidence.
Whether the District Court erred in allowing an omission in the certificate of the Commissioner to be supplied by oral evidence, or could regularly act upon knowledge assumed to be within its judicial cognizance, we do not consider it necessary to examine, in order to dispose of the case before us. It must be recollected that the defendants below, attempted no proof whatsoever in support of any of their pleas. The plaintiff having averred enough to show the jurisdiction of the court, and nothing having been adduced to impeach it, that jurisdiction remained as stated, and the plaintiff could lose nothing by adducing either imperfect evidence, or no evidence at all, in support of that which clearly existed, and which he, under the circumstances, could not be called on to sustain. Even then had the case in the District Court stood upon an issue regularly formed upon the pleas in abatement, the evidence of the depositions was wholly unnecessary -- the ruling of the court upon that evidence was immaterial, and should not impair the strength of the plaintiff's case, which was perfect without it. But the exception to the ruling of the court on this point, must be unavailable upon another view, as given in our consideration of the preceding case. By interposing the plea of the general issue after their several pleas in abatement, the defendants have effectually waived those pleas, and surrendered the positions covered by them. The judgment of the Circuit Court must in this case also be affirmed.
Order. This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Texas and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said District Court in this cause be, and the same is hereby, affirmed, with costs, and interest until the same is paid, at the same rate per annum that similar judgments bear in the courts of the State of Texas.
Gonzales Co. TX Deeds (SLC 6/2009; not all copied or looked for)
I-147: 18 May 1838, Charles S. Davenport for $2000 to John Duncan, undivided half league of land between the Navidad and LaBaca Creeks and west of the LaBahia Road and north of the road leading to Gonzales (meets and bounds not copied), League is numbered 8 and was granted to Jesse Richards as a colonist in October 1835 and by said Jesse Richards the said undivided half league conveyed to me Charles S. Davenport 22 Feb. 1836. Ack. in Brassaria Co. TX. Filed for record 19 Dec. 1848 in Lavaca Co. TX. Filed for record 23 Aug. 1852 Fayette Co. TX. (FHL film 1,310,604)
I-148: 27 June 1848, John Duncan of Matagorda Co. TX for $1 to William J. Ledyard, quit claim above land. Wit. D. Farrbass, Coms. Heyer, Alex H. Ledyard. John Duncan appeared before Jno. McD. Ross, NP, Mobile Co. AL, 29 June 1848, witness Alexander H. Ledyard in Fayette Co. TX. Recorded Fayette Co. TX. (FHL film 1,310,604)
Case Files of Applications from Former Confederates for Presidential Pardons ("Amnesty Papers") 1865-1867; Group I, Pardon Applications Submitted by Persons from the South; Roll 52, Texas, Ab-Ew (FHL film 1,578,790; SLC 6/16/2008)
Pardon Application, Capt. John Duncan's Application for special pardon. Executive Office, Austin, Oct. 24th 1865. I respectfully recommend that the pardon prayed for in the within petition be granted. A.J. Hamilton, Prwl? Gov. of Texas. (stamped: Received from Department of Justice, December 18, 1894, R. & P. 402985)
Caney P.O. Matagorda Co. September 22d, 1865 To his Excellency, Andrew Johnson, President of the United States.
Your petitioner John Duncan residing in the County of Matagorda and state of Texas, respectfully presents this his petition for special pardon for all offences against the Government of the United States connected with the late Rebellion. In order to make said application your Petitioner has taken the oath prescribed by your Proclamation of May 29th 1865 and herewith encloses the same.
Your Petitioner was born in Pennsylvania and is seventy three years of age, has resided in this State for thirty years, and is by occupation a planter. Petitioner has never taken up arms against the Government of the United States nor has he done any act of a treasonable character, save and except his voting for the Secession of the State of Texas, and sympathising with the same.
Your petitioner would represent that his property which consisted of land and negroes was valued in the year 1861 at largely over the sum of fourty? thousand dollars, but owing to the loss of the negroes and the great depreciation in the value of lands, it is doubtful if the balance of petitioner's property would command the sum of fourty? thousand dollars at this time after the payment of his just debts.
Your petitioner has taken the oath of sincerity and good faith, and with the full purpose of discharging all the duties of a good and loyal citizen of the United States, and having read the proclamation of Governor Homilton will act upon his recommendation with like sincerity and good faith.
Petitioner prays your excellency to extend to him your most gracious clemency ...
/s/ John Duncan.
Petitioner would further state that suit has not been instituted against him by the authorities of the United States ... /s/ John Duncan.
(added note, another handwriting) I have conversed freely with Capt. John Duncan at different times during the last two years, and within the last month, and I am very sure that Capt. Duncan will exert his influence in future in support of the Government of the United States ... /s/ James H. Bell.
(added note, another handwriting) I have known John Duncan since "1886" and have always esteemed? him a worthy man and useful citizen. I have faith that he will comply with his pledges. /s/ E.M. Pease (Pearl?)
Amnesty Oath No.231, September 22nd, (right edge with year missing) /s/ John Duncan. John Duncan, age 73, height (missing edge) hair grey, eyes blue, complexion fair, occupation farmer, residence Matagorda Co. Texas.
1914 "History of TX and Texans" by Frank W. Johnson, Vol.1-5 (SUTRO book F386 J66 1914, CA State Library, Sutro Branch; and FHL book 976.4 H2j)
Vol.3 pg.1360: JOHN DUNCAN, now living in Columbus [Colorado Co.], TX; b. 28 Aug. 1838 in Matagorda Co. TX, son of Capt. John Duncan of KY and Julia (Coen) Duncan of CT. Both parents were brought to AL during childhood where they married; Capt. John Duncan operated boats on the Alabama River between Catawba, Mobile and Selma. Captain John Duncan came to Texas shortly before the TX Revolution, to the Caney Valley; he enlisted in Moseley Baker's Company, was in service until the end after the Battle at San Jacinto, then he returned to his lands in Alabama and returned to Texas with slaves. Capt. John Duncan & wife had five children, son John is now the only survivor. The others were Thomas (oldest), Samuel, Mrs. Dexter Walker, Mrs. John Reeves. John Duncan was in the Civil War, married 12 March 1885 Miss India Green of Gonzales Co., dau. of William Green who came from MS. John Duncan & wife had one child, John Green Duncan, who died in young manhood at the age of 24 (MAD: no wife mentioned for John Green Duncan). (MAD: ?? 1830 Mobile Co. AL census; ?? son of Samuel Duncan died 1826 Fayette Co. KY; 1850 Matagorda Co. TX census shows John Duncan b. 1795 PA)
Some early Duncans in Matagorda Co. TX:
John Duncan, 4 March 1836, living in TX; had 1st Class grant and Script for land in Matagorda Co. TX (listed on pg.1011, "Abstract of Titled and Patented Lands Compiled From the Records of the General Land Office of the State of Texas" published in Austin in 1860, and indexed by Paul Campbell; published in Vol.3#2 "Texas Heritage Quarterly," from Lucille Mehrkam 2/1984 and CA State Library, Sutro Branch, book F385 T48)
Eliza Duncan, 18 Oct. 1837, mar. William N. Nye
John Duncan, 19 Oct. 1839, defendant in suit in District Court of Matagorda Co., Richard R. Royal, D. Davis, D. Baker and Henry L. Buys plaintiffs, vs. John Duncan and Isaac E. Robertson, defendants, over grant to Euphemia Lumley Robertson age 27 b.TN for 1 league of land in present McLennan Co.; husband was Isaac E. Robertson; Republic of TX, Co. of Montgomery. (Vol.9 pg.53, "Papers Concerning Robertson's Colony in TX" by Malcolm D. McLean, 1974; Memphis Public Library book 976.4 M163p; from Evelyn Sigler 9/1984)
Thomas Dunkin, 7 June 1841, appraiser with Robert H. Williams of estate of 440 acres in Matagorda Co. belonging to Moses A. Foster's estate; from Ft. Bend Co. TX Probate Book 1. ("Ft. Bend Co. Records" Deeds 1838-1851; Probate 1838-1849; Marriages 1838-1868" by Mora Waddell Boone et al, 1979, pub. by Ft.Bend Co. Gen. Society, Clayton, TX, Library book 976.4135 B724 FORTBE; from Lucille Mehrkam 5/1984)
John Duncan, 1846, on tax list ("Republic of Texas: Poll Lists for 1846" by Marion Day Mullins, 1974; FHL book 976.4 R4m, from Lucille Mehrkam 1984 and Ruth Robertson 1983)
John Duncan, 1854-1855, on Texas Scholastic lists with children John and Mary, District 3 (pgs.183, 189, of "Texas Scholastics 1854-1855" by Gifford White, 1979, from Lucille Mehrkam 3/1984; FHL book 976.4 J2w)
John Duncan, 6 Dec. 1870, age 80, of Matagorda Co. had pension approved from TX for service from Fall 1835 to Summer 1836 in Capt. Mosely Baker's company under Col. Burleson and fought at the battle of San Jacinto and the cavalry fight the day before. Sidney Sherman, Galveston Co., and John S. Menefee, Jackson Co., affirmed service. Box 304-52. (pg.106, "Republic of TX Pension Application Abstracts" by John C. Barron (Chairman, Abstracting Committee, Austin Gen. Society), Nan Polk Brady, Emma Gene Seale Gentry, Barbara Langham Goudreau, Iris Higgins Zimmerman; FHL fiche 6,101,694 and book 976.4 M2bj)
John Duncan, 18 Nov. 1870, of Matagorda Co., Augustus H. Jones of Gonzales Co., and Francis M. White of Jackson Co., affirmed service of Samuel McCullock of San Antonio, Bexar Co., age 58 in 1870, who applied for a pension for service in Sept. or Oct. 1835 as Private in Capt. George M. Collingsworth's Co. of Infantry. Box 304-69. (pg.217, "Republic of TX Pension Application Abstracts" by John C. Barron (Chairman, Abstracting Committee, Austin Gen. Society), Nan Polk Brady, Emma Gene Seale Gentry, Barbara Langham Goudreau, Iris Higgins Zimmerman; FHL fiche 6,101,694 and book 976.4 M2bj)
John Duncan, 15 Oct. 1873, of Matagorda Co. TX, owned 24 acres on banks of the Buffalo Bayou; made power of attorney to I.T. Tinsley to transfer the property to the Young Men's Real Estate and Building Assn. of Houston, Harris Co. TX; Deeds 12-154 and others. ("Abstract of Title to the Land in Central Park Subdivision of the City of Houston, Harris Co. TX 1912" Prepared by Houston Abstract Co., published by Magnolia Park Land Co.; from Lucille Mehrkam 10/1984)
John Duncan, 28 May 1874, of Matagorda Co. and F.L. Pascal and Jams L. Trueheart, affirmed service of Andrew Neill of Galveston Co., age 61, who applied for a pension for service in Sept. 1842. Box 304-74. (pg.250, "Republic of TX Pension Application Abstracts" by John C. Barron (Chairman, Abstracting Committee, Austin Gen. Society), Nan Polk Brady, Emma Gene Seale Gentry, Barbara Langham Goudreau, Iris Higgins Zimmerman; FHL fiche 6,101,694 and book 976.4 M2bj)
John Duncan, 7 March 1875, died in Houston [Harris Co.]; of Matagorda, pioneer; from "Houston Daily Telegram" of 10 March 1875. ("TX Obituaries, Death Notices Taken From Early TX Newspapers 1835-1890" typescript, no author; FHL book 976.4 V45 and film 845,442 item 1)
John Duncan, 21 March 1878, age 86, veteran, died Matagorda Co., from "Houston Daily Telegram" of 3 Aug. 1878. ("TX Obituaries, Death Notices Taken From Early TX Newspapers 1835-1890" typescript, no author; FHL book 976.4 V45 and film 845,442 item 1)
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