an interrogatory by the adverse party, that the note was won upon a horse-race. Evidence was introduced to prove the value of the cattle, and the jury found for the plaintiff the sum of two hundred and forty dollars. The court charged that money won upon a horse-race was recoverable; and exception thereunto was taken by the defendant.

The appellant assigned for error: 1. There was no demand proven, and the action being for specific property, it was necessary that a demand should be made and proven, to warrant the finding of a jury. Had the defendant, at the trial, been of the opinion that the case was not duly proven, he should have requested instructions to the jury to that effect, and should have presented in writing, to the judge, such charge or charges as he wished given to the jury, and the refusal of the judge to deliver any portion of these charges, would have been a proper subject for review in this court, or a motion for a new trial might have been made. This would have been the more correct practice; but waiving the exception that has been made to the consideration of this ground of error, here it can not be made available to the appellant. The property was not to be delivered on demand, but payable on or before a certain day named in the instrument. Under the terms of the agreement, no demand was necessary on the part of the creditor. The contract specifies the time at which the obligation is to be discharged, and it was the duty of the payor to have delivered the cattle at that period. His failure to do so deprived him of the benefit of discharging his contract specifically, and rendered him liable to pay the value of the property in money: See Hardin v. Titus, Dallam's Dig. L. of Tex. 623; Bixby v. Whitney, 5 Greenl. 192.

2. The charge of the judge, that money won on a horse-race may be recovered, is objected to as erroneous. The instrument of writing on which the action is founded, was executed after the introduction of the common law, and must be tested by its principles. Under that system, wagers, in general, were not unlawful contracts, and might be sustained in courts of justice. In Da Costa v. Jones, Cowp. 729, it is laid down "that indifferent wagers upon indifferent matters, without interest to either of the parties, are allowed by the law of this country, so far as they have not been restrained by particular acts of parliament; and the restraints imposed on particular cases support the general rule-whether it would not have been better policy to have treated all wagers, originally, as gaming contracts, it is now too late to discuss. They have too long and too often been held

good and valid contracts." The subject of wagers is fully discussed in this, and cases to be found in the term reports, and it may now be regarded as settled law, that wagers are only illegal when they are prohibited by statute, or when they would be an inducement to a breach of the peace, or to immorality, or when they militate against public policy, or against decency, or tend to affect the particular interest of individuals: See Da Costa v. Jones, supra; Allen v. Hearn, 1 T. R. 56-60; Good v. Elliott, 3 Id. 693; Atherfold v. Beard, 2 Id. 610.

This definition is vague, and leaves frequently abundant room for doubt, as to whether a particular wager be within its limitations or not. In the case of Good v. Elliott, above referred to, it was decided that a wager that A. had purchased a wagon of B., was not void at common law; but the dissenting opinion of Mr. Justice Buller was a luminous argument to prove that such a wager was embraced within the last branch of the definition, and that in the decision of the wager, evidence might be introduced tending to the disgrace of the character of A., the purchaser. But no difficulty of that character occurs in the decision of the present question.

The several statutes of Charles, of Anne, and of George II., by which wagers on horse-racing in England are placed under certain restrictions, have not been introduced into this country. Wagers on horse-racing were always held in England to be recoverable at common law; and now, when made in conformity with the provisions of the above statutes, they are considered valid contracts. There is no statute in this country forbidding wagers on horse-races, and the legality of the same being recognized by the common law, we are of opinion that the judge did not err in the charge which has been made the ground of exception: See Hasket v. Wootan, 1 Nott & M. 180; Atchison v. Gee, 4 McCord, 211; Blaxton v. Pye, 2 Wils. 309.

It is ordered that the judgment of the court below be affirmed, WHEELER, J., absent.

NOTE PAYABLE IN CATTLE BECOMES PAYABLE IN CASH after default: Vanhooser v. Logan, 38 Am. Dec. 90. An agreement to pay in specific articles, if not discharged at the maturity of the obligation, may be treated by the obligee as an agreement to pay in cash: Wainwright v. Straw, 40 Id. 675. See also, Roberts v. Beatty, 21 Id. 410, and note, where the subject is discussed.

WAGERS, VALIDITY OF: See cases collected in notes to Edgell v. McLaugh lin, 36 Am. Dec. 214; Russell v. Pyland, Id. 307; Jeffrey v. Ficklin, Id. 458; Stacy v. Foss, Id. 755.

BOND GIVEN FOR MONEY WON AT HORSE-RACING, to secure a forfeiture for failure to run a horse-race, is void in Missouri: Shropshire v. Glascock, 31 Am. Dec. 189.

SUTHERLAND ET AL. v. DE LEON.

[1 TEXAS, 250.]

REGULARITY OF JUDGMENT NOT ABSOLUTELY VOID, can not be questioned in a collateral inquiry; until reversed on appeal, if voidable, it is res adjudicata. PREAMBLE OF AN ACT.-If the enacting part of a statute is ambiguous, resort may be had to the preamble for the purpose of arriving at the true object intended; but resort can not be had to the preamble to control the meaning of the clear language of the act.

RULE, IN CONSTRUING STATUTES, IS TO GIVE THAT CONSTRUCTION which will sustain and not render them unconstitutional, if it can be done without subverting the obvious meaning of the language used.

CONSTITUTION PROHIBITING "RETROSPECTIVE LAWS" MEANS Laws giving a right where none before existed, and by relation back to give the party the benefit of it; if, however, the right already existed, the legislature may devise and provide an additional or cumulative remedy. SEVENTH SECTION OF ACT OF CONGRESS OF TEXAS of December 22, 1836, re

fers to such process as may be issued from the district court in the ordinary suits of that court, and not to such process as the judge had been required to issue himself.

ACT OF DECEMBER 18, 1837, OF CONGRESS OF TEXAS authorizing the judge to issue an attachment against the property of a non-resident, upon an affidavit showing that the defendant is a non-resident, and the value of his property, provides for a proceeding strictly in rem, and the court acquires jurisdiction of the subject-matter as soon as the sheriff has returned the attachment levied.

TRESPASS to try title. Plaintiff claimed the land by virtue of two deeds from the Mexican authorities, and proved the land had been occupied by him as a rancho from 1826 to 1836, when he and his family, in common with all other families, were ordered to leave by General Rusk. Defendants claimed under sheriff's deed. Verdict and judgment for plaintiff. Defendants appealed. The opinion sufficiently states the other facts.

J. W. Robinson and Howard, for the appellants.
Denison and Webb, for the appellee.

By Court, LIPSCOMB, J. This cause comes before us on an appeal from the district court for the county of Victoria. The action was brought by the appellee against the appellant to recover land. The facts of the case, so far as they are thought material to be noticed, are these. Sutherland and Menifee sued out an attachment, called in common law parlance, an original attachment, against the appellees, to recover the value of goods wrongfully taken and carried away from them by the appellant. It is said the attachment was sued out under the act of congress

of the eighteenth of December, 1837. It was issued by the judge of the district court, his own name being thereunto subscribed, on the petition of the plaintiffs. It was directed to the sheriff of the county, and returned "levied on four leagues of land," and such proceedings were had, that the plaintiffs in the suit had judgment and execution in their favor. The sheriff under the execution, sold a portion of the land levied on, and Sutherland, one of the plaintiffs in the attachment, and who is also one of the appellants in this court, became the purchaser, and received title from the sheriff for the land that is the subject of controversy in this suit. On the trial, the sheriff's title was offered by the appellants in the defense, and was ruled out by the court; and in this, it is contended by the appellants, the court erred.

Several objections were taken to the sheriff's deed, all based on the supposed nullity of the judgment on the attachment; and it seems to be admitted by the appellee, that, if that judgment is not absolutely void, its regularity.can.not be questioned in a collateral inquiry; that if it is merely voidable, and could be reversed for error, on appeal, yet so long as it remains un reversed, it can not be questioned. It is res adjudicata. But it is contended, that the judgment is void, because the act of congress under which the attachment was sued out, is unconstitutional.

The first objection we shall notice to the constitutionality of the act of congress, is, that it is partial in its operation, and designed to operate on Mexicans alone, a class of our citizens. entitled to equal privileges with all others. The authorities referred to, and particularly that in Bank of the State v. Cooper, 2 Yerg. 599, would certainly sustain the position assumed, if the premises were admitted, that it applied to our Mexican citizens alone. But we will inquire if this is a fair construction of the act of congress of the eighteenth of December, 1837. We will here insert the whole of that act; it is in the following words:

"Whereas many Mexicans residing upon our frontier stole and drove off large herds of cattle, and took and carried off other property belonging to the citizens of the republic: and whereas those Mexicans have abandoned the country and removed beyond the Rio Grande, so that persons from whom they have taken property are wholly without remedy.

"Sec. 1. Be it therefore enacted, by the senate and house of representatives of the republic of Texas in congress assembled,

that in all cases it shall be lawful for any person from whom property was wrongfully taken, to sue out an attachment upon filing an affidavit stating to the best of his or her belief, the value of such property; and to the best of his or her belief, that the same was taken by the person against whom the attachment is prayed; and that the said party resides out of the jurisdiction of the court, so that an action can not be prosecuted against them; which said attachment may be levied by the sheriff of the proper county, upon property, both real and personal, of the defendant.

"Sec. 2. Be it further enacted, that upon the return of such attachment, the court shall proceed to the trial of such cause, and judgment and execution as in other cases provided for by law."

If the preamble was substantially carried into the enacting part of the statute, and we should construe it to mean Mexican citizens of Texas, the objection made by the appellee would be presented. But even if the language of the preamble was in the body of the act after the enacting clause, the more reasonable construction would be to refer it to such Mexicans as ad

hered to the enemy. We will not say that it was not competent for the legislature to provide a remedy for its citizens who had claims for property taken by Mexicans, so running away, and adhering to the enemy, and who had left property in the country. It seems to us that it would have been within the powers of congress to have appropriated such property to public use, and why not to the payment of the just demands of our citizens, without violating any privilege of the jus belli: would it not in fact be applying it to public use? There is a moral obligation on the part of the government to protect the citizen: it is one of the conditions on which his submission to, and support of the government is based; and the citizen has an equitable claim on his government, to compensation, for spoliation committed on him by the public enemy. Again, confiscation of property for political offenses, does not find much favor in modern times; it is supposed by many to belong to a less enlightened age; but surely, courtesy for an enemy ought not to be carried so far as to place his property in a better condition, than that of an alien friend, who resides beyond the jurisdiction of the court.

But the construction of the act of congress contended for is not correct. The preamble is no part of the act. If the enacting part was ambiguous, as to the meaning of the law-maker, it would be proper to resort to the preamble for the purpose of