Volume 1 — Texas Reports

The appellant, Western, obtained an order from a district judge to enjoin a judgment rendered against him in the district court of Harris county, in favor of the appellee.

This suit was instituted in the court below by the appellee against the appellant and one Gabriel S. Cooke, who were alleged to be merchants and partners formerly, etc. The suit was on a promissory note in the following words: “ $402.70. « Phila., 21st March, 1836. “ Six months after date we promise to pay to the order of J. & B. Orne, four hundred two 70-100 dollars, without defalcation, value received. Wm.

The facts of this case are fully stated in the opinion of the court. The court did not err in ruling out the note pleaded as a setoff, because not being payable in money, it was not negotiable; and not being negotiable, the appellant could not maintain a suit thereon, either as plaintiff or defendant, in his own name. 2 Bl. Com. 442.

From Harris County. This case came up by writ of error to revise a judgment rendered in the district court of Harris county in favor of the defendant against the plaintiff in error. The suit was commenced by attachment.

—Appeal from Harris County. This was an appeal from a decree of the district court of Harris county, dismissing the appellant’s bill of review.

<p>Appeal from the District Court of Galveston, in Admiralty.</p> <p>This was a case of collision occurring in the harbor of Galveston, between the brig Yeruma and the sloop Cutter, during a gale of wind. The sloop having sustained material injury by the collision, her owner, the present appellee, libeled the brig in admiralty, and obtained a decree for damages. From that decree this appeal was taken. The facts are stated in the opinion of the court.</p>

This proceeding .was commenced in the probate court of Harris county, by the judge ordering a notice to be served upon the appellee, as administrator of Humphreys, to appear and make a showing of the manner in which he'had administered the estate; and also his final account of the administration.

In this case two judgments were rendered against the appellant, Moore and others, his sureties, on the 11th of November, 1840, by the county court of Harris county on rules taken against him, Moore, as sheriff of that county by the clerk of the court and others for failing to pay over costs collected by him. Moore sued out a writ of error from the district court and under which both judgments were sent up.

Writ of Error from Harris County. In December, 1840, Torrey, as the administrator of James Pickup, obtained judgment for $1,351.59 on motion against Moore as sheriff of Harris county, and the securities on his official bond, for failing to return certain executions issued in favor of said Pickup.

This was a rule entered in the court below by the appellee, against the appellants, attorneys at law, practicing in the district court of Harris county, to show cause why judgment should not be rendered against them, for moneys which they had failed to collect and pay over to the plaintiff in the rule.

This was a suit brought by Zimmerschitte, the plaintiff in the court below, to procure the cancellation of a certain title bond given by him to Kesler, the defendant.

The facts of this case are given in the opinion delivered by Mr. Chief. Justice Hemphill. contended that because the blank in the indorsement of the note was not filled up, before or at the trial, the plaintiff showed no interest in the note, and therefore was not entitled to recover. He cited 5 Har. and J. lio; 6 id. 160, 282. The two cases presented by the record form in fact but one suit.

Error from Harris County. In this case none of the papers in the cause anterior to the award of the arbitrators are found in the transcript of the record. By an extract from the minutes of the court, it appears that the cause was referred on the 23d of May, 1842, and immediately after the award is found in the transcript and was made the judgment of the court.

This suit was brought to recover the amount of an open account for medical services. The account was made out as follows: “John and Rachel Foster to Francis W. Smith, M. D., Dr.” The items in the account appeared to be for services rendered to John Foster and his daughter, and for medicines. The nature of the connection between John and Rachel Foster is not alleged. Rachel Foster pleaded coverture in abatement, but did not swear to her plea.

Error, from San Augustine County. On the 16th of August, 1841, the defendant in error, Anderson, filed his petition in the clerk’s office of the district court of San Augustine county, against Achilles E. 0. Johnson, Joseph Deforest, -Hedge and-Curtis, to recover the value of a negro boy alleged to have been taken out of his possession by the defendants.

Suit upon a promissory note given by the wife, dum sola; pleas, nil debet and payment. Yerdict and judgment for plaintiff, appellee, for $170.94. There is no statement of facts nor evidence in the record except the answers of the plaintiff below, to interrogatories propounded by the defendants.

Writ of Error from Fort Bend County. Tbe plaintiff in error, Cartwright, being the payee and first in-dorser of a certain promissory note, was sued at the spring term, 1845, by the defendant in error, to whom the said note had been assigned. There was a judgment by default, but before it was made final the general issue was pleaded.

The material facts of this case are stated in the opinion of the court. cited 2 Laws of Texas, secs. 12, 36 of General Land Law, pp. 65, 66, 74; sec. 10 Gen. Prov. Const.; Laws of Ooah. and Tex. art. 31, p. 193; arts. 14, 15, Consultation, p. 8; Republic v. Inglish, Dallam, p. 608.

<p>Appeal from San Augustine County.</p> <p>Suit on promissory note. Answer, general denial.</p>

Mr. Justice Wheeler, being sick, did not sit in this cause. The facts are fully stated in the opinion of the court. contended: 1st. That as the cause of action was for specific property, the plaintiff should have averred and proved a demand, which was not done. 2d. That the court erred in charging the jury that money won upon a horse race was recoverable, because although all such wagers were not expressly prohibited by any law of Texas, they were clearly contrary to good…

This suit was brought by the appellee against the appellant to recover the sum of $2,10.0 and interest, which sum the appellee averred he had paid for the appellant at his special instance and request in the city of Mobile. The testimony pleaded the general issue, payment and setoff.

The appellee, who was plaintiff in the court below, obtained a verdict and judgment against the appellants on a promissory note, and they therefore appealed to this court. moved the court to dismiss the appeal for the following reasons, viz.: 1st. Because the appeal bond recited a judgment recovered by ap-pellee v. appellants for $426.86, wben in fact the judgment recovered in this cause was for $426.68.

This suit was brought at the spring term, 1843, of the district court of Brazoria county, by the appellees against the appellant, to recover an alleged balance due on an open account. The dealings between the parties seem to have been commenced in 1840, and to have been finally closed in December, 1842. In the appellees’ account for 1840, there is an item of $239.74, charged as the amount of Morgan L. Smith’s account against the appellant, transferred to them.

<p>1st. If it Jo not appear in tlie record that defective pleadings were objected to in. the court below, the defects will be considered here as having been waived.</p> <p>2d. In the computation of time, whether the day on which the act was done or an event happened is to be included or excluded must depend upon the circumstances and the reason of the thing, so that the intention of the parties may be effected. Such a construction should be given as would operate most to the ease of parties entitled to favor, and by which rights would be secured and forfeitures avoided. [24 Tex. 137; 26 id. 82.]</p> <p>8d. When process is required to be served five days before the return day thereof, there must be five intervening days between the service and the return. Neither the day of the service nor that of the return is to be included in the computation.</p>

On the succeeding Friday, an answer was filed by one of the defendants but was stricken out on motion of the plaintiffs as.having been filed too late, and judgment final was entered upon the same day against all the defendants.

The facts of the case are given by Mr. Justice Lipscomb in the opinion. 1st. It is submitted that under our statute, the amendment asked for should have been allowed. 2d. The refusal of the court to charge that two years’ possession, under the sheriff’s sale, was a good title under the statute of limitations, was erroneous. 3d. The charge of the court that the title under the sheriff’s sale to Bennett was void cannot be sustained. . The levy on the slave was good.

The appellant was indicted for keeping a ten pin alley without having obtained license therefor, and was found guilty.

At the fall term, 1846, the appellant was indicted for keeping and exhibiting a faro bank for gaming. The foreman of the grand jury indorsed the names of two witnesses on the back of the indictment and certified that it was upon their testimony the bill was found. The defendant filed a plea in abatement, averring that one of the witnesses entered upon the indictment by the foreman was not before the grand jury, and did not testify in the cause.

The facts of this cause will be found stated in the opinion of the court, delivered by Mr. Chief Justice Hemphill. This action, originally, was brought against the intestate of defendant and upon his death revived against the appellant by seire faoias.

The following are the facts in this case as taken from the record by Mr. Chief Justice Hemphill: This suit was brought for the recovery of certain slaves named in the petition which, it is alleged, were verbally given by Mrs. Wad-lington during her last illness to her daughter Sarah, one of the plaintiffs.

This was a proceeding instituted by the appellants in the court below to enjoin an execution on a twelve months’ bond.

<p>Appeal from Jackson County.</p> <p>Tlie-facts of the case are stated in the opinion of the court, delivered by Mr. Justice Wheeler.</p> <p>The plaintiffs showed no title in themselves to the notes sued on. The suit was brought in their individual names without reference to their fiduciary character as administrators of G. W. Reynolds; and by their own showing the notes were the property of the estate of G. W1 Reynolds. 1 Mart. (R. S.) 301, 3T3; 2 Stark. 317.</p> <p>The petition was filed in the name of the appellees, alleging an indebtedness to them personally. Process was sued out in thew names as administrators of G. W. Reynolds. The suit was carried on from thence to the time of rendering final judgment im, their names as administra,tors, but judgment was finally rendered for them in their own individual right.</p> <p>This is submitted as error. 2 Stark. 318, 319.</p> <p>The interest in the note assigned by C. Ennis as administrator of A. J. Reynolds, to Ennis and Reynolds, administrators of G. W. Reynolds, did not pass to them by the assignment. 9 Mass. 334.</p> <p>An executor, who takes a note payable to himself, as “executor,” may sue in his own name, without reference to his character as executor. 5 Martin, 204.</p> <p>If he sue as “executor,” he need not establish his character as such. 2 Mart. (R. S.) 274; 10 Martin, 456. Oyer of his letters is not demandable. 6 Ala. 399.</p>

<p>Appeal from Harris County.</p> <p>moved to dismiss the appeal for want of a sufficient bond.</p>

This suit was brought by the appellee against the appellant, to recover five hundred dollars, alleged to be due for furnishing materials and building a house in the town of Oolumbus, at the special instance and request of defendant.

<p>Appeal from Harris County.</p> <p>moved to dismiss the appeal, because it does not appear from the record that any appeal was prayed or granted.</p>

Appeals from Travis County. moved that the appeal in each of the above cases be dismissed. 1st. Because the judgments therein were rendered at the March term, 1843, of the district court, and no appeal was attempted to be prosecuted thereon, until more than twelve months thereafter; the notice of the appeal being served on the 13th of September, 1844, as shown by the scire facias. 2d. Because the writs of error which were prayed for and allowed on the 24th of February, 1845,…

The facts of this case are so fully stated in the opinion of the court it is deemed unnecessary to repeat them here. The only matters presented by the record and agreed to at bar, which have not been stated in the opinion, are: 1st. William Punchard, being called as a witness by plaintiff, was objected to by the defendant upon the alleged ground of interest.

This was an application to the judge of the second judicial district for a mandamus, to compel the deputy collector of the port of Mata-gorda to deliver to the appellees certain goods imported by them, upon the payment of the duties in the exchequer bills of the country, at par.

Writ of Error from Ned River County. The defendant sued the plaintiff in error upon two promissory notes for $500 each, payable in current bank notes, and obtained thereon a judgment final by default for the sum of $1,099.50 and costs. The other material facts will be found in the opinion of the court.

This was an action of trespass to try title. The defendants pleaded the general issue. The plaintiff offered in evidence in support of his action two deeds or grants from the Mexican authorities. Held: did not divest the court of its jurisdiction.

<p>[Questioned, SO Tex. 508.]</p> <p>A lessor cannot maintain an action for a trespass committed on the leased premises, while in possession of the tenant. The lessee alone has the right of action.</p> <p>Cases decided in the district courts, after the present term of the supreme court, will not he revised or reversed in this court, on account of the verdict being contrary to the evidence, unless the record shows that a motion was made in the court below for a new trial, and overruled.</p> <p>It is the duty of the jiidge to instruct the jury as to the law, and if they find contrary to his instructions, to set aside their verdict; but it is error for him to direct them for which party to find.</p>

Error from the District Court of Harris County. This suit was commenced by the defendant in error in the court of a justice of the peace, against C. H. Hopson and O. H. Hughes, as partners. Judgment was given against them by the justice of the peace, and Hopson appealed to the county court.

<p>Where proceedings to try the right of property, levied on under execution, are not instituted in accordance with the provisions of the statute regulating such trials, and the parties are thereby misled from the true issue to he tried, they will, on appeal, be set aside and the judgment reversed.</p> <p>Where verdict and judgment are set aside and a new trial granted, such judgment does not operate as alien upon the defendant’s property.</p> <p>Where one party to a suit makes a witness of the other, he thereby places his testimony beyond impeachment. He may prove the witness to be mistaken by proving the facts to be otherwise, but he will not be allowed to impeach his credibility.</p> <p>Fraud cannot be presumed, unless the circumstances on which such presumption is founded are so strong and pregnant, that no other reasonable conclusion can be drawn from them.</p>

<p>Appeal from Harris County.</p> <p>The facts in this case are fully presented in the opinion of the court delivered by Mr. Justice Wheeler and Gillespie.</p>

This suit was brought by the appellant against the appellee to recover damages for the alleged wrongful detainer and conversion by the latter of thirty barrels of whisky, claimed by the appellant to be his own property. The general issue was pleaded by the defendant.

The appellee sued the appellant in the district court to recover the possession of a female slave purchased by him at a sale of the same, on the 5th day of June, 1844, under executions founded on five judgments against the appellant, in three of which Richard Cross and Clinton J. Willard appear to have been plaintiffs in execution.

A statement of tbe most material facts of this case will be found in the opinion of the court. The reporters are unable to give a synopsis of tbe arguments of tbe counsel, not having been furnished with their briefs.

This was an action of debt brought by John R. Short, the plaintiff in the court below, at the spring term, 1843, to recover of the defendant, Roberts, the amount of the following joint and several note: “ $125.00. “ Six months after date, we, or eithermf us, promise to pay John R. Short, one hundred and twenty-five dollars, Texas money, at its current price at New Orleans, without defalcation — this 16th August, 1839.

<p>Appeal from Washington County.</p> <p>Mr. Chief Justice Hemphill, in delivering the opinion of the court, gives a full statement of the facts; they are therefore not inserted here.</p> <p>cited the following authorities: 9 Mart. 183; 4 Mart. (H. S.) 200; 2 Story Eq. 382; Code Hap. 1100; Pothier on Sales, 584-5; Pothier on Obi. 550; 1 Domat, 69; 11 Just. Civ. Code, 451; 13 id. 49.</p> <p>cited oh the question of champerty, Ohit. on Con. 676; 2 Story Eq. 410; 2 Johns. Cas. 58; 2 Caine, .147; 11 Mass. 549; 4 Littell, 411; 3 Cow. 623.</p>

This suit was brought by the appellee against the appellant upon a transcript of a judgment, which purported to have been rendered in the commercial court of ISTew Orleans, in the state of Louisiana.

The facts of this case are so fully given in the opinion of the court, delivered by Mr. Justice Wheeler, that they will not be repeated here.

The facts of this case are stated in the opinion of the court. contended: 1st. That the plaintiff should have alleged and proven that the intestate resided in Texas from the date of the declaration of independence to the time of the institution of this suit, which had not been done. 2d. There was no testimony to sustain the allegation in the plaintiff’s petition (and which was denied by the answer prescribed by the statute) that she was administratrix. 3d. There was no…

This was an appeal from a judgment of the district court of Colorado county. The appellant instituted his suit in the court below for the recovery of a negro man slave valued at $1,500. He alleged property in himself and possession in the defendant. Hpon the plea of the general issue the jury found for the defendant and judgment was rendered for him. The record contains no statement of facts or bill of exceptions.

This was an appeal from a decree rendered by the district court of. Montgomery county. The appellant filed his petition in that court against Oliver P. Kelton, the present appellee, and Elisha Uzzell, the administrator of Robert Kelton, deceased.

Trial of tlie right of property. The appellant, having an execution against one Milton S. Kelton, caused it to be levied on a negro hoy named Moses. The negro was claimed by Oliver P. Kelton to be his property.

The facts in this case are fully stated in the opinion of the court delivered by Mr. Justice Lipscomb — Mr. Justice Wheeler not sitting, having been of counsel in the court below.

Writ of Error to Austin County. This was a suit instituted by Rogers, the plaintiff in the court below, against the defendants upon a joint and several promissory note executed by them in his favor. The defendants pleaded that the note had been given without any consideration.

Mr. Justice Wheeler delivered the opinion of the court, giving a full statement of the facts; Mr. Justice Lipscomb not sitting in the case.

Case Be-served and Certified from Fannin District Court. At the spring term, 1845, Hillery B. Bush was indicted for keeping a tippling house, by retailing spirituous liquors in quantities less than a quart, without having first obtained a license therefor.

The most material facts of this case are stated ia the opinion of the court. made the following points: 1st. The court below erred in overruling the motion made by defendant’s counsel to quash the writ of sequestration issued in this case. The record shows that this writ was issued by the cleric of the court without any authority from the judge.

This was an action of debt brought by Weatherred, the plaintiff in the court below, at the spring term, 1845, to recover of the defendant, Mays, the sum of $284.74 alleged to be due and owing for work, labor, etc. The defendant, in his answer, demurred to the plaintiff’s petition, and pleaded the general issue, the statute of limitations and also a setoff of $358.64, being the amount of a judgment which defendant alleged he had obtained against the plaintiff, at the fall…

<p>"When the record discloses nothing to the contrary, it will "be presumed that the evidence before the jury was sufficient to warrant their verdict.</p> <p>If a party seek to reverse a judgment upon the facts alone, he must bring them before the court in the mode prescribed by law; so that it may appear by a statement, either signed by the parties or certified by the judge, that they are the fads; that is, all the facts in the case.</p> <p>The attempt to bring up the charge of the judge to the jury, by the affidavit of one of the jurors as to what the charge was, has never received judicial sanction and: deserves reprehension.</p> <p>An affidavit of a juror, made at the next succeeding term after the trial of a cause,, that he was influenced in his verdict by what he sets forth as the charge of the-judge, is no ground for a new trial. To permit a juror at so late a period thus to-annul liis verdict would be holding out inducements to fraud and perjury.</p>

<p>A defendant has a right to file his answer at any time before a definitive judgment by default is entered against him; but it must appear that the answer was filed before the definitive judgment was taken. [6 Tex. 227,229.]</p> <p>An answer which appears to have been filed on the day on which the judgment was entered is not within the rule, unless it appear affirmatively that it was filed before the judgment was entered. The legal presumption in the absence of proof is, that the judgment was first entered. [4 Tex. 336; 16 id. 272.]</p> <p>It should be legal and conclusive proof that the answer was filed before the definitive judgment was rendered, if the record showed that the attention of the court was directed to it before the judgment was entered.</p>

Error from Washington District Court. This suit was brought by the appellees against the appellants in the court below, upon a promissory note for $500, which was signed by both of the appellants. Process was served on the defendants, but at the first term of the court George W. Horton, an attorney of the court, as amicus curia}, suggested a variance between the writ and petition, and moved that the writ be quashed.

Trespass to try title. The suit was brought to the March term, 1842, of the district court of Matagorda county. The petition is in the usual form, alleging the title to the land to be in the estate of Jesse Thompson, deceased, and that the possession is unlawfully held by the defendant Duncan.

<p>Where a demand against an estate was not presented to the executor within the time prescribed by law, and suit was not commenced thereon more than twelve months after letters testamentary had been issued: Reid, that under the probate law of 1840, the action was barred. [15 Tex. 468.J</p> <p>The bar of limitation expressed in the 16th is not restricted by the 6oth and 66th sections of the act referred to, which, like all other statutes of limitation, should receive a liberal construction.</p>

This was an action for a malicious prosecution. The defendant pleaded the general issue, and specially that there was probable cause for the prosecution, and that it was not malicious. The jury returned a verdict for the plaintiff, having assessed his damages at $99.58 and five-twelfths of a cent, for which judgment was rendered; and from which the defendant appealed.

This was an appeal from a j ndgment rendered by the probate court of Liberty county, prosecuted by Benjamin 0. Franklin, guardian of the minor children of George Orr, deceased, against Keason Green, administrator of the estate of said Orr. During the progress of the cause in the district court, it was referred by consent of parties to the arbitrament of A. W. Dismuke, A. G. Yan Prodellas and William Lawrence.

At the September term, 1840, Buford sued Chevallier on a promissory note of which the following is a copy: “On or before the first day of June, 1839, I promise to pay to Christopher Y. Buford, or order, the just and full sum of three bun-dred and twenty dollars in Tennessee or Alabama money or its equivalent, for value received of him, this twenty-ninth day of September, 1838.

<p>When an appeal is taken from the judgment of a district court, overruling a motion to quash an execution, an appeal bond in double the amount of the costs accruing under such judgment will satisfy the provisions of the 136th section of the act to regulate proceedings in the district courts, approved 18th May, 1846.</p> <p>So, when a plaintiff appeals, a like bond is sufficient.</p> <p>A judgment overruling a motion to quash an execution is a final judgment and may be appealed from.</p> <p>An execution cannot be quashed after it has performed its functions and been returned by the sheriff. [16 Tex. 157.]</p> <p>In reviewing a judgment refusing to quash a levy and the return thereof made hy the sheriff, the appellate court is not restricted to the particular grounds assigned for the motion in the court below. [6 Tex. 137.]</p> <p>An execution not sued out within a year from the rendition of the judgment is void under the limitation act of 5th February, 1841. [Overruled, 29 Tex. 31.]</p> <p>It should appear on the face of an execution, whether it be an original one, an alias or a pluries.</p> <p>Four executions were issued on the same judgment. The sheriff returned on the first that he had made a levy on the property pointed out by the defendant, but that the plaintiff not attending to select an appraiser, he could not get any one to act as such for the plaintiff and did not offer the property for sale. The same return was made on the second and third. The return of the levy on the fourth execution showed that it was made on property pointed out by the plaintiff. Held, that the levy and returns upon the three first executions were not in accordance with the execution law of 1842.; that the plaintiff had consequently no right to point out property for the last execution to be levied upon, and that the levy and return thereon must be quashed.</p>

A preliminary motion was made in this case to dismiss the appeal on the ground that it was not actually taken until more than one year after the rendition of judgment. By Chief Justice Hemphill: The facts upon which this motion must be decided are, that the judgment was rendered at the fall term of the district court in 1844. Notice of appeal was given in open court, and some weeks subsequent thereto a bond was filed.

The opinion of the court contains a statement of the facts of this case. contended that the suit had been improperly dismissed in the court below, because it did not appear that any notice had been given to the plaintiff of the motion upon which the dismissal was grounded, as was required by a true construction of the IT tin section of the act of 1S36, establishing the district courts. insisted that as the motion was made and rule entered in open court, constructive if not…

Writ of Error from Harris County. The defendant in error, Black, as the assignee of a promissory note for $600, given by the plaintiff to one Daniel T. Fitchitt for the purchase of a tract of land, sued the said plaintiff .thereon in the district court of Harris county, a county other than that of his residence.

This suit was brought by the appellant, as assignee of Beronica Benites, to establish a headright claim for a league and labor of land, a certificate for which had been duly granted, but was subsequently rejected by the traveling board of land commissioners. There was a verdict and judgment for the republic.

The facts of this case are given in the opinion of the court. The custom and usages of business compose a part of the contract. Story Bailments, 256, 258. In doubtful cases usage may be recurred to for the purpose of ascertaining the intention of the legislature. 6 Pet. Oon. 62. Tender and refusal is equivalent to performance. 1 Pet. Con. 323. Kefusal to take goods dispenses with the necessity of actual tender. 6 Pet. Cond. 134.

Writ of Error from Galveston County. The record in this case shows, that on the 80th day of January, 1846, the defendants in error brought into the city of Galveston from the city of New Orleans a quantity of merchandise, the original cost of which was about $4,500, principally the growth and manufacture of the United States; that James II.

<p>"Where an appeal is taken to the supreme court-, hut the record is not sent up and tiled until after the term has passed to which such appeal was made returnable, the same will be dismissed.</p>

moved to dismiss this cause on the following grounds: 1st. Because this court has not jurisdiction of the same. 2d. Because the copy of the record was not filed with the clerk of the supreme court of the republic of Texas either on, before or after the first day of the term thereof, to which, by said appeal, the same was taken and made returnable.

Writ of Error from Harris County. This was a suit brought agaiust Moore as tax collector for the county of Harris, and the securities on his official bond, to recover of him and them the sum of five thousand dollars, the amount of the bond. The petition alleges that the bond had been violated by the failure of Moore to collect and pay over taxes, amounting to $7,181.70, and prays for judgment against him and his securities for the amount of the bond as aforesaid.

Suit for a headright to land. The facts, are stated in the opinion of the court. The record shows that the appellant arrived in the country as a volunteer, between the 2d of March and 1st of August, 1836; that he served a tour of duty in the army, and was honorably discharged from the service as lieutenant colonel of infantry on the 1st of March, 1837, and that he was the head of a family, but his family were not in the country prior to the 1st of January, 1840.

<p>Where certain slaves were attached as the property of A., which B. claimed under a bill of sale from A. Held, on the trial of the right of property between B. and the plaintiff in attachment, that proof on the part of the latter to show that one of the slaves mentioned in the bill of sale, but not attached, was npt in the possession of A. when he executed the bill of sale to B., was inadmissible.</p> <p>Fraud on the part of a vendor cannot affect the right of a purchaser, bona fide and for a valuable consideration, who was no party to the fraud. [10 Tex. 893, 419; 15 id. 188; 16 id. 34; 19 id. 257; 22 id. 45, 470, 670, 708 ; 27 id. 407.]</p> <p>Such purchaser is as much favored and protected by the law as a creditor,</p>

Ou the 16th day of October, 1815, the appellee obtained from the board of land commissioners of Bexar county a headrjght certificate of the second class for 1,280 acres of land;* but conceiving that he was entitled under the constitution and laws of the country to a league and labor, he subsequently brought suit under the 12th section of the act supplementary to “An act to detect fraudulent land certificates, etc.; approved, February 4, 1841,” in order to establish his right…

Error from Robertson County. The plaintiff brought suit against the defendant to the spring term, 1845, of the district court. At that term an interlocutory judgment by default was taken, after which the judgment by default was set aside and it was ordei’ed that the plaintiff give security for costs in sixty days or the cause be dismissed and that the cause stand continued until the next term of the court.

Pouns sued Ashcroft in a justice’s court to recover an alleged taking and conversion by the latter of five bales of cotton claimed by the former and recovered judgment against him. An appeal was taken to the district court, where the jury rendered a verdict in favor of the appellee for $80, and judgment was entered accordingly.

<p>Appeal from Austin County.</p> <p>The material facts of the case will be found in the opinion of the court.</p>

The appellant brought suit at the spring term, 1846, of Bexar district court, to establish his headright claim to a league and labor of land, in virtue of his having been a resident citizen of Texas and married man, at'the date of the declaration of independence.

<p>Where a party can enforce his rights by one action, he ought not to be permitted to resort to many, and especially where there is but one entire contract and cause of action. [6 Tex. 185.]</p> <p>A party who fails to amend a defective petition, after exceptions to it have been sustained, can have no relief in an appellate court.</p>

Case Reserved and Certified from Bastrop County. The appellant was indicted at the fall term, 1845, of Bastrop district court for vending spirituous liquors in a quantity of a quart and over without license first had and obtained.

This suit was commenced by an original attachment which Smith, the plaintiff in the court below, sued out against the defendant and had levied on a negro woman and her two children.

This was an appeal from a judgment of the district court, confirming a decree of the probate court, granting letters of administration on the estate of John W. Smith, deceased, to the appellee. The right of the appellee, who claims the administration as surviving wife of the deceased, is contested by the appellant, who represents himself as being the son of a former, and as he contends, the only lawful marriage of the deceased.

Error from Houston County. There was no appearance for the plaintiff in error. submitted the record to the court, and suggested that the writ of error was sued out for delay.

Writ of Error from Fort Bend County. This was an action brought in the district court of Fort Bend county, on a promissory note made by said Foster in favor of Wm. Yan Norman for $344.90, dated 4th November, 1842,.and payable one day after date — having a credit of $16 indorsed thereon. On the second day of the fall term of said court, 1845, the plaintiff in error having failed to appear, judgment by default was rendered against him.

This suit was instituted by appellant against the appellee as the administrator of the estate of John J. Vining, deceased, to foreclose a mortgage made upon the real estate by the intestate, on the 8th day of March, 1844, to secure the payment of a promissory note for $735.50. The petition was filed on the 28th day of February, 1845.

<p>When a commissioner is appointed by the court, to take an account of all the matters and things in controversy between the parties to a suit, and the report made by him passes without objection, the decree rendered should be for the precise sum ascertained to be due by the commissioner, and conform in all respects to the report.</p>

This case was disposed of on a motion to dismiss the appeal. The facts upon which it was determined are stated in the opinion of the co'urt.

The suit in this case was for the recovery of a license tax. The facts are stated in the opinion of the court. contended: 1st. That the legal right to taxes or penalties for failure to pay is vested in the corporation aggregate known as the state of Texas, and not in the corporation sole designated as the governor of the state of Texas. 2d. The warrant does not specify any taxes or the penalties for a failure to pay, and hence is insufficient. Bd.

This was a suit brought by the appellant, who was plaintiff in the court below, to have a promissory note, executed by the defendant’s intestate (and wbicli the defendant had refused to acknowledge), ranked among the acknowledged debts of the succession.

<p>Where it appeared that an individual had, under the colonization law of 1823, received a league of land as a colonist and head of a family from the government of Mexico, hut had never at any time had a permanent domicile nor introduced his property into the country, and had finally abandoned the same and died in the state of Mississippi, prior to the Texas revolution: Held, that he was not entitled to the land so received by him, and that his heirs, being aliens, could not under the laws of Mexico maintain an action to recover the same. [2 Tex. 261; 4 id. 187; 5 id. 211; 8 id. 173; 10 id. 168; 20 id. 556, 568; 26 id. 24.]</p> <p>Under the first contract of tito empresario, Stephen B\ Austin, the ayuntamiento had authority to investigate the conduct of colonists relative to the performance, of the conditions attached to their grants; and upon the facts as ascertained by the ayuntamiento and the certificate of the empresario, the commissioner was justified in regarding the lands as vacant and issuing titles therefor to other colonists. [21 Tex. 98.J</p> <p>No proceeding in the nature of “office found” was necessary to resume a grant where the party to whom it was made had abandoned the country. The fact of the abandonment ipso facto vacated the land and restored it to the mass of public domain. [2 Tex. 78; 10 id. 168; 22 id. 155.]</p>

This was a suit brought by the appellees against the appellant at the spring term, 1841, to recover a tract of land a title to which was issued by George Antonio Nixon, commissioner of Zavalla’s colony, to Wm. Defee, on the 13th February, 1835, and claimed by the ap-pellees under a regular chain of transfer from said Defee.

Writ of Error from Brazoria County. This action was instituted on the first day of February, 1845, on two promissory notes, one of which became due on the 1st day of April, 1838, and the other on the first day of January, 1839. On the first was indorsed a credit of one hundred dollars, received on the 17th day of August, 1838; on the other were indorsed several credits, one on the 27th of December, 1839, and the others, during the year 1840.

This was an action brought by the heirs of Bobinson against the heirs of Hunt, on a contract to compel its specific performance.

At the November term, 1846, of Galveston district court, the appellant filed bis petition, alleging that he was the legal owner of a certain land certificate which was issued by the board of land commissioners from San Augustine county in 1838, to one John S. Duncan, and that the same had been duly assigned and transferred to the petitioner; that he had made application on the 24th November, 1846, to the appellee, who was the district surveyor of Galveston district, to…

The appellee in this case, on the 13th September, 1843, filed his petition against the appellant, Jones, for the recovery of a league of land situated on the Trinity river, and alleged in the petition to have been granted to petitioner by the government of Coahuila and Texao in 1835.

He prayed that the commissioner of the general land office might be enjoined from issuing patents thereon to the said defendants until the matter in controversy could be heard and determined, etc. The title of the plaintiff is based upon the following document, viz.: (Seal oe 1833.) In the city of Bexar, on the twenty-ninth day of December, one thousand eight hundred and thirty-three, I, the citizen Juan Angel Seguin, second regidor and provisional alcalde for the…