Volume 10 — Texas Reports

<p>Whore the indorsements of credits, upon the noto sued on, disclosed that the verdict was for one hundred dollars more than was duo, and there was nothing in the statement of facts to sustain the verdict, this court reversed the judgment of the court below, refusing to grant a new trial. (Note 1.)</p>

Richard Patrick & Co., of New York, sold to James Nicholson, of Bastrop, a bill of goods, amounting to $2,200, on a credit of twelve months, and shipped them, on tlie 12th of April, 1851, to tlie care of Pulton & Hensley, commission merchants at Port Lavaca, with instructions to forward them to their destination.

Error from Brazoria. Suit by Townes, administrator de bonis non of' Cafo, commenced October 22d, 1815, on a judgment in the form of a twelve mouths’ bund, as follows: Republic ok Texas, \ Edmund Andrews, Adm’r of W. H. County of Brazoria. J Cato, v. Ileury Austin.

Appeal írom Cameron. Suit by the appellee against the appellant ior the ■proceeds oí goods consigned on sale. There was no contract in writing. The verdict and' judgment were for principal and interest. The assignment of errors did not complain of the allowance of interest.

The appellee, as the administratrix of Juan iTepo-maeeno Cisneros, brought this action for the recovery of a league of land, alleged to belong to the estate of the deceased.

Error from Brazoria. Suit by Parrott against Underwood, for the proceeds of cotton consigned by the former to tiie latter. Answer, pleading certain set-offs. Amended answer, setting up a judgment acquired by assignment since the suit was brought.

<p>A scire/arias to revive a judgment, where no new party is sought to bo charged, and no relief, other than a simple revival, is prayed, is not an original suit, but a continuation of the former one, and maybe instituted in the county where the judgment remains of record without regard to tho residence of the defendant. (Note 7.)</p>

Error from Brazoria. This snit was instituted bjr the defendant in error, against Solomon Williams in 1841, to recover a tract of land. In 1844, the death of the defendant was suggested. The case was continued from term to term, to obtain service on his legal representatives. In 1849, the plaintiff filed a petition for tlie purpose of making parties, naming the heirs, and praying that they be made parties defendant.

Suit by the appellees against tlie appellant for a. conveyance of 2,400 acres of land out of a survey, specifically described, on Galveston island. Land scrip for 3,200 aeres was placed in the hands of the defendant by tile plaintiffs in 1838 for location, patent, &c., tlie defendant to receive one-fourth for his services and expenses. Tlie scrip was located on Galveston island, and the defendant informed tlie plaintiffs of the fact by letter dated-April 12, 1839.

Suit commenced in 1841, by the appellees against appellants’ intestate, on three notes falling due in 1834. Notes made in New York, and payable generally. New promise alleged to have been made in Louisiana in 1830, where the defendant resided at the time. The statute of limitations of Louisiana was pleaded. The new promise was not in writing, and was proved by a single witness.

Error from Galveston. The defendant in error sued the plaintiff in error on -a note not negotiable for two hundred dollars, payable to one Ilasbrook, and by him assigned'to the plaintiff.

Error from Liberty. Tlie plaintiff iu error brought suit, as assignee of a lion-nogoliablo note made by the defendant payable to Thomas Barrett.

Error from Ilavris. There was service on the defendant, Gabriel S. Cook, by publication, previous to the Fall Term, 1S47. At the Spring Term, IS 18, there was an entry in the minutes, simply of “judgment by default,” against this defendant. At the Fall Term, 1848, about three weeks after the commencement of the term, there was judgment iinal against hotli defendants.

Error from. Montgomery. Títere was but one question in this case to be considered. Ought the will of the younger Slieplicrd to have been received in evidence in support of the right of those claiming under the will of his father? The suit was brought by the widow and heirs of the jumuger Shepherd against the widow and representatives of the father to recover a tract of land.

Error from Fort Bench Suit by plaintiff in error against defendant in error, “for that whereas, heretofore, to wit: during the years A. D. 1841, 1842, 1843, “and 184-f, the said defendant became indebted to diaries Power in a large “sum of money, to wit: the sum of three thousand eight liuudred and eighty-“six --fJu- dollars, for divers goods, wares, and merchandise sold and cleliv- “ ered by the. said diaries Power to tiie said defendant, and for so much money “lent and…

<p>Error ironi Tyler. This suit was instituted upon two notes, one for §100, ami tiie other for 8350. There was a motion to strike out the plea of set-off, on tiie ground that tiie account was barred by limitation.</p>

This was a suit by the appellees, children of Jesse Parker, deceased, by a former marriage, against the appellants, the surviving wife and her children, to contest the validity of the will of the said Parker.

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* On the 20th day of October, ISIS, George Huff, administrator of Samuel Sawyer, deceased, liled his petition in the District Court of Brazoria county against TMbmas Cayce, Thomas IT.

Error from Cameron. The plaintiff at the port of Sabine shipped on board the schooner Boane, bound for port La Yaca, a large quantity of lumber, to be delivered at said port, to' Sidney E. Sweet or bis assigns. The master, Charles Getty, executed throe bills of lading in the usual form. The vessel ran aground a few miles from Indianola; and the consignee, Sweet, who was on board, wont ashore to find a market for the lumber.

Action of trespass to try title. The, land was the headlight, oí ifilHam Harris. Both parlies claimed under him — the plaintiff by virtue of the following contract: I, William Harris, of the State of Coahuila and Texas Atoscoeifo, do sell unto 'Washington li. Griffin all my right, title, and claim to all improvements where I now live, for the full anil jnst sum of six hundred dollars — and which settlement was made this March will be live years ago. December 14th, 1830.

from Cameron. The affidavit for a new (rial stated that Johnson liad been subpoenaed, and that ho left the county suddenly and unexpectedly, trot giving affiant time to take his testimony, but promising affiant to return in time lor the trial, &c. A hill of exceptions stated that the motion was overruled “ upon the ground that the defendant issued subpoenas “for Johnson only three days before the motion.” The verdict was “for the sum of seven hundred dollars, the amount of…

<p>Appeal from Kef agio.</p>

Error from Walker. This action was for the recovery of an account charged to be, due from the defendants, Lydia O. Christmas and her husband James T. Christmas, for goods, wares, and merchandise previously sold by tlie plaintiffs, J. C. & R. Smith, to tlie said Lydia, at her special instance and request, being necessaries contracted for by the said Lydia, for the benefit of herself and her children, and her separate property.

March 30th, 1843, action of trespass to try title by John D. Wright ami Margaret T. Wright, his wife, against Peter M. Hays.

Action of trespass to try title, by Lea against Hernandez. Lea claimed under a lease from the corporation of the town of Goliad, dated in 18 Í7, to one Miller. The lease was to last until the corporation should sell or the possession should he recovered from the lessee by an adverse claimant. Miller was in possession at the time of the lease. He afterwards assigned his lease to Lea, who had a similar lease to land adjoining.

<p>Error from Colorado. Suit hy the appellees against the appellant for one half interest in certain lots and improvements thereon, in the town of La Grange; and for a sale and division of the proceeds. The plaintiff alleged that the property had belonged to John and Lyman Conla-ito, and elaimedby purchase at sheriff’s sale of John Conlu-ite’s interest. The executions, by virtue of which tlie sale was made, were issued on the 17th May, 1848; John Conkrite died on the 21st of the same month; the executions were levied on the 10th July; and the sale was made on the first Tuesday in August. There was a judgment for the plaintiffs.</p>

<p>Appeal from Limestone. This case was submitted at Austin.</p>

(Submitter! at Austin.) This was a trial of the right of property in certain negroes, levied on by virtue of an attachment sued out by the appellee against one Thurmond, and claimed by the appellant as a, purchaser from Thurmond. The attachment was issued on the 4th day of October, 18-14, and was levied on the negroes in the possession of the appellee.

On the lll.h day of 'May, 1847, Edward A. and Henry P. Bridge obtained a judgment in the District Court of Galveston comity, against William Bryan and Joseph llasbrook for §371.20 and costs of suit. On the 3d of July next thereafter, an execution was issued and delivered to tlie sheriff, which was levied by him on a negro man. Philip, oil the 14th of tlie same month, the sheriff indorsing his levy on the execution, and also advertising the property for sale.

Error from Galveston. Lee brought suit against Kinney & Aubrey, as acceptors, and Newell, as indorser, of' a certain draft or order of the following tenor: “Messrs. Aubrey & Kinney — Gentlemen—8941. Please pay to IVni.

The demurrer of the defendant was general; and, as a special .ground, suggested that tho petition and amendment failed to state any sufficient consideration for the contract on which the suit was brought.

The appellee’s intestate brought suit against the appellants, alleging that in October, 1842, he purchased of McClemiy, for the consideration of $5,000, certain negroes; that McClenny executed to the plaintiff his hill of sale of the negroes, (which was made a part of the petition) and delivered possession in pursuance thereof; that they remained in the plaintiff’s possession until he was forcibly and wrongfully dispossessed of them by the defendants. f * The defendants…

<p>Appeal from Harris. For the facts of this case see Tates v. Houston, 4 Tex. K., 433.</p>

The plaiufciff, in his petition filed May 6th, 1850, .alleged that on the 23d February, 1839, he sold, for the sum of one hundred dollars, the one-half of a league of land to James J. Ward and Samuel Bogers, “ the latter of whom is now deceased, and the said Ward is Ms administrator,” and that subsequently, in the same year, the said Ward transferred all his interest in said land to the said Bogers; that the absolute necessity of raising the sum of one hundred dollars was…

Error from Bed Biver. The plaintiff below sued oil two notes, one of which was transferred to him by G. H. & B. 0. Bagby and the other by Geo.

Error from Lamar. The defendant in error recovered judgment by default against the plaintiff in error, as maker, and one Shelton, an indorser of a promissory note. Ward alone prosecuted the writ of error, and sought to reverse the judgment on the ground that there was not legal service on his co-defendaut.

Error from Red River. The plaintiffs in error were sued, jointly with one James, on a promissory note made hy the plaintiff in error Hawkins, individually, and his co-plaintiff in error Little and James and another as partners, contracting in their firm name. The residence of the defendant James was alleged to be in the Choctaw nation.

Error from Red River. This suit was brought upon a promissory note, dated January loth, 1849, and payable on the 25th day of December thereafter, “with ten per cent, interest from date.” In the rendition of the judgment at the May term, 1851, interest was computed at ten per cent, from the date of the note up to that time.

Error from Bowie. This suit was originally brought on a writing obligatory, averred to have been executed on the 8th January, 1850, and bearing interest at eight per cent, from elate. Service of citation and copy of petition was made on tlie defendant; and on his failure to appear, judgment was taken by default.

<p>Error from Red River. The defendant in error iiled his petition on the 5th day of May, 1S31. The court commenced its session on the 10th of the mouth, and on the 17th, the plaintiff having iiled an affidavit of the justness of the debt, as directed by the statute, (Dig., art. 770,) the plaintiff in error and another, his co-defendant below, appeared in open court and confessed judgment, which was thereupon entered with the benelit of a stay of execution.</p>

<p>There is a distinction between a stipulation for a compensation for labor proportioned to the profits, without any specific lion upon such profits, and which does not make a person a partner, and a stipulation for an interest in such profits, which entitles the party to an account as a partner.</p> <p>One partner cannot apply the partnership funds or securities to the discharge of his own private debt, without the consent of tho other members of the firm, whether the separate creditor knew tho property to ho partnership property or not.</p> <p>tVhere one dealing with a partner knows the contract not to bo in the usual course of dealing of the firm, tho firm is not bound.</p>

Error from Bowie. The plaintiff in error brought suit to recover of the appellee a sum of money paid by him as surety for the defendant’s intestate.

Error from Bowie. The plaintiff brought suit against the sheriff on his official bond for an alleged liability incurred by the acceptance, by his deputy, of an order drawn upon the sheriff, as follows : “Sib: Pay over to J. C. Moore, or bearer, tlio sum of one hundred and “sixty-five dollars and seventy-two cents out of a judgment in favor of E. T. “Watson against S. S. Herring and others, with interest from date until paid, “this 1st January, 1S50, and tiffs shall be your…

Error from Red River. The defendant in error sued the plaintiff in error and another upon tlie following note: “$720.

The appellant, as the claimant of certain property levied on as the property of another, at the instance of the appellee, made his affidavit and bond for the trial of the right of property, which were returned to the office of the clerk of the District Court, and the case was by him docketed as directed by article 2816 of the Digest.

Error from Bed Biver. The note sued on was made payable to Henrietta Hamilton, a married woman, and was by her indorsed to the plaintiff, Mathews.. Her coverture was pleaded in abatement. This- plea was, on motion of the-plaintiff, stricken out.

Error from Bowie. The note sued on was expressed in the following terms, viz: WASHINGTON, March 31 st, 1845. On the first day of June next, I promise to pay Benjamin L. Britton, or order, one hundred and seventy-four dollars, for value received, which, when paid, will be in full of a judgment obtained by W. W. Williams, in the Hemp-stead County Court, against ÍT. K. Ellett, the 8th October, 1841. WM. ELLETT.

The plaintiffs (appellees) brought suitupon a promissory note, alleged to be for the payment of §1,085.07, “besides seven per cent, per “annum interest on said sum, agreeably to the laws of the State of ISTew York, “where said note was executed, on the 2Gth day of May, A. D. 1851, and “ made payable ten months after date, by the said Willard and Tuttle,” &e. The note is made a part of the petition, and is payable “at McKee,Bulkley & “Co.’s office, ISTew Orleans, Louisiana.”…

Error from Red River. Tlie plaintiff in error filed his petition in the District Court, praying a writ of prohibition to restrain proceedings on a judgment recovered against him by the defendants in error before a justice of the peace. At the hearing tlie court dismissed the petition and proceeded to affirm; the judgment of the justice against the petitioner and his surety. This judgment of the court was assigned as error.

The appellee recovered judgment against the appellants before a justice of the peace. The defendants in the judgment obtained a certiorari and brought tlie case to the District Court. On the trial in the District Court the defendants (plaintiffs in the certiorari) moved to dismiss tlie case for tho want of jurisdiction in the justice. This motion tlie court overruled. There was a verdict and judgment for the plaintiff's, and the-defendants appealed.

This suit was brought by tiie appellees against the appellant on a promissory note. The defendant pleaded that the'note was given in the settlement of an account of long standing between the parties, and that at the time the plaintiffs were really indebted to him in various sums greatly exceeding the amount of the note, and which, he said, were not recollected at tiie time of the settlement. There was no offer to prove hut one of the several matters pleaded.

<p>Error irom Cass. Suit was instituted by attachment by the defendants in error against one Drake.</p> <p>The attachment was levied on goods, &o., in the possession of the plaintiff in error. The plaintiff claimed the goods hy purchase for value, in good faith, from Drake, and gave bond to try the right of property. The defendants in error alleged that the sale to the plaintiff in error was void, because it was made to binder and delay the creditors of Drake, and that tlie defendant in error colluded with Drake. This was the issue. On the trial tlie defendants in error read to the jury the judgment which they had obtained in the attachment suit against Drake — the plaintiff in error excepting. The court charged tho jury that, if they believed from the testimony in tlie case that Drake made the sale of the goods in question for the purpose of defrauding his creditors, or hindering or delaying the collection of liis debts, and Walcott, the defendant, knew of said design on the part of Drake, then the sale was void. The court further charged the jury that fraud may he proved by circumstances, and that they must therefore look to all the circumstances connected with tlie transaction to arrive at a correct conclusion. Verdict and judgment for Brander, Williams & Co., tho creditors of Drake. Motion for a new trial overruled.</p> <p>I. The plaintiff in error says that the court below, upon the trial of this canse, erred in permitting the judgment, that had been recovered by the defendants in error against Reuben Drake, in the attachment suit, to be read in evidence after tlie same had been objected to.' Now, that evidence was irrelevant to the points in issue, and did doubtless tend to mislead tlie minds of tlie jury off from tlie true issue before them. It was an unnecessary incumbrance of the minds of the jury with irrelevant matter. The, only effect it was calculated to produce was eon-fusion by the commingling the issues of two suits, one of which was not before the jury. This is conclusive from tlie. fact that the jury found that tlie attachment was subject to a credit of one thousand dollars. When confusion is shown to liave been produced by tlie introduction of irrelevant testimony, tlie court is bound to conclude that tlie verdict of the jury was subject to tho same influence, and was a product ion of the same confusion. The face of the verdict shows that the jury believed that they were trying the question of the original indebtedness and payments of Drake, as well as tlie rights of property. One of the objects in making an issue is to narrow the questions in litigation down, so that the jury may readily see tlie application of the testimony. lienee the introduction of irrelevant matter, which is calculated to make, the jury believe that different issues are raised, produces confusion and defeats that object. That the admission of this record in evidence did have that effect is conclusive from tlie verdict itself. In the case of Butler & Alford v. O’Brien, surviving partner, <fce., 5 Ala. R., 822, tlie court, in its decision upon the proceedings had under a statute similar to our statute regulating the trials of tho right of property, say: “.It has been repeatedly held, where a third person claims “property levied on by execution, and executes a bond for the trial of “the right, that he shall not ho permitted to object to the regularity oí tho “judgment and execution, and that tiie plaintiff shall not be required to province any evidence of the justness of his demand other than the execution “affords.' We think the same rule must apply where, instead of an execution, “the properly is seized by an attachment. The only question to be litigated “is, wheiher'thc goods claimed really belong to the claimant or not, as against “the plaintiff, a creditor; for the purpose's of this controversy the plaintiff “must be regarded as a creditor without the production of proof of iudebted“ness. Tiie eleventh section of the attachment law, in providing for the trial “of the rigid of property, and directing tiie same proceedings tobe had as “ where a claim is interposed upon the levy of a fi. fu... together with the decisions which have been made touching tiie nature of such a controversy, seem “ to us to show not only that such evidence is unnecessary bnt irregular.”</p> <p>II. Tiie court erred in charging the jury “that if they believe from the testi- “ mony in the ease that Drake made said sale of tiie goods in question for the “ purpose of defrauding his creditors or hindering or delaying the collection of “his debts, and said Walcott, the defendant, knew of said designs on the part “of Drake, then the sale was void;” for if Walcott purchased tiie goods in good faith and paid an adequate and valuable consideration for them, and with no intent on hits part to hinder-, delay, or defraud Drake’s creditors, although Drake’s intentions may have been to hinder, delay, and defraud his creditors, and AValeott may have known of his designs, yet if he took no part therein, but merely purchased the goods because lie wanted them, the sale, to all intents and purposes, was a legal and valid one. In tiie case of AVhcaton v. Sexton’s Lessee, 4 AVheaton, 503, (4 Cond. It. S. C. U. S., 519,) the court say: “The instruction of the court, given on motion of tiie plaintiff below, is that “ the deed was void in law if it was made by the said Joseph AVheaton without “ a valuable consideration therefor, or was made by him with intent to “defeat, delay, or defraud his creditors. Had the conjunction ‘and’ been “substituted in tiiis instruction for ‘or’ it would have been entirely unimpeachable; hutas it now reads it must mean that even bad-a valuable con- “ sideration been paid, if the deed was made with intent to defeat creditors, it “was void. AVe know of no law which avoids a deed where a valuable (by “which to a general intent must also be understood adequate) consideration is “paid, and the change of property be bona fide or such as it professes to be. “ Of such a contract it cannot be predicted that it is with the intent to defeat “or defraud creditors, since, although the property itself no longer remains “subject to tiie judgment, a substitute is furmshed by which that judgment “ may be satisfied.’?</p> <p>HI. Tiie court erred in charging the jury “that fraud may be proved by “circumstances; that the jury must, therefore, look to all the circumstances “ connected with the transaction to arrive at a correct conclusion.” This is too indefinite. Tiie jury, not being conversant with the law, might have felt themselves authorized (and in this case doubtless did) to look to circumstances connected with the transaction that were not in proof upon the trial of the cause — circumstances that they may have heard of before — emanating from a source prejudical and unfavorable to the lights of AValeott. It may be that they heard of the levying of the attachment upon the goods in question, and of tiie charge made against him of attempting to defraud tiie creditors, of Drake, and that, too, from a source by them deemed creditable. Supposing such a state of facts to have existed, then, under the charge of'the court, that they must look to all the circumstances connected with the transaction, may not the jury have looked to these out-of-door circumstances, and made their verdict accordingly? I-Ience the necessity of a definite charge, confining the jury to the proof as developed upon tho trial of tiie cause, and not giving to them tiie latitude of looking to all tiie circumstances connected with the transaction.</p> <p>IV. The verdict of the jury was contrary to the law and evidence.</p> <p>1st. How did the admission of the judgment against Drake prejudice the defendants? If the evidence had not been proper it was immaterial. But it was proper, as showing the genuineness of the debt against Drake, in the suit against whom the attachment issued, which was levied on the property claimed in this case. There was no ground of exception to the reading of the judgment assigned.</p> <p>2d. The charge will speak for itself.</p> <p>3d. It is said “ the finding of the jury was contrary to the law and evidence.”</p> <p>It was just the other way. See statement of facts.</p>

The plaintiff, McKinney, in December, 1846, purchased from Fort, the defendant, for thirteen thousand pounds of ginned cotton, which he delivered, a negro man named Washington, who died iu the following month of May. This action was brought for the recovery of the purchase-money or the value of tho consideration,bn the ground substantially that the slave was unsound at the time of the sale.

<p>In an aetion of trespass to try title, where the defendant disclaims, it is error to render a general judgment in his favor.</p>

faction of the judgment of Glasgow and Harrison against Johnson’s estate. One thousand dollars was paid at the time, and Wortham gave to Harrison a note for the payment of the residue. Hudgins was examined as a witness, and stated that he had not paid the bill drawn by him on Spotts, and had no recollection of having- executed the note for the residue of the purchase-money. He left Texas for Virginia in June, 1846, and did not return until December, 1848.

Error from Panola. The plaintiff below (wbo was defendant in error) re■covered judgment by default, against the defendants (plaintiffs in error) on a promissory note. The petition set out the face of the note and claimed the :amonnt due, without tiie mention of any credits.

Error. George Mebanc, a resident of Williamson county, Tennessee, haying- made his last will, departed this life in 1818. líis will was proved and recorded in opon court., iu the said county, iu the same year, by Alexander Mebanc, his brother and executor. The will contained several bequests to the children of this Alexander, and among- others was one to his daughter Louisa, of a negro girl named Nancy.

<p>Error from Busk.</p>

The defendant was indicted for playing in a certain storehouse for retailing spirituous liquors at a game witli cards, on which money ivas bet. A -witness testified to the playing, as charged, in the jilacc charged in the indictment. There was an attempt to discredit the witness by proving an alibi. A witness for the defendant testified that he was elsewhere on the (lay on which the playing was stated to have occurred by the State’s witness.

Error from Husk. The plaintiff in error brought his action of trespass to try title against the defendant in error, who was in possession, and, in aid thereof, obtained a writ of sequestration, under the provision of article 2S64 of the Digest. The defendant failing’ to give bond, as provided by article 2SG9, was dispossessed and the plaintiff put in possession of the premises by virtue of the writ of sequestration.

Error from Harrison. This suit was instituted before a justice of tho peace. The plaintiff bad judgment, and the defendant removed the case by certiorari to the District Court.

<p>Error from Harrison.</p>

John Belcher, one of the appellees, obtained an injunction to restrain Hammonds, the appellant, from using and carrying on a ferry established by him across the Sabine river in the vicinity of one previously opened by the said appellee.

<p>Appeal from San Augustine. The appellant was indicted under the 72d section of the act “concerning crimes and misdemeanors.” (Hart. Dig-., art. 568.) The indictment charging that the defendant “ did permit a game with “cards, upon which money was then and there het, to he played iu'his house, “ which said house was then and there a public house, aud was then and “there a room occupied by said Wm. Lockhart, and was then and there “a common gaming room, adjoining and connected with a room used in “the town of San Augustine, by one Samuel Jordan aud one William T. “White, as a house for retailing spirituous liquors; and that said Wm. “Lockhart well knew that divers persons then and there assembled in the “ said room of him, the said Wm. Lockhart, were playing in the said common “gaming room a game with cards, upon which money was then and there bet, “yet he, the said Wm. Lockhart, did unlawfully and wilfully permit the said “game then aud there to be played,” &c.</p> <p>The averments in the indictment were fully sustained by the proof. The room was under the control of the defendant; he used it as a bedroom, aud permitted it to be habitually resorted to aud used for gaming by persons who played cards for money. He was the bar-keeper of Jordan & White, who retailed spirituous liquors in an adjoining room. The room was a shed room, aud was under the same roof with a billiard room and the room in which the liquors were vended. It was a place of common resort for those who played cards for money.</p> <p>The court charged the jury in substance that to authorize a verdict of guilty, they must bo satisfied that the defendant kept a common gambling house or room, where he permitted persons generally to play games at cards for money; but to sustain the charge in the indictment it was not necessary to prove on the part of the State that every person who desired had access to the room; proof that any given number of persons were permitted habitually to play there would be sufficient.</p> <p>The defendant was found guilty, and moved for a new trial and in arrest of judgment; which motions the court overruled, and the defendant appealed.</p>

Motion to dismiss the appeal, based on alleged defects in the appeal bond— 1st. Misdescription of the judgment. 2d. The want of sufficient sureties. Motion by appellants to continue, with leave to give a new appeal bond. Wo think the motion to dismiss ought not to prevail in this ease. The bond is regularly filed in the papers of the case in the court below, and there can he no doubt as to the ease to which it is intended to apply.

Appeal. The appellee was indicted for gaming. The court below quashed the indictment and the State appealed. There was no assignment of errors in the transcript.

The appellant was indicted under article 563 of the Digest. The indictment contained three counts. The surname of the defendant was omitted in the first count, and on his motion it was quashed. The second and third counts described the defendant by his Christian and surname in full. The second described the house 'where the offense was alleged to have been committed as a public gaming house; the third, as a house for retailing spirituous liquors.

The point mainly relied on by the appellant to reverse the judgment of the court below in this case was the overruling- of his motion for a continuance.

Error. This case was brought by a writ of certiorari into the District Court from the judgment of a justice of the peace. There was a trial and a verdict for tlio defendant, who was plaintiff in error in this court. The verdict was set aside and the cause continued; and at the next Term the certiorari was dismissed and a writ of procedendo awarded to the justice of the peace to proceed on his judgment.

In this case the record was filed in this court on the Stli day of April, 1851. The errors appeared to have been assigned in the court beiow on the 12th day of the same month, and were appended to tiie record on a separate sheet.

<p>gj ' f*1 g =D2 &® ocrs^M sí © oo © 5' §1 á £. ¡= g'S'aísáSaB' ^ g. s Sr < F& ga* ® H f>.. * H> O ^ ^ r P .Pj Ha ^ Q £3 vT* H ^ O O' e-i. g-&o g O H. s : o b g ^s- •• S- -as ° S. tí © & (2 B p- g-1-3 d- “ - 3" a¿. ? S ES ifS-giP CIS : 0 8 o °. & , 3" p ti ?2^ g g |& hJ Q P Q S CT- §. o ”*§* ppflI&ÜÍ g g o B o ® c 2 | g _ H.cr<3 g W H h g rt-° ¿ W rt-p4 aH.c ° M - - O O p <3 &Í3</p> <p>“The finding of a jury not under oath cannot constitute a legal verdict upon which the court can'proceed to give '(Arthur v. The State, 3 Tex. R., 005.) If it should he thought that the statement of the record that the jury were sworn cannot be contradicted, it may yet be replied that this statement shows that an improper oath was administered to the jury; and in such case it is stated in the above-citeu authority that “any other oath than that prescribed is, in contemplation ^ox Jan. no oath. The record states that the jury were sworn “the cause to try accordmg to law.” But the statute requires the jury to be sworn “well anil *•“ ll‘-v f'1(‘ issue between the State and the defendant according to the “law and the evidence.” (Hart. Dig., art. 1050.) •</p>

The appellee filed his petition praying an injunction to restrain the appellants from enforcing the collection of two executions issued on judgments rendered against him by a justice of the peace, on grounds therein stated, the principal of which was that he had placed claims in their hands to be applied on collection to the extinguishment of the demands against himself, and that they liad been collected, but bad not been thus appropriated.

<p>Judgments in favor of the State against administrators should be rendered to be paid in due course of administration.</p> <p>Wherea judgment is rendered generally, when it should be rendered to be paid in due course of administration, this court will reverse and reform.</p>

<p>Appeal. 'There was only one surety in the appeal bond; on which ground there was a motion to dismiss the appeal.</p>

<p>The assignment of errors must be filed in the court below before the transcript of the record is taken from the clerk’s office, and a copy thereof must be attached to and form a part of the record.</p>

The appellants brought suit on a note of hand purporting fo lie jointly made by the appellee and Lemuel W. Skaggs. Process not being served upon t:lie last named, plaint ids discontinued as to hint. The appellee plead non est factum upon oath. The only evidence offered by the plaintiffs was that when the note was presented to him he said that his brother liad made it without any authority from him, but lie would pay it iu May. lie did not pay it iu May.

The appellant was convicted upon an indictment in which the charge was that he “did bet money at a certain gaming’ table, at “rondo, which said gaming- table was then and there kept by one Andrew J. “Smith, contrary to tire form of the statute,” &c. The defendant moved the court to quash the indictment, which motion the court overruled. It was in proof that tlie defendant bet at a game called.rondo, played upon a billiard table.

This was an appeal by the State from the judgment of ■the court sustaining a motion to quash an indictment.

<p>where the plaintiff in error suggested the resignation of the defendant in error as administrator, and moved for a scire facias to the proper representative, when known, and the defendant in error resisted the application on the ground that he had resigned ami been discharged before the suing out of the writ of error, and the plaintiff in error was unable to state whether the resignation and discharge wore prior or subsequent to the issue of the writ, the court dismissed the writ of error.</p>

<p>Error from San Augustine. Charles Chcvallier, the deceased intestate, was sued hy the State on a written instrument by which the said Chevallier acknowledged in substance that lie owed to the government of the Republic of Texas the sum of seven hundred and xs07ff dollars for duties on merchandize previously imported by him into the Republic. He pleaded by way of set-off several claims against the government. A demurrer to this plea by the plaintiff was sustained, and judgment was rendered for the full amount of the debt acknowledged, with legal interest from the date.</p> <p>The errors assigned were—</p> <p>1st. The sustaining the exception to the plea of set-off, and,</p> <p>2d. Tlie refusal to charge the jury that the claim sued upon did not hear interest.</p>

<p>Error from San Augustine. For the facts see former report of same case in 3 Tex. R., 321.</p>

<p>A motion to dismiss a certiorari must be made at the return Term. (Note 61.)</p>

<p>It is not error for the court to adjudicate upon the merits “a cause in equity,’* without the intervention of a jury, where a jury is not demanded by either party, especially where the trial is, upon a transcript of proceedings of the Probate Court, removed to the district by certiorari without other evidence.</p> <p>■Querc? Whether after tho act of 1843, (Hart. Big., art. 1067,) and before the act of 1846, the Probate Court had jurisdiction to order the sale of real property belonging to an estate upon, the petition of the administrator. (Note 62.)</p> <p>Where a proceeding of the Probato Court is not merely erroneous but void for want of iuns-diction, the limitation prescribed within which it may be revised and corrected in tho Bistrict Court does not apply.</p> <p>See this ease, for an instance in which a probate sale was set aside and the purchase-money decreed to be refunded.</p>

The appellants brought suit against McKee, Buikley and I-Iolt, as acceptors, and Thomas as drawer of a hill of exchange. The x^etition alleged that the acceptors were partners composing the firm of McKee, Buikley & Co., and as such accepted the bill. The defendant Holt answered under oath denying the acceptance by him of the hill, and averring that he was not a member of the firm of McKee, Buikley & Go.

The petition disclosed the following facts : In the year 1840 one Kobert Gilkerson, deceased, placed in the hands of the appellant tiie following land claims, to wit, tiie bounty land warrant of Francis Gilkerson for one thousand two hundred and eighty aeres of laud, the donation land claim of tiie said Francis for six hundred and forty acri-s, another bounty land claim in the name of said Francis, and also his own head right certifícale for three hundred and twenty acres —…

Suit by the appellant on bills of lading for one hundred and fifty-five bales of cotton from Paltonia to Sabine Pass. It was alleged that the cotton was not delivered in good condition as stipulated, but was badly damaged, and the damages were laid at two hundred dollars.

Error from San Augustine. This suit was commenced in 1S44; and under a law then in force, similar in its terms to the act of 1S4S, (art. 801, Hart. Dig.,) a rule was entered requiring the plaintiff to give security for costs, which rule was complied with by giving the required security. The suit was continued from term to term, generally by the appellee.

The appellee sued the appellant on a bill of exchange, alleged to'have been drawn by the defendant upon a commercial house ill Now Orleans, in the State of Louisiana. The. defendant pleaded that he was not iudobted as alleged in the petition. There was no averment in the petition of the legal rate of'interest of the State of Louisiana.

Error from Nacogdoches. Suit on a note by defendant in error against plaintiff in error. Judgment for plaintiff. Petition for writ of error, tile citation to be directed to Nacogdoches county, but no allegation as to the residence of the defendant in error.

This was an application for a divorce. Tho plaintiff, Alfred Hare, represented that in October, eighteen hundred and forty-eight, he was legally united in marriage with Elizabeth Stanley, (“now Elizabeth Haro,) “ and a resident citizen of the State of Alabama; ” that they lived happily as man and wife until about the first of February, 1849, when the petitioner’s wife suddenly and without any cause or provocation known to plaintiff forsook his bed and board, with the…

The appellee, as surviving partner of the firm of Francois & Border, filed liis petition in the District Court, alleging, among other matters, that in January, 1S45. his firm was indebted by nolo to the firm of Coleman & Simms in the sum of thirty-one hundred dollars; that the latter placed the note in the hands of their attorney for collection ; that the former firm transferred to the latter in payment other notes amounting to thirty-three hundred dollars; that they…

The record of the court below showed the following proceedings, after stating tiie style of Hie case: “District Court, December “Term, id-id. And now conies Samuel Stenson and moves the court to open “said cmi.-.e and retax the cost, so as (o allow the claim of David Hill as a wit“ness in said cause of SGI which was left out by mistake in the original taxing “of the ocí'í's. Samuel Stenson, by James A. Simpson, his attorney. “ The ill at e of Texas, Harrison comity.

The appellant brought suit against the appellees on a promissory note, alleging that the note was given for a valuable consideration, to wit, for a eerlain tract of land, &c. The defendants first pleaded certain payments.

Error from Ancleraon. Tlio petition in tills case set out that tlio petitioner verily believed that the land upon which he liad settled and resided was vacant land, and that to claim the benefit of the pre-emption law, and have three hundred and twenty acres, including his improvement-, surveyed, lie made application to tiie defendant, surveyor for the comity of Anderson, in which district the land was situated, and made the oatii prescribed by the statute, but that the said…

This was an action of trespass to try title. The plaintiff’s petition was in the usual form, and was filed in November, 1848. At the Spring Term, in 1849, the defendant, Thomas Crawford, filed a suggestion of adverse possession in good faith for two years previous to commencement of suit, having made valuable improvements, &c., and also the general issue of not guilty. At the Fall Term, 1849, these pleas were repeated, together with a general denial and a general demurrer.

<p>Appeal from Upshur.</p>

<p>Appeal from Mfaeogdoehes. The plaintiff alleged in his petition that lie, on the 20 o£ October, 1S38, being the owner of a league of the head-right certificate granted in Matagorda county to Joseph Yeaman, jilaeed the same in the hands of Janies Bradshaw, a deputy surveyor in the Nacogdoches district, and designated and required said Bradshaw to survey for him'a league of lamí in said district, which he alleged lie point ed out, and which was described by a receipt given him by said Bradshaw, in the following words, viz : “Iteceived “of I. it. Lewis a certificate for a league and labor of land, granted by the “Board of Commissioners of Matagorda comity, on the 20th day of March, “1838, to one Joseph Yeaman, one labor of which has been located, and (lie “league .yet unlocated ; and the said Lewis, as the assignee of the said Yea-“man, points out for location one league of land, on the Angelina river, adjoining and below the tract of land purchased by the said Lewis from Mr. “John Durst, and between the lower line of said land and down to the old “Mansola road, and running back from the river for quantity. Comity of “Nacogdoches, October 2d, 183S. James Bradshaw, Deputy of Nacogdoches “county.”</p> <p>The plaintiff also alleged that the defendant, Durst, filed upon and had the same land surveyed in 1840, with a full knowledge of plaintiff’s claim, &c. The defendants demurred to plaintiff’s petition; denied the allegations of the petition, generally, and set -up claim to the land under Burst’s location and survey made in 1S40. The demurrer of defendant was overruled by the court, and the parties went to trial. The plaintiff, to prove liis file upon the land sued for, offered to read in evidence the receipt given to him by Bradshaw for said certificate, which was objected to by defendant’s counsel, which objection was sustained by the court. A. A. Nelson was then called, who proved that James Bradshaw was a deputy surveyor in Nacogdoches county from 1838 until September, 1S40; that be was dead; that lie never returned any lile book to the county surveyor’s office; that his time expired on the, first Monday in September, 1840, and that the land in dispute was wltliiu his district; that he, witness, was county surveyor of said county, and had been ever since September, 1S40. It was not proven that there was any evidence of plaintiff’s file upon or claim to the land in controversy in the county surveyor’s office ill 1840, when Durst filed upon and had the land surveyed.</p> <p>Solomon Harkins, a witness for plaintiff, swore that he had known the parties aud the land in suit ever since 1S3S ; that the laud was known and called in the neighborhood ever since 1S38 Lewis’ laud; that Durst admitted to him that lie knew Lewis claimed the land when he filed on it and had it surveyed, and also that Vansicklc had Lewis’ certificate, with orders to survey the land in dispute under it at the time Durst induced said Yansiekle to survey it for him; that lie learned this from a conversation lie had witli Durst in the spring of 1840, &c. John Durst swore that he was acquainted with the general character of the witness, Ilarkius, and that lie would not believe him upon liis oath. John S. Thorn and Rinaldo Hotchkiss proved the same. Benjamin A. Vansickle proved that lie made the survey of the land in question for James II. Durst, (defendant,) under Joseph Dnrst’s head-right, at the request of the said James Bradshaw and said James II. Durst; did not recollect whether or not lie had Lewis’ certificate in his hands when he went down to survey for Durst; that lie afterwards had it, and Bradshaw told him to survey it after lie had made said survey for Durst, aud that Lewis wished it surveyed somewhere down in the same country, but lie did not know where, but that John Durst or Joseph F. Lewis could tell him where Lewis wished it surveyed ; that lie called oil said Joseph F. Lewis, who refused to pay him for surveying plaintiff’s certificate, and lie had nothing more t.o do with it.</p> <p>The defendant set up claim to the huid under said survey made for James H. Durst, 1st August, 1849, by virtue of said head-right of said Joseph Durst, father of James H., which was recommended as genuine, &c.</p> <p>To prove his upon the land plaintiff produced the receipt ofJames Bradshaw, Deputy Surveyor, &c., a copy of which is given in the record, and offered to read it to the jury.. Defendant admitted its execution,</p> <p>but objected to its being read to tlie jury as evidence of title, wliicli objection was sustained by the court, to which plaintiff excepted, &c. Tlie plaintiff read tlie certificate under which lie claimed the land to the jury, and also proved that it had been recommended as genuine and legal, &c.; also proved the location of the Mansola and lower line of a tract of land sold by John Durst to plaintiff.</p> <p>U¿oii the trial the judge charged the jury that, in order to give the plaintiff a right to the land sued for and to entitle him to recover, he must have proven' that he or some oue for him made some memorandum or entry in writing of tlie entry or location claimed by him, which writing or memorandum must have been kept by the deputy surveyor in his office, in which memorandum he must have designated with reasonable certainty the laud which he intended to appropriate and set apart from vacant domain. To which charge of the court the plaintiff excepted. Verdict and judgment for defendants.</p> <p>The first assignment of error was to tlie decision of the court below in ruling out the receipt of Bradshaw, the deputy surveyor, for the certificate of plaintiff pointing to the land plaintiff' wished surveyed under it.</p> <p>The second assignment was to the charge of the judge.</p> <p>This action was brought under the 23d section of the act of limitations of 1841, (Hart. Dig., art. 3231,) which provides “ that all certificates for headlights, land scrip, bounty warrant, or any other “ evidence of rig-lit to land recognized by the laws of the government, which ‘‘have been located or surveyed, shall be deemed and held as sufficient title “to authorise tlie maintenance of actions of ejectment, trespass, or any “ other legal remedy given by law.”</p> <p>The plaintiff's title consisted of a headlight certificate, issued by the Board of Land Commissioners of Matagorda comity to one Joseph Teaman for one league and one labor of laud, and transferred by the said Teaman to plaintiff, and tile certificate of the County Court clerk of Matagorda county that tlie said certificate of Teaman was recommended for patent by the commissioners appointed under the act of Congress approved 20th January, 1840. Tlie next step in the progress of plaintiff's title was, according to the provisions of tlie statute above recited, a location made by him of the land- in controversy on the 2d October, 1838; and it is admitted that plaintiff has never had a survey upon (lie said tract of land by virtue of Lis certificate. This, then, leads us into tlie inquiry of wliat tlie Legislature meant by the term “ location.” The 0th section of tlie act of Congress, 14th December, 1837, (Hart. Dig-., art. 1S45,) provides that there shall he elected a county surveyor, whose duly shall he, &c., to examine all field-notes of surveys which have been or may hereafter be made in said county and upon which patents are to be obtained, and shall certify tlie same under his hand to the Commissioner of the General Laud Office, after having recorded the same in a book to be kept by him for that purpose. He shall also appoint as many deputy surveyors as he may deem necessary for tlie comity, and shall administer to them tlie oatli of office and take tlie bond hereinafter prescribed, and shall furnish them such instructions as may he fm-nislied him from time to time by tlie Commissioner of tlie General Laud Office. Article 10th of the same law provides that it shall he the duty of each deputy surveyor to administer an oath to eacli individual employed by him as a chain carrier or marker for the faithful performance, &c. These two sections of tlie land law provide that the comity surveyor shall examine and supervise the labors and work of tlie deputy surveyors, and keep a record of tlie surveys that the deputy surveyors shall make ; hot it nowhere requires or even permits him to make any surveys himself. The deputy surveyors are tlie officers who arc required to perform all the duties of practical surveyors; and, in fact-, county surveyors, under the act of 29th December,' lS37. (Hart. Dig., art. 18SS,) cannot, in any instance, perform the duties of practical surveyors without tlie consent of tlie Board of Laud Commissioners of his county. Among the duties also of tlie county surveyor is the one of furnishing to deputy surveyors such instructions as may be furnished him by the Commissioner of the General Laud Office. The 17th section of the general land law (Hart. Dig-., art. ISOS) provides that every certificate of claim to land which lias been or may he obtained in the manner and form herein prescribed shall be suiiiciont to authorize any lawful surveyor to survey for any person holding such eertilieate any lands which he may point out, agreeably to all the laws which do now or may hereafter exist on the subject.</p> <p>On the 2d February, 1838, the Commissioner of the General Land Office, John P. Borden, issued the following- letter of instructions: “To the county surveyor for the county of Nacogdoches. Sir: Having been informed that in “ some counties difficulty had arisen in regard to the application for survey of “the same laud by diil'eront persons in consequence of the plan adopted by “ the county surveyors, I consider it my duty to give you some general instrne-“tious upon that subject, and I trust that you will particularly respect them. “You will assign to each deputy surveyor a portion of your county, in which “no other will he allowed to survey. Each deputy will keep a small hook, in “which he will note the names of the persons applying to him for surveying, “the date of the application, and, so far as possible,' the precise location of llu; “land; but in uo case whatever to make said entry without taking into his “ possession the corresponding certificate. The district assigned to each deputy “surveyor should bo described, as far as circumstances will permit, by “ natural boundaries. Each certificate upon which land has been surveyed in “your county must he returned to yon with the field-notes — all of which “being examined by you, must be delivered over to the president of the board “of land commissioners, who will forward the same to this office for a patent. “As many persons may wish to locate their lauds in two different counties, “and as the law does not provide for the claimant to receive more than one “certificate, you will instruct your deputies in such ease to indorse upon the “ back of the certificate issued by any board of land commissioners the amount “of laud surveyed; in evidence of which, also lake a certificate from every “such person, stating therein the laud surveyed, the number of the original “certificate, the county in which it was issued, and the full amount of'land “therein called for, which certificate will be returned to you with the iiold- “ notes of the survey, and by you to the president of tire board of land “commissioners of your comity. Yours, very respectfully, Juo. P. Borden, “ Commissioner General Laud Office.”</p> <p>Under the laws and instructions of the General Land Office, which we have recited, all that was and is required of the holder and owner of a certificate of claim to land, recognized by the laws of the Government, to do, in order to have an appropriation of the vacant domain to his claim, is to present his certificate to the deputy surveyor, and to point out the vacant laud that he wishes to have surveyed by virtue of ills claim, and to surrender the possession of his certificate of claim to land to the deputy surveyor. The deputy surveyor is required to keep a small hook, in which" lie will note the names of the persons applying for surveying, the elate of the application, and, so far as possible, the precise location of the land, but, in no case whatever to make such entry without taking into possession the corresponding cerliiicate. This, then, is'wlmt the Legislature is understood to have meant by the use of the term “location,” which, in law, is made of equal dignity with a survey, for the purpose of maintaining the action of trespass to try title.</p> <p>Then we consider the question raised by the assignment of errors, .whether the evidence which the plaintiff offered, as sustaining- his allegation of location of the land sited for, was admissible to prove his prior location of the land to that of the defendants. From the hill of exceptions presented by the record it appears that the plaintiff offered to read to the jury the following instrument or document: (See statement of facts for Bradshaw’s receipt.) Previous to the oiler of this testimony by the plaintiff lie proved by A. A. “Wilson that James Bradshaw was dead, and that lie did not return his file book to the county surveyor’s oflice, and that lie was a commissioned deputy surveyor for the district of Nacogdoches county lying- south of the San Antonio road and between the rivers Angelina and Noches, in March, 1S38, and that liis appointment expired on the first Monday in September, 1840, and that the land in dispute was within that district of territory. The signature of James Bradshaw was admitted, and the copy was substituted in place of the original by agreement of counsel of defendant. The parties’ counsel having- admitted the signature of James Bradshaw, and waived the necessity of the production of ihe original instrument made by James Bradshaw, and agreed that the copy should be a substitute for the original, the question arises whether the original is admissible evidence for the plaintiff under the pleadings to prove title by location to the land sued for. Prom the statement of facts, it appears by the testimony of A. Wilson, county surveyor, that Bradshaw never returned to his office his lile book. (And it does not appear by any testimony that lie ever professed to or did keep a particular book for files and locations, or that lie had. any file book of any particular form.) The presumption of law was that he did keep one, but that presumption does not suppose it to be in any particular form, or that it was not kept in separate slips and pjeces of paper kept in a package with the certificates required to be deposited with him. The instructions of the Commissioner of the General Land Office required that the holders of certificates should always deposit them with the deputy surveyor before they wore permitted to make any locations or entries; and from the indorsement which is found on the certificate itself made by Bradshaw, it warrants the conclusion that the entry in this case was made upon this slip of paper, and that it was filed away with the certificate, as the note or memorandum required of him, to be kept in his office; that the certificate (meaning Teaman’s certificate) ‘‘came to hand July or August, 1S3S, James Bradshaw, “deputy surveyor for the district surveyor for the district between the Angelina and Neelies to the San Amonio road.” We can perceive that James Bradshaw was not an accurate man in the transaction of liis business, else he would have been particular enough to have placed the exact date as to the time when the certificate came to hand. AVe know, from the circumstances of the transaction, that Lewis placed the certificate in Bradshaw’s hand for survey sometime in July or August, and from the instrument offered in evidence, dated on the 2d October, 1838, and found with the certificate at the time of trial, we can account for it that when Lewis wanted to have liis certificate surveyed lie went to Bradshaw and designated or pointed out the land in controversy, and that it was then found that Bradshaw had not made the indorsement, and that it was made at the time of making the entry or written memorandum, and that then this slip of paper or instrument now offered was placed with the certificate, and intended as part of the same transaction, and au act in compliance with the instructions of the general land office. This supposition makes the instrument now offered the only entry or location that was made by Bradshaw. The cerlificate was in Bradshaw’s hands before there was a pointing out of the land by Lewis, and when Lewis came to make the designation of the land that lie wished to have surveyed on tile 2d October, 1838, Bradshaw then made this as the entry. If this'is a correct conclusion from the fact, it was certainly admissible as evidence to go to the jury to prove a location foi; plaintiff. AVhelher it proved a location of the land was for the jury to determine, after they had been charged by the court as to what in law constituted a location sufficient to maintain the action of trespass to try title; and in rejecting it the court erred, because it was deciding upon the weight of testimony, and that the instrument offered as evidence was not a location.</p> <p>The counsel understood that the refusal to admit the instrument offered as ail entry or location, or (receipt of James Bradshaw as it was termed,) was founded upon the opinion entertained hy the judge helow that in order to maleo a sufficient location or entry or pointing out, within the meaning- and intent of the statute of 1841, to maintain the action brought the locator Lewis was required to make or cause to be made (by some agent or attorney for him) soma memorandum in writing- of the entry or location, which must be kept by the deputy surveyor in his office to perpetuate the locator’s right to the land, and that lie had appropriated and set apart from the vacant domain, and that the memorandum in writing, so made by the locator must be kept in a small book by tlie deputy surveyor in his office as required by the commissioners’ instructions ; and that tlie instrument offered was nothing- but a mere memorandum of the deputy surveyor, which did not make it amount to a location or entry within the meaning and intent of the law of 1841, and was not sufficient to give it the dignity of ii location sufficient to maintain the action of trespass to try title. By the 17th section of the land law of 1837, it is provided that any certificate of claim to land which has been or ma}' hereafter be obtained, in the manner and form herein prescribed, shall be sufficient evidence to authorize any lawful surveyor to survey for any person holding- such certificate, (any land which he may point ont) agreeably to all tlie laws which do now or may hereafter exist on that subject. In this section tlie mode and manner of pointing out the vacant domain is not prescribed; nor does the law require that it shall be done in any particular form to be valid, and to give a party a right to have a particular portion of the vacant domain against others holding claims against the government for a portion of that domain. If writing hail been thought a material requisite to perfect the rig-lit of appropriation against others in "the estimation of the legislature, they would have required it. In the absence of any law on the subject, then the custom of the officers of the government employed in the distribution of the vacant domain, in satisfaction of recognized claims against it and what is generally known to the citizens, would be a sufficient authority to sustain a right of appropriation; and if the custom of the officers of that department of the government entrusted with tlie public business had established that a verbal pointing out to a deputy surveyor was an appropriation, then it would 'be good aiuTbinding upon the government and all persons within the operation of the custom." In tlie absence however, of express law on the subject, the legislature has permitted tlie Commissioner of the General Land Office to make rules and regulations on the subject in the form of instructions to the county surveyors and their deputies, which have tlie same force and effect as positive law for the regulation of the rights of par-ties to tlie appropriation and distribution of the vacant domain. For the purpose of protecting rights and that of order and arrangement in the distribution of the vacant domain between claimants, holding recognized claims against the government, the Commissioner, on the 2d February", 1838, issued the following instructions : (See statement of facts.) This is all the law or instructions that exist on the subject of locations or entries bearing upon this cause; and it nowhere requires that they shall ho in writiug signed by the party, locator or his agent. The instructions of the Commissioner are directory to the officer; and'if they are not strictly complied with, it would not defeat tlie locator’s right of appropriation as against any claimant, particularly if that claimant knew of tlie existence of the lile of his certificate in the hands of the deputy, and that it was to be surveyed upon particular land. (Craig v. Rad-ford, 3 Wheaton, 594.)</p> <p>From the statement of facts it appears that Bradshaw only made some live or six surveys within his district, and it is not to be presumed’that ho paid much attention to the requirements of tiie law or instructions. For these reasons, we think, tlie court erred in rejecting- the testimony upon the opinion entertained by the judge, and that on this ground tlie judgment jnn.-t he reversed and a new trial granted. (See Bullock v. Wilson, 2 Fort., 43G; 2 United States Digest, sec. 211, p. 720; Ewing v. McKnight, 1 Scrg. & R., 128; 2 United States Digest, sec.. 2-13, p. 721.)</p> <p>With regard to the second assignment oí error, the charge of the court was: “That to entitle the plaintiff to recover a verdict he must show that the “ locator made or caused to be made some memorandum in writing of tlie entry “or location, which must be kept by the deputy surveyor in his office, to “ perpetuate his right to the land that he had appropriated, in which memorandum he must designate with reasonable certainty the lands which the “locator intends to appropriate and set apart from tlie vacant domain.” This charge must he understood to be in reference to the state of facts before the court. The commissioner’s instructions, under date of the 2d February, 1838, were produced and were before the court, and the instrument upon which the plaintiff relied as his evidence of location had been rejected .upon going to the jury. By those instructions to the county sniveyors, it will be seen that he directs that “Each deputy will keep a small book, in which he will note the “names of tlie persons applying to him for surveying, the date of the applica- “ tion, and so far as possible tlie precise location of tlie land; but in no case “ whatever to make such entry without taking into his possession tlie corresponding certificate.” The 17th section of tlie general land law provides that the holding a headlight certificate is sufficient evidence to authorize any lawful surveyor to survey for any person holding such certificate any lands which he may point out, &c. The pointing out of any laud that is vacant by any person holding a certificate authorizes the surveyor to make a survey of it, is the act required to be done by tlie holder of tlie certificate by this law; and, under it, the charge of the court cannot be sustained. The statute does not prescribe how or in what manner the pointing out shall be made by tlie locator; and under that act any open, public, and notorious act of the holder of the certificate, indicating to the surveyor an intention to have a particular tract of . land surveyed, in satisfaction of his certificate, is clearly sufficient in law; and tlie court cannot under tlie statute say that no other form of pointing out shall bo sufficient but that of “ makingor causing to be made some memorandum in writing “of the entry or location,'which must be kept by tlie deputy surveyor.” Then, do the commissioner’s instructions require of the locator that he “shall make “some memorandum,” &c.? Upon a literal comparison, of tlie charge of the court with those instructions we find that the error consists in the judge requiring of tlie locator to do that which tlie surveyor was required to do. The presumption of law is that the surveyor has done his duty, substantially in compliance with tlie law, and that the document which the plaintiff produced but the court rejected was the entry or location required of tlie deputy under those instructions. If then the charge of tiie court was erroneous the case should be reversed, unless from the statement of the facts it should appear that the plaintiff cannot adduce title sufficient to sustain the action. This, we think, tlie plaintiff has doue. (Bullock v. Wilson, 2 Tort-., 43S; 2 U. S. Digest, sec. 211, p. 720; Ewing v, McKniglit, 1 Serg. & R., 128; 2 U. S. Digest, sec. 243, p. 721.) -</p> <p>We contend that the court acted properly in refusing to allow the receipt of Bradshaw to the plaintiff for the certificate to be read to the jury as any evidence of his right to the land sued for. That paper could siiow no fact which would tend to prove that plaintiff had any right to the land by virtue of a location upon it at tlie date of the receipt. Tt was a mere memorándum between the deputy surveyor and plaintiff, given to plaintiff by Bradshaw for plaintiff’s own private purposes; it could give no sort of notice to the public of the appropriation of the land in dispute, and only served as proof against Bradshaw to hold him individually liable to plaintiff for tlie certificate'filed. Moreover, plaintiff used no sort of diligence in perfecting his file by having the laud surveyed. He allowed nearly two years to ehvpse before Bradshaw went out of office without taking any further step to secure the land, and after Bradshaw went out of office lie caused no memorandum to be'made by any one to show lii.s claim to the land; and it seems from the testimony of Vansickle that Bradshaw himself did not know, where Ílaintiíf wished the certificate located, hut referred him, Vansickle, to Joseph F. ,ewis siurt John Durst for information in regard to plaintiff’s wishes, as appears from the statement of facts.</p> <p>The instructions of tiie Commissioner of the General Laud Office to tiie surveyor of Nacogdoches county, which were read to the court, dated 24th February, 183S, and which were given in pursuance of the 9th section of tiles land law of tiie 14th December, 1837, and are a part of that law, require, each deputy surveyor to keep a file hook, in which lie was required to enter all files made with him, with the proper dates, description of the land, &c. It was the duty of plaint ill'to make his file in pursuance of that law, and to prove by that book that lie filed upon tiie land claimed by him at the time and in the manner alleged in his petition. lie did not do so. lie shows by his petition that the only evidence of his file is the receipt set out in said petition, and upon which lie solely relied to prove his designation of the land claimed by him. The object of keeping tiie file book wlficli deputy surveyors were required to keep, was, as is declared in tile instructions, to prevent confusion ; it was intended to give notice to those who wished to locate of what was appropriated and what was vacant.</p> <p>But if the file claimed by plaintiff bad have been entered in a file book it could not have held tiie land against a subsequent locator, as it is now sufficiently definite. It does not point to the side of the Angelina river, where tiie plaintiff wished tiie survey made, and points no beginning corner, and to no place sufficiently notorious or certain. (See Wilson v. Mason, 1 TJ. S. Cond. K., 242, and notes to same ; the same at 253, 254.)</p> <p>If there was any error in the judge’s charge to tiie jury, I have not been able to discover it, or even to see a point in it upon which a doubt can rest.</p> <p>We insist that tiie plaintiff had no right to recover in this ease upon tiie bare certificate, and lile under which he claims the land, even if that file had been legal. This suit was brought to recover.tlie possession of the land, &c., and although, under the 23d section of the act of limitations, approved February, 1841, (Ilart. Dig., art. 3231,) any claimant may maintain an action of trespass for tiie recovery of lands upon a genuine certificate, <&c., which lias been “lo-“cafed and surveyed,” yet we insist that tiie plaintiff cannot recover in this ease, because lie did not show that lie brought himself within tiie provisions of that act. It seems clear, from the terms used, that the Legislature intended ‘'location” and “survey” to be understood as meaning tiie same tiling, and to distinguish them from bare “files.” Intending to charge,the common-law rule ami allow a claimant to sue for the land lie' liad had' actually surveyed, without having a patent for tiie same. By the survey tiie boundaries would be clearly defined by established lines and corners. No case could perhaps more plainly illustrate the propriety of this construction of the section referred to, especially when tiie vagueness of tiie file relied upon is considered. The hare file upon land which the holder of a certificate makes with a surveyor is the act of tiie owner of the certificate. The survey or location is the act' of an officer of tiie government, and it cannot be well presumed that the Legislature intended to put it in the power of an individual, by ids own act, to create a title for himself to public domain sufficient to authorize him to maintain an action of ejectment upon.</p> <p>1. The first point insisted on by the appellees is that tiie document rejected by tiie court was a mere private paper between Bradshaw and Lewis; to which we rejoin that it does not make that appearance on the record. It is admitted to be a true copy of a genuine origina], signed by James Bradshaw, Deputy Surveyor, &c., and, in its terms,' that original appears to be the very memorandum of a location or entry which appellant seeks to establish. It is not a mere certificate of a past transaction, but is a present tense record, in its terms, of tilings then (lone. In what other language, substantially, would or ought a surveyor to have made such an entry or 'memorandum'? It first states or acknowledges the deposit, with him, for location, of the land certificate, which conforms to the instructions requiring him to receive no entry and make no survey without taking into bis possession tin; corresponding certificate. It there records in the present tense tlie specification of tlie land pointed out by Lewis, &e., &e. But even if we are mistaken in lilis view, and tlie document in question was a mere certificate of tlie facts it slates, it is still, in its terms, a copy of a written entry, officially given by tlie proper officer having charge of tlie original, ami, under the authority cited in our former brief, ought, after the preliminary proof of the death of Bradshaw and tlie non-return of tlie. file-book to tlie county surveyor’s office, or other written memorandum of files by him, to have been admitted in evidence, at least for whatever it might have been worth.</p> <p>2. In aid of this evidence, if it had been admitted, we showed by defendant’s witness, Yausickle, that lie received the certificate in question from Bradshaw at the proper time in the memorandum indorsed as the proper date that it liad been filed with hini officially by Lewis for the location; and by Ilaskill that it was well known before the date of Burst’s file by the latter, and generally to have been located oil flic land in question; which authorizes two conclusions : 1st, that we liad a prior location, as claimed by us, and, secondly, that Durst had notice of it before tlie inception of his claim.</p> <p>3. The argument of the appellees does not sustain tlie charge of (he court. It does not attempt to do so. That charge requires two tilings, botli plainly not required by iaw, of locators, 1st, that their pointing out or specification of land for survey must be in writing, and, secondly, that those claiming tlie benefit of the locations are responsible for tlie preservation by tlie surveyors of the papers containing those written designations, and perhaps, also, for their keeping some file book or some other written memorandum or memorial of files, <Sic., and this without regard to notice of their prior locations by and to subsequent locators.</p> <p>4. It is also urged by appellees that our entry or location is bad for want of certainty in the designation of the beginning corner, and tills exception is based upon the failure in tlie designation to state on which side of the Angelina river llu* land lies. This objection rests upon a want of attention to tlie proof aliunde of tlie certainty of Lewis’ calls. 1st. That his land lies oil Bradshaw’s surveyor’s district, which is shown by Nelson to have beep bounded by the Angelina on one side and the Neelies on the other. 2d. That it is between a certain well known John Durst tract, and tlie Mansola road, which are shown to have been on the Noches side of the Angelina road, &c. But tlie objection is not material in the discussion of the propriety of the rejection by the District Court of Lewis’ paper evidence of location. It would have been folly in appellant, after tlie rejection of that paper, to have proceeded to adduce proof to show that its calls were reasonably certain, &c.. and lie made no such attempt. Tlie proof of that character which is in the record was evidently offered for other purposes; that is, to lay the grounds for the admission of this document and to establish a parol designation and file.</p> <p>5. We do not deem it necessary to discuss the point suggested by appellee upon tiie 23d section of the act of limitations. Onr right to recover, so far as tiiis point is concerned, lias been too long settled in practice to bo now questioned.</p> <p>WHEELER, J., having been of counsel, did not sit in this case.</p>

I. The court helow had no right to reconsider the. grant of the order after the expiration of the term of its grant. (Dickinson v. Wilkinson’s administrator, 3 How. 11., 57.) II. Tho court helow erred in setting aside this order (without the happening of the contingency on which its dural ion depended) on grounds of alleged legal insufficiency, for in so decreeing he greatly mistook the powers and duty of a court of equity if Chancellor Kent is tobo believed.

This suit was instituted in the District Court at the Spring Term, A. D. 1848, and was tried at the December Term, A. D. 1849. Held: (after his death,) that she was entitled to the same as her separate property. (20 Pick. R., (Phelps v. Phelps,) 2 U. S. Dig., 110.) Tiie notes and deed in trust cannot be considered as intended to operate as a will. A will is a disposition of property to take effect after tiie death of the testator.

<p>A writ of error, although prosecuted after the lapse of two years, will be entertained if there b© no motion to dismiss.</p> <p>Where a claimant- failed to cause liis location to be surveyed and returned to the District Surveyor’s office within a reasonable time, it was held that the land was open to location by another. (Note 8L)</p>

Error from Reel River. Trespass to try title. The petition disclosed that the plaintiff claimed by virtue of his purchase at probate sale of the conditional headlight claim of one McCoun. Tluyjs was a demurrer to the petition, which was overruled. Verdict and judgment for the plaintiff.

Suit April 21st, 1847, by appellant to recover from the appellee five aeres of land west from and adjoining the town of Marshall, and damages.

Matthew Alexander settled, occupied, and caused to be surveyed by a lawful deputy surveyor of the county of his settlement three hundred and twenty acres of the vacant domain of tho State. After having occupied the land for near two years, lie wont with his family to the State of Mississippi on a visit, leaving the place in tlie possession of Joel Alexander, liis son, and halving some, of his property also -on the place.

The facts in this ease wore similar to those in the ease of Hancock v. McKinney, (7 Tex. E., 381,) tlic only difference being that the app'dlant in this ease claimed under an original title for a league of land issued to him by (lie Mexican authorities on December 30lli, 1834. The grant under winch the appellee claimed was made to Ramon de la Garza, May 7th, 1831, for eleven leagues of land.

Appeal irom Cherokee. The appellee brought suit against tho appellants for a wilful trespass upon the enclosure and premises in the plaintiff’s possession. The defendants pleaded not guilty and a general denial; and further justified averring that at the time of the alleged trespass the right of property and possession of the premises was in the defendant Alfred ¿1.

Tho proceedings in this case were instituted by a petition on the part of the appellee to tho ITobate Court for an order requiring' the administrator da bonis non to pay a claim against the succession of tho intestate that had been presented to and allowed by the former administrator and ranked among the acknowledged debts of the estate. The claim on its face appeared to be barred by the statute of limitations before its presentation and allowance.

An indictment was preferred against the appellant for keeping and exhibiting a faro bank, signed “W. H. Estill, District Attorney, fitli District, pro tern.'’’ The defendant made an application for a continuance, including in his affidavit with this seven other eases, and stating that the indictment “lias been “preferred against him at the present term, and that he lias not had time to “procure the testimony of several witnesses that ho believes material to his “ defense in…

Conviction of murder in the first degree. Held: “ that to constitute murder in the first degree it is not necessary that the premeditated design to kill should have existed for any particular length of time.” In an early ease in Tennessee it was held that a previous intention to take life .must he positively shown, (Mitchell v. State, 5 Yerger, 340,) but it has since hocn…

<p>Appeal from Shelby.</p>

Error from Rusk. The plaintiff in error, Jesse Walling, sold to O. H. Kin-nard, the defendant in error, a tract of land described by metes and bounds, and purporting to contain one hundred and sixty acres. The price was three hundred and twenty dollars, or at the rate of two dollars per acre, scoured by two promissory notes for one hundred and sixty dollars each.

<p>Appeal from Houston.</p>

The appellant filed his petition setting out various claims and demands against the defendant, and that the defendant had sued him upon three several notes before a justice of the peace, and had obtained judgment against him thereupon; that on account of the jurisdiction of the justice’s court petitioner was not allowed to plead in reconveution the matters set forth in his petition. lie prayed that defendant be compelled to account, and lie prayed an injunction staying…

The plaintiff (appellee) in March, 1849, brought his action of trespass to try title to a tract of land containing nine hundred and sixty acres, described in his petition by a reference to.the comity map and the adjoining surveys.

Tho appellees sued the appellants, alleging that Benjamin and Rebecca Ilawldns, husband and wife, natives and members of ■the Creek Nation of Indians, wore married iu 1830, and previous to 183-1 had two children, to wit, William and plaintiff, Louisa; that iu September, 1803, William died (without issue, intestate, and having no brother or sister except Louisa) in the Creek Nation, in the Territory of Arkansas; that at the time of his death, the said William owned and…

The appellee brought suit against the appellant to recover the value' of a slave, alleging that the slave escaped from his possession, and was converted by the defendant to his use; that the defendant employed the slave at work in a well upon his premises; and that while so-employed and at work the slave received an injury by which he was rendered worthless to the plaintiff, and of which he died; that the defendant,. being liable, promised to pay the plaintiff the value oí…

Tlie defendant was indicted for playing “ a game with “ cards on which money was bet in a public house where people resort,” “ kept “and occupied by one John M. Dollahite.” There was a motion to quash the indictment, which the court overruled.

This suit was commenced by'the appellee against the appellant before a justice of tlie peace, to recover the possession of certain premises in the possession of the appellant. In the justice’s court there was a verdict and judgment for the plaintiff, and a writ of possession was issued.

The appellee was indicted, under article 386 of the Digest, for cutting' and removing' a landmark. The indictment contained two counts : one charged the cutting of a tree, the other the removing' of a stake, described as allowed landmarks of a certain tract of land described in the indictment. In the description of the offense the indictment followed the words of the statute.

The appellant was convicted upon an indictment for card playing. He appealed to this court, and entered into a recognizance as follows: “The State of Texas') In this ease the defendant comes and takes an appeal “ r. Ito tlie Supreme Court, and enters into recognizance as “ William C. Pierce.

The appellants were jointly tried-and convicted of permitting playing at cards in their house for retailing spirituous liquors. They moved for a new trial, which was overruled.

On the 10th clay of April, 1814, Taney Thornton departed this life in the State of Tennessee, having on the same clay executed his will, by which he appointed his wife, Amelia,and Join) Allen his… Held: that if the right of the property was not ■changed, (he, only person authorized to sue was the administrator de bonis non; and if the administrator liad abused his trust the remedy was upon his administration bond.

<p>where a third party interposes a claim of property and gives bond to try title under the statute, he cannot dismiss the issue thus made for any cause without first restoring the property to the sheriff.</p> <p>A third party, claiming property levied upon by execution, cannot be permitted to prove that tile defendant in execution owned personal property and uncultivated lands which should first have been levied on.</p> <p>Where an error is assigned in the petition for a writ of error, and there is afterwards a formal assignment in which such error is not embraced, and the same is not noticed in the brief, it will be considered as abandoned.</p>