Volume 11 — Texas Reports

<p>Appeal from Travis. This suit was brought (November 19th, 1850,) to recover title, and be quieted in the possession, to one half league of land. The petition set out that on the 12th day of May, 1834, John Burleson and Rebecca S. Burleson, his wife, executed and delivered tó J acob Burleson, said deceased, under whom petitioners claimed, an agreement in writing, under their seals, as follows, viz:</p> <p>“ State of Coahuila and Texas and jurisdiction of Austin. “ Know all men by these presents, that I, John Burleson and “ Rebecca Burleson, do, for value received, transfer all our “ right, title and interest of one half league of land to Jacob “ Burleson, it being the half of a league lying on the east side “ of the Colorado, being saved by John Burleson, being the “ upper half of the league, just splitting the league with a “ certain line, that has been run the length of a quarter of a “ league. We do bind ourselves, our heirs and administrators, to make unto Jacob Burleson, his heirs and adminis- “ trators, a good and sufficient deed, so soon as we obtain one “ from the government. Given under our hands and seals, this “ 12th day of May, 1834.</p> <p>(“Signed,). “JOHN BURLESON, [L. S.]</p> <p>“REBECCA S. BURLESON.” [L.S.]</p> <p>The petition stated further, that there was an agreement between John and Jacob Burleson, in 1832, when John Burleson located the land in question, by which it was to be divided; and that the headright of J acob Burleson, when located, should be divided between the parties; and that the bond aforesaid was executed in pursuance of said agreement; that Jacob Burleson, on or about the date of the covenant • recited, went into the possession of the half league of land in question, and made valuable improvements thereon, and continued in the peaceable possession until his death in 1839, and that his heirs continued in the peaceable possession and enjoyment of the same since his death, until forcibly ejected by the defendant, John Burleson, about the time of the commencement of this suit; that John Burleson always acknowledged the right of the said Jacob and his heirs, and that after the death of the said Jacob, John caused his, the said Jacob’s, headright to be located and patented, and always claimed the half thereof. It was alleged, further, that John Burleson had received in 1832, title to the land sued for. The petition prayed that title be decreed to the defendant, John Burleson, for the half of the headright league of Jacob Burleson, and that title to the half league in question be decreed petitioners, and that they be quieted in the possession of the same. There was a demurrer to the petition, which was sustained.</p>

Error from Payette. Smalley.was indebted to Trammel by note, and Trammel was indebted to Smalley on account, in a less amount—-both under $100. Trammel died, and his administrator sued Smalley on the note, before a Justice of the Peace. Smalley appeared and pleaded his account, in set-off. The Justice ruled out the set-off. The set-off was supported by affidavit, but had not been presented and refused.

The indictment charged the defendant with having stolen one bolt of domestic, made of cotton, of the value of ten dollars, of the property of one David Coal-son, &c. On motion the indictment was quashed for uncertainty. The grounds of the motion were 1st. That it was not alleged that the bolt of domestic was goods as required by the statute. 2nd. That it did not allege the specific venue whence said goods were stolen. 3rd.

Error from Bastrop. A. W. Winn was indicted, Fall Term, 1851, for assault and battery. Process was issued 30th December, 1851, and returned “ Came to hand same day issued, and “ executed the same, serving the within capias on said Winn “ and taking his bond for his appearance at the next Term of “the District Court.” Then followed a bond by Winn, as principal, and the plaintiffs in error, as sureties, for Winn’s appearance, as aforesaid.

<p>Error from Guadalupe.</p>

Error from Guadalupe. The parties in this case submitted their matters of difference, to the arbitrament of two referees, chosen by themselves, not under the terms of our statute, but at Common Law. The petition alleged the submission, and set out the bond given by each of the parties, to abide by and perform the award. It set out the award, a failure on the part of the defendant to perform the award, and prayed judgment for the amount awarded to the plaintiff.

<p>Appeal from Bexar.</p>

The indictment charged that the defendant did make an assault upon the body of one Nathan Thomas, and with a loaded pistol held in his hand, the said Thomas, attempted, feloniously, willfully and maliciously, to kill and murder. A motion was made to quash, on the ground that the indictment was vague, uncertain, informal, and, in fact, charged no specific crime. And the motion being sustained, notice of appeal was given.

<p>Appeal from Bexar. Suit by plaintiff, Montes, to quiet the title to a lot of ground then in her possession. The allegations, evidence and instructions will be found in the opinion of the Court.</p>

This suit was brought on a note of hand given by the appellant to the appellee.

The proceedings, in this case, were commenced by petition filed June 15th, 1852. The facts will be found in the opinion.

<p>The law which regulates appeals and writs of error to the Supreme Court, requires the Clerk “to make up a full and perfect record of all proceedings in such case.” The question, then, is, What is a part of the proceedings in a case ? Ho paper, found in the files, should be inserted, unless it had been used in the case, or the Court had ordered it to be made a part of the record; and one insertion is all that will be allowed.</p> <p>The Supreme Court will, on motion, strike from the transcript, duplicates of the same matter, and any matter which does not belong properly to the transcript.</p> <p>The taxation of the costs of the District Court cannot be objected to in this Court, except by way of appeal, or writ of error, after judgment upon a motion to retax.</p>

<p>Where a party brought his action of trespass to try title, upon a location of a genuine land claim, and afterwards obtained a survey, which it became important for him to prove at the trial, to avoid a forfeiture of Ms location for failure to survey within twelve months from the passage of the Act of February 10th, 1852, concerning surveys of land; Held, That the Court erred in charging the jury, in effect, to disregard the evidence of a survey, because of the failure of the plaintiff to allege it.</p>

Thomas P. Rutledge, the deceased testator, was employed by the Messrs. Meade in the capacity of an overseer, in the fall of 1847, and was by them discharged on the first of January, 1848.

This suit was brought on a bill of exchange, drawn by Raymond & Grooms on J. D. Fuller & Co., New Orleans, Louisiana, in favor of Chancy Johnson, at ten days sight, and indorsed by Johnson to the appellee, Holmes. It was protested for non-acceptance and non-payment. Suit was brought in Bastrop county, within which county Johnson resided, against Johnson and the appellants, who were residents of the county of Travis, in a-joint action.

At the April Term, 1843, a trial was had, and verdict and judgment rendered for the defendant, Lee, from which the plaintiffs appealed to the Supreme Court. At the --- Term, 184-, of the Supreme Court, the judgment was reversed by consent of parties, and the cause remanded for a new trial. The trial and judgment from which this appeal was taken, were had in 1852. The admissions of counsel, upon which points were made, appeared to have been made on the eve of the former trial.

<p>Where a conveyance of land is made, with a clause of defeasance, or an absolute conveyance, taking a separate mortgage to secure the payment of the purchase money or part thereof, and the vendor sues upon the notes and obtains judgment and sells the land in part satisfaction thereof, Quere f Whether the purchaser at the execution sale would take the land discharged of the lien for the balance of the purchase money. It seems, that the property would be discharged of the incumbrance, by a sale under a decree of sale, upon a regular foreclosure of the mortgage.</p> <p>Where a bond for title was given, and a note taken for the purchase money, and suit was brought upon the note and judgment obtained and execution issued and levied upon the land, which was sold for less than the amount of the judgment, it was held that the land passed to the purchaser at the execution sale, subject to the balance of the pin-chase money due.</p> <p>A surety who has paid the debt of his principal, is entitled to be subrogated to all the rights, including rights of lien, of the creditor whose claim he has paid.</p>

<p>An affidavit for a continuaneo, on the first application at the first Term of the Court, “ that affiant cannot go safely to trial, for the want of testimony material to his “ defence; that the witnesses, whose testimony he desires, reside beyond the “ limits of the State, and that he has not had time to procure their testimony since “ the commencement of this suit; that this application is not made for delay, but “ that justice may be done,” was held to be insufficient; and see what the Court said the party ought to have stated.</p> <p>Objections to evidence on the ground that it is secondary, must be taken when the evidence is offered.</p>

This suit was brought for the specific performance of a verbal contract for the sale of land.

The plaintiff in this suit claimed title, derived from Charles Curtis, the original grantee. Curtis, in 1835; conveyed the land in controversy to Niles F. Smith, who conveyed to Elliot Fletcher in 1836. The conveyances in both sales were regularly executed before J. L. Hood, Judge of the Jurisdiction, and registered in January, 1850. A deed from Fletcher, for the same land, to Watson, the plaintiff, was executed in 1846, and registered in 1848.

<p>It seems that where the authentication of a claim against an estate is defective, the claimant is not required to sue within three months after its rejection by the administrator, although the rejection be general and absolute.</p> <p>A plea by an administrator, that the claim, properly authenticated, was presented and rejected more than three months before the suit was commenced, is good; although it may have been again presented and rejected within that time.</p> <p>It is not necessary that an affidavit in authentication of a claim against an estate should pursue the words of the statute, if the substance be retained; “ that the “ debt and interest, mentioned in the accompanying deed of trust, is a just and sub- “ sisting claim against the estate of Josiah J. Crosby, late of said county, deceased, “ and that the same has never been paid or any part thereof—that there are no “.off-sets against the same,” was held to be sufficient-</p>

This was an action of trespass to try title. The plaintiff claimed title to the land in controversy, under a grant to one Wickson, made in 1831. The defendants claimed by virtue of a patent issued in 1848. The plaintiff read in evidence a translated copy, from the General Land Office, of the original grant to Wickson, of one-fourth of a league of land.

<p>See this case for circumstances of delay, fraud and trust, which entitled the plaintiff, who was an heir, to file a petition in the District Court to establish the property of the estate, and to obtain partition and distribution.</p>

The plaintiffs brought suit in the District Court to obtain a certificate for a league of land in right of their ancestor, Abram Kennedy.

Error from Washington. The plaintiff in error, who was plaintiff in the Court below, filed his petition for injunction, alleging that he had been sued by Wm.

The appellee presented to the former administrator of Jones, a promissory note against the intestate. The administrator indorsed on the note, its acceptance. It was then presented to the Probate Judge, who indorsed thereon, his approval. McFarland, the administrator who had allowed the note as a just claim against the intestate, resigned, and another administrator de bonis non was appointed.

The appellant was put upon his trial, on an indictment for an assault with intent to murder. The jury found the defendant guilty of an assault and battery, and assessed the punishment at a fine of two hundred dollars. The defendant moved in arrest of judgment, and assigned as grounds of his motion, that the indictment was not signed by the District Attorney, but by Asa M. Willie as District Attorney pro tem., and that the indictment did not appear to have been filed in Court.

<p>Appeal from Washington. Both parties appealed.</p>

<p>In order to exclude a witness, on the ground of interest, his interest must bo direct and certain, in the event of the suit; or the verdict and judgment must be admissible evidence either for or against him in another action ; a remote or contingent interest, or an interest in the same question, is not sufficient.</p> <p>The constant tendency of Courts has been, to go as far as possible in removing objections to the competency of witnesses; hence, if there is a doubt as to such interest being established as to exclude the evidence, the evidence is admitted, leaving it for the jury to say how far the circumstances impair the credit of the witness.</p> <p>An ex pw'te award of appraisers is not admissible in evidence.</p> <p>A cross examination is not confined to the questions propounded and answered on the examination in chief; but any questions may be asked, which arc pertinent to the questions to be decided by the jury; and any fact, which shows a bias on the part of a witness of the other party, is admissible whether the same be offered in cross examination or in chief.</p>

Renick sued Coons, Lewis & Groesbeck for services as a teamster, from Bastrop to Indianola, thence to El Passo and back to San Antonio. Lewis and Groesbeck denied the hiring; and, as it was sought to charge them as partners of Coons, denied the partnership. The evidence was, that the plaintiff was employed, on the 28th March, 1850, by a person representing himself as the agent of Coons, Lewis & Groesbeck ; and that he performed the services of a teamster, as alleged.

Suit by the appellee against the appellants for the value of certain negroes. It appeared that Averitt had given Mayfield a bill of sale of the negroes, and taken a separate defeasance. The bill of sale was recorded, but the defeasance was not. Mayfield sold to Ward, his co-defendant; and the petition alleged that 6 Ward knew that Averitt laid claim to the negroes.” There was a general demurrer, which was overruled, and a general denial.

Error from Washington. This was an action by the defendant in error, against the plaintiff in error, on a promissory note of the latter, made payable to Christian English or bearer, six months after date. The defendant pleaded, 1st. That the plaintiff was not the owner of the note, but that it belonged to the estate of Christian English, deceased. 2nd. That, at the time of the making of the note, the defendant was a married woman, and incapable of binding herself.

The appellee, John Horan, was indicted for permitting a faro bank to be exhibited in his house. He demurred to the indictment; and his demurrer was sustained, and the State appealed.

Suit by appellee against apppellant, to recover a slave (Ned) or his value, and the value of his services. Both parties claimed by purchase from Henry Martel. The bill of sale to the .plaintiff’s intestate was dated July 24th, 184'7; was filed for record on the 31st of May, 1850 ; and purported (including another slave) to be made in consideration of SI,055. The bill of sale to the defendant was dated July 9th, 1851, and purported to be made in consideration of $900.

<p>Where a general demurrer is overlooked, and a new trial is granted for any cause, the demurrer may be insisted on, when the ease is called for trial again.</p> <p>An attorney at law can maintain an action against an administrator in his representative capacity, upon a reasonable contract for professional services in a case where such services were necessary.</p>

From, the facts of this case, it appeared that Wm. Munson, in the year 1831, obtained a deed from the government, for a league of land; that from its southwest corner, the south-western line run north, 80° east, 1350 varas; thence south 10° east, 1880 varas, to the corner of Gibson Kuykendall’s land; thence north, 80° east, &e., &c.; that in the same year, the said Munson leased for one thousand years, to Isaac N. Charles, eleven and one-half labors of this league, the line…

<p>The Act of March 17th, 1842, (Hart. Dig. Art. 591,) had the effect to give the whole estate of an intestate -without issue, in all cases, to the sole surviving parent, to the exclusion of brothers and sisters of the deceased.</p>

<p>Appeal from Fayette. This action was commenced in the Court below by the appellants, Morgan and Mildred Cryer, to recover and have set apart to them, one equal eighth part of three-fourths of a league of land, to which they allege they are entitled as heirs at law of George Duty deceased.</p> <p>There was an agreed state of facts, and the cause submitted to the Court, a jury being waived, and judgment for defendants, from which plaintiffs appealed.</p> <p>It was admitted that the plaintiff was the sister of thejdecedent George Duty, and that she was a feme covert being the wife of Morgan Cryer.</p> <p>It was further admitted that George Duty died in the fall of 1837, leaving the three-fourths of a league, as represented in plaintiffs’ petition;—that immediately afterwards, to wit: in November, 1837, administration was granted to William Duty; that, at the February Term of the Probate Court for Bastrop county, the following persons were declared to be the heirs of said George Duty, to wit: Joseph Duty and William Duty, the brothers of decedent, Martha Scott, a sister of decedent, four minor children of Ann Campbell also a sister, and Elizabeth Hazelett a sister; that the said Joseph and William appeared in person, the others being absent, whereupon the Court appointed William Duty curator for Elizabeth Hazelett, and Joseph Duty curator for all the other absent heirs mentioned; that an agreement was then entered into by the said Joseph and William Duty, acting for themselves and as curators respectively, for the heirs of Ann Campbell and Elizabeth Hazelett and husband, and Martha Scott acting for ■ herself, partitioning the said three-fourths of a league of land amongst themselves. Whereupon the Court appointed W. Pinckney Hill, curator to execute title according to said partition ; that final settlement having been made, the administration was closed on the — day of May, 1839 ; that said George Duty was unmarried and without any heirs of his body; that the plaintiff, Mildred Cryer, was his sister, and at the time of his death lived in the State of Arkansas, and has continued to reside there ever since; that it was known to the parties making partition of said land, that said Mildred was a sister of said George, (the decedent;) and that the same was known to the administrator at the time he commenced the administration; and that the defendants claim the whole of said three-fourths of a league.</p> <p>It was admitted on the part of the plaintiffs, that the defendants hold and claim said land in severalty, immediately and mediately under deeds made to them in their seperate and individual rights, from the parties named in the judgment or decree of the Probate Court.</p>

<p>Appeal from Bexar. Suit by appellants to recover from the appellees four leagues of land, fronting on the Guadalupe river, comprehending the Gomal spring, and the town of New Braunfels. The plaintiffs claimed title by virtue of a Spanish concession, issued in favor of the Baron de Bastrop, in December, A. D., 1807, by Cordero, Colonel commanding at the Post of Bexar, and also acting as Civil and Political Governor of Texas. In this concession, the party was referred to the Intendant at San Louis Potosí for a confirmation of it. On the 8th of June, 1824, the Baron de Bastrop presented his concession to Sancedo, at Bexar, who, under the style of Primero Vocal of the Illustrious Deputation of Texas, and, ad interim, Political Chief, confirmed the same; had the land surveyed, and caused the party to be placed in formal possession. The defendants claimed by virtue of a subsequent grant to Veremendi. After the institution of the suit, the plaintiffs located the land, with land certificates ; and set up their locations, by way of amendment. On the trial the locations, when offered in evidence, were excluded; and the plaintiffs excepted. But this point was not urged in this Court, the appellants suggesting that they intended to bring a new suit on their locations, if the judgment in this case should be affirmed; and it is therefore, probably, the Court takes no notice of the point, in the opinion. (But notwithstanding the case of Bradford v. Hamilton, 7 Tex. R. 55, it would appear from the cases of Henderson v. Kissam, 8 Tex. R. 46; Bell v. McDonald, 9 Tex. R. 378, and Williams v. Randon, 10 Tex. R. 74, that the locations might have been set up, subject to costs and the statute of limitations, thereby rendering a decision as to the validity of the Veremendi grant necessary. Rep.)</p> <p>There was no proof that the land was denounced as vacant land, and the grant to the Baron de Bastrop adjudicated to present no obstacle to the grant to Veremendi; but there was the usual reference and report that the land was vacant, as if made in ignorance of the former grant.</p> <p>The jury not being able to agree on a verdict, a verdict was taken pro forma for the defendants, by consent.</p>

Suit (removed from a Justice’s Court) on a note for $86, by an indorsee, against the maker. The person by whom the appellant could have proved the same facts to which he proposed himself to testify, was the payee of the note, and resided in Tennessee.

The appellee brought suit against the appellant, jointly with Webb & Horton and the heirs of Chalmers, on certain promissory notes, and a mortgage given to secure their payment.

<p>Appeal from Travis. The allegations in the answer were, that the note was given in the settlement of the partnership concerns; that the books showed an error in the settlement, specifying what the error was ; that there were errors in additions ; that some items were left out of the settlement which ought to have been charged to Long, specifying them, and some things not on the books at all, which ought to have been charged to Long, that Long, being the better penman, kept the books. There was no statement of facts; but there was a bill of exceptions to the ruling of the Court, excluding the books of the partnership which were offered by the defendants to prove the mistakes alleged in the answer, accompanied with an offer to prove that the books were kept by Long. The other facts will be found in the opinion of the Court.</p>

On the trial, the defendants below (the appellants) offered in evidence, a certified copy, from the County Court, of a bond for title, made by the plaintiff’s intestate in favor of one Adams. The plaintiff objected to the admission of the copy in evidence, on various grounds, among which were the want of filing and notice, and of the affidavit required by the statute.

Suit brought April 22nd, .1850, by Estes against W. A. Browning, for the recovery of four hundred dollars for the use and occupation of a tract of land, from the 28th of May, 1847, to the 1st of January, 1850. Brown ing answered, that the land was held jointly by himself and Asa M. Lewis, as administrators of Nathan P. Browning, deceased, and prayed that Lewis might be admitted as a co-defendant ; and thereupon Lewis and Browning answered jointly.

<p>Appeal from Caldwell. The appellant, as guardian of certain minor heirs, filed his petition in the District Court, under Article 807 of the Digest, to obtain a certiorari to bring up, for revision and correction, certain proceedings of the County Court, respecting the making of an allowance for the support of the plaintiff’s wards, and the setting apart of the property exempt from forced sale, as provided in Articles 1153 and 1154 of the Digest. The petition alleged that the father died possessed of property real and personal; that administration was granted on the estate; that an inventory was returned by the administrator; that the deceased left no widow, and that the plaintiff’s wards were the only children of the deceased; and that the County -Court did not set apart an allowance for their support, or the amount of property to which they were entitled, as exempt from forced sale, as the law required ; but refused so to do; that only fifty acres were set apart to the minor children, when they were entitled to two hundred acres, and that the Court refused to make the allowance to which they were by law entitled; that Chandler, (one of the appellees,) had obtained administration on the estate, and, under an order of the Court, had sold a part of the land constituting the homestead, to which the said minor children were entitled; that Fuller (the other appellee) became the purchaser, and that the sale was illegal and void. The petition prayed for a certiorari to bring up, for revision and correction, the record of the proceedings of the County Court; that the proper allowance be made to the plaintiff’s wards; that the property to which they were entitled, be set apart to them; that the sale of the land, a part of the homestead, be set aside and annulled, and the land, so sold, adjudged to them. Chandler and Fuller were made parties defendant.</p> <p>The defendants filed an answer containing exceptions to the petition, and assigning as causes of exception the following: 1st. That it appeared from the record, brought up in obedience to the certiorari, that the plaintiff had not made application to the County Court to make the proper allowance, or to set aside the property to which his wards were entitled; 2nd. That there was a misjoinder of parties; and 3rd. That the petition did not sufficiently describe the land, claimed as a part of the homestead. There was an amended petition filed, in which the land claimed was particularly described. This petition appeared to have been filed two days before the judgment of the Court, upon the exceptions to the petition; but it did not appear to have been filed with leave of the Court. The Court sustained the exceptions, and dismissed the case; and the plaintiff appealed.</p>

Error from Austin. An interlocutory judgment was entered against the plaintiff in error, for his failure to attend, as a witness; and a scire facias was issued to notify him to show cause why the judgment should not be made final.

The appellant, having been indicted for playing at cards, pleaded in abatement, that one of the grand jurors, who found the indictment, was above the age of sixty years. The plea was adjudged by the Court insufficient, on demurrer. The defendant was convicted and appealed.

<p>It is not sufficient for a petition for a certiorari, to show that the petitioner had a good cause of action or ground of defence ; but it must also show that the cause of action or ground of defence was properly presented to the Justice, or a sufficient legal excuse must be shown, for the failure so to present it.</p> <p>That the cause of action was barred on the day of trial before the Justice, and that an action thereon was then and still is pending in the District Court, are insufficient allegations of defence; they should relate to the date of the commencement of the suit, instead of to the day of trial.</p>

The appellant pleaded in abatement, to an indictment preferred against him, that the name of M. B. Browning, the foreman of the grand jury which preferred the indictment, did not appear upon the jury book of the county, nor upon the venire facias / and that Thomas H. Hinds, another of the grand jurors, was not a free-holder in the State, or a house-holder in the county.

The deceased intestate had contracted, by an agreement in writing, to build a gin-house, running gear, cotton-press and grist-mill, for the appellant, for the sum of'five hundred and fifty dollars; the appellant to board said Crabtree and hands, and also to furnish a wagon, team and driver, nails, lumber, iron, &c. Before the completion of the job, the deceased was, by sickness, disabled from its further prosecution, and left, declaring, according to the testimony of one of…

Suit by the appellee against the appellant, alleging that he had lost a horse of the value of one hundred and fifty dollars, while travelling, and that the defendant had found him, and although demanded by the plaintiff, had refused to give him up, wherefore he prayed for judgment for five hundred dollars.

The appellee brought suit against the appellant, in Galveston county, on a covenant, or agreement under seal, made by the latter in favor of Samuel Jones, and assigned to the plaintiff.

Error from Colorado. Action of trespass to try title, by the defendant in error against the plaintiff in error, instituted March 14th, 1848. April 9th, 1850, judgment for the plaintiff. Petition for a writ of error, filed April 1st, 1852.

Error from Matagorda. Suit on promissory notes, by the defendants in error against the plaintiff' in error. It appeared by the original petition, that both parties were non-residents of the State; and it did not appear that the defendant had any property in the State. The suit was brought to the Fall Term, 1848 ; and the citation was returned not found.

Error from Colorado. The errors assigned are, 1st. The ruling out and rejection of the evidence, offered by plaintiff, of the rate of interest in the State of Tennessee. 2nd. The refusal to grant a new trial.

Error from Colorado. This was an action of trespass to try title to certain lots in the town of Columbus. The defendants pleaded “ not guilty,” and, specially, title in the defendant Strippelmann; and other matters in bar of the action. When the case was called for trial, no person appeared for the defendants, and the trial proceeded ex parte.

On the 20th of October, 1840, Hall executed a deed of trust to Harris & Pease, on certain slaves, to secure the payment of a debt to Alcorn.

This was an action of trespass to try title. The plaintiffs claimed the premises, in question, as the purchaser at a sale thereof for taxes, under the provisions of the Act of the 5th of February, 1842. (Hart. Dig. Art. 3056, 3057.) The sale was made on the 5th day of March, 1846, by Wilson, Sheriff, elected and acting under the laws of the Bepublie; and a receipt was given pursuant to the 13th Section of the Act referred to.

First pluries execution, issued October 19th, 1850, from Matagorda county to Wharton county, purporting to be founded on a judgment in favor of James H. Selkirk against Charles S. Betts, and George W. Spooner, recovered on the eleventh day of September, 1843; levied by the Sheriff of Wharton county, on a slave, fourteen churns and a horse, as the property of Charles S. Betts, and found in his possession.

Error from Walker county. The appellees brought suit against the appellant, for the use of Calhoun, and obtained service by publication. To obtain publication and an attachment, Calhoun made oath that the defendant was a non-resident and that he was indebted to the plaintiffs Calhoun and McDuffee, &c. The'Clerk issued a citation, directing publication in the Huntsville Item, a newspaper published in the county. Publication was made accordingly.

Error from Walker. Houston brought suit against Woo-ton, on his promissory note for the payment to the plaintiff, of five hundred dollars. .The plaintiff in error, intervening, filed her petition, claiming the note sued on, and praying judgment upon it.

Error from Walker. This was a proceeding, by certiorari, to revise certain judgments, rendered by a Justice of the Peace.

Error from Wharton. There was no indorsement on the transcript, that it was demanded by or delivered to either party ; and for that cause the defendants in error moved to dismiss. The motion was overruled, without opinion in writing. The plaintiffs, B. & W. Milburn, (suing for B. & D. G. Mills,) represent, that the defendants, Wm.

<p>Where the father paid two-thirds of the purchase money for certain land, and an absolute deed (to which he was a witness) to the same was made to his son, the presumption is that the money so paid was an advancement to the son; but this presumption may be explained or rebutted by proof that such payment was not intended as an advancement.</p> <p>Where there is a resulting trust and the nominal grantee holds the land for the use t of the real purchaser, the trustee cannot acquire upon the land a homestead unincumbered by the trust.</p> <p>Where the son declared, in what purported to be his last will, that his father had paid two-thirds of the purchase money for the land on which he, the son, was then residing, (the deed being taken in the name of the son,) and that the father should take the land and pay to his, the son’s, representatives the one-third of the purchase money, it was held that the declaration was admissible against the wife and children, who claimed the property as a homestead, and that it was conclusive against them that the two-thirds were paid by the father, and that it was not paid by him as an advancement to the son, and that the son held the land in trust for the father, the latter paying to the representatives of the son, the one- ■ third of the purchase money.</p> <p>It is the province of the Court and not of the jury to construe and determine the legal effect of instruments of writing.</p>

This suit was brought to recover professional services, rendered as an Attorney and Counsellor at law, to Kingston, in his life time, and to three several administrations on his estate.

Error from Grimes., Smith sued Wood and King, upon their joint promissory note. The citation contained only the name of the defendant Wood. It was served upon Wood only; who appeared and moved to quash the citation, because it did not contain the names of the parties to the suit. The motion was sustained, and leave given to the Clerk to amend.

Welsh was indicted jointly with one Denman for knowingly and wilfully catting down and carrying away, trees upon the land of William Taylor, without first having the consent of William Taylor, contrary to the form of the statute, &c. Only one witness was examined; being introduced by the State, he testified that he was present when timber was cut by the defendant Mark Welsh, and James Shannon, on land which they, at the time, said was the land of Wm.

The appellants sued the appellees for a breach of the following contract, a copy of which was attached to the petition: State of Texas, i This indenture made and entered inOounty of Galveston.) to this sixteenth day of May in the year of our Lord, one thousand eight hundred and forty-eight, between Crozier, Rhea & Co. of the city of Galveston of the one part and John Carr of the county' of Polk and State aforesaid, of the other part;—Whereas the said Crozier, Rhea & Co., now…

This is a suit to compel specific performance of a contract for the sale of land. The plaintiff, B. W. Robinson, in his petition, alleges that Wm.

<p>A plea to the jurisdiction of the Court in an action of trespass to try title, on the ground that the land lies without the limits of the county, comes too late after a plea to the merits.</p> <p>It seems, that under the statute, (Hart. Dig. Art. 667,) “where the recovery of land, or damages thereto, is the object of a suit,” it may be brought in any county where part of the land lies, although the adverse party claims only a part of the land, which lies wholly in another county; and it is therefore not suffieent to allege in a plea of abatement, that so much of the land as is claimed hy the defendant, lies in another county, but the plea must negative the fact that any part of the land, sued for, lies in the county where suit is brought.</p> <p>A party, objecting to written evidence, for any cause not going to its relevancy or competency, but only for the manner of its authentication or proof, must specially assign the grounds of his objection, at the trial, and cause them to appear upon the record. Objections which go to the competency of evidence, and which need not be specially taken below, appear to be objections which show, not merely that the evidence is not the best evidence, but that it is not admissible under any circumstances.</p> <p>It seems that purchasers, under the 24th Article of the law of 1825, could alienate, subject to the performance of the condition of cultivation by the grantee, as soon as the concession was made, before the land was selected, or the title issued. (But this was the usual case of a power of attorney.)</p> <p>The condition of payment of the purchase money in purchases under the 24th Article of the law of 1825, where the terms of Art. 22, as to credit, were granted, was a condition subsequent, the failure to perform which cannot be set up by one claiming by patent issued under the Eepublie.</p> <p>It does not appear by any evidence in the record, nor by any law to which we have been referred, that the municipality of liberty was comprised within the same boundaries as the county of Liberty ; or that the land in question was not within the limits of that municipaltity. (The land lay principally in Trinity county, and partly in Polk, the original survey having been commenced in what is now Trinity.)</p> <p>Where a patent to James McKim (the defendant) assignee of Polly Eyan, together with a certified copy of the original certificate and field notes .on file in the General Land Office, all for one league and labor, were offered in evidence, (the latter to prove color of title before the patent,) and the Court rejected the certified copy •of the certificate and field notes, but admitted the patent, the Court said the certificate and survey were rightly rejected, for the reason that the certificate was not accompanied by evidence of its having been recommended as genuine ; that it did not appear that the patent was issued upon this certificate, and there was no evidence of its genuinenesss; but that if the evidence had been admitted, there was not such possession as was necessary to make good the defence of limitation, because the defendant who claimed title, had failed to prove that Ms co-defendant, who was the only person in possession a sufficient time to complete the statutory bar, held the possession under Mm or in his right. (The proof was that the defendant “got James Eyan to go there,” that Eyan died soon after, and that Ms widow Kitty Eyan, the co-defendant, had been living there ever since.)</p> <p>It is not legitimate to request the Court to give certain Articles or Sections of the law, in charge to the jury.</p>

<p>Where arbitrators, in a cause pending in Court, recited in their award, that they had made a previous award which proved inoperative and void, and that they had since been directed by the Court to proceed and make an award, and the fact of the previous award did not otherwise appear of record, this Court said, Their recital of matters of record before the Court was entitled to no weight whatever; the motion of the appellee averred that there had heen no award as between these parties ; there is no statement of facts, and we must therefore presume, in support of the judgment, that the truth of all the averments of the motion, necessary to authorize the action of the Court, was made satisfactorily to appear.</p> <p>Qmre ? Where, by reason of any mistake or error on the part of arbitrators, in a cause pending, they have exceeded their authority, whereby their award is rendered nugatory, whether it is competent for the Court to refer back to them the matters embraced in the submission, for their- further action; and whether, in the absence of such power, an agreement of arbitration which contemplated that any persons who had joint claims against both parties to the original suit, might make themselves parties to the arbitration, and authorized the arbitrators to make such number of awards, from time to time, as the circumstances of the parties and the nature of the business submitted to them might require, would authorize the arbitrators to make a second award, between the same parties, where the first proved null and void.</p> <p>Where a cause, pending in the District Court, has been referred to arbitrators, and either party desires to object to the award because a day for the trial was not assigned by the Clerk, or because he had no notice of the time and place of trial, or that the arbitrators were not sworn, he must bring Ms objections and the facts to the notice of the Court below, and if Ms objections he overruled, he must cause the facts to appear in a bill of exceptions or statement of facts.</p> <p>Where a surviving partner and the administrators of a deceased partner, being at law, made an agreement to submit their matter of difference to certain arbitrators, and agreed further that any person who had a claim against the partnership, might sign the agreement and have Ms claim referred to the same arbitrators, who were authorized11 to make awards, from time to time,” &o.; and a creditor signed the agreement accordingly ; and the arbitrators, having made an award between the original parties, refused to make an award as to the creditor’s claim ; and the creditor filed his motion for an order against the arbitrators to make an award for him or against him in the premises, which order was made ; and an award was made in favor of the creditor, upon which judgment was entered, from which the surviving partner appealed ; the Court entertained the appeal, on a transcript of the motion and proceedings thereon, alone, and affirmed the judgment.</p>

Holliday sued Jones on his acceptance of the following order, averring that it was given for a “ valuable consideration :” “ Mr. Jesse Jones. Please deliver to Mr. Holliday, fifteen “ bales of cotton, weighing five hundred pounds each, by the “ first of November, and oblige “ September 26th, 1851. RANDOLPH FOSTER. “Accepted.

The bond of indemnity, upon the validity of which this case turned, was given to the Sheriff Fitzgerald, to hold him harmless in the execution of a writ of seizure which was issued by the Chief Justice of the county, on the application of lilies, the nlortgagee, against the mortgaged property in the hands of Knight, the mortgagor, under the second Section of the Act of 1838, (Hart. Dig.

<p>Appeal from Polk. Suit brought, October 1st, 1849, by R. P. Wingate, who resided in Mississippi, against E. T. Wingate for a man slave, Boston, of the age of twenty-five years, and of the value of $1000. The petition was in the form of a declaration in trover. General demurrer, plea of the statute of limitations, and general denial; amended by plea of no demand. Amendment to petition, claiming hire under a contract annexed, at the rate of six dollars a month, from the 8th of April, 1841, and averring a demand on the 5th August, 1847, and refusal to deliver. Second amendment to petition, striking out 1847 in the first amendment and inserting 1848. It was in proof that Walter Wingate, sen’r, had conveyed the slave Boston to R. P. Wingate and J. Wingate, who were his sons, in 1841, reserving the possession and use of the slave during his life time; and that J. Wingate had since released to It. P. Wingate. The following instrument of writing was also in evidence : “ I acknowledge to have “ received of my father, Walter Wingate, sen’r, his negro boy “ Boston, for whose labor I agree to pay him at the rate of six “dollars per month, until called for. Columbia, Louisiana, “ 8th April, 1841. E. T. WINGATE.</p> <p>“ Test: Bowen Hill, H. G. Merger.”</p> <p>Walter Wingate, sen’r, died in 1844, over eighty years of age. The value of the slave was proved. He had been in the possession of the defendant for the last twenty-five years, and was in his possession at the time of the trial. There was no proof of any demand, nor was there any evidence, that the defendant, E. T. Wingate, claimed the slave adversely to the plaintiff, unless the act of retaining him in his possession, in the absence of any demand, constituted evidence of that fact. There was a verdict and judgment for the plaintiff, and the defendant appealed. Several points, not going to the merits, were made by the defendant; but they are omitted, because not noticed by this Court.</p>

<p>Error from Matagorda. This is an action to recover from the defendant in error the sum of three hundred and sixty-six dollars and sixty-six cents, on account of goods, wares and merchandize, alleged to have been sold to her through her son, and agent, Wm. Pledger; the account running from July, 1850 to February, 1851. It is averred that the goods were for the use of defendant, and for the benefit of her family and negro slaves; and that she refuses payment of the sum which they are reasonably worth, though the same has long since been due. The plaintiff then alleges that the defendant, through her said agent, about the 15th January, 1851, contracted, for the payment of the said debt, to sell the petitioner cotton raised by her slaves and her said son, on the plantation of Charles Messer, in Wharton county; but the same has not been delivered according to the stipulation of the contract, to the great damage of petitioner. It is further averred that the defendant contriving to defraud petitioner, had her slaves cultivating on the plantation of Charles Messer in Wharton county, the said William Pledger acting as her overseer and agent, with full authority to contract debts, for the use of the said slaves, and of the said defendant and her family, and to pay the same by the sale of cotton; and upon this authority, the petitioner was induced to give credit to the said defendant and her agent, in the amount aforesaid. But the said defendant has fraudulently refused payment, or to deliver the cotton, denying the authority of her said agent, after he had become insolvent, and abandoned the State.</p> <p>The petitioner further charges that the defendant had her slaves in Wharton county under the entire control of her said son, and gave him full authority to represent said slaves and the cotton they made, as his own, and that the said William did represent that the slaves and the proceeds of their labor were his own, which representation were well known to defendant, and not denied by her; and that believing said representation to be true, and through other false and fraudulent devices of this defendant, the petitioner did sell goods, wares and merchandize, on a credit, to the said William, to the amount of three hundred and nine dollars and sixteen cents, and for which no payment ever has been made, &c., &c.</p> <p>The Defendant filed a general demurrer and a general denial. The plaintiff, in an amended petition, among other matters, alleged that in all the sales and delivery of the said goods, &c., the petitioner did not know that William Pledger was the agent of this defendant, until the first day of January, 1851: but has since discovered that he was such agent.</p> <p>By the deposition of the witness Deaderich, the plaintiff proved, among other matters, that the defendant, in the years 1850 and 1851, had slaves, at the plantation of Charles Messer, in Wharton county, raising corn and cotton ; did not know, from personal knowledge, who was her agent; that William Pledger, at different times, purchased goods at his store in Wharton, for the use of his mother, the defendant, and for the use of the negro slaves; and from various matters, he understood that the son was her agent, exercising control over said slaves and their labor; and such, he thinks, was the general understanding in the town ; that, in 1850, Wm. Pledger contracted debts with him, to the amount of one hundred and eighty dollars ; understood from his promises, and from the fact of paying something out of the crop, that the debt was to be paid out of the crop; that William Pledger paid him one bale, and Peter D. Pledger, a son of defendant, has paid, out of the crop of 1850, what he considered to have been purchased for the use of the slaves and of the mother’s family; the understanding of the town was, that Wm. Pledger had an interest in the property, and was the agent of the mother in her interest.</p> <p>B. F. Milbourne deposed, in effect, that William Pledger, in 1850 and 1851, acted as his mother’s agent in controlling her slaves in Wharton county; that lie was understood to be part owner of said slaves; and that he contracted debts with the witness, to the amount of three hundred dollars, with the understanding that he was part owner of the slaves, and the agent of his mother; and that the debt was to be paid out of the crop, which was accordingly done, by virtue of an order from Wm. Pledger for cotton, being part of the crop; the son-William had apparently the entire control of the negroes in Wharton county.</p> <p>Charles Betts deposed that he did business for the plaintiff, in 1850 and 1851; that he did not know that Wm. Pledger was his mother’s agent, until the last of the year 1850, when he found out that he had his mother’s slaves in charge; that he credited him, believing that he owned part, at least, of the slaves; that he called them his own, and exercised apparent ownership, &c.; and that he promised to pay for the goods, out of the coming crop; that, before the witness called for the cotton, Wm. Pledger had left the State, and the defendant forbade his taking it, but promised, through her son Peter, to pay part of the debt; that her son Peter promised a part of it should be paid, if I would deduct a portion of it; that Wiliam bought articles, as he said, not only for plantation use, but for his mother and sisters.</p> <p>The defendant proved by Peter D. Pledger, that William was not his mother’s agent; that he had no right to purchase any thing in the care and control of her slaves ; that he heard his mother give them in charge to Charles Messer. The witness further stated that none of the articles went to the use of his mother and family; that he lived with his mother, in 1850, 1851 and 1852; that he witnessed the contract between his mother and Messer ; and that the latter was to provide the slaves with necessaries.</p> <p>The Court charged the jury, that if, from the testimony, they believed Wm. Pledger was the agent of his mother, in ■ controlling and providing for her slaves and overseeing them, with a general superintendence over the crops, she is responsible for whatever was purchased by him, for Carrying out the object of such agency; that is for such goods as were necessary for the use and comfort of the slaves, and for taking care of, and disposing of the crops; that to this extent she would be responsible, if she knowingly permitted her son to assume to act for her in purchasing such articles ; and that for articles not necessaries, it must appear, from the evidence, that the son had authority from the mother to purchase on her account.</p> <p>There were verdict and judgment for defendant; and a motion for a new trial being overruled, plaintiff gave notice of appeal, and afterwards brought up the case by writ of error.</p> <p>The errors assigned are:</p> <p>1st. In refusing evidence offered by plaintiff, to prove the agency of William Pledger, as contained in the bills of exceptions filed by plaintiff.</p> <p>2nd. In permitting the testimony of Peter D. Pledger to go to the jury, as contained in the plaintiff’s bill of exceptions.</p> <p>3d. The Court erred in its charge to the jury; and, also,</p> <p>4th. In overruling motion for a new trial.</p> <p>The evidence refused, alluded to in the first assignment, was part of the answer of Betts, to the third interrogatory, to the effect that Wm. Pledger informed the witness, about the last of December, 1850, or the first of the year 1851, that he was his mother’s agent, and that he had made the bill in the store for his mother, and that she would pay it, and that this was the first witness knew of the matter, and that he was to pay witness in cotton, which the slaves were making, and that the agreement was made in the year 1850; and also the reply of Betts, to the fourth interrogatory, viz: that Wm. Pledger called for the bill of goods about the first of January, 1851; that he informed the witness the bill was made for his mother, and that she would pay it; that the defendant must have had the bill some time, when Wm. Pledger had gone; on application for payment, Peter Pledger, son of the defendant, said he would pay part of it. And the Court further ruled that no admissions or declarations of William Pledger, either as to his agency for this defendant, or as to this defendant’s being liable for any of the said agent’s contracts on this behalf, or otherwise, should go to the jury.</p>

<p>Appeal from Galveston. This was a suit to the Fall Term, 1851, by appellee against Tryon & Towsey, as makers, and appellants, as indorsers, of a promissory note of which the following is a copy:</p> <p>“ $622 19-100. Galveston, May 1st, 1850.</p> <p>“ Sixty days after date we promise to pay to the order of “ Sydnor & Bone, six hundred and twenty-two 19-100 dollars “ for value received with interest at twelve per cent, per an- “ num from date ; payable in Galveston.</p> <p>“ (Indorsed.) TETON & TOWSEY.”</p> <p>“ Pay to the order of George Butler & Brother for account “ of J. W. Gascoigne, protest waived by us.</p> <p>“ (Indorsed,) STDNOE & BONE, in liquidation.”</p> <p>“ Pay to J. W. Gascoigne.</p> <p>“ GEORGE BUTLER & BROTHER.”</p> <p>The petition stated the making and indorsing of the note, but did not aver presentment to the makers for payment, their refusal to pay, and notice of non-payment to the indorsers. Appellants excepted to the petition as insufficient in law to support the action against them as indorsers; and, in an amended answer, alleged that the note had never been presented to the makers for payment, and notice of non-payment given to appellants, and that suit had not been brought to the first Term of the Court; insisting that, by reason of such failure of demand and notice and to bring suit against the makers, ■ they were discharged from all liability as indorsers. Plaintiff demurred to the amended answer, or so much of it as set up the above defence, as being immaterial and insufficient in law. He amended by alleging that the appellants being indebted to the plaintiff, on the 9th of December, 1850, after the note sued on had become due, in discharge of said indebtedness indorsed said note to Butler & Brother, who indorsed it to the plaintiff. But there was no proof of this fact. Judgment by default was taken against Tryon & Towsey. Appellants’ demurrer to the petition was overruled, and plaintiff’s demurrer to the amended answer sustained. A jury was waived, the case submitted to the Court, and judgment given against appellants. There was a statement of facts which showed that the only facts in evidence were the note sued on, and the admissions of the appellants’ counsel that the note and its transfers were between merchant and merchant.</p> <p>Motions for a new trial and in arrest of judgment were overruled, and defendants Sydnor & Bone appealed.</p>

<p>Appeal from Liberty. This action is brought on a written instrument by which John Cherry, the appellant, agreed to pay to Jonathan Newby, the appellee, by the first day of April, 1851, two hundred dollars, payable in cattle, at rates which were specified—the debt in any event to be collected alone in cattle ; for value received. The instrument was dated on the 8th November, 1850, and a credit of ten dollars was indorsed.</p> <p>The defendant, among other matters, pleaded that he had paid the obligation, by delivering the number of cattle, at the prices mentioned in the instrument, to the plaintiff; and further answered, that about the first day of April, 1851, and at several times thereafter and before the filing of this suit, he did gather and put in the pen at Benjamin Ellis’, which place was consented to by plaintiff, and did offer to the defendant, the cattle mentioned in the obligation ; that he informed the plaintiff the cattle were for him ; that plaintiff, without objection, received them and turned them out of the pen while the defendant was absent therefrom; and for further answer, the defendant alleged that he was ready, able and willing and did offer to deliver the said cattle at the time and place agreed upon, and has always been ready, able and willing to deliver said cattle.</p> <p>From the testimony of the witness Jones, it appeared that the defendant had gathered, at the pen of Benjamin Ellis, a parcel of.cattle for the purpose of paying Rewby; that there were sufficient number in the pen to pay Rewby, but Cherry refused to let him have those cattle, as he wanted to gather some wild cattle, in order to let Rewby have them; that Rewby had sixty head of his own, in the same pen, that they remained in the pen four or five days without water; that John Cherry having gone home, and the cattle suffering for water, they were turned out by Rewby, he being unable to separate his from Cherry’s; that there was no tender of the cattle to Rewby; that Rewby insisted on taking these cattle, but Cherry refused.</p> <p>The witness Snell testifies that he heard Cherry tell Rewby he was gathering the cattle for him.</p> <p>Wm. Cherry states that he heard defendant tell plaintiff, that the cattle in the pen were for him, the plaintiff.</p> <p>The defendant requested instructions to the jury, the first two of which were to the effect, that if they believed from the testimony, that the defendant was able and willing to deliver the cattle, and had them penned for that purpose at the time and place designated, and that the plaintiff prevented him from designating the cattle, by turning them out in defendant’s absence and without his knowledge, it would discharge the contract, and they must find for defendants.</p> <p>These instructions were refused ;• but the third instruction was given, to the effect that the pleas of the defendant, if sustained by proof, were a valid defence to the action.</p> <p>The jury found for the plaintiff; judgment accordingly, and the defendant appealed.</p>

Error from Montgomery. This was a suit against the unknown heirs of Edward Bussell; service by publication ; L. L. Bradbury appointed by the Court to represent the defendants; writ of error prosecuted by Bradbury; motion to dismiss writ of error, for want of parties plaintiff in error, and for want of authority in Bradbury to bring the same before this Court. The other facts will be found in the opinion,

Suit by Lucy Johnson, by her next friend, against Thomas Chubb and others, including her husband, Owen D. Johnson, to recover certain property which had belonged to the estate of her deceased former husband, whose administratrix she was. The property had been sold to Chubb, the plaintiff and her husband joining in the deed, which was formally acknowledged according to law, for passing the wife’s interest.

This was a suit by the appellee, for the recovery of certain negroes.

The appellant, (who was plaintiff in the Court below,) alleges that she is a creditor of the estate of Edward Farris, dec’d, in the sum of two hundred and eighty dollars and interest, allowed by the administrator and approved by the Chief Justice.

The appellee sued the appellant for 319 10-100 dollars, the balance of an unsettled account, consisting of charges for money loaned, services rendered, and other items, amounting to the aggregate sum of 719 10-100 dollars. Upon this amount there was credited the sum of 400 dollars, leaving the balance of 319 10-100 dollars, for which the suit was brought.

<p>The exception in the first Section of the Act of limitations of 1841, (Hart. Dig. Art. 2877,) of accounts which concern the trade of merchandize, between merchant and merchant, their factors and servants, does not extend to a case where there is a single transaction, but only to cases of running accounts ; and it seems that it only extends to such running accounts as embrace mutual credits, and not where the credit is all on one side.</p> <p>We will not say anything about what lapse of time would raise a presumption of payment, in a case within the exception in the statute, because it is not necessary in this ease.</p>

This suit was instituted on the 3rd of June, 1845, by the appellant against W. D. C. Hall, on a note and instrument claimed to be a mortgage or lien. The note was as follows : “ $9,645.

. Appeal from Gonzales. The transcript of the judgment or decree, sued on in this case, and filed, as an exhibit, with the petition, purported to contain the proceedings before the Hon-Henry Dickenson, Vice Chancellor for the Northern District of the State of Mississippi, sitting at Carrollton. The Vice Chancellor’s certificate of authentication, attached to this transcript, was as follows: “ The State of Mississippi.

Error from Victoria. Trespass to try title by appellees against appellants. Plaintiffs proved original grant to Caciana Sambrano; and that they were her heirs ; and that Manuel Yenda, her husband, died in 1828 or 1829.

<p>Where an unrecommended certificate was surveyed before the 1st of January, 1844, and was established by suit brought in 1847, under the extension of time allowed by the Constitution of the State, it overreached and supplanted a patent for the same land, issued to another in 1848, although the survey on which such patent was issued, was made in the interval between the 1st of January, 1844, and the 16th of February, 1846 ; and it seems the result would have been the same, if the patent had issued at any time after the 16th of February, 1846, although before the suit to establish the unrecommended certificate had been instituted.</p>

Error from Cameron. The defendant in error brought suit against the plaintiff in error, averring that the latter was indebted to him in the sum of one hundred and forty-eight dollars ; for that, “ on the sixth day of September, 1850, the said “ Miguel Salinas executed his certain promissory note, where- “ in and whereby he promised to pay the petitioner the said “ sum of one hundred and forty-eight dollars for value received ; all of which will more folly appear from the…

<p>Where the plaintiffs relied upon the presumption of a grant arising from long, continuous possession, but failed to show the boundaries of their claim, or that the spots actually occupied were claimed by the defendants, it was held that they could not recover, although the defendants took defence for the whole.</p> <p>The presumption of an ancient grant, which arises from long, continuous possession, is not impaired by the production of an inchoate title ; on the other hand, such inchoate title is proper evidence of the extent of the claim and possession.</p>

The petition alleged that J. B. Reid, the defendant, was one of the firm of Reed & Robinson. It was neither averred in the petition nor proved at the trial, that Reid & Robinson were merchants; nor that R. M. Ellis. & Co. had been sued to the first Term of the Court, or &c.; nor that they resided beyond the jurisdiction of the Court. This suit was brought July 19th, 1852. The defendant did not file an affidavit in writing, denying the execution of the draft.

The appellant sued the appellee for the value of his services, at the rate of lawful fees, for labor performed by the former in making entries and writing up the records of the District Court, which was omitted to be done by the latter ; the former being the successor of the latter as Clerk of the District Court. The items were specified, and an account filed amounting to $856,63.

<p>Appeal from Victoria. The contest in the Court below turned entirely on the questions whether Mrs. Wright had .authority to convey, either in fact, or by operation of law, during the absence of her husband from the country; whether there was an actual rescission of the contract, which involved the question whether Alexander Dunlap purchased for himself, op as trustee for Richard G. Dunlap; and whether the defendants, failing the other defences, could hold the land by virtue of the statute of limitations. The briefs of counsel, so far as they related to those points, are omitted. The facts, so far as .they are material, are stated in the opinion of the Court.</p>

<p>Where there was a joint colonial grant of two leagues to two individuals, on unstamped paper, with the following clause succeeding the act of possession, or title: “ On this date, this petition was attached to the manuscript redord to which it corresponds, and raised to the corresponding seal, which I seal for its continuance.” (Here followed a rubric, hut no name nor date, unless the date of the previous act of possession be imputed.) Seld, That the paper appeared to have been didy legalized.</p> <p>An agent who attended to the procuring of the title to his principal, a colonist, was not disqualified from being an assisting witness, by the mere fact of agency, without further interest appearing.</p> <p>To the third and fourth objections, "it is a sufficient answer, that there is nothing in the colonization laws, nor is there any general principle of law, which forbade the colonist to employ the instrumentality of an agent, or attorney, in obtaining his grant; nor are we aware of any inhibition in the law, against comprising in one final title, the lands granted to two colonists. (The application and title were for two leagues to two individuals, as heads of families, on paper “ raised to the corresponding seal.”)</p> <p>Where the act of possession recited that the Commissioner “ adjudged the land (describing it) to them ” (the petitioners) and that he “ put them in possession “ of the two sitios of land, which in their name was taken by their attorney “ quietly and peaceably, without any opposition whatever, and performing all “ tlie acts of true possession,” it was held, that the fee passed to the grantees, and that the title was perfect.</p> <p>Actual residence in the country, previous to the making of the grant, (colonial grant) has never been held necessary to the validity of the title. Such was never the construction placed upon the colonization laws. The colonists were allowed the term prescribed by law to comply with the conditions annexed to their grants, most of which have been dispensed with in reference to grants of the character of the present, thereby discharging the titles of the colonists, of such conditions, rendering them absolute, and indefeasible by reason of their non-performance. (The title, in this case, was a joint colonial grant of two leagues to two individuals, as heads of families.)</p> <p>Where a colonial title was obtained through an agent, and witnesses wore introduced, who testified, in substance, that they had been acquainted in the colony sin'ce before the date of the petition and title, and that they had never known the persons named as the grantees in the title; but that they could not say they knew all the persons in the colony; the persons named might have been there ■without their knowledge; Held, That the proof did not justify an instruction to the jury, that if the grantees never were in the colony, the grant was void ; or that if they had abandoned the country, the grant was void.</p> <p>It was not competent for the plaintiff to impeach the title, on the ground that it was forfeited, by reason of the grantee’s having left the country to avoid a participation in the struggle for independence; or by reason of the non-perform anee of conditions subsequent, even upon the supposition that those conditions had not been discharged. Besides, the evidence did not authorize, the instructions, &c.</p> <p>Where the title of the defendant, (or plaintiff,) is “ shown, by documentary evidence, to be perfect and valid,” being the elder title, it follows that the land embraced in it, was not subject to location ; and “ consequently the rulings of the “ Court upon the admissibility of the plaintiff’s, (or defendant’s,) evidence of “ title, are immaterial.”</p>

The appellant brought suit against the appellee, Villeneuve, before a Justice of the Peace, and on the 3rd of March, 1850, obtained judgment for the use of one Howerton. Execution issued, and was levied on a billiard table, which the wife of the defendant in execution claimed as her separate property.

<p>See this case as to the statute of limitations in connexion with trusts.</p> <p>The statute of limitations of two years will run against the owner of personal property, who has established a trust upon it, in favor of the possession of the cestmi que trust, where the latter sets up an open, public claim to the property adverse to the owner and to the continuance of the trust, from the time when such adverse claim is brought home to the knowledge of the owner.</p> <p>It seems that a power to sell and pay a debt may be executed, (where the property is in possession of the trustee,) after the debt is barred by the statute of limitations ; but however that may be, the debtor cannot recover the property from the purchaser without restoring the price.</p> <p>Where the cestui que trust, when sued for the property which was personal, by the owner who had raised the trust to sell and pay a debt, pleaded adverse possession for two years, and afterwards delivered the property to the trustee and caused it to be sold under the trust, and became himself the purchaser, and pleaded also the title so acquired, it was said to admit of a question whether the cestui que trust, by subjecting the property to sale under the deed of trust, ought to be held to have relinquished his previously acquired title.</p> <p>Where a debtor conveys property in trust to be sold to pay debts, he cannot maintain an action to recover the property from a purchaser at the sale, (although that purchaser be the creditor,) because of defects in the sale, without refunding the purchase money, or offering to refund it. (This was as far as the case required the opinion to go.—Bep.)</p>

The petition, in substance, alleges that nn the sixth of March, 1849', John 0. Dodds, the deceased intestate of plaintiff, executed to Lucy Ferris a bill of sale of three negroes, naming them specifically in said bill of sale, the consideration being sixteen hundred dollars, paid in notes of hand on Col. Lewis Goddard, and other considerations not mentioned.

The assignment referred to in plaintiff's (appellant’s) petition, was as follows: Montgomery County, Texas, )• Know all men by these preFebruary 23rd, 18é6. ) sents that I, Sam Houston of the county aforesaid, do, by these presents, transfer to Col. Ira R. Lewis a judgment which was recovered by me at the last Term of the Supreme Court, against Mirabeau B. Lamar, Esq., for eleven hundred and one dollars and seventy-three cents, with interest, &c., as the agent and attorney…

Error from Austin. This action was instituted on three promissory notes of hand, described in the petition as having been drawn and signed by the defendant in error, on the fifth day of December, 1837, at Mobile, in the State of Alabama, one of the United States, payable to his own order at the Bank of Mobile, and by the defendant then and there indorsed to J. Nicholson, Esq., Cashier, or order, who then and there indorsed the said notes to the plaintiff, who sues for the…

Error from Galveston. This was a case of prize under the Eepublic. The schooner was condemned; and the judgment was affirmed after Annexation. On return of the mandate, the captors obtained a rule against the parties to a stipulation bond upon which the money had been paid out of the registry of the Court, and upon return of the rule served, moved the Court for judgment against them. The motion was overruled, and the captors appealed.

Error from Colorado. This was an action of trespass to try title, brought by the plaintiff in error against the defendant in error.

<p>Error from Colorado. Action of trespass to try title by the plaintiff in error, R. J. Rivers, against the defendants in error, R. H. Foote and J. M. Hunter. The defendants pleaded a general denial; not guilty; and specially, that the defendant R. H. Foote and one Frederick Foote “ are the legal, joint own- “ ers of the said premises, by title duly recorded in the Record- “ er’s office of Colorado county; that said Frederick Foote and “ himself (R. H. Foote) have had the possession of said pre- “ mises since the 10th of August, 1824, under title and color “ of title duly recorded, and have during the whole of said time “ held and occupied said premises adversely to the plaintiff “ and all other persons, undisturbed by suit.” “ And they “ further say that the land, sued for by plaintiff, is a part of “ the headlight league of land granted to Thomas Cartwright 61 in 1824, as will appear by a certified copy of the patent filed “ in this cause 20th October, 1849 ; that the said land was, “ after the year 1825 and before 1836, improved by having “ a house built on it, and a field enclosed, well dug, and other “ improvements made thereupon, by those under whom the “ defendants claim, and that said land was also resided upon.” There was no allegation in the petition or amendments thereto, which impeached the title set up by the defendants, on account of forfeiture, or otherwise. The plaintiff claimed the land by virtue of the location of valid land certificates, made in 1848.</p> <p>The plaintiff proved his certificates and locations on the land in controversy. The defendants read the following agreement :</p> <p>“In this case it is agreed and admitted that the land, in “ controversy in this suit, is part of the league of land grant- “ ed by the proper authorities, in 1824, to Thomas Cartwright, “ as appears by copy of patent filed in this cause October 26th, “ 1849, as his headlight, and that the same was granted in “ conformity with law; that after 1825 and before 1836, the “ land in controversy in this suit, was improved by those, “ under whom the defendants claim, a house had been built “ and a well dug thereon, a field cleared and a crop raised ; “ and the land was resided on for many years by those under “ whom defendants claim ; that the land in controversy was “ deeded to William Stafford by Thomas Cartwright in Feb- “ ruary, 1825, and conveyed by him, Stafford, to his children “ in 1837, and by them, his children, to R. H. Foote, one of “ the defendants, in 1846.”</p> <p>Thereupon the plaintiff offered in evidence a denunciation of the same land by Thomas Cochrane, “ one of the colonists in- “ troduced by the empresarios Austin and Williams ” to the Commissioner Peebles, on the ground that Stafford to whom Cartwright had sold, had abandoned the country; the condemnation of the land, and the re-grant of it to Cochrane. These proceedings took place between the 10th and 26th of February, 1836. It was stated in the bill of exceptions, that they were offered “ for the purpose of proving that the land “ in controversy had been denounced by the said Commis- “ sioner and by Cochrane. They were excluded, and the “ plaintiff excepted.</p> <p>“ Plaintiff then offered to prove by depositions and by wit- “ nesses on the stand, that William Stafford, under whom the “ defendants claim, and to whom the land in controversy was “ deeded by Thomas Cartwright, the original grantee, aban- “ doned the country in the year 1835 ; that the said Stafford “ went to the State of Mississippi, where he resided for some “ time ; that he afterwards removed to the State of Louisiana, “ wherehe remained until his death; and that he never returned “ to this country; that he, said Stafford, after he left this country, “ and before he removed to Louisiana, purchased and im- “ proved property at Grand Gulf, in the State of Mississippi, “ and resided upon and occupied the same with his family.” To all of which the defendants objected, and the Court sustained the objections; and thereupon the plaintiff excepted, &c. There was judgment for the defendants.</p>

<p>Section 121 of the Act of March 20th, 1848, to regulate proceedings in the County Court, pertaining to estates of deceased persons, (Hart. Dig. Art. 1280,) is not unconstitutional, on the ground that it contains matter not embraced in the title of the Act, (It provides for a revision in the District Court of the settlement of the accounts of executors and administrators.)</p> <p>An administrator de honis non cannot sustain an action under the 121st Section of the Act of March 20th, 1848, to regulate proceedings in the County Court, pertaining to estates of deceased persons, (Hart. Dig. Art. 1280,) nor under any other Section of that Act, nor on general principles, in the District Court, to revise the settlement of the account of a former administrator. Such proceeding lies at the suit of a creditor, legatee or distributee, only.</p> <p>It seems that the only action which an administrator de lonis non can have against a former administrator is on the bond, not for maladministration or a devastavit, but to recover any amount that is shown to be due by the settlement of such former administrator’s final account.</p>

<p>Error from Cameron. The petition of the plaintiff contained the following: “ Tour petitioner most humbly sheweth “ unto your honor, that when the trial of said cause of Turner “ & Renshaw against the said Robert B.'Kingsbury came on “ for trial at the last Term of your honorable Court, in this “ county for the October Term, your petioner composed and 61 was one of the grand jurors whose duty it was to inquire ££ and true presentments make, of all breaches and viola-61 tions of the laws of this State, which had been commit-£1 ted in the body of the county of Cameron, and eonsequent- “ ly could not be present to make his defence, nor had he £t an attorney to represent him in said cause and to shew to u your honor the good reasons why judgment should not be “ rendered and the lien and mortgage enforced, as prayed for 11 in Messrs. Turner & Eenshaw’s petition. Tour petitioner “ further respectfully represents, that not until a short time “since did he know or believe that your honor had reached “ said cause at the October Term of your honorable Court, “ which was held for Cameron county last fall. Tour petitioner “ further respectfully represents that near the close of the ses- “ sion of said Court, held in and for said county, he, the said “ Felix, was taken seriously ill and was confined to his bed, “ and medical services required, and he was so confined un- “ til your honorable Court was adjourned sine die. Your pe- “ titioner has ever since said adjournment been informed that “ your honor did not reach half the cases on the docket, there “ being so many, and that he was always firmly of the opin- “ ion this cause was one among the number not reached, and “ cotinued in said belief until some short time since, when he “ noticed in the public journal of the day, or rather the “Amer- “ ican Flag,” a newspaper published in Brownsville, the Sher- “ iff’s notice to the public, that on the first Tuesday of the “ present month of January, he would expose my home- “ stead,” &c.</p> <p>Maxan had been named as a party defendant in the case of Turner & Eenshaw v. Kingsbury, and it was prayed “ that “ the said Felix Maxan be cited to show cause why said mort- “ gage should not be foreclosed.” Maxan was not cited; Kingsbury appeared “ in his own proper person,” and denied all and singular, &c. The petition was filed August 29th, 1849, and judgment was rendered on the 11th of October, 1849.</p> <p>The original petition, in this case, was filed January 16th, 1850.. The original petition and first series of amendments went upon the ground that the sale was void for fraud, and because the said Maxan had not been made a party ; it charged collusion between Webb, the Sheriff and his Deputy; and that the purchase money had not been paid; alleged that the Sheriff consented to postpone the sale until the next sale day, and accepted a bond from Maxan for the forthcoming of the property; that the property was Kingsbury’s homestead, at the date-of the mortgage, and that Mrs. Kingsbury had not joined in the mortgage; that the sale was not made at the Court house door, &c., &c. On the coming in of the answers of the defendants, the injunction was on motion dissolved. Plaintiff thereupon took leave to amend and filed an amendment in which he prayed to be permitted to redeem the property, as a purchaser under the mortgage, alleging that “ when “ the aforesaid suit was commenced by Turner & Renshaw “ against Robert B. Kingsbury, they well knew he was not in “possession of the aforesaid lot of ground and premises, but “ that your petitioner was in open and quiet possession, yet no “ citation, or notice, or demand was ever made or served on “ him, whereby he could know what proceedings were being “ had, and a judgment was given against said Kingsbury, by “ his consent and agreement with said Turner & Renshaw.” This amendment re-iterated the objections to the validity of the proceedings, and sale, which had been made in the petition and previous amendments. This amendment made the mortgage deed to Maxan, and the record in the case of Turner & Renshaw exhibits. Under the order of the Court, the amount of the mortgage and interest was deposited by Max-an in the Branch of the Commercial and Agricultural Bank at Brownsville. The answers of the defendants to all of the plaintiff’s allegations, were denials general and special, and the allegation that Maxan had actual notice of the suit of Turner & Renshaw v. Kingsbury, and failed and refused to intervene, as he should have done, if his rights were involved.</p> <p>There was no statement of facts. There was a bill of exceptions as follows:</p> <p>“ Be it remembered that at a Term of the Honorable Dis- “ trict Court, begun and holden in and for the county of Cam- “ eron, State of Texas, on the eighth Monday after the first “ Monday in September, A. D., eighteen hundred and fifty, at “ the city of Brownsville, A. W. Arrington, District Judge, “ then and there presiding, the cause wherein Felix Maxan is “ plaintiff, and M. M. Stevens, and others, are defendants, “ coming on to be heard, without the intervention of a jury, “ the parties having waived the right to trial by jury, upon “ the documentary evidence, to wit: Copy of the record of “ the suit No. 60, upon the District Court docket, entitled “ S. Turner and Henry Renshaw v. Robert B. Kingsbury, “ with copy of Sheriff’s deed to John Webb, and copy of sale “ of said property, by said Kingsbury to said Maxan, dated “ July 28th, 1849, the Court then and there decided, that as “ the said Felix Maxan was not made a party defendant in “ the suit of Turner & Renshaw v. Kingsbury, the Sheriff’s “ sale of the mortgaged property, described in the pleadings, “to John Webb, was null and void, as to the said Maxan, “ and that said Maxan, as the vendee of the said R. B. Kings- “ bury, mortgagor, was entitled to redeem the said property, “ thus mortgaged, he having paid the mortgage debt and in- “ terest into Court, to which opinion of the Court, the defend- “ ants, by their attorneys except, and tender this their bill of “ exceptions, which they pray may be signed by the Court, ” &c.</p> <p>The other facts will be found in the opinion of the Court.</p>

Error from Starr. The petition was filed February 20th, 1851. The act complained of was done in February, 1847. The cause was tried at the Spring Term, 1853. The other facts will be found in the opinion of the Court.

Suit by the appellees on a draft drawn by the appellant on L. J. Latham to the order of B. & W. Milburn, and indorsed to the appellees. The defendant filed an answer which contained several pleas in confession and avoidance, and concluded with a general denial. There was a statement of facts; and it did not appear therefrom that the draft had been given in evidence, nor that its absence was accounted for.

The principal facts will be found in the report of same case on former appeal, in 8 Tex. R. 66. There was evidence tending to prove that the mortgage was given upon a contract to extend the time of payment. Yer- ‘ diet and judgment for defendants. Motion for new trial overruled. Plaintiffs appealed.

The District Attorney, at the relation of sundry citizens of Cameron county, filed an information, setting forth the incorporation and grant to the city of Brownsville; the repeal of the Charter ; the continued existence of the charitable trust, and the necessity of the appointment of a trustee to take possession of the trust estate and to administer it.

Action of trespass to try title, by the appellee against the appellants. The plaintiff claimed the league of land in controversy, by virtue of a grant to him as a colonist and head of a family, in Power & Hewitson’s colony, on the 8th of October, 1834.

Action of trespass to try title. The appellant, who was plaintiff in the Court below, deraigned title from Thomas Buentello. The defendants claimed by virtue of locations, and set up an outstanding title in Dolores Carabahal, or those claiming under her. The land was part of the lands which had belonged to the extinguished Mission of Befugio. The plaintiff having the oldest title, the question was whether it was valid.

Suit brought December 17th, 1845, (citation issued January 13th, 1846; alias executed October 7th,) by the appellant against Robert Moore, surviving partner of the firm of D. G. & R. Moore, on the following instrnment: “ $2,378 96. Yazoo City, April 21st, 1841. “ On the first day of January next after date, we or either “ of us promise to pay to the Merchants Bank, of New Or- “ leans, two thousand three hundred and seventy-eight 96-100 “dollars. Value received.

<p>An objection to the venire, that it was drawn by a person purporting to act as Deputy of the County Clerk, when in fact he was not duly appointed and qualified to act as such Deputy, is not good In arrest of judgment on an indictment found by the grand jury summoned and impanneled in pursuance of such venire.</p> <p>Objections, apparent on the record, may be taken advantage of in arrest of judgment ; but matters dehors the record must be pleaded in abatement.</p>

<p>Appeal from Colorado. On the 5th day of November, 1844, by order of the Probate Court, one Perry, who was Clerk of the Probate Court, sold certain town lots belonging to the estate of William Watts, deceased, at probate sale, for the purpose of making partition among the heirs of said Watts, and the appellant Robson became the purchaser and gave his promissory note, payable twelve months after date, to the said Perry or his successors in office, for the purchase money, and a mortgage on the town lots to secure payment thereof, to the said Perry. Three months after the sale, Perry went out of office, and was succeeded by one Gardner, to whom he delivered the note and mortgage. Robson paid some money on the note, and gave Gardner’s attorney, Jones, who was owing him a store account, credit on his books for the balance, who delivered him the note with payment receipted. At the Spring Term of the District Court, 1848, the appellees brought suit against Robson and Perry, alleging that they, (the plaintiffs,) were the heirs of William Watts, dec’d; that the note was still due and unpaid; that Perry had neglected to collect it; and praying, if, on the trial, it should be found that, by his neglect or mismanagement, any part of the note should be lost to the plaintiffs, that they have judgment against him for as much. Defendant Eobson demurred generally, and specially for the want of proper parties plaintiff; that suit should have been brought in the name of the payee, (Perry,) in the note, or his successor in office. He also pleaded payment to one Gardner, Perry’s successor in office, and a general denial. Perry demurred generally, and answered the foregoing facts. The demurrers were overruled. On the trial, a witness for the plaintiffs “ testified that the parties men- “ tioned in the petition and amended petition as plaintiffs, are “the heirs of William Watts, deceased.” At the request of the plaintiffs, the Court charged the jury, “ That where the “ Clerk of a county sells the property of an estate, for the “ purpose of a partition among the heirs, under the provisions 41 of the statute, and takes notes payable to himself for the “ purchase money, it is a personal trust in the person, who is “ Clerk, and does not pass to his successor in office.”</p> <p>The defendant Eobson asked the Court to charge the jury that “ the testimony of one witness, unsubstantiated by other “ evidence, stating that the plaintiffs were reputed to be the “ heirs of William Watts, deceased, is not sufficient to estab- “ lish the fact of heirship,” which the Court refused.</p> <p>The jury found a verdict for the plaintiffs, for the full amount of the note against defendant Eobson, and for the defendant Perry against the plaintiffs. Defendant Eobson moved for a new trial against the plaintiff's, and the plaintiffs moved for a new trial against Perry. Both motions were overruled, and the defendant Eobson, and the plaintiffs took separate appeals, which were consolidated in this Court.</p>

There was proof that the defendant never returned the gun ; that he sold the horse; and other circumstances showing an evil state of mind at the time. The defendant excepted to the admissibility of the evidence of these circumstances. The charge, asked by the defendant, respecting a reasonable doubt, was as follows: “Also, that “ the affirmative remains on the State, who must prove beyond “ a reasonable doubt. Doubts to benefit of prisoner.”

The plaintiff in error (who was plaintiff also below) alleges that the judgment was rendered in favor of one Wm.