Volume 12 — Texas Reports

Petitioner represented that he was the rightful owner of a certain tract of land situated on Red River, &c.; that Amos Morrill, on the 6th day of June, A. D., 1853, obtained a judgment in the District Court of Red River county against John C. Carter and Mary A. Carter, for 517 32-100 dollars and costs of suit, and that said land be •sold to satisfy said judgment; that on the 15th day of July, A. D., 1853, an order of sale was issued from the office of the Clerk of the…

The appellant filed his petition for injunction against a judgment of a Justice, in favor of appellee, on the ground that two accounts for house rent, fence-rails and firewood, which he had filed in set-off, and given legal notice of to the plaintiff in the judgment, were ruled out by the Justice, and judgment given for the full amount of the note sued upon, viz: the sum of fifty-five dollars and thirty cents, principal and interest.

Error from Red River. This was a scire facias (without petition) to revive a judgment and have execution. The defendant pleaded to the scire facias, that the judgment was void, because rendered by confession, and without process, and the justness of the debt was not sworn to as required by Article 770 of the Digest. The record of the former suit was brought before the Court, and the oath required by the statute did not appear.

Error from Red River. The defendant in error brought suit against the plaintiffs in error, alleging in his petition that he resides in Hew Orleans, in the State of Louisiana. There was judgment for the plaintiff, and the defendants brought a writ of error.

Error from Bowie. This suit was brought by the appellant against Madden, the appellee’s intestate, in his lifetime, under Article 2380 of the Digest, for postdating certain articles charged in an account. The defendant died .after suit brought, and the suit was revived by scire facias against his administrator.

Error from Hopkins. The appellee brought suit against Cole, on a promissory note, in August, 1852. At the spring term of the Court, and on the 29th day of March, 1853, the plaintiff in error filed a petition, intervening and claiming the ownership of the note sued on.

This suit was commenced by a petition filed by the appellee, against appellant’s intestate and an infant child of one Marcilla Jones, for the specific performance of a contract alleged to have been entered into December 26th, 1836, between appellee and said Marcilla, by the terms of which, in consideration that appellee should “ select, locate “ and clear out of the office, a league of land to which said u Marcilla is entitled under the laws of colonization,” said Marcilla…

<p>The rule is, that a motion to dismiss a ceriiorari, from a Justice’s Court to the District Court, must be made at the return Term of the ceriiorari.</p>

<p>Appeal from Titns.</p>

<p>Error from Red River. There was a motion to dismiss the writ of error.</p>

<p>Error from Lamar. Motion to dismiss.</p>

<p>Appeal from Harrison. Motion to dismiss. The appeal bond was for one hundred dollars, the suit being for the recovery of land.</p>

<p>Where the defendant in error cannot be found, after indorsing that fact on the citation, it is proper to serve it on the attorney of record ; it is not necessary to return the original and procure an alias to be served on the attorney.</p> <p>Although the citation in error misdescribe the judgment, the writ of error will not be dismissed, where the judgment is properly described in the petition, a copy of which accompanied the citation.</p> <p>The citation in error may be amended so as to conform to the petition.</p>

<p>Error from Harrison.</p>

<p>Repeated decisions of this Court have held that a mortgage is but a security, and that the title remains in the mortgagor, subject to be divested by foreclosure of the mortgage. In this respect, the deed of trust in this case does not differ from a mortgage. The possession and the ultimate right of property remained with the grantor in the deed of trust, and before the trust was executed the property was liable to execution as his property subject to the lien created by the deed of trust.</p> <p>Where the claimant, in a trial of the right of property, was met by the plaintiff in execution, with an immaterial issue, and the averments of the claimant did not entitle him to judgment, and a jury was waived and the cause submitted to the Court, and judgment rendered for plaintiff in execution, it was held that there was no error.</p> <p>On a trial of the right of property, where there was no averment, or offer to prove, on behalf of the claimant, that the property was of less or different value from that assessed by the officer in taking the bond, and the Court awarded the ten per cent, damages, on the failure of the claimant to establish his claim, on the amount so assessed by the officer, it was held there was no error.</p> <p>It seems that in a trial of the right of property in slaves, it is not necessary that the judgment should ascertain their separate value.</p>

<p>Mortgaged property is liable to execution against the mortgagor, subject to the lien created by the mortgage.</p> <p>Where the claimant in a trial of the right of property in his affidavit, disclosed his claim to be that of a mortgagee, there was no error in quashing the bond and affidavit and dismissing the suit on motion of plaintiff in execution.</p> <p>Where in a trial of the right of property the Court quashed the bond and affidavit of the claimant and dismissed the suit on motion of the plaintiff in execution ; in whieh motion he did not ask for the statutory ten per cent, damages, but thereupon moved the Court to give judgment for damages against the claimant, which the Court refused ; and the claimant appealed; and the plaintiff in execution contended in this Court that the Court below erred in not giving judgment ■for damages on his motion, this Court said: “ After having dismissed the suit “ at his instance, the Court might well refuse to entertain his motion for an “ award of damages. He did not appeal from the judgment, nor has he as- “ signed error; and though in a case of manifest error and injustice, the Court “ might deem it proper so to reform the judgment as to attain the justice of the “ case, at the instance of the appellee, or defendant in error, (McNairy v. Castle- “ berry, 6 Tex. K. 268,) we do not deem the present a case which requires such “ exercise of authority.”</p>

<p>There is no doubt, as a general rule, that parol eotemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument; but there is as little doubt that a new and distinct agreement upon a new consideration may be established by (parol) proof, whether it be a substitute for the old, or in addition to, or beyond it.</p> <p>Where the plaintiff claimed $290, and the defendant pleaded payment of $193 50, and a set-off of $25, and there was no statement of facts, the Court said, These claims must have been allowed by the jury, as the judgment amounts precisely to the balance after they are deducted ; the payment reduces the plaintiff’s demand below one hundred dollars, and consequently the defendant should have recovered his costs.</p>

<p>Where partners agree to purchase an adverse outstanding title to real estate held by them in partnership, and one purchases the title and has it made to himself, the purchase so made must be considered to have been made for the partnership; and when one partner has made advances equal to his share of the purchase money of such title, his refusal to pay his share of the purchase money, will not deprive him of the benefit of the purchase, or be taken as conclusive evidence of a dissolution of the partnership.</p> <p>Where one Eakin at the solicitation of one Shumaker entered into a partnership to purchase certain land and mills and moved upon the premises, and did a great deal of work and labor thereon, and Shumaker claiming under a subsequently purchased title by location, brought suit to eject him from the premises, the Court said: But if the purchase of the certificate had been made after the dissolution of the partnership, Eakin would have had strong equity for compensation, which should have been satisfied before he could be ejected. His removal to the place and entering into the arrangement with Shumaker, under the inducements held out by the latter, and the money paid, and work done by him, raise this equity ; and under such circumstances, it would be a fraud in Shumaker to put the whole loss on him, and receive, himself, all the benefit.</p> <p>Office copies, properly authenticated, of land certificates filed in the General Land Office, are receivable in evidence in the place of their originals.</p>

<p>Where parties intermarried in a State where the property of the wife became the property of the husband on marriage, and afterwards moved into another State where the wife was allowed to acquire and hold separate property, and in the latter State the husband exchanged one of his slaves for a slave the title to which he caused to be made to his wife in compensation or exchange for one that he had received from her by marriage, and the parties afterwards moved to this State bringing their slaves with them, and the husband died, it was held that the widow was entitled, against his legal representatives, to the slave so acquired through her husband.</p> <p>An administrator cannot impeach, for the benefit of creditors, the consideration of a voluntary conveyance made by his intestate.</p> <p>Where suit was brought'for the recovery of a slave, and the jury found the following verdict, “ We, the jury, find for the plaintiff, with $80 damages and costs of suit,” and the judgment was for the slave and damages and costs of suit, and it was objected that the verdict was insufficient to support the judgment, it was held that the verdict was sufficient, under the uniform decision of this Court, that if by a reference to the record any uncertainty in the verdict can be explained, it will be sufficient to sustain the appropriate judgment.</p> <p>Where a single piece of property is sued for in specie and not in the alternative of damages, and is sequestered and remains in the hands ofthe Sheriff, unreplevied, it is sufficient to find such piece of property for the plaintiff without assessing its value. This case distinguishable from thatof Blakely v.jDuncan, 4 Tex. B. 184.</p>

<p>Where the answer to a petition for an injunction, denies all the equity in the petition, it is proper to make an interlocutory order dissolving the injunction.</p> <p>Where an injunction restraining the collection of money, is dissolved by interlocutory order after answer denying all the equity in the petition, it is not error to dismiss the petition unless it appear from the record that the complainant asked that the petition be continued over for trial or hearing as an original petition or suit.</p>

Error from Lamar. Petition filed 15th November, 1850. White and wife intermarried in July, 1848. The wife was twenty years of age when married and over twenty-two but not twenty-three years of age when suit was brought.

Suit was brought by the appellee against the appellant as administrator, on a promissory note made by his intestate. The affidavit which accompanied the note when presented to the administrator, was made before R. 0. Pearson, Presiding Justice of the. Court of Pleas and Quarter Sessions for the County of Burke, in the State of ISTorth Carolina, and was signed and sealed by the Judge.

The appellee sued the appellant, in November, 1852, upon an account for 231 95-100 dollars for various articles furnished his intestate, services rendered, money loaned, &c., charged during a period commencing in January, 1850, and ending in July of that year. The defendant pleaded the statute of limitations, and a general denial; whereupon the plaintiff amended his petition, alleging that the account sued on did not become due until the 1st of January, 1851.

Error from Red River. This is a suit on open account; defence, set off. The plaintiffs were copartners, the firm 'being composed of James Gilliam, John C. Carter, and James H. B. Dinwiddie. The defendant pleaded that Carter and Dinwiddie were indebted to him by judgment, for three thousand three hundred and ninety-six 50-100 dollars. That said judgment remains wholly unsatisfied; that Carter and Dinwiddie are insolvent, and that he cannot collect said judgment from them.

Error from Red River. This action is brought by the heirs of Wesley P. Byers, against R. F. Giddens, who claims through mesne conveyances under a deed from Edward Hug-hart & Wife, for the recovery of a tract of land. The other defendants were brought in by vouchers to sustain the defence.

The appellant had, with one Jackson Haggerty, given two notes to James M. Morphis or bearer, for eighty-nine 12-100 dollars each, with a warrant of attorney indorsed, authorizing any Attorney at Law to confess judgment against him for the amount of the note, before a magistrate of Harrison County, Texas, if the notes be not paid when due.

This was a suit upon a sealed note. The defendant answered by a general denial, and pleas impeaching the consideration of the note, in which he in substance, alleged, that the note sued on was given for the purchase money of a certain negro, sold by the plaintiff as administrator of one Griffin ; that at the sale the plaintiff, with intent to cheat and defraud the defendant, falsely and fraudulently represented that the negro was well disposed, trustworthy and obedient, and…

<p>Error from Harrison. Motion to dismiss.</p>

Error from Hopkins. The plaintiff filed his petition in the District Court, on the 24th of August, 1850, alleging that in February, 1847, he entered into a partnership agreement with the defendant, for the vending of goods: that by the terms of the agreement, the plaintiff was to furnish the goods, and the defendant was to sell them, and to divide with the plaintiff the profits; that the plaintiff did, at the time, furnish the goods, of the value of 280 13-100 dollars, and…

Motion to dismiss the appeal, on the ground that the obligee in the appeal bond was dead when the bond was executed. After notice to appellant, the affidavits of two witnesses, who proved the fact, were taken before a notary, and filed with the motion.

Error from Harrison. The appellant filed, his petition in the Probate Court, on the 14th of January, 1852, alleging that he was the brother next of kin of David J. Cole, deceased ■, that at the December Term, 1850, he applied for letters of administration on the estate of his deceased brother; that the defendant in error, as surviving partner of the deceased, then had an application pending for letters of administration on the estate • that the petitioner withdrew his…

Error from Smith. The bond for the writ of error was filed August 31st, 1853. On the 7th of September the plaintiff below filed a release for the excess of interest.

<p>Where the petition alleged an instrument for the payment of $212 50, admitting a credit of $27 72, which was endorsed on the instrument, and the defendant agreed that judgment (without specifying the amount) might go for the plaintiff, with a stay of execution, and the instrument, in the margin, had the figures $212 50, but in the body of it read “two and twelve 50-100 dollars,” and the Clerk entered up the judgment for “ two twelve 50-100 dollars,” principal, (overlooking the credit,) and thirteen 36-100 dollars interest, making in all the sum of “ two twenty-five and 86-100 dollars,” and the defendant obtained a writ of' error, after which the plaintiff had the mistake and the phraseology of the judgment corrected in the Court below, and the record of such correction sent up to this Court, it was held that the words “ two and twelve 50-100 dollars,” in the-connection and under the circumstances were properly construed to mean two hundred and twelve 50-100 dollars, that the amendment had been properly allowed, and that the judgment should be affirmed at the costs of the plaintiff in error.</p>

Suit by appellee against appellants on an attachment bond, for wrongfully suing out the attachment.

Error from Titus. The defendant in error, as administrator of Elliott, sued the plaintiff in error for services rendered the defendant by the plaintiff’s intestate, as his overseer. There was, in the answer, a general denial, but no special denial, or plea putting in issue the right of the plaintiff to sue as administrator.

<p>In order to fix the liability of the drawer of a bill of exchange, the bill must be presented to the drawee, or facts must be shown which excuse the failure to present it. Quere, whether this case intimates that notice is necessary to bind the drawer where the bill is not accepted, since the Act of 1848. (Hart. Dig. Art. 2530.)</p> <p>Where the plaintiff, in an action on a bill of exchange, seeks to charge the defendant on the ground of no funds in the hands of the acceptor, or of a promise to pay, after failure to protest and give notice, those facts must be alleged in the petition.</p> <p>See this case for proof which would not amount to an admission of a particular claim, or to a waiver of a failure to use due diligence to collect a bill of exchange.</p> <p>Where there is a failure of legal diligence to fix the liability of the drawer of a bill of exchange, the holder may excuse such failure by alleging and proving that the bill was drawn without funds, unless the drawer (allege and) prove facts which show that the bill was drawn in good faith, and that he was entitled to strict notice.</p>

<p>Appeal from Cherokee.</p>

Suit was brought at the Spring Term, A. D., 1850, of the District Court of Titus County, by Thomas B. Lilley as guardian of Isham P., Margaret E., ¡Noel J., Mary A., Hugh L. W. and Washington Cherry, against George Clifton, to recover a certain slave, named Jane, of the value of seven hundred dollars, alleged to be the property of plaintiff’s wards.

<p>Error from Smith.</p>

<p>Where the officer before whom a deposition is taken, fails to certify that the same was signed by the witness, the deposition cannot be received in evidence, if the objection be properly taken.</p>

<p>The District Court has jnrisdictioh of an action by an executor, against the heirs, devises and legatees of the testator, to procure a construction of the will, and instructions as to the proper execution of the same.</p> <p>A bequest of slaves upon trust that they shall be carried to a free State or to the Colony of Liberia where they may enjoy their freedom, is not void at Common Law because of the incapacity of the beneficiaries to take at the testator’s decease.</p> <p>Where a right exists at Common Law, and the Constitution contains a provision that the Legislature shall have power to permit the exercise of that right under certain regulations and restrictions, the Common Law right is not affected until the Legislature acts; it is otherwise where the right did not exist at Common Law.</p> <p>Although the clause in the State Constitution respecting the emancipation of slaves, would not when taken by itself, amount to any restriction on the right of emancipation, yet when it is taken in connection with the Constitution of the Republic, which expressly required that the slaves be sent without the limits of the Republic, and with the Act of the Republic, which is still in force, prohibiting free negroes from coming into or remaining in the State, it must be construed to impose the restriction, that the party who desires to emancipate his slave, shall cause him to he sent without the limits of the State.</p> <p>Although the State, by its laws, may absolutely prohibit emancipation or direct the particular mode in which only it can be done, yet a bequest of freedom, not to be perfected until the slave is removed beyond the territorial limits of such State, is nevertheless a valid bequest.</p> <p>A bequest to a slave to take effect after his removal from the State and emancipation, where the removal and emancipation are provided for in the will, is valid.</p> <p>Suit was brought by the executor of a will for a construction of two clauses of the will, and for instruction as to the proper execution of the same, to wit: “3. I “ give to my negro woman, Charlott, and her child Julian, their freedom, be- “ cause of Ckarlott’s faithful services, in aiding me to make all the property “ which I own in the world. I also give my boy, George Washington, his free- “ dom, because of affectionate regard for Mm. And I wish the above three ne- “ groes to be left under the charge of my sister, Lucinda Sherrod, to be settled “ near her and under her charge; and if the Slate of Texas, or any of my rela“tions, should object to their freedom on these conditions, I give my sister full “ power to send them to a free State, or to Liberia, as she and the negroes them- “ selves may agree.” “4: I give my negro woman, Oharlott, my horse Charley, “ two cows and calves, one plough and gear and meat for one year, and I give $300 “ to enable her to fix her comfortably. In case this will should be contested by “ any of my legal heirs, then in that case, I give the above three negroes, Char- “ lott, Julian and George Washingion, to my sister Lucinda Sherrod, believing “ she will carry out my will in the premises ; and I further bequeath to my sis- “ tor, Lucinda, sixteen hundred dollars, incase this will should be contested by “ any of my legal heirs, for the purpose of carrying out my will.” Plea to the jurisdiction and demurrer. The plea and demurrer were both overruled, and the Court decreed that the State did object to the freedom of the negroes on the conditions mentioned in the will; and that the plea and demurrer contqsted the will; that Oharlott was not entitled to the bequest of the $300, &c., and that Mrs. Sherrod was entitled to receive the negroes, and the $1600 as special trustee for the emancipation of the negroes ; that they should be sent to a free State or Liberia, as she and they might agree ; and that after paying the expenses of their transportation, they were entitled to the remainder of the $1600. The decree gave some directions as to the manner in which Mrs. Sherrod should execute the trust, and ordered, that if she failed to do it, it should be done in the same manner by the executor.—Held, there was no error in the decree.</p>

“ Statement of facts agreed upon. “It is agreed that at the July Term of the District Court of “ Panola County, 1853, the Judge then presiding ordered the “ Sheriff of said county, W. M. White, (the plaintiff,) not to “ permit the jury, in a State case, then being tried in said “ Court, to disperse or separate, and to provide for them a 56 room to stay in, and to furnish them with provisions, &c. It “ is further agreed that the Sheriff, by reason of said direc- “ tion,…

Error from Rusk. The appellee sued the appellant in Rusk ■County, that being the county of the defendant’s residence, for the rescission of an executed contract for the sale of six hundred and forty acres of land in Fannin county, on the ground that the sale was procured by fraud. The petition was indorsed with notice that the action was brought to try the title, &c. It seems that the action was brought under the 6th exception of Article 667.

Error from Rusk. The plaintiff in error filed his petition in the District Court, alleging that he had sued the defendant on a promissory note before a Justice of the Peace ; that the consideration of the note was a horse sold by him to the defendant ; and that, though the defendant did not impeach the consideration or validity of the note, yet the Justice rendered judgment for the defendant.

<p>In a petition for a new trial, after the adjournment of the Court, it must be shown first, that injustice was done; and second, a satisfactory reason must be shown, why the proper defence was not made on the trial, and why a motion for a continuance or new trial was not filed at the proper time.</p> <p>See this case for circumstances which were held sufficient to sustain a petition for a new trial and an injunction, filed after the adjournment of the Court.</p> <p>It is no part of an attorney’s duty to make affidavits, and therefore where the absence of the client, when he should have been present, is accounted for, it cannot be answered that his attorney was present.</p>

Action by Wainer against Wm. A. Jernigan, Ephraim Root and one Albright, for a fraudulent combination and conspiracy to defraud him in the running of a horse race; amount bet $1000, in cash, notes and other property ; damages laid at $5000 ; race was run in March, 1850; verdict and judgment, December, 1853, for $1480. There was no service on Albright, and before going into the trial, plaintiff dismissed as to him. The betting was between Root and Wainer.

Error from Rusk. In the petition the plaintiff alleges the sale by himself and another, of a tract of land to the defendant, for a specified sum of money, and that they executed to the defendant a bond title; that in consideration therebf, and to secure payment of part of the purchase money, the defendant executed, in favor of plaintiff, three notes of hand, on two of which the plaintiff subsequently recovered judgments before a Justice of the Peace, which said judgments…

The appellant caused a writ of garnishment to be served on the appellees, in May, 1851. They answered, denying their indebtedness. The plaintiff in the writ, desiring to controvert their answer, filed the affidavit required by the statute, (Dig.

The appellant filed his petition in the District Court, alleging that on the 11th day of February, 1852, he purchased of one Ford and his wife a certain tract of land, and gave his note payable three years thereafter for the purchase money; that on the 12th of March thereafter he had his title deeds duly recorded; and that on the 15th of the same month, the appellees caused an execution, issued on a judgment obtained by them against Ford, to be levied on the land; and that…

<p>Tlie venue is suilieicntiy stated in an indictment, by presenting that the act was done in “ the county of Busknot necessary to say “ said county of Busk,” nor to add “ in the State of Texas.”</p> <p>The boundaries of counties, as municipal subdivisions, are matters of judicial knowledge.</p>

<p>'Where there is no statement of facts, it will be presumed that the verdict was warranted by the evidence; and where the facts are not presented by the record this Court will not undertake to revise the rulings of the Court below, upon instructions to the jury.</p> <p>-Quere, as to the measure of damages, in case of eviction, where the vendee was induced to purchase, by the fraudulent representations of the vendor, and has made improvements on the land ?</p> <p>In order to entitle the vendee to recover at all on the ground of eviction, he must have been evicted legally or by paramount title, which must be alleged.</p> <p>"Where the vendee claims in reconvention on the ground that he was induced to purchase, by the fraudulent representations of the vendee, he ought to allege, it seems, that he had not access equally with the vendor, to the proper sources of information.</p>

Smith. The venire facias was as follows : “ State of Texas,) To the Sheriff of Smith County, Greet-u County of Smith}) ing: “You are hereby commanded to summon the following “ named persons, to wit: (names them) to be and appear at the Court House in the town of Tyler on the 5th Monday “ after the third Monday in March next, 1852, then and there “ to answer to their names when called as jurors during said “ Court.

<p>It seems that notice of an opposing claim is not inconsistent with possession and improvements in good faith. Of course when the tenant is cognizant of the claims of another, he must have reasonable and strong grounds to believe in the soundness of his own title, otherwise he cannot claim as a holder in good faith.</p> <p>A mistake of boundary, where the defendant has failed to employ the legal means (a survey by the proper surveyor) to ascertain the boundaries of his land, cannot constitute the foundation for a possession in good faith, under the statute. This has nothing to do with the principle of equity, where the real owner stands by and permits an ignorant possessor to make valuable improvements, without giving him notice of his claim.</p> <p>The question, as to the constitutionality of the statute which secures the value of their improvements to possessors in good faith, reserved.</p>

Error from ¡Nacogdoches. Suit in a Justice’s Court to revive a judgment; judgment for the plaintiff that he recover, &c.; removed by the defendant to the District Court; judgment for the plaintiff, but for a less amount, that he recover, &c., and that execution issue. As to the costs, it was adjudged that plaintiff recover the costs of the Justice’s Court, and the defendants recover the costs of the District Court. Defendants prosecuted this writ of error.

<p>See this case for irregularities and vexatious proceedings for delay after judgment, in giving delivery bond, and prosecuting writ of error to judgment on said bond, which induced the Court to award ten per cent, damages on affirmance of the judgment.</p> <p>Where there was a question whether the principal in a delivery bond was bound by the form of the bond, the Court said it was not important, as he was bound at all events, and affirmed the judgment on the bond, against the principal and surety.</p> <p>It seems a writ of error lies to a judgment which has become such by operation of law, as by the forfeiture of a delivery bond.</p>

<p>A recognizance on appeal in a criminal case, which is conditioned for the appearance of the defendant to abide the sentence and decree of the District Court, instead of the judgment or decree of the Supreme Court, is bad, and the appeal must be dismissed.</p>

Indictment for playing cards, &c. The State was represented by B. T. Selman, an attorney appointed by the Court, in the absence of the District Attorney, and the indictment was signed by him acting under the appointment of the Court, as District Attorney pro tern.

Error from Harrison. The plaintiffs in error sued the defendant, as drawer of a draft for five hundred dollars, in favor of Perry & Spell, addressed to the said plaintiffs, and paid by them, and the amount charged as directed to the account of defendant, and they allege his liability for repayment of said sum, with the usual commissions.

. Appeal from. Hacogdoches. An indictment was preferred against the appellant, containing a charge, that the defendant “ did play at a game with cards upon which money was then and there bet a certain public house,” &c. The defendant moved the Court to quash the indictment, because it did not charge the offence to have been committed at a place prohibited. The Court sustained the motion and the District Attorney appealed.

The note sued on was executed as a forfeit in the event of a failure to run a horse race. Several defences were pleaded, and on trial verdict was for defendant.

The appellant was found guilty-upon an indictment for gaming, and moved the Court to grant him a new trial, on the ground that some of the jurors who-found the verdict were not sworn. Two of the jurors and two other persons were proposed to testify in support of the application, The Court refused to hear the application and overruled the motion, and the defendant appealed.

To an indictment for gaming, the defendant pleaded in abatement, that the grand jury who found the indictment, we,re not a legally constituted grand jury; for that the jury list from which they were drawn, was made more than one year before the drawing took place ; and that it was not revised within the year next before the drawing; that there was no order of the County Court, appearing upon its minutes, directing the jury list to be made, or ratifying -it; that there were…

At the Fall Term, 1851, of the District Court of Harrison County, the grand jury presented a bill of indictment against the appellant, charging him as follows : “ That Gordon Barker, late of the county of Harrison, 66 laborer, on the eighteenth day of December, in the year of ■“ our Lord one thousand eight hundred and fifty-one, in the ££ county of Harrison, did bet money at a certain gaming ta- “ ble, which said gaming table was then and there commonly known as and called a…

Error from Harrison. This is an action on a promissory note. The plaintiff alleges that the defendants are partners trading under the name, firm and style of G. P. Harrison & Brothers, and that this note was executed by them under the ■said firm, name and .style. William P. Harrison, one of the defendants, is a non-resident. The other defendants, at the return Term, demurred to the petition and pleaded payment and a general denial.

The defendant pleaded in abatement to an indictment, preferred against him, that the name of James Lankford, one of the grand jurors who found the bill, was not on the jury book kept by the Clerk of the County Court. And it appearing that the name of the juror was written James Langford on the jury book, the Court sustained the plea and quashed the indictment.

Error from San Augustine. The record shows that John Anderson and Mrs. Shaw were administrator and administratrix of the estate of T. J. Shaw; that Mrs. Shaw having died and Anderson having failed to make settlement, &c., was dismissed and that Alexander Horton was appointed administrator de bonis non of the estate of T. J. Shaw, deceased, at the September Term, 1846, of the San Augustine County Court; that Horton, to pay debts, procured an order and sold a certificate for…

Error from Smith. This was an action on a note under seal, given as a forfeit in the event of a failure to run a horse race. It was dated the 26th June, 1851.

Action by appellee against appellants on a covenant of warranty by their intestate, of two slaves, Catherine and her child. There were no questions on the pleadings. Verdict, July 2'fth, 1853, for plaintiff for-$800 principal, and $208 interest. Eemittitur of $10 interest. Motion for new trial on the ground that the verdict was contrary to law and the evidence; overruled.

Error from Upshur. Petition for certiorari. The petition of William Ward, a citizen of Upshur Co., and State of Texas, respectfully shows to your Honor, that on or about April, A. D„, 1851, one Cornelius McRimmond, a citizen of said county and State, holding himself out to the world as a mechanic and wheelright, contracted with your petitioner to make a mill wheel for your petitioner for fifty dollars, which said wheel made by said McRimmond proved of no value to your…

Error from Rusk. This was an action for damages for malicious prosecution. The defendant had made affidavit before a Justice of the Peace and procured a warrant to issue against the plaintiff, on a charge of stealing corn. The plaintiff was taken into custody, and on his examination before the Justice, was discharged. He introduced evidence to establish his good character.

<p>Appeal from Cherokee.</p>

Action by the appellees against-Young & Morgan, who were attorneys at law, to recover the proceeds of certain claims placed in the hands of the latter, for collection. The facts' were as follows : On the 21st July, 1847, Young & Morgan gave a receipt to Smith, Gorin & Co., of Yew Orleans, for certain claims, amounting in all to $4,374 87-)-, placed in their hands for collection.

<p>Where no exceptions to the petition for an injunction and new trial appeared in the transcript, but the entry of judgment recited that “plaintiff's exception to “ defendants’ petition being by the parties submitted to the Court, and after ar- “ gument of counsel, it is ordered that the same be overruled,” this Court considered that no exception had been filed. ,</p> <p>It is in general true, that where a petition does not show any good cause to entitle the party to relief, on the merits of his case, the objection may be taken by motion in arrest of judgment, or on error. But where the petition, as in this ease, was in the nature of an application for a new trial, which was granted, without a question having been made as to the sufficiency of the petition, or the propriety of awarding the new trial, the case must stand, on appeal from the judgment upon the second trial, as an ordinary case of the grant of a new trial.</p> <p>Where there is an agreement to receive cotton or other goods at a future day in payment of a precedent indebtedness on a note or account, a tender of the cotton or other goods within the time discharges the indebtedness, whether such tender he accepted or not; and the cotton or other goods immediately become the property of the creditor. But guere, if the debtor do not abandon the property, but continue to exercise acts of ownership over it?</p> <p>It seems that where a tender is made, if the party to whom it is made object that it was not made in time, and make no further objection, but refuse to accept it, the tender will he taken prima fade to have been sufficient in amount.</p> <p>See this case for circumstances under which it was considered that a verdict for the defendant on a plea of accord and satisfaction in specific property, which depended on a tender of the property and refusal to accept it, was sustained by the evidence.</p> <p>Where a general demurrer to the answer was overruled, and the evidence disclosed a complete defence to the action, the Court declined to reverse the judgment on aoeount of a substantial defect in the answer.</p>

This is a suit for a divorce or to have a marriage declared null and void, and the petition represents that the plaintiff, Missouri E. Robertson, is a minor, susceptible and confiding in her nature, and, from the manner in which she has been reared, entirely unsuspecting, and is, in fact, so unsophisticated, that, in all the important affairs of life, she is incapable of exercising an intelligent discretion.

After the contract on which the action was founded, was excluded at the trial, there was a verdict and judgment for the defendants. The facts are sufficiently stated in the opinion.

The plaintiff in the Court below instituted this suit on the 30th August, 1851, to recover of the defendant a wagon and two mules, which property he states he owned and possessed on the 20th day of the same month, “ Which said wagon and mules he loaned for a day “ or two to the defendant Nelson, who, although the time for “ which petitioner loaned him said property has expired, still “ withholds said wagon and mules from petitioner; and al- “ though he well knows said wagon…

Action by the appellees against the appellant, commenced October 31st, 1850, on an account stated. The account consisted of charges for acceptances, commissions for same, commissions for advancing to pay the acceptances, bagging and rope, sundries and interest at eight per cent, per annum, and on the other side, of credits for cash, and proceeds of cotton consigned by the defendant to the plaintiffs. The plaintiffs were commission merchants residing in ÍTew Orleans.

<p>Appeal from Anderson.</p>

Action of trespass to try title, by the appellees against the appellant. The Act of Congress of the Republic, which provided for the organization of Harrison county out of a portion of Shelby, was passed on the 25th of January, 1839.

<p>See this case as to construction of statutes.</p> <p>The conditions of residence, &c., for three years, and restraint of alienation hefore the issue of the unconditional certificate, attached, under the Act of January 4th 1839, to conditional certificates issued to single men, as well as to those issued to heads of families under that Act.</p>

<p>Appeal from Harrison.</p>

Action by the appellees, Hamilton and Wiley, as partners in carpentry, against the appellant, on an account for work and labor. The defendant filed an answer in which he denied the partnership of the plaintiffs, and pleaded certain payments in specific articles of property. The answer was filed on the 28th of October.

Error from Houston. Harvey W. Hill, James and William J. McLean, alleged to compose the firm of Hill, McLean & Co., sued the appellent, alleging that on the 20th of April, 1848, the said defendant drew his certain draft in favor of a third person upon the plaintiffs, commission merchants residing and doing business in Hew Orleans, in the State of Louisiana, for a certain amount, due the first day of March, 1849, which was accepted and paid by them at maturity without funds…

<p>Error from Nacogdoches. Action of tresspass to try title by plaintiff in error against defendant in error. Verdict and judgment for defendant. Motion by plaintiff for new trial; granted on payment of costs, and judgment for the costs against the plaintiff and his surety. Plaintiff declined to accept of the new trial on the terms imposed, and prosecuted this writ of error.</p>

Action of trespass to try title by the appellee against the appellant, commenced May 2nd, 1848. The plaintiff relied on a mortgage from John J. Yining, dated March 18th, 1844, to secure the payment of $735 on the first day of January, 1845. The defendant claimed by purchase from the heirs of John J. Yining. John J. Yining died in April, 1844; and the plaintiff failed to present the claim to his administrator within the year.

<p>The proper criterion of the value of “cash notes” is not the price at which they were purchaseable at the time, in cash, hut the value at which they were estimated, in the ordinary and general transactions of trade, by the community.</p> <p>Where the Court charged the jury, that if “ cash notes,” at the time the notes sued on in this case were due, were the circulating medium of the country, and if cash notes were generally the medium of trade through the country, they thereby took the place of money, and were to be considered as its equivalent, provided the same value was attached to them by the community generally, it was held there was no error.</p>

<p>Error from Bowie. Action of trespass to try title, commenced October 14th, 1852, by the plaintiffs in error, who were the widow and minor heirs of Collin C. McRea, against the defendant in error, to recover a league of land at the mouth of Mill Creek in Bowie county.</p> <p>The plaintiffs proved Collin C. McRea came to Texas in 1833, and brought his family in 1834 and settled at the mouth of Mill Creek, then in the county of Red River, and made considerable improvements and cleared and cultivated about thirty acres of land; that he died at that place in the year 1835; that his family continued to reside there for about three years afterwards; that McRea’s widow, one of the plaintiffs, married Ira S. Poor in the spring of 1837; that on the 13th of February, 1838, a certificate was issued by the board of Land Commissioners of Red River county, No. 342, to the heirs of Collin C. McRea on the application of Eliza Poor by her attorney in fact, “ she having proved to the satisfaction “ of said board that she was the legal representative of said heirsthat on the 19th April of same year, a survey was regularly made by a Deputy Surveyor, by virtue of said certificate, of the land described in the petition and within twenty days thereafter was returned to the County Surveyor and by him examined and approved and certified accordingly; the witness who proved the survey, was the Deputy who made it; he was enabled to give the field notes from a memorandum kept by him and from memory; John H. Dyer was living upon the place when he made the survey, and said it was all right; the certificate was placed in his hands by Ira Poor, the husband of Eliza Poor, and was returned by him to the office of the County Surveyor, with the field notes; the Surveyor of Red River district testified that he had made diligent search in his office and could not find any trace of the field notes or certificate ; the plaintiffs gave the certificate in evidence, also a certificate in due form that it had been recommended by the travelling board.</p> <p>The defendant claimed only one thousand acres, including the improvements aforesaid, and admitted he was in possession of it. He offered in evidence a certified copy of the bond of “Eliza Poor, the wife of Ira S. Poor, administratrix of the estate of Collin C. McRea,” in the sum of $25,000, dated the- day of November, 1838, to John H. Dyer, conditioned to make to the said Dyer, “as soon as the titles ■“ are issued by the Government of the Republic of Texas to “ emigrants, for headrights, upon the reasonable request and “ at the proper costs and charges of the said John H.,” an absolute and indefeasible title to “ all that undivided half of “ all that certain messuage and tract of land upon which the “ said John H. Dyer now resides, lying and situated at and “ below the mouth of Mill Creek on Red River, in the county “aforesaid,” &c., “ containing one thousand acres, with the town site of the town of Berlin;” signed “Eliza Poor” and sealed in presence of two witnesses, and acknowledged in the present form for unmarried women, before J. G. Wright, Clerk, attested by his seal of office ; (but what seal did not appear from the copy although it appeared from other papers in the case that Wright was Clerk of the County Court at that time; in connection with the offer of the copy of the bond in evidence, which had been filed and called to the notice of the plaintiffs three days before the trial, the defendant filed an affidavit that the original bond was not in his possession or control, and that he could not procure it. To the introduction of which evidence, the plaintiffs objected that the bond had not been legally recorded ; and that it appeared from the bond itself, that it was executed by a married woman, without being joined by her husband. The objections were overruled and the bond was read.</p> <p>The defendant then offered in evidence a certified copy of the petition of Eliza Poor, as administratrix of the estate of Collin C. McRea, to the Probate Court of Red River county, at October Term, 1840, in which she represented “ that there “ has come to the hands of said administratrix a certain im- “ provement, or part of it, situated and lying at the mouth of “ Mill Creek on Red River in said county, rightfully belong- “ ing to the estate of said McRea, about which there will be “ a great deal of litigation and expense to the petitioner to ob- “ tain the landand she therefore prayed an order of sale of the land “ agreeably to the statute made and provided in such case;” the order made thereon, for the sale of “the improvement ” on a credit of twelve months; the final account of Eliza Poor as administratrix of Collin C. McRea, filed September 26th, 1842, in which she charged herself with “ sale of improvement at Berlin under order, February 1st, 1841, $2,500,” which account was not approved ; and the report of Auditors at November Term, 1842, who had been appointed to audit said account, in which report they found the, amount of $5,204 12, in the hands of the said administratrix, which report was at said Term, confirmed: To the introduction of which evidence, the plaintiffs objected, that it had not been shown that said Eliza was administratrix of Collin C. McRea; that the petition itself showed the Court had no authority to order the sale; and that there was no return of sale. The objections were overruled and the evidence read.</p> <p>The defendant then offered in evidence a copy of survey from the District Surveyor’s office of Bexar district, for one league and labor, which purported to have been “ made for “ Eliza Poor, legal representative of Collin C. McRea, it being “ the land to which he is entitled by virtue of a certificate “No. — issued by the board of Land Commissioners for the “ county of Red River.” It purported to have been made on the 10th of November, 1838, by John C. Hays, Deputy Surveyor, Bexar district, and to have been examined, approved and recorded by John C. Hays, District Surveyor, of Bexar district. The copy was certified by the District Surveyor of Bexar district, to be a true copy of the original, as taken from the records of his office; and there was a certificate by the Governor, that S. McDonald, who certified the copy, was at its date the District Surveyor of Bexar district. To the intro.duction of which evidence, the plaintiffs objected, that the field notes did not describe any certificate; that the same person signed as deputy and principal Surveyor and that the certificate of the Surveyor had no date; and that it did not purport to be a copy of the original field notes, but a copy of the copy on record in the Surveyor’s office; which objections were overruled and the evidence read.</p> <p>The defendant then proved certain indorsements on the land certificate of McRea’s heirs, and on the Clerk’s certificate of its genuineness, to be in the hand-writing of Stephen Crosby, of the General Land Office, and read the same as follows: “ File 856. Bexar Co. 1st Class. Headright certificate Collin C. McRea. 1 Lea. and Lab.” On the Clerk’s certificate, “File 856. Bexar Co. 1st class. Certificate of Clerk of Red River county.”</p> <p>The defendant then read a patent to J. H. Dyer, No. 679, Vol. 1, dated 19th of September, 1845, for 640 acres of the land in controversy, including the month of Mill Creek.</p> <p>It appeared from the testimony, that when McRea visited Texas in 1833, he purchased the improvement right 'at the mouth of Mill Creek from one Burkham, giving him two promissory notes, one for $400 and the other for $200; and that about one month before McRea returned, J. H. Dyer came and paid the $400 note, saying that he paid the same for McRea.</p> <p>“ The plaintiff read in rebuttal, a copy from the records of the County Court of Red River county,” of proceedings dated 13th February, 1838, by which Eliza Poor was appointed administratrix of Collin C. McRea; Ira S. Poor and J. H. Dyer, sureties; also of proceedings at July Term, same year, reciting that Ira S. Poor had that day exhibited his petition showing the personal property of Collin C. McBea was insufficient to pay his debts, and praying that the administrator be authorized to sell all the lots in a town laid off at the mouth of Mill Creek, and the order accordingly; also proceedings at April Term, 1839, reciting that on motion of Ira 8. Poor, administrator it was ordered that he have time prolonged until the next Term, to make settlement with the Court, in the estate of Collin C. McBea, deceased.</p> <p>Verdict and judgment for defendant. Motion for new trial overruled.</p>

<p>Appeal from. Cass. Action by the appellees, part of the heirs of Jesse Kelly, against the appellant, as co-heir, to obtain a distribution of the property of Jesse Kelly. The defendant pleaded a deed of gift of all the property, from Jesse Kelly to him; and pleaded also a receipt, signed by the plaintiffs, for a slave in full of their share of the estate. The execution of the deed was proved, but it was not clear whether it was intended to take effect in the lifetime of the grantor or not. The hand-writing of a subscribing witness to the receipt was also proved. There were no pleadings by the plaintiffs, which impugned the deed or receipt for any cause. The Court charged the jury “ that proof of the hand-writing of subscribing witness to the receipt of plaintiffs was sufficient to prove “ the instrument, unless upon the paper itself or from the cir- “ cumstances in proof, it came before them under suspicious “circumstances; if those suspicious circumstances were un- “ explained, and were so strong as to raise doubts as to the “genuineness of the receipt, the jury would be warranted in “ disregarding it.” Verdict for the plaintiffs, and that the said Kelly died intestate. Motion for new trial overruled.</p>

<p>Appeal from Harrison.</p>

<p>Appeal from Cass. Alfred R. Lander was put upon his trial for the murder of Eli Ussery. It appeared in evidence that there had been ill feeling and threats of long standing between the prisoner and the deceased. They lived in the same neighborhood, a few miles from the town of Jefferson; and in going and returning travelled the same road two or three miles. They went to town on the morning of the killing, both armed—the prisoner with holster pistols, and the deceased with a double barrelled shot gun. Same day the deceased was heard to make violent threats against the life of the prisoner, declaring he would kill him on sight; had his gun in his hand all the time, and said he was hunting the prisoner; his manner of looking about attracting the attention of several of the witnesses. The prisoner was advised of these threats, and was cautioned to be on his guard, as the deceased might attempt to carry them into execution. He thereupon went some distance into the country to the residence of one Jackson, where he procured a double barrelled shot gun, and returned to town in company with Jackson. He remained in town for some time, observing the movements of the deceased, bi$, avoiding being seen by him, until in the evening, when the deceased was seen to go to the Postoffice and get the mail bags, preparatory to leaving town. The prisoner thereupon proceeded by a back way or alley to a place where he could intercept the deceased as he should go out of town by the usually travelled road. The deceased had a son, a lad, with him ; and after starting delayed to change the mail bags from the horse on which he rode to that on which his son was riding. In the meantime, the prisoner had taken his position in advance, by the wayside, concealed from the view of the deceased by an unoccupied blacksmith shop, and there awaited his approach. The son was in advance of the father, and as the latter was passing, the prisoner hailed him, calling his name, which arrested his attention, and caused him to bring his horse to a hault, and turn towards the prisoner, who immediately discharged at him one barrel of his gun. The deceased did not fall upon the first fire, but seemed in the act of dismounting, when the prisoner fired a second time, upon ■which the deceased fell mortally wounded, and immediately •expired. Under the charge of the Court, the jury found the prisoner guilty of murder in the second degree, and assessed his punishment at confinement at hard labor in the penitentiary for a term of five years. The prisoner appealed.</p> <p>There were several questions on the admission of testimony, reserved by bills of exceptions, only one of which was deemed worthy of notice, and that is sufficiently stated in the briefs and opinion. The charge of the Court, so far as the same was peculiar to this case, was as follows:</p> <p>In case you should find the defendant guilty as charged, the law makes it your duty by your verdict to find whether he is guilty of murder in the first degree or murder in the second degree. Therefore should you conclude from the proof in the cause, that the defendant with malice aforethought, and with a deliberate and specific intent to take life, shot with a gun and killed the deceased, the law declares it to be murder in the first degree, and it will be your duty to so find.</p> <p>But if you believe that the defendant not being moved by a wicked and malicious intent, but from a just and well grounded apprehension, for the preservation of his own life from a threatened attack from the deceased, inflicted the mortal wound by which death ensued, then he is guilty of murder in ■the second degree, and not murder in the first degree, and it will be your duty so to find.</p> <p>But if you find under the proof and law given you, that the defendant took the life of the deceased in what the law calls self-defence, he, then, is guilty of no offence and the law acquits him of all blame and justifies the act. If the deceased threatened the defendant with an attack, the law requires that he should avoid the conflict, if he could do so without endangering his own person; if he could not avoid the difficulty without endangering his own person, and the danger was present and pressing, then such a state of affairs, if proved to your satisfaction, justified the defendant in talcing the life of the deceased, and it will be your duty to find him not guilty.</p> <p>• In relation to the threats of the deceased, against the defendant, given in evidence before you, I feel bound to charge you, that they cannot be considered by you in justification of the offence charged, but may be looked to in connection with the proof in the cause (should any exist) in making up your verdict reducing the offence from murder in the first to murder in the second degree, should such be the tendency of your investigations, under the legal rule which I before laid down in relation to the latter offence.. In no case do threats, unaccompanied with actual or instantaneous meditated violence, justify the taking of human life. There must be an actual danger at the time. In the language of the law, it must plainly appear by the circumstances of the case, as the manner of the assault, the weapons, &c., that one’s life was in imminent danger, otherwise the billing of the assailant will not be justifiable self-defence.</p>

<p>Error from Nacogdoches. On the 28th of July, 1847, Sam Houston, the plaintiff in error, brought an action in the nature of an action of trespass to try title in the Court below, against Thomas J. Jennings, the defendant in error, for the recovery of a house and lot, &c., situated in the town of Nacogdoches.</p> <p>The said suit was on the 14th day of December, 1848, continued by consent; and on the 31st of May, 1849, it was again continued by consent. On the 12th day of June, 1850, James M. Ardrey, Esqr., announced to the Court, that he withdrew from the case, and the cause was then continued by the plaintiff, and on the 18th day of December, 1850, it was continued as on affidavit of plaintiff. And on the 11th day of December, 1851,'it was “dismissed for want of prosecution,” and it was therefore considered, ordered and adjudged by the Court that said defendant go hence without day, and recover of said plaintiff all costs of said proceeding to be taxed.</p> <p>After the dismissal of said cause, the plaintiff on the 15th of June, 1853, filed his petition in the said District Court in which he recites all the proceedings had in the aforesaid cause, denies that he or his counsel were present, when the same was continued as on his affidavit, complains of the entry of dismissal for want of prosecution, and asks that the same be set aside and held for naught, because the Court ought not and had not the power to dismiss the cause for the want of prosecution, the record not showing that the plaintiff or his attorney was called or failed to appear, and because the defendant neither in person or by attorney appeared at the time of said dismissal, and because the said defendant did not in person or by attorney ask or move the Court to dismiss the same, and because the plaintiff was in Court by his petition and the cause, if disposed of by the Court, should have been submitted to a jury, and a verdict rendered in favor of the plaintiff or of the defendant. And because the defendant on the calling of the cause for trial, not appearing, the same should have been continued and not dismissed; because it does not appear that the said cause was regularly called in its due order for trial. He represents that in 1849 or 1850, he employed as his only counsel in said case (his original counsel having died and removed) Ardrey & Payne, regular practicing attorneys in said Court, to conduct and prosecute his cause, and that in compliance therewith, the said Ardrey entered upon his duties as such counsel, but the firm of Ardrey & Payne dissolved, and Ardrey was retained and appeared for him, after said contract, until the 12th day of June, 1850, when without any fault of his or just cause, he withdrew from said cause, without having previously notified him of such intention, so that he might employ other counsel; by said withdrawal, said Ardrey left the said cause wholly unrepresented. He further alleges that he had never, since said withdrawal by his said attorney, been notified of the fact or of the dismissal of the cause, until the latter part of April, 1853. He further alleges that he had relied solely on said Ardrey, and had every confidence and belief that he would have promptly and faithfully attended to his interest in the case until the determination of said suit, as he had promised to do, or at least, that if he had intended to abandon his case, before doing so, he had never suspected but that said Ardrey would have notified and apprised him of such intention before such abandonment, or at all events, that failing in that, that he would after such abandonment, have forthwith advised petitioner as to such action. The said petitioner alleges that he is advised and believes that the said Ardrey was in attendance upon said Court, at the time the said suit was dismissed, and well knew that the same was liable to be called for trial without being represented by counsel or by the plaintiff, and that he well knew, that the same was called under such circumstances; he failed, refused and neglected to appear for said petitioner or to except to the action taken by the Court in the case, to move to set aside the judgment, to arrest the same, to give notice of an appeal to the Supreme Court or take any step whereby to secure or save the said petitioner’s rights in the premises, and in both instances, actively and passively did every thing which could endanger, jeopardize and ruin the said petitioner’s right or cause of action. He charges that the said Ardrey deliberately caused his cause to be dismissed and violated his trust as an attorney, unknown and unexpectedly to said petitioner, when he could not by any ordinary foresight have guarded himself against such a result. He represents that since the institution of this suit he has had the honor of representing the State of Texas in the United States Senate, and up to the time and since the dismissal of said suit, he has been for a very great portion of the time in the city of Washington in the District of Columbia, and as well as he remembers was on the day of said dismissal in said city, and being much employed in the more important business of the public, and being absent from the State for long intervals, and believing that his interest in this said cause was in the hands of a trusty and efficient attorney, he had not and has never been able to give it his individual attention and presence, which indeed his public duties prevented and forbad, which facts, petitioner mentions by way of showing why he has not been more successful in ascertaining, since said dismissal, the condition of said case, as well as to show why he had not, after the withdrawal of said Ardrey, employed some other counsel. He alleges that he has a just and good cause of action and is entitled under the principles of law, equity and good conscience to recover the property sued for. How far a refusal to reinstate his cause may affect him, he knows not; he fears that his cause of action, if driven to institute a new suit, may be barred by the statute of limitations, and if the same is barred as to a recovery against Thomas J. Jennings, he fears that he is remediless in the premises unless the relief prayed for is granted; he prays that the proceedings had in said suit be examined and reviewed, and that the judgment be set aside and the cause re-instated, &c. He swears that the facts stated in the foregoing petition, as stated of his own knowledge are true and the facts stated upon the the information of others he believes to be true.</p> <p>To which said petition the said Thos. J. Jennings on the 6th of December, 1853, filed exceptions, in which he says, he excepts to the same because the matters and things therein stated and set forth as the same are therein alleged are not sufficient in law, to enable the Court to make the order or decree therein prayed for, and the said defendant with respect asks and moves the Court to dismiss and strike from the docket without answer thereto, the said last filed petition for the following reasons : 1st. The judgment of dismissal or nonpros shown in said last filed petition to have been given by the Court and duly entered on the 11th day of December, 1851, is, under the law of the land, a complete and perfect bar to the present petition and prayer of plaintiff, whether he be a private citizen or a United States Senator. His senatorial position would be an equally good reason for reversing and setting aside at a remotely future Term, such action as the Court may take on the present petition and so on without end. 2nd. So far as said judgment of dismissal is now complained of as erroneous, such error, if any exist, cannot at this time be subject of revision or correction in this Court, but only in the Supreme Court upon a writ of error. 3rd. If said newly filed petition is intended as an appeal to the equitable jurisdiction of this Court, for the grant of a new trial in a suit at law, then it is fatally defective in showing no equity or merits or grounds for relief in a Court of Equity, the copy of the original petition contained in the new petition and setting forth plaintiff’s title not being sworn to, and the complaint against the plaintiff’s counsel now urged being a matter, for which defendant is in no way responsible, but only the attorney complained of, if any one is. The affidavit to the new petition does not cover the allegation of title in the old petition, but only verifies the fact that such a petition was filed, &c. 4th. If the allegations of the old petition are to be taken as true on this application, without verification, so then are those of the original answer and that presents a perfect defence under the statute of limitations. 5th. Even if plaintiff show sufficient grounds on the score of “ misfortune without fault,” and in the use of proper diligence to bring the attention of the Court to the question of the propriety of setting aside the judgment of dismissal, the Court then would not do so, on the merits of plaintiff’s title as shown by himself in his original petition, because, &c.</p> <p>Which objections were sustained by the Court, and the plaintiff’s petition dismissed.</p>

<p>In appeals in criminal cases, ordinarily, the transcript commences with the indictment and proceedings thereon; and where it is contended that there is no record in the Court below, of the return of the indictment into Court by the grand jury, the fact must be made to appear by the transcript. Quere ? As to the effect, where it is made so to appear.</p> <p>A prisoner is presumed to be sane, until the contrary is proved.</p> <p>Intoxication is not insanity, and where it is voluntary can never afford an excuse nor even a paliation for crime; mania potu, or delerium tremens are species of insanity, and excuse unlawful acts, although the intoxication which caused them, may have been voluntary.</p> <p>Involuntary intoxication may be a paliation, and under some circumstances, an excuse for unlawful acts.</p> <p>The question in cases of the plea of insanity is, whether the defendant was capable of distinguishing right from wrong, which capacity is necessary for the ex-istance of a criminal intent; in eases of partial insanity, the question is whether the defendant was capable of distinguishing right from wrong, in the particular connection in which the unlawful act was done.</p>

<p>See this ease as to what will amount to an uninterrupted claim by a colonist to a particular section, half section or quarter section of land, entitling the colonist to a preference.</p> <p>Qvere ? Whether a married man who emigrated to Peters’ colony, leaving his family behind him on account of sickness, but bringing with him two sons over seventeen years of age and a slave, can claim the whole of a section of land on which he settled against one who afterwards settled on the same section prior to the arrival of the family of the first settler.</p> <p>Where a colonist in Peters’ colony claimed the half only of a section of land on which he was settled, and another colonist afterwards settled on and claimed the other half of the same section, the first settler, finding himself entitled to a whole section, cannot claim the whole of the section on which he settled, as against the subsequent settler.</p> <p>The Act of 1850 provided that where colonists of Peters’ colony were by mutual consent settled on the same section, &c., a division was to be made between them according to agreement. This is not restricted to cases where there has been a formal, written or verbal agreement, executed cotemporaneously with the settlements of the respective parties, but covers cases where settlers on the section, &c., claimed portions thereof, with the concurrence, actual or implied, of other settlers on the same section, half section, &c.</p> <p>Where a colonist in Peters’ colony obtained a certificate under the provisions of the Act of 1850, and applied it to a particular section or half section, by survey, he had such title to the land as precludes him from saying that the statute of limitations would not run in favor of an adverse claimant, before the Act of 1853, which first provided expressly that an action of trespass to try title might be maintained upon such certificate and survey.</p>

Indictment for an assault upon Tyre Buckley with intent to murder, on the 4th day of July, 1853.

<p>Where it becomes necessary to sue for the recovery of an amount remaining due upon an indebtedness originally within the jurisdiction of the District Court, if the suit is upon the original cause of action, it must be brought in that Court, though the debt may have been reduced by payment to a sum within the jurisdiction of a Justice of the Peace. Where the original cause of action has been extinguished, and the amount remaining due within the jurisdiction of a Justice of the Peace has become the cause of action, it would be otherwise.</p> <p>Where the plaintiff sued for the reasonable value of work and labor, and the defendant alleged a special agreement to refer, in ease of dispute when the work should be finished, a reference accordingly and an award, and the plaintiff replied fraud in the referees, and the Court charged the jury thatif they should find that the referees acted in good faith, they should find for defendant, and leave the plaintiff to his remedy on the special contract, it was held that the instruction should have been, that in that event they should find for the plaintiff the amount ascertained by the referees to be due.</p>

Indictment for larceny of a slave, the goods and chattels of one John Coleman, in the ordinary form, contrary to the form of the statute, &c. The evidence tended to'prove that Coleman having discovered the intention of the defendant to steal the slave, interposed no obstacle, and perhaps directed the slave to encourage the theft, and learning from the slave the road the defendant designed to take, intercepted the defendant and the slave as they were pursuing their way, about…

<p>The fact that land is in the adverse possession of another, whether the owner be disseized, dispossessed or by whatever name denominated, is no restraint on the owner’s right of alienation, in this State. This decision does not affect the questions of maintainance or champerty, strictly and properly construing those terms.</p>

The appellant recovered judgment against the appellee before a Justice of the Peace. Nearly six months thereafter the defendant in the judgment petitioned the District Court for an injunction perpetually to enjoin the collection of the judgment, averring that the judgment of the Justice is erroneous and unjust; that he has a meritorious defence, &c.; that he appealed from the judgment, but is advised that the District Court cannot entertain jurisdiction of the appeal.