Volume 13 — Texas Reports

Error from Eayette. Action by the plaintiff in error against the defendant in error on a judgment. Plea of payment. Verdict and judgment for the defendant. The other facts will be found in the opinion of the Court.

<p>An administrator cannot impeach a deed, procured to be made by his intestate, on the ground of fraud against creditors.</p>

<p>Where suit was instituted and judgment obtained against a defendant as a nonresident, and within two years after said judgment the defendant filed his petition for a rehearing and alleged “ that he was at the time of the institution of “ the suit against him, and had been for many years before, a citizen of the State t: and a resident of the county of Cameron ; that he had no notice of the pend- “ enoy of the suit, nor of the proceedings against him ; that they were ex parte, “ and he had a good defence against the action or suit, and could have made u such defence if he had had notice of the suitand prayed that the judgment might be opened and that he might have an opportunity to make his defence; and the defendant in the petition demurred, and the Court sustained the demurier ; Held, that it was error. (Hart. Dig. Art. 783.)</p>

The defendant in error filed his petition in the District Court of Washington county, on the lTth March, 1848, alleging that the plaintiff in error had, on the 9th day of March, 1844, at New Orleans, in the State of Louisiana, executed his promissory note for $1104 86, payable to Devivier & Woodlief, or order, eight months after date; that the plaintiff had become possessed of said note, by due course of trade, and was the owner thereof, and that the defendant failed and…

Action on a pomissory note by the appellee against the appellant.

<p>Mere irregularities, or errors, which have operated no prejudice to the right of the party, will not suffice as a ground for obtaining a certiorari. It must appear that the petitioner had a good cause of action or ground of defence, and that wrong or injustice has been done him in consequence of the error or irregularity complained of.</p>

<p>The exception in the statute of limitations, as to accounts between merchant and merchant, includes only accounts current, where there are various credits and charges on each side, and not accounts which consist entirely of charges on one side and payments on the other.</p> <p>The exception (now repealed) in the third Section of the Act of limitations of 1841 (Hart. Dig. Art. 2879,) which provided that in case of the removal of the debtor out of the county where such debt was created, no Act of limitations should run, unless the person removing should, ten days previous to his removal, put up a notice in writing at the seat of justice of the county from which he was about to remove, setting forth his intention to remove, extended to cases only where the debt is proved to have been created in the county from which the debtor removed.</p>

Error from Travis. The defendant in error, at the Fall Term, 1854, of the District Court, recovered judgment for 524 77-100 dollars, by default, against the plaintiff in error as maker of a promissory note, and another as indorser.

<p>Appeal from Fayette.</p>

Indictment for an assault with intent to kill and murder, as follows: “In the name and by the “ authority of the State of Texas, the… Held: which said gun as aforesaid was charged with “gunpowder and leaden bullets, he, the said Robert A. “ Rutherford, did discharge and shoot off, to, at and against “ him the said Green F. Woodward, with the intent him the “said Woodward, feloniously, wilfully and maliciously to “ Mil and murder, contrary to the form of the statute, &e.…

<p>)n an indictment for perjury, an averment that the defendant “ well knew ” the facts which he had testified not to have existed, instead of an averment simply negativing his oath, is good.</p> <p>In an indictment for perjury, it is sufficient if the defendant is charged with having sworn falsely to one material fact, and that the perjury as to that fact is sufficiently assigned.</p>

<p>Error from Travis.</p>

<p>Appeal from Bexar.</p>

<p>Appeal from Guadalupe.</p>

<p>Error from Travis.</p>

<p>The general rule that die plaintiff is not required to allege more facts than, on a general denial, he would be compelled to prove, in order to sustain his case, is controlled by the rule that he must allege such facts as would, were they admitted to be true, entitle him to a judgment.</p> <p>}'e an action to enforce specific performance, un a bond for title, a breach, or nonperformance of the condition of the bond, must he averred, and if such breach or non-performance is not averred, a general demurrer will lie to the petition.</p> <p>An allegation of a conclusion of law, drawn by the pleader, is not a fact, and con - sequently is not admitted by a general demurrer, whose office is to admit facts vnly, and those which are well pleaded.</p> <p>A contract for the sale of land is not, by the statute, required to be under seal; ,4id whether the agreement assume the form of a bond for title or other form is r-ot material. The signature alone of the vendor, is sufficient. The interest which a vendee has, under such contract of sale, is assignable, and as it veste d in him by a conveyance without seal, so. in like manner, may it be transferred to another.</p>

This was an indictment, under Article 49S of the Digest, charging the defendant, in the language of the statute, with having cut and carried away certain timber “ upon land not his own, but which was” “ the “property of one Thomas Reid; without first having the “ consent of said Reid.” A motion to quash for the want of certainty in the indictment ■ and, particularly, because it did not describe the land by metes and bounds, or by the name of uhe grantee, or any other matter…

Error from Bexar. The plaintiffs in error, claiming under title by patent from the Government of the Bepublic of Texas, brought their action against the defendants in error to recover possession and quiet their title to certain parcels of land lying within the old Mission of Concepcion, which were occupied and claimed by the defendants by virtue of titles granted by the Mexican Government to them or to those through whom they claimed in 1823, after the Mission of Concepcion…

<p>Where one Judge sits for another, it would be more regular for him to act upon all matters or motions arising out of his proceedings, before he leaves the bench ; but it is not indispensible that it should be so done, and if anything is left undone when he leaves the bench, and another Judge takes the seat before the expiration of the Term, the Judge last taking the bench can dispose of and act on such matters, if he was competent to have tried the case out of which they arose.</p> <p>Where there was judgment by default, and a motion to set aside the judgment and grant a new trial was filed thirty-one days after the default, but within two days after the writ of inquiry was executed and judgment final rendered, and the motion was granted, it was held that there was' no error.</p> <p>Where the statute (Act of February 10th, 1852) provided “ that all lands hereto- “ fore located by virtue of any genuine claim to land, shall be surveyed within. 11 twelve months from the passage of this Act, or the location shall be null and *5 void,” and the locator applied to the District Surveyor to have his location surveyed, and the Surveyor refused to survey it for the reason that the land was. covered by an old claim, and the locator, within the twelve months from the passage of the Act, sued out a writ of mandamus to compel him to survey it, the location was held not to be void under the Act.</p>

<p>Under the statute (Hart. Dig. Art. 550) which provides K that if any person shall “ wilfully and maliciously kill, main, beat or wound any horse, cattle, goat, 14 sheep or swine, or shall wilfully ityur© or destroy any other property of an- “ other, he shall he punished,” &<t,, the wilful and malicious killing of a dog is mot a punishable offence.</p>

Petition by the appellant to enjoin the sale of plaintiff’s alleged homestead, under several executions. The defendants in the injunction were George W. Scott, the Sheriff of the county, and several plaintiffs in several executions. The Sheriff and another filed a general demurrer May 5tb, which was overruled on the 18th, whereupon the Sheriff filed an amended answer denying the allegation in the petition.

<p>Where a party moves “ to set aside and arrest the judgment, and grant him anew trial,” and assigns grounds in support of both, the motion must be treated either as a motion for anew trial, or in arrest of judgment exclusively, and cannot be considered as embracing both.</p> <p>Where the defendant was indicted for betting “ money at a gambling device called rondeau,” the Court said: This offence has been so frequently brought under discussion and adjudication in the numerous cases which have been before the Court, that we think we may well hold, that it is matter of judicial cognizance of which we may take notice without averment, that rondo is a gaming table, within the meaning and prohibition of the statute.</p> <p>1 entertain the opinion that every game, devised and played for the purpose of gaming, and not for amusement, or some other innocent purpose, is a “gambling device" within the meaning and intention of the law, (Hart. Dig. Art. 1477,) and as such indictable, by whatever other name or designation it may be characterized.—Wheeler, «T.</p>

<p>An administrator may waive the necessity of citation, and make himself a party-defendant in error in the Supreme Court.</p>

Error from. Fayette. Warren J. Hill, administrator of the estate of Martha Hill, deceased, brought suit against William W. Williams, on his promissory note, drawn in favor of his intestate for $150; the consideration being the hire of two negroes, Marian and Missouri, for the year 1853.

<p>It is not necessary to tbe conolusivonesa of a former judgment, that issue should have been taken upon the precise point which it is proposed to controvert in the collateral action. It is sufficient if that point was essential to tbe former judgment.</p> <p>It seems that where a mortgage is foreclosed against a husband and wife, the wife cannot resist an action to recover the property by the purchaser under the decree of foreclosure, on the ground that the mortgaged property was her homestead, unless fraud is alleged : and that, too, although the purchaser be the plaintiff in the original action.</p> <p>Although property be a homestead at the time of the execution of a mortgage thereon by the husband and wife, a judgment of foreclosure and sale may be obtained if it is not a homestead when the judgment is rendered.</p> <p>Where the statement of facts mentions the omission to copy documents at length, their contents are presumed to he consistent with the judgment, unless the contrary substantially appears.</p>

This was an indictment against Edward Toney Joseph Scott, late of Bastrop county, laborers, for permitting gambling in a house kept for the retailing of spirituous liquors. Edward Toney pleaded in abatement, that his real name is Edward Toney, and that he was never known or called Edward Toney Joseph Scott. The plea was sustained. The indictment quashed, and the State appealed.

The appellee, who was plaintiff in the Court below, obtained judgment against the appellant in the District Court of Washington county, for the sum of §3000 debt and §1000 interest. Said judgment was obtained, on a note executed before the 16th day of March, 1840. The judgment was certified to the County Court to be ranked and paid in course of administration.

<p>Appeal from Guadalupe.</p>

<p>Appeal from Travis.</p>

<p>Appeal from Washington.</p>

<p>It is always a question addressed to the discretion of the Court, to determine wlic " ther the basis has been laid by proving the loss or destruction of a record, to let in parol proof that such record once did exist. This discretion is not an arbitrary! capricious discretion, but must be a reasonable conclusion from the evidence. But, unless we were fully satisfied from the evidence, that the Court erred in the exercise of its discretion, we would not be authorized to reverse its decision.</p> <p>See this case for circumstances "under which it was held that the loss or destruction of a record was not sufficiently proved, to let in parol proof of its contents.</p>

<p>Error from Bexar. There was no statement of facts.</p>

<p>The plaintiff in error must file the record at the next Term of the Supreme Court, although the citation, be not served; if he fail to do so, defendant may demand an affirmance without reference to the merits, on filing the proper certificate.</p> <p>Where the record, on error, is filed by the plaintiff in error before service of the citation, if the defendant in error do not appear, a citation will issue from this Court.</p>

<p>Error from Washington.</p>

This was a suit for partition brought by appellant against appellee, the assignee of Manuel Flores and Josefa Cubier, his wife, for the purpose of division of one league of land in Guadalupe county. The land wa's granted to Elijo Gortari in 1831. Gortari was then married to Josefa, now the wife of Flores. Gortari died on the 23rd March, 183Í, without issue. Plaintiff'is his mother, and plaintiff at the death of her son was a widow, and has ever since remained single.

Action of trespass to try title by the appellant against the appellee, commenced August 4th, 1852. The judgment under which the land was sold, was against a partnership of which the plaintiff’s intestate was a member; and the execution was issued, and the levy and sale made after the death of said intestate. The sale was made in 1845, and the defendants had been in possession ever since.

The defendant accepted service of the interrogatories as follows: “I hereby accept service of the-u within interrogatories, and waive the five days’ notice of' “ copies of notice and interrogatories.”

Action by the appellants, as administrators of Frederick Niebling, against the appellee, to revive a judgment in favor of Niebling against the defendant, and another since deceased; commenced September 12th, 1853. Flea of former judgment. At the trial the defendant gave in evidence the former judgment.

Suit by the appellants against the appellee, commenced Oct. 21, 1853, on an instrument in-writing to pay a certain amount to the wife in work such as-she might direct, on the place where she then lived. The instrument was dated March 27, 1849, and was payable on or before the first day of September next thereafter. The instrument sued on was filed with the petitioner.

<p>’ Appeal from Bexar. The suit was commenced in October, 1851. The plaintiff claimed by patent issued in 1851.</p>

<p>Error from Navarro.</p>

In this ease a judgment was rendered against the defendants, on a scire facias, sued out upon a forfeited bond, given by Busby, the first named appellant, with the other appellants as his security. The record shows that a true bill had been returned by the grand jury of Guadalupe county on the 27th day of October, A. B., 1852, being at the Fall Term, 1852, of the Bistrict Court for that county.

<p>Where there was a statement of facts which was signed by the attorney of the appellant only, and the Judge certified that he “ signed the foregoing as a statement of all the material facts proved upon the trial of this cause” &c.,it was held that the presumption was that the attorneys of the parties had failed to agree on a statement of facts, in which case the Judge is required to certify a statement.</p>

The appellees, in August, 1851, brought their action against the appellant, to recover a slave or her value, which they alleged to belong to the estate of their testator, one Winburn, who died in 1847, in possession of said slave, leaving his widow, one of the plaintiffs, his executrix and another his executor ; that they took possession of the slave as the property of the estate of their testator, and that the same remained in possession of the executrix and executor of the…

Error from Washington. Action brought by the defendant in error against plaintiff in error, upon a foreign judgment rendered in November, 1852.

Error from Bastrop. The plaintiff in error had been the administrator of one Milton Hicks, deceased, who departed this life in 1839, and having finally, settled with said estate, was declared to be discharged, on his producing a receipt of the delivery of the property of the estate to the heirs of the deceased.

<p>In charging the jury the Judge may call their attention to the evidence of a particular fact or facts, if they be controverted, for the purpose of directing them to the rules of law that must govern them in arriving at the truth; and if they be uncontroverted, for the purpose of the application of the law to them. All that is required of the Judge is that he should neither decide on the facts nor attempt to influence the jury in their decision on the facts.</p> <p>The proposition, that where the witnesses before the jury, are equal in credibility, the greater number must prevail, is unsound; because it fixes an arbitrary rule for the government of the jury in deciding on the weight of evidence when the witnesses have not been impeached, and have all, therefore, went before the jury, as equal. In such cases, the jury giving weight to testimony so conflicting, must determine which is entitled to the most influence; and this they may do from various considerations, such as the manner, expression, intelligence, and which is the most likely to be best informed from his situation and intelligence.</p> <p>Bad character, limited to a want of chastity, does not vender a witness infamous in the legal sense of the term. “How far the want of chastity would impair “her credit, was a question to which the jury had the right and sole right to “ respond.”</p> <p>Where the Judge refused to charge the jury, that the confessions of a party accused of felony, should be received with very great caution, and that the j ury should hesitate to convict upon such confession unless corroborated by other circumstances, the Court said : “ The Judge could not be called upon to give this charge unless “ the facts in the ease made it applicable. * * * There is no doubt about the “life of the man being destroyed, and ¡¡rima facia, it was a feloneous killing: “ There was no evidence of surprize, fight, or inducement held out to make the “ confession: such circumstances would have been proper to he considered by the “jury and if any of them had been in evidence, the refusal of the Ceurt to give “ the charge would have been error.”</p> <p>Where two or more persons are jointly indicted and put upon their trial together, and little or no evidence is offered against one or more of the defendants, and such defendants are willing to be tried on the evidence of the prosecution, the jury should be instructed to pass on their case, before the other defendant or defendants have opened their defence, so that they should not be deprived of the evidence of co-defendants who are not inculpated by the evidence of the State.</p> <p>The drinking of ardent spirits (whiskey) of their own procurement, by the jury in a criminal case, after they have retired to consider of their verdict, vitiates their verdict, and is good cause for a new trial. It seems that the rule is the same in civil cases.</p> <p>Where the jury separated while the Bailiff was conducting them through a crowd, but it did not appear that they had spoken to any one, it was held that the separation was not such as would vitiate their verdict.</p> <p>Where one count in an indictment embraces two offences of different grades, a conviction of the inferior offence is an acquittal of the higher, and upon a new trial, the defendant cannot be tried and convicted of the higher offence.</p> <p>Where the defendant was indicted for murder in the first degree, and convicted of murder in the second degree, and there was a new trial, it was held, that, upon the second triaf, -he could not be tried and convicted of murder in the first degree.</p> <p>As murder in the second degree can only be committed with malice, it admits of accessories before the fact.</p>

<p>Appeal from Gonzales.</p>

<p>Under the laws in force in 1837 the heirs of a deceased person had the right, either expressly or hy implication, to accept the estate, becoming responsible for the debts; and especially if there were no debts had they the right to accept and distribute immediately without the incumbrance of an administration.</p> <p>Where the deceased died in 1837, leaving no debts, or at least a trivial amount, and a few months after the decease, the heirs, those present acting for themselves and those absent, by a curator under the sanction of the Probate Court, agreed to divide the estate, the perishable property to be sold and the proceeds paid over by an “ agent ” whom they appointed, and the real estate to be divided in a manner subsequently to be agreed upon, and the agent took charge of the trust and made payments in full or in part to all the heirs, and the land was divided in pursuance of the agreement, and all the proceedings under the agreement returned to the Probate Court; it was held that the act of the heirs in making the agreement and appointing the agent was an acceptance of the estate, which closed it against a general administration; after which nothing remained to be done but to carry the agreement into specific execution, and if the agent made default j the party who had a right to complain and seek redress for the wrong was not the estate or succession as a fictitious being, but the injured heir or heirs ; that general letters of administration de Tionis nm, granted to the plaintiffs in 1849 , were granted without competent authority, and the grant was a nullity: and farther the Court said: “ If it be conceded that an administration was an essential “ prerequisite to the passing of the property to the heirs, and if the defendant “ (“ the agent”) had not in fact been administrator, or the acts done were not “ in due course of administration, it would open the whole sueeesssion and all “ the proceedings to examination and adjustment. But upon no principle could “ such a course be tolerated. It could not be permitted that heirs should be “ ousted or disturbed after ten. or eleven years possession for the mere purpose “ of putting an estate through an administration, especially where it would re- “ suit in nothing but injury to all in interest.”</p>

<p>The Act of June 28th, 1845 (Hart. Dig. p. 502) had no force, and was not intended to embrace any other judgments except those rendered anterior to its date.</p> <p>Where the decedent was domiciliated and died in this State in 1835, and letters of administration were granted upon his estate in the State of Kentucky in the same year, and in 1849 the administrator recovered two judgments against the defendant in a Circuit Court in the State of Kentucky, and it appeared that there were no creditors hut that the judgments were recovered for the heirs, and the administrator died in 1851, and the heirs brought their action on the judgments in 1853, it was held that the facts were such as to raise a strong •prime, faeia, presumption that the property in the judgments had vested exclusively in the heirs, and that they had sufficient right to maintain their action.</p> <p>Eighteen years is more than sufficient lapse of time, under the policy of our laws with regard to the speedy settlement of successions, to raise the presumption of the grant and close of administration, of the restoration of the property to the heirs, and their unquestionable right to sue for and reduce such property into possession.</p> <p>11 When the question arises as to the limitation to he applied to a foreign judg“megt proper” (not of a sister State) “it will doubtless be held to come with- “ in the operation of the four years’ limitation.”</p> <p>A judgment of a Court of record of a sister State is barrable only by the space of time which would out off suit on a domestic judgment, viz : ten years.</p> <p>See this case for where the defendant in a suit on a judgment of a sister State was allowed to plead part payment during the pendency of the suit in which such judgment was recovered.</p>

<p>Error from Bell.</p>

This suit was brought by the appellant against the appellee as administrator of Thomas W. Gox, praying that the title to a certain tract of land to which title had been made to the administrator of Gox, for the estate, under a decree of Court, should be divested from the heirs of said Cox and vested in petitioner.

<p>Where the vendee in a parol contract for the sale of land goes into possession and' makes improvements, he is entitled in equity to a decree for specific performance, and not for the value of his improvements, unless the vendor is unahle to make title. Should the vendor be unable to make title, then the vendee would be entitled to judgment for the value of his improvements, subject to a deduction for the rents and profits.</p> <p>Where a judgment was erroneous in kind, being for the value of improvements instead of specific performance where there was a parol contract for the sale of land, hut neither plaintiff or defendant objected to it on that ground, and the Judge had refused to charge the jury that if they found for the plaintiff, they should deduct the rent from the value of the improvements, the Court said, “ Notwithstanding the verdict of the jury, when applied to the state of the “ pleadings, would not sustain the judgment of the Court, if it had not been for “ the error committed in refusing to give the charge asked as to the rent, and it “ had been deducted from the value of the improvemets, we could not have re-11 versed the judgment; because neither plaintiff nor defendant in the Court had “ objected to or complained of the unauthorized act of the Court in substituting a moneyed compensation for specific performance. The judgment was reversed “ and re-formed.”</p> <p>Where the plaintiff sued for specific performance of a parol contract for the sale of land, and alleged the payment of the purchase money, and the verdict found the other facts alleged in -his petition, without stating whether the purchase money had been paid or not, it was held that the verdict was sufficiently certain; that the not finding that it was paid amounted to a finding that it was not paid.</p>

<p>Appeal from Travis.</p>

Error from Bobertson. This action was brought by the defendant in error against the plaintiff in error on two promissory notes.

Error from Travis. Action of trespass to try title to three town lots in the city of Austin, by Miller and wife against Fisk and Hiram B. Hill and wife. Hill and wife were cited by publication and failed to appear.

Error from Bexar. Action by Castro against lilies to have certain conveyances from Mm, Castro, declared to be mortgages, &e. Elies answered^ admitting the conveyances were in fact mortgages, being intended to secure the payment of money; prayed a foreclosure, &c. The facts material to be stated, will be found in the opinion.

<p>Where a new trial has been granted upon condition that the party pay the costs on or before the next Term, if the opposite party intends to insist upon the nullity of the order, he must do so at the next Term or it will be considered as a waiver of the objection.</p> <p>The District Court, in the exercise of equity jurisdiction, may grant a new trial or reinstate a ease at a subsequent Term.</p> <p>Where a new trial was granted to the plaintiff upon condition that he paid the costs on or before next Term, which he did, ana the cause remained on the docket for several Terms, until the decision of Secrest v. Best came to the knowledge of the Court, whereupon the case was treated as no longer on the docket, and the plaintiff filed his petition setting forth the facts and asking for a reinstatement of the ease, which was dismissed on exception, it was held that the -case should have been reinstated.</p>

The petition described the Court which rendered the judgment, as “ a Circuit Court begun and “ held in for the county' of Claiborne and State of Mississippi, at the Court House thereof, before the Honorable “Stanhope Posey, Judge of the first judicial district of the “ State of Mississippi,” &c. There was no further allegation as to the jurisdiction of the Court, but a copy of the judgment was filed and made a part of the petition.

This was a proceeding in the County Court of Calhoun county, to compel William Pierpont, the appellant, residing in De Witt county, to deliver to the appellee, Threlkeld, the administrator of J. T. Benedict, deceased, papers alleged to belong to the estate of the said deceased.

<p>Error from Lavaca. The facts are stated in the opinion of the Court.</p>

<p>It seems that in taking a bill of exceptions to the decision of a motion which involves matters of fact, the matters of fact should be stated; or it should be stated that no evidence was offered respecting the same, otherwise the presumption will be that such evidence was offered, and in the absence thereof the decision cannot be revised.</p> <p>It is incumbent on the plaintiff or party prosecuting the suit, in cases of change of venue, to cause the case to be transferred as early as conveniently practicable ; or within a reasonable time. But what will be a reasonable time must depend upon the circumstances of each case.</p>

<p>Appeal from Victoria.</p>

Action of trespass to try title, by Thomas R. Williams and Benjamin Irby against Leonard C. Cushman.

Action by the appellants against the appellee to recover §550, alleged to belong to their intestate, and to have come into the hands of the defendant about the time of the intestate’s decease.

Action by the appellant, on a promise in writing by the appellee, to pay money to Edwin Waller or order, assigned to Thomas L. Bertrand and Gustavus A. Bertrand, assigned to Thomas L. Bertrand. This action was commenced on the 26th of February, 1851. On the 21st of February, 1848, one Jonathan D. Waters had sued the said T. L. and G. A. Bertrand on a promissory note, as assignee of the present defendant, who was the payee in the note.

Error from Victoria. This was an action brought by the defendant in error against the plaintiff in error and J. B. Toombs, on a promissory note, by petition filed August 13fch, 1853. On same day citation issued and was returned to the Fall Term served on J. B. Toombs, mot served on Briggs, he not being found in the county; whereupon the Court ordered a judicial attachment to issue against Briggs. At the Spring Term the attachment was returned executed.

Error from Colorado. The plaintiff alleged a power of attorney from John Low to sell lands, and to pay debts, and to do all and singular such acts as his principal could do and perform in person; that he had conveyed certain lands under the power to John F. Miller, deceased, the testator of defendants, by a deed executed in his own name, with a warranty of title; that the said Miller for a valuable consideration had re-conveyed the same lands to his principal and that the…

Action by the appellees on the promissory note of the appellant, payable to the wife. Defendant pleaded payment, and proved by a witness, that he, the witness, had paid Middleton about the amount of the note, by verbal order of the defendant; but the date of the order and payment was fixed by the witness anterior to the date of the note sued on. It was paid by credit, at cards. Verdict and judgment for plaintiffs.

Error from Brazoria. Action by plaintiff in error on a promissory note. Answer that the note was given for a slave Oscar, who was at the time, not the property of the plaintiff, but of one Malcomb'B. Hunter, a minor, whose guardian had since obtained possession of said slave by some means unknown to the defendant.

Action by appellee against appellant on an open account, contracted by the appellant’s ward before he became a lunatic.

Error from Galveston. Some of the defendants in error filed a certificate, and moved an affirmance of the judgment, without reference to the merits.

This suit, to revive a judgment against defendant, was brought on the 5th October, 1850, by the appellants, as administrators of Benjamin S. Grayson, deceased. At the Fall Term, 1851, the removal of the plaintiffs as administrators was suggested, and the cause was continued from Term to Term to make parties.

Error from Galveston. Action by the defendant in error by her next friend, Alexander Tennell, against the plaintiff in error, to recover two certain slaves named George and Jackson.

Error from Colorado. Action of trespass to try title by Benjamin Osborn, by his next friend, Isam Tooke, against Robert Robson, commenced March 16th, 1853. Plea in abatement that W. W. Thompson was the guardian of the plaintiff and the proper person to bring the action. Exceptions to this plea overruled. Trial of plea in abatement, and verdict for the plaintiff.

Action of trespass to try title, by appellant against appellees. The land in controversy is situated in the county of Lavaca, and was granted to Benjamin Whitson for his headlight, and was at the death of Whitson unimproved. Whitson died at his residence in the county of Jackson, in the year 1844, and his widow, Martha Whitson,, obtained letters of administration on his estate in the county-of Jackson, at the September Term of the Probate Court, 1844.

The appellee, the plaintiff in the District Court alleged in his petition, that Samuel W. Van Norman, the testator of the defendants, in his lifetime, in the month of November, A. D., 1850, by his agreement in writing, promised to pay to the plaintiff one hundred dollars, which said writing was signed by the said Samuel W. Van Norman, and is herewith filed and made a part of this petition, whereby the said Samuel W. Van Norman became indebted to the plaintiff in the said sum…

The appellant was convicted of gaming. The condition of the recognizance, on appeal is stated in the synopsis of this case. The appellee moved to dismiss the appeal.

This was a suit brought by an administrator upon a note given for the purchase money for land, located and surveyed by virtue of a headright certificate, sold at the administrator’s sale. The defence was failure of consideration, in consequence of failure of title. It appeared in evidence that the sale was made in 1848, and that the failure of the title of the purchaser was occasioned by the failure to return the field notes of the survey by the 31st day of August, 1853.

This was an action to recover damages for the breach of a contract to deliver cattle. The price had been paid in advance; and the question was as to the measure of damages which the plaintiff was entitled to recover for the refusal to deliver according to contract.

Error from Brazoria. Action by the plaintiff in error, commenced September 16, 1847, to supersede an execution and quash a twelve months bond taken under the 8th Section of the execution law of 1839. (Hart. Dig. Art. 1277.) The bond was taken in 1839, and the execution which the plaintiff sought to supersede, was issued thereon in 1847, and did not purport to be apluries execution.

<p>Error from Montgomery.</p>

<p>Where a jury is waived, the decision of the Judge is entitled to the same presumptions in its favor, as the verdict of a jury.</p> <p>Where the wife claims as her separate property, property levied on by execution against the husband, her claim should he supported by abundant proof.</p>

Error from Walker. This action was instituted by several separate judgment creditors (the defendants in error) of Isaac Towsey, against the said Towsey and Frederick Pomeroy, for the purpose of having certain deeds and conveyances of land and transfers of property made by the said Towsey to the said Pomeroy declared fraudulent and void as to creditors, and to subject the said land and property to execution on their judgments against the said Towsey.

Action by the appellants against the appellees, and others unknown, stockholders in the town of Swartwout.

Order in the County Court for payment to Howard, of an allowed and approved claim against the estate. Appeal by the administrator to the District Court without bond. Appeal dismissed for want of appeal bond. Appeal to this Court without bond.

Error from Walker. Action by William McDonald against Albert G. Teas, John Cotton and A. J. Stevens.

This is a suit against husband and wife, for three hundred dollars, alleged to be due for the collecting, keeping, managing and preserving the separate property of the wife. The petition is in the common form of a count for work and labor, &e.s stating the liability of defendants for the services as being rendered at their special instance and request, and that being so liable they promised, &e. There were but two witnesses.

Error from Walker. The defence in this case was the statute of limitations. The operation of the statute had been suspended by the removal of the debtor, Wm. K. English, from the State, and it had recommenced on his death.

Action by the appellant against the appellee for $313, the value of certain lumber sold, &c. Original attachment obtained on tbe usual affidavit, on the ground that the defendant was about to remove out of the State.

Error from Harris. Action by the appllee on the following note: Houston, July 1,1851. Twelve months after date, I promise to pay to the order of John Dobbin, administrator of the estate of A; W. Berry, four hundred dollars, being the purchase money for one league and labor of land in the name of Juan Jose Tasseda, purchased at the sale of the property of A. W. Berry. J. DeCORDOVA. Endorsed to plaintiff.

Action by the appellee against the appellant, to annul a contract of sale entered into by the appellant and appellee’s testator.

Action by the appellant against the appellee, commenced on the 25th day of October, 1854, on a judgment of the District Court of Brazoria county, which was rendered on the 27th day of March, 1843.

Petition in the County Court, by appellee, for partition and distribution of an estate of which the appellant was administrator. Petition and distribution ordered. Appeal by the administrator. Appeal dismissed for want of a bond.

Proceeding commenced in the Comity Court by the appellee against the appellant to compel her to return a certaiti tract of land, parcel of the headright of Edward Ferris, her intestate, as a part of his estate. The plaintiff was the holder of an allowed and approved claim against the estate of Ferris.

<p>Although an agent have not such authority as enables him to sign the name of his principal to a bond to obtain an attachment, and the attachment be quashed on that account, yet, if he acted at the instance of his principal in procuring the issuance and levy of the attachment, a plea of reconvention against the principal will be good, if there was no reasonable grounds for suing out the attachment.</p>

Action by appellant against appellee for malicious prosecution. The judgment appealed from was rendered at the Spring Term, 1852.

Error from Harris. The words “ I acknowledge service, this 3rd, November, 1853, were written on each citation, and signed with the names of the respective defendants. There were no returns by the Sheriff, on these citations.

Action by the appllee against the appellant, commenced May 10th, 1852, for unlawfully taking possession of a mule belonging- to the plaintiff, of the value of $150, and converting it to his own use ; prayer for the possession of the mule or its value; amendment “And he furth- “ er charges and alleges that the said defendant took out of “ the possession of the plaintiff and converted to his own use, “ the said mule, without any right whatever or by any authority of law, to…

<p>The provision of the Constitution, which requires all prosecutions for offences t > be conducted in the name of the State of Texas, has no reference to the style of entitling the case on the docket or papers filed."</p> <p>See this case for circumstances under which it was held that a prosecution which was commenced under the Eepublie of Texas, was prosecuted to judgment, aftei annexation, in the name of the State of Texas, conformably to the second Section of the thirteenth Article of the Constitution.</p> <p>Where the Judge has given the law properly in charge upon a point, it is not en or that the Judge refused to give it in the phraseology in which it was asked by counsel.</p> <p>Where the Court instructed the jury that if they entertained “ a reasonable doubt of the guilt of the prisoner, they will give him the benefit of that doubt,” and that it was “ essential that the circumstances proved should, to a moral certainty, actually exclude every hypothesis that the act may have been committed by another person, known or unknown,” it was held not erroneous that the Court refused to give the following instruction : “ If, confining yourselves to the “ evidence which has been introduced, and basing your reflections on that evi- “ dence alone, a reasonable doubt should remain upon your minds as to the “ guilt or innocence of the prisoner, it is your duty to acquit him.”</p> <p>In order to convict on circumstantial evidence, it is not essential that the circumstances proved, should, to a moral certainty, actually exclude every hypothesis that the act may have been committed by another person, known or unknown ; hut this rule, which is the one laid down by Starkie, should be qualified by adding, any reasonable hypothesis, consistent with the circumstances and facta proved, and the supposition that the act may have been committed by inothei person, must harmonize with the evidence.</p> <p>Where there is a question as to the sanity of a prisoner at the time of the trial, and the question is submitted to a jury and the prisoner found to be sane, all evidence of the present insanity of the prisoner, not intended to prove insanity at the time of the commission of the offence, should be excluded on the trial of the issue of guilty vel non.</p> <p>See this ease for circumstances of circumstantial evidence under which it was held that the defendant was properly convicted of murder in the first degree.</p> <p>It seems that on a trial for murder, where the evidence for the prosecution is wholly circumstantial, it is necessary for the defendant to make it appear, on appeal on the ground that the verdict is not sustained by the evidence, that there is some reasonable hypothesis, consistent with the facts proven, from which it can be inferred that the murder was committed by some other person, known or unknown.</p>

Error from Victoria. Action by plaintiff in error against defendant in error. Petition addressed to the Judge of the third.

This was a suit for damages commenced by the appellee, on account of slanderous words published by the appellant of and concerning her.

<p>Appeal from Folk. The facts are stated in the opinion.</p>

Action commenced April 25th, 1853, by the appellant against the appellees for the difference between the amount at which property of the estate was knocked off to them at the administrator’s sale, and the amount for which it was sold at a subsequent sale. The first sale was on the first Tuesday in Sept., 1851; the subsequent sale on the first Tuesday in April, 1853.

Error from Walker. Action commenced March 25th, 1854, by the appellee against the appellant, for a divorce on the ground of adultery. Answer, admitting “ that she was married to the plaintiff at the time charged la the petition,” but •denying the other allegations in the petition.

Error from Walker. Action by defendant in error against plaintiff in error, on a transcript of a judgment of a Circuit Court at Nashville, in Tennessee, rendered at May Term, 1853. A transcript of the judgment was filed with the petition. It appeared from the transcript that the plaintiff brought his action in Tennessee, in September, 1852.

In the Court below, the defendant, who is appellant in this Court, at the Term to which the citation was returned, asked for a continuance, on the following affidavit: “ That he could not go safely to trial this Term, for “ want of testimony material to the case ; that the witnesses “ for the defendant were not residents of said county; that “one of the said witnesses lives in Brownsville, Cameron “ county, and that the other witness lives on the Guadalupe, “ in DeWifct…

Action by appellees against appellant. Plea of discharge in bankruptcy under our statute, in Galveston county.

Error from. Montgomery. The plaintiff in error, on the 8th Jan., 1852, instituted suit against Mary Sheppard, the widow and others, the heirs of W. W. Sheppard, deceased, on an agreement of the deceased, by which he bound himself under a penalty of four thousand dollars, within twelve months from the date, which was the 21st Nov., 1844, to convey to the plaintiff in error, by good and sufficient deed, with warranty, two tracts of land, one in the name of Smith and another in…

Error from Cameron. Action by T. E. Delmas & T. Del-mas, partners, against Adolphus Glsvseeke. Judgment for plaintiffs, November 15th, 1852, by default. Petition for writ of error, and bond, filed February 15th, 1853. Citation in error issued December 8th, 1853, and executed on T. Delmas, December 9th, 1853. Transcript delivered to T. E. Delmas December 18th, 1854. Filed December 30th, 1854.

Error from Colorado. Action of trespass to try title, by the plaintiff in error against the defendants in error. Both parties claimed under Ira R. Lewis. The plaintiff introduced in evidence the docket title of a judgment in the District Court of Colorado county against said Lewis, dated September 6th, 1843, and an execution issued thereon on the 8th May, 1844, to sell without appraisement.

Action of trespass to try title, commenced. Oct. 16th, 1846, by appellant against appellees.

Action by the appellee against the appellant. Affidavit by plaintiff that defendant “ is not an 56 inhabitant or resident of the State of Texas, to the best of u his knowledge and belief.” Service by publication. Judgment by default. Execution to Milam county.

Error from Colorado. Action of trespass to try title, by the plaintiff in error against the defendant in error, to the upper half of a league of land granted to Samuel Kennelly as his headright, April 28th, 1831. Kennelly executed title bond to the plaintiff, August 5th, 1833, to make title to the undivided half of the league when the laws of the country would permit.

Action by Abner S. Lipscomb for the use of himself and Barry Gillespie, late partners in the practice of law, against Joseph F. Smith, on a contract in writing, dated at Austin, April 16th, 1840, as follows: “ It 66 is this day mutually agreed by and between Joseph F. Smith “ and Abner S. Libscomb.

The petition alleged that Andrews had departed this life. The amended petition making his representatives parties was filed June 16, 1852. Thé executions which had been issued on the judgment after its affirmance by the Supreme Court did not appear. The petition alleged that one was issued on the 13th April, 1841, and that u subsequently other executions have been regularly and from time to time issued on said judgment.”

<p>Appeal from Victoria.</p>

Error from Goliad. This suit was brought to recover compensation for damages incurred by the plaintiff, in work and labor done and performed by him in the execution of a verbal contract with the defendant’s intestate.

The appellee sued the appellant and others for a league of land, claiming as heir of Edwin Bicheson, under a grant to him as a colonist of the empresa-, rio Green DeWitt. The defendants claimed under locations. The petition was in the ordinary form of trespass to try title.

<p>Where the prisoner, on trial for murder, “ offered to show by witnesses (not medi15 cal men) that they were conversant with persons well known to be insane, and “ ihafc the conduct and appearance of the prisoner were like such as they had 81 observed in the said insane,” it was held that the testimony was properly rejected.</p> <p>Where, on a trial for murder, the Court excluded from the consideration of the jury such expressions of the witnesses (not medical men) as that:he, the prisoner, looked and acted like one insane, in their opinion, it was held there was no error.</p> <p>Under our statute, which divides the crime of murder into murder of the first degree and murder in the second degree, wherein it is provided that “ all murder -8 committed by poison, starving or torture, or other premeditated or deliberate “ killing, or committed in the perpetration or in the attempt at the perpetration of 11 arson, rape, robbery or burglary is murder in the first degree, and all murder 'f not of the first degree is of the second degree,” and the jury is required to find whether it Is murder in the first or second degree, a conviction of murder in the first degree is regular, although the indictment be simply in the Common haw form, without any further charge or description corresponding with the statute.</p>

<p>Slaves are persons within the meaning of the statute concerning crimes; and where not otherwise provided, or where the relations arising out of the institution of slavery do not imply'the reverse, the statutes enacted for the punishment of crimes, and especially crimes committed by violence to the person, apply equally to crimes committed by, or upon the person of a slave. (Chandler v. The State, 2 Tex. E. 305.)</p> <p>An indictment will lie for the assaulting and cutting, or beating and wounding a slave, the property of another, by a person having no lawful provocation, and no authority to inflict chastisement upon the slave.</p> <p>Articles 2559 and 2587 (Hart. Dig.) provide the punishment for cruel treatment and abase of s slave by the master or person having control over the same, and do not apply to a ease of violent assault and battery committed upon a slave by a person sustaining no such relation to the slave.</p> <p>Where tho defendant was found gnilty of a violent assault and battery upon a slave described in the indictment as the property of another, it was held that the ownership was mere matter of description, and need not be proved.</p>

Tyler. Action by the appellee against the appellant, for what was described in the petition as an unprovoked and most unmerciful beating with intent to kill. Damages laid at ten thousand dollars. The citation was properly returned served. The defendant prefaced his answer with “ exceptions ” to the service of the citation, because a certified copy of the petition was not served upon him.

Action by the appellants against the appellees, to restrain the defendants from laying off and building a town, &c., at Powder-Horn, on the land of the plaintiffs.

Action by the appellees Miranda Jane Clements, formerly Miranda Jane Oldham, and her husband, against John Ford, commenced July 21st, 1851, to compel the defendant to account for the value and hire of a certain woman slave named Karcissa and her increase.

The appellees Roberts and Phillips instituted two actions of trespass to try title in the District Court of Galveston county, on the 25th October, 1849 * one against Robert Moffatt to recover lot No. 9 in block 680, the other against Benjamin S. Parsons to recover lots Ro. 4, 5 and 6 in the same block in the city of Galveston.

For former reports of this case see 2 Tex. R. 232, and 9 Id. 422. On the last trial the defendant requested the Court to instruct the jury as follows : 1st. That 'the possession by the defendant of the draft of four hundred dollars given in evidence by him, is prima facie evidence of the payment of the same by him, and raises a presumption in his favor, of that fact, which if not rebutted, will be taken as true. 2nd.

<p>Where the petition alleges title in the plaintiff in general terms, and a deed to the plaintiff’s wife is offered in evidence, the objection is at most a variance, (the presumption being that the property is community) and cannot be raised in the instructions to the jury.</p> <p>It is no answer to an action for rent, that the title to the property is in dispute. But this case does not decide that relief will not be granted, if a tenant, acting in good faith, asks the protection of the Court against being compelled to pay rent to one and mense prifits to another.</p>

Action of trespass to try title, commenced August 8th, 1850, by the appellants against the appellees, to the “ Agostadero de San Pedro de Carricitos,” fronting on the Rio Grande, containing eleven leagues of land.