Volume 14 — Texas Reports

The appellant commenced suit against appellee by attachment issued before his demand became due as provided for by statute, (Hart. Dig.

<p>The principle of Gautier v. Franklin (1 tions, applied to this case. Tex. R. 732) as to the statute of lirnita-</p>

The proceedings before the Justice were not copied into the transcript; and it did not appear when the suit was instituted, except by a bill of exceptions, which was as follows : “ Plaintiff gave the note in evidence, which was dated January “ 1st, 1850, payable one day after date, and endorsed ‘ came into “ my hands for suit 28th of November, 1853, A. H. Briscoe, “ Mayor of Goliad and J. P. G. C.' The Plaintiff then intro- “ duced A. H. Briscoe who testified that in the…

Error from Walker. This action was brought by the defendant in error, on a note for two hundred dollars, given by one William Watkins and the plaintiff in error, Duncan G-. Campell, as his security. Watkins did not appear, and judgment was taken against him by default; but the surety, Campbell, appeared and pleaded that the note was without consideration. There were other pleas ; but on exception they were stricken out.

Suit by appellees against appellant on the following draft, commenced Sept. 5th, 1852, $500. Wharton, Texas, January 1st, 1852. Thirty days after date pay to the order of B. & W. Milburn five hundred dollars. Value received. Which place to account of yours truly. THOS. THATCHER. To L. J. Latham, Houston, Texas. Endorsed without date, to appellees.

<p>Appeal from Jefferson.</p>

The bill of exceptions read as follows: “ Also, the claimant offered to prove by said Bailey, that a writing shown to him,” &c., (same as in the second paragraph of the syllabus of this report.) The balance sheet showed a balance in favor of the partnership, of $3,253, not including claims to the amount of $831 26 marked doubtful, nor an item entered, “By railroad orders not above $140 10.” Among the claims considered good was one against Bailey for $2,229 16, which,…

<p>See this case as to the practice of the Supreme Court with respect to certificates of the District Clerk as to matters of fact; and as to affirmance without respect to the merits.</p>

<p>"Where a county prepared a plan and specifications for building a jail, and let the contract to the lowest bidder at public outcry, taking bond with security for the performance of the contract by a given time, and the contractor, having taken the contract at less than one-fourth of a fair price, failed to perform any part of it, and the county let it again at public outcry, after due advertisement, and sued the original contractor and his security, on their bond, it was held that the difference between the prices at which the contract was let, was not the measure of damages, hut that the proper measure of damages was the actual damage to the county, upon the basis of a fair price at each letting.</p>

<p>Appeal from Calhoun.</p>

<p>An attorney at law wlio is elected Judge, cannot complete the performance of his subsisting professional contracts, by means of another attorney substituted in his stead, although his clients assent to the substitution ; because what a person cannot do, in law, by himself, he cannot do by another.</p> <p>Where an attorney, having a special contract for a certain fee for services to be rendered in a certain suit until the final disposition thereof, being elected Judge, employs another attorney, with the assent of the client, to attend to the suit, for a certain fee, the difference between the fees is the proper measure of the valuó of the services of the attorney first employed.</p> <p>It is well settled that unless the instruction asked is legal and proper in the very terms in which it is asked, the Court is not bound to give it.</p>

<p>Appeal from Galveston.</p>

Suit by appellant against appellee and another, commenced December 24th, 1842, on a promissory note, dated September 4th, 1887, and due January 1st, 1839, executed in the State of Mississippi, the parties being citizens of the United States at that time. The appellee pleaded his discharge in bankruptcy under the Act of January 19th, 1841, of the Congress of the Republic.

Error from Brazoria. Suit by the appellee for a slave Emily and her child, and damages for their detention, in the nature of hire.

Error from Colorado. This was a submission to arbitration, under the statute, (Hart. Dig. p. 89,) of the statement of account between the parties as partners in trade. It was agreed there should be no appeal. The award was filed, with a motion that it be entered as the judgment of the Court.

<p>See this case as to the extension of the period allowed for administering estates, under the Act of March 16th, 1840, and as to the liabilities of sureties, after that Act and before the Act of February 2nd, 1844.</p> <p>See this case for circumstances under which it was held that the presumption was that all debts against an estate were barred or paid, and that the remaining assets belonged to the heirs, and that therefore the estate could not be re-opened by the appointment of an administrator de honis non; and also as to suit on the bond of a former administrator by an administrator de honis non.</p> <p>Comments on the' report of Murphy v. Menard, 11 Tex. R. 613.</p>

The grant to James Cummings was completed by the act of possession on the 16th of August, 1824; the deed from Cummings to James E. B. Austin was dated February 5th, 1825. There was evidence that the land had been continuously cultivated from 1824 to the present time, by persons claiming under Cummings.

This suit was brought in the name of Edward F. Byrne, an infant of ten years of age, by his mother, calling herself his natural guardian and next friend, to recover from the defendants, possession of a lot of ground in the city of Galveston, and damages for its occupancy. The petition alleged that said Edward was the son of Wm. 0. and Ann 0. Byrne ; that Wm. 0.

The petition alleges that after the passage of an Act of the Legislature of the said State of Texas, entitled “An Act to suppress illegal banking,” approved March 20th, 1848, to wit: on the first day of April, A. D., 1852, in the county of Galveston, in said State, said defendants and the persons aforesaid unknown were, then and there, and previously thereto, had been associated together, being, the said Samuel M. Williams, President and a Director, the said Henry Jenkins,…

Administration upon the estate of John Cummings was obtained by the party appellant, in 1839. The personal property of the estate appears to have been sold for cash, by order of the Court in October, 1840; and the administratrix then obtained an order giving her until the December Term thereafter to render an account of her acts in the administration of the estate. In January, 1841, she was cited to render an account of her administration to the Probate Court.

Harris. Action of trespass to try title. Defendant pleaded not guilty. On the trial the defendant admitted title from the State to the plaintiff and gave in evidence an absolute deed of conveyance of the property, and possession under it, from the plaintiff.

<p>Error from Jackson.</p>

<p>In this case, on the application of the heirs, after citation to the executors and the holder of a claim which had been allowed and approved, the Probate Court set aside the order of approval and rejected the claim; and the judgment was affirmed.</p> <p>Where on application of the heir, the Probate Court, after citation to the executors, set aside the order of approval of a claim and rejected the same, and on appeal, the District Court not only affirmed the judgment, but rendered judgment for the amount against the executors, it was held that the judgment so far as it was for a recovery against the executors was erroneous.</p>

The petition sought to recover en- allegation of the fact that the defendant had used the wharf and refused to pay the wharfage imposed by the ordinances of the city, and did not plead the charter.

Petition by appellee, to the August Term, 1852, of the County Court, for an order for the payment of a claim which'the plaintiffs held against the appellant’s intestate, John D. Harvey, and if necessary, for a sale of property for that purpose. The petition alleged that the claim had been allowed by the administrator and “ admitted by the Chief Justice.” The claim consisted of an account dated January 1st., 1844, and interest at ten per cent.

<p>Appeal from. Montgomery. Action of trespass to try title. (The record in this case being mislaid, we are unable to prepare a statement of the facts. Reps.)</p>

Execution in favor of John Parker against David Y. Portis ; levied on three slaves, Ky or Hezekiah, Orecy and Lidy ; the slaves claimed by Rebecca Portis, wife of David Y. Portis ; affidavit that the slaves were “ her separate property and in nowise liable for the debts of David Y. Portis ; bond by claimant payable to the Sheriff; answer by the claimant, answering with her husband, 1st. That the slaves were her separate property. 2d. That they were the common property of the…

<p>In the first place, there is no doubt that under the law as it existed at the date of the will of James Cummings, (1825,) the mother, Eebecea Cummings, was forced heir to her son James, for two-thirds of his estate, that his testamentary power extended to only one-third, that he could not disinherit his mother without just cause, and that the pretermission of the mother, in the will, rendered it void, at least for two-thirds, if not for the whole of the estate bequeathed.</p> <p>The instrument executed by James Cummings (he died in 1825) purporting to be a will, may be and was not valid in form, but it was admitted and recognized as such, by those who claimed under its provisions, among whom was the father of the appellee. It was not disputed by the mother, who alone had the right to contest it. It was recorded in a public office, and was acted upon as a valid will. The devisees, and through them their heirs, are bound by their own acts, and cannot dispute the validity of the bequests under which they accepted and distributed the property of the estate.</p> <p>It will be perceived that a distinction is made between the rights of the heirs of Thomas and Samuel Cummings to be beard before the final disposition of the share of John Cummings in the half of this land bequeathed to Sarah Cummings, and in his supposed right in the other half bequeathed to Eebecea. He never had any interest in this latter half. He was precluded from it by the acts of his mother, who virtually assented to the will of James, and he was concluded also by his own acts in claiming and taking the property bequeathed to him under the will. There is therefore no necessity for calling in persons who could not possibly have any interest, and who were disqualified aliens at the time of these transactions and the accrual of the right of the appellant, to this half.</p> <p>See this case ás to the residence of a minor in a foreign country, under the Mexican law.</p>

Appeal'from Gonzales. Trial of the right of property in a slave, levied on as the property of Samuel Barrow, and claimed by Elizabeth Barrow, the wife of said Samuel, as her separate property.

Action of trespass to try title, by appellants against appellee, commenced in Milam county; venue changed to Burleson.

Appeals from Liberty. Motion by appellees, in Chambers against O’Brian’s heirs, to dismiss. Motion by appellant, in Wilcox v. Chambers, to reverse and remand, or dismiss the suit, the appellee having been plaintiff in the Court below. The facts are stated in the Opinion.

The appellee Harper petitioned the Court for a mandamus to compel the County Surveyor to record the field notes of a survey made for him upon the head-right certificate of the intestate of the appellee Neathery. There was a demurrer to the petition, which the Court sustained, gave leave to the plaintiff to amend and continued the cause.

The land in controversy in this suit had been located and surveyed under a valid certificate, for Gibbons, the appellee, in 1842, and recorded in the proper office ; but the certificate and the field notes of the survey were not returned into the General Land Office on or before the first day of January, 1852, at which time they were required bylaw to have been returned, or the location and survey become forfeited.

Suit commenced Nov. 1,1852, by Marmaduke against Shannon and Becknell. On the 6th day ■of April, 1843, William Becknell being indebted to Meredith M. Marmaduke, of the State of Missouri, in payment thereof, ■at the request of Marmaduke, executed a bond to Thomas J. Shannon for the conveyance of one thousand acres of land in Red River county, part of Becknell’s headright, as soon as he ■could receive a patent therefor.

<p>Error from Collin.</p>

<p>Where the defendant had contracted to convey to the plaintiff hia headright certificate in Peters’ Colony, at a time when such certificates were inalienable, it was held that the plaintiff could recover back the price paid.</p>

Burns drew his draft in favor of Bailey on Paine & Harrison in New Orleans, La., on the 17th February, 1852, payable at 12 months, and Bailey endorsed and passed it. Burns and Bailey were merchants in Titus County, Texas, and Paine & Harrison merchants in New Orleans. On the 19th day of February, 1853, the draft was protested for non-payment, as appears from the record. There was no notice of protest. Suit was commenced on the 28th July, 1853.

<p>It is too late to move to dismiss a certiorari after the first Term of the Court; ' where the certiorari was dismissed on motion filed at the second Term, the judgment was reversed.</p>

<p>Error from Ellis.</p>

Suit by appellant against appellee, commenced May 7th, 1853, for a wagon and yoke of oxen, and damages for their detention.

<p>Appeal from Shelby. Trespass to try title by the appellees against appellant. The facts were as follows: The plaintiffs claimed title under a patent issued in 1849, on a headright which had been issued and surveyed on the land in controversy in 1838, and which, not being recommended by the travelling board, was established by suit commenced in April, 1847.</p> <p>The defendant claimed title under a location and survey of a headright certificate, made in December, 1846; and suggested possession for one year before suit commenced, and improvements in good faith. Defendant proved that he went into the possession of the premises in the Spring of 1846 ; and proved the value of his improvements. ■</p> <p>The Court instructed the jury that the defendant could not recover for improvements, beyond the value of the rents and profits. The jury found for the plaintiffs, and that the improvements were worth the rent.</p>

<p>Where the defendant in error filed a certified copy of the judgment and of the bond for the writ of error, and moved the Court to affirm the judgment, the motion was overruled because the Clerk failed to certify when the citation in error was served.</p>

Error from Bowie. Judgment below, March 6th, 1854. Petition for writ of error, and bond, filed August 25th, 1854. There was an- execution in the transcript, dated June 6th, 1854, returned superseded, August 25th, 1854; but there was no citation in error in the transcript, nor assignment of errors; nor was there any endorsement on the transcript showing by whom it was demanded or to whom delivered.

Action by the appellees against appellants on a contract of affreightment. Verdict and judgment for the plaintiffs for $200. The facts were as follows : The counsel for the parties failing to agree to a statement of facts, the following is given by the presiding Judge, as the facts proved on the trial: That defendants shipped by plaintiffs a quantity of cotton and hides, as specified in the following bills of lading, and in the condition and for the price therein specified.

<p>Where A and B having made a contract for exchange of lands, A sued B for a breach and recovered damages, after which B sued A for a breach and recovevered damages, and A sued out an injunction against the execution on B’s judgment and prayed that his judgment against B be set off against B’s judgment against him, which was done at the costs of A, it was held there was no error.</p> <p>Where, upon the rendition of judgment for the plaintiff, his attorneys gave notice in open Court, that one-half of the judgment had been assigned to them, it was held that the right of the defendant to set off a previous judgment recovered by him against the plaintiff, could not be affected by such assignment.</p>

Action by the appellee against the appelant for $100 for services as an attorney.

<p>Where the defendant pleaded former acquittance in a Justice’s Court, this Court said, But it is sufficient to dispose of this ground of defence, that it does not affirmatively appear that the judgment was rendered upon a trial upon the merits (there hadbeen a verdict and judgment.) It was unnecessary for the plaintiff to resort to evidence aliunde, to prove that the judgment was not so rendered. But if it had been necessary, the testimony of the Justice, who tried the case, was admissible for that purpose.</p> <p>It seems that where a contract is entire and incapable of apportionment, or where the plaintiff sues for a recovery as for a complete performance, on the ground that performance was prevented by the defendant, the action is premature if brought before the period of time, if any, at which the contract contemplated full performance.</p> <p>A contract of hire for a year, as overseer, for a certain part of the crop, is divisible ; and if the overseer be discharged before the expiration of the year, without his fault, he may sue immediately for the damages occasioned by such discharge.</p> <p>Where the suit was.brought by an overseer, for damages occasioned by his discharge, and the contract was for a year, to be compensated by a fifth of the crop, it was held that the plaintiff was properly permitted to prove the value of the crop, as a circumstance from which to estimate the damage occasioned by his discharge.</p> <p>It is objected that the petition does not allege the damages sought, with sufficient specialty. This might have been a good ground of exception to the petition, but was not a ground for rejecting the evidence, proposed to prove the damages claimed by the plaintiff in his petition.</p> <p>A contract of hire for a year, as overseer, for a fifth part of the crop, is divisible and if the overseer be discharged before the expiration of the year, without his fault, he is entitled to recover, not the full value of one fifth part of the crop, nor merely the value of his services during the time he was actually engaged in rendering them, but also the damage he sustained by reason of the defendant’s breach of the contract.</p> <p>Though there may have been error in the charge, the finding of the jury appears to have been conformable to law and the evidence. The defendant, therefore, can have sustained no injury in consequence of the ruling complained of.</p>

The deed from Cravens to Hanks was as follows, to wit: Know all men, &c., that I, John E. Cravens, attorney in fact for George Dwight, of the county of Houston, have this day, for and in consideration of the sum of two hundred dollars to me in hand paid, the receipt whereof is hereby acknowledged, the same having been paid to my principal, bargained, &c. &c. &c., to have and to hold said land free from the claim of myself, my heirs, and assigns forever, to him the said…

<p>Where the description in a conveyance is sufficient to render the land capable of being ascertained and identified, it is sufficient.</p> <p>The falsity of a part of the description does not vitiate the deed, when from the whole, the land conveyed may be certainly ascertained.</p> <p>A call for a corner between two proprietors as a beginning corner is good, although such corner may not have been established, provided the titles of the two proprietors furnish the data for its establishment.</p> <p>Where the husband in 1838 conveyed his headright certificate to a locator, and to oh the bond of the latter to convey one-half of it to his wife as soon as patent should be issued, and in September, 1848, the conveyance was made to the wife accordingly, it was held that a conveyance made by the husband in January, 1848, to part of the land, was valid, on the ground that the land was community property, and not the separate property of the wife.</p>

<p>Where a person, not the payee of a note, signs Ms name upon the back of it, at the time of its inception, without any words to express the nature of Ms undertaking, he is liable as an original promiser or surety, and not as an endorser merely.</p> <p>Where a person, not the payee of a note, signs Ms name upon the back of it, without date, it is presumed, in the absence of proof, to have been done at the time of the inception of the note.</p> <p>A guarantor or surety, on a promissory note, as distinguished from an endorser, is not entitled to require that suit should be brought against the maker, to the first Term of the Court after the maturity of the note.</p> <p>Mere forbearance to sue the principal or mere delay, without fraud or agreement with the principal, does not discharge the surety (who is not the endorser of a note or drawer of an accepted bill.)</p> <p>See this case as to admissions in pleading.</p> <p>An executor or administrator cannot object in the Supreme Court, that Ms estate is not bound by Ms admissions contained in the pleadings.</p>

Lee Morris, one of the defendants, and the only one whose survey conflicted with the proposed survey of the plaintiffs, was a party to the proceeding before the Justice and six jurors, which was decided against Byers, and the location now claimed by him was a subsequent one, covering part of the land which in the former proceeding was not disputed to belong to Byers’ improvement. .The Surveyor’s office contained no evidence of any location or survey of Byers’ certificate.

Suit by appellee against appellants. One of the defendants’ locations had been patented, and the testimony was, that “ defendants’ claims, as set out in said ex-Mbits” (include patent) “ conflicted with plaintiff’s claim.” The plaintiff had resided on the land from 1888 to 1842, at which time he moved away, but continued to hold it by tenant.

Error from Houston. The defendant’s ferryman testified, “ that after he had fastened the boat for the last wagon, the “ plaintiff said the boat was not fastened right; that it ought “ to be swung more loose, the driver, Atkinson, saying also, “ that he knew the duties of a ferryman, and that it should “ swing loose ; that he, the witness, stated that such was not “ his custom, but if they wanted it that way, they could fix it “ as they pleased ; and that the driver…

<p>Where the Statute provided that if the defendant failed to deliver the property according to a forthcoming bond, the Sheriff should return the bond “ forfeited,” whereupon the Clerk should issue execution against the principal and sureties on the bond, for the amount of the debt and costs, it was held that after the lapse of twelve months the plaintiff might have a citation (or scire facias) to the principal and sureties in the bond, to show cause why execution should not issue against them ; and that the proceedings resulting in the bond returned “ forfeited,” constituted a judgment, to all intents and purposes, against the obligors in the bond.</p> <p>A scire facias or suit on a statutory judgment is not barred under ten years.</p>

<p>Error from Harrison.</p>

<p>Error from Houston. Suit by the defendant in error against the plaintiff in error, on a bond which was as follows :</p> <p>Georgia, i Know all men by these presents, that we, Decatur County, j Henry Lockhart and William H. Young, using the name and style of Lockhart & Young, and Benjamin M. Griffin and William S. Beal, are held and firmly bound unto John T. Smith, plaintiff in fi.fa’s, in the just and MI sum of twenty-four hundred dollars, for the true payment of which we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals, and dated 27th November, 1847. The condition of the above obligation is such, that whereas Mansico Cloud, Constable of the 513th District, G. M. in said county, has levied twenty-several fi.fa’s, issued from the Justice's Court of said District, in favor of John T. Smith against James Y. Smith, on the interest of the said James Y- Smith in the steamboat Albany, as the property of the said James Y. Smith, which interest has. been claimed by Benjamin M. Griffin, as the property of the said Lockhart & Young and Benjamin M. Griffin: Now should the said Lockhart & Young and Benjamin M. Griffin, or either of them, well and truly deliver said interest, so levied on as aforesaid, at the time of sale, provided said interest should be found subject to said fi. fa’s, then the above obligation to be null and void, else to remain in full force and virtue. (Signed and sealed.)</p> <p>Verdict and judgment for the plaintiff. The other facts are sufficiently stated in the opinion.</p>

<p>The allowance of a claim by an administrator, and its approval by the Probate Judge isa quasi judgment, which cannot be reviewed by the County Court. '</p> <p>There can be no doubt, at this day, that an executor or administrator cannot charge the estate which he represents, by the acknowledgment of a debt, barred by the Statute of Limitations. But, to set aside a judgment of the Probate Court, approving such allowance, proceedings for that purpose mustbe instituted in the District Court, and within, it seems, some reasonable time.</p> <p>A judgment of the County Court which is the basis of another proceeding in that Court, which is removed by appeal to the District Court, cannot be attacked by one who is made a party in the District Court, although such party might be entitled to have such first judgment annulled in a proceeding commenced directly for that purpose, and although all the proper parties are before the Court.</p>

<p>In cases of certiorari to Justices’ Courts, if it do not appear from the Justice’s return, that there was a final judgment, the certiorm'i should be dismissed.</p> <p>Where, on an application for a certiorari, the petitioner (plaintiff in the Justice’s Court) alleged that he had not attended the trial, because the Justice had informed him that if he would perfect the surveying for which the note, sued on, was given, the defendant would make no defence, and that he had sent a Deputy Surveyor to finish the work, and was informed it was done, the Court said the excuse was not sufficient, that it did not show any privity between the Justice and the defendant, to have authorized the Justice to say for him what he would do.</p>

The deed from the County Commis, sioners to Galloway was dated February 5th, 1849, and disclosed that the purchase money was not paid, and expressly reserved a mortgage lien therefor. In September, 1851, the appellee recovered judgment before a Justice of the Peace against Galloway, and an order was made for the sale of the lots. Galloway stayed the execution. After the expiration of the stay, “ an execution or order of sale” was issued and levied on the lots.

Error from Harrison. The appellant being sued by the appellees, on a promissory note, “ withdrew his answer and said nothing in bar or preclusion of plaintiffs’ demand.” There was an error of 70 cents in the computation of the amount of the judgment.

Error from Harrison. Trespass to try title, by plaintiff in error, against defendant in error.

Suit by the appellee against the appellant. The petition alleged, and made part thereof, a receipt of the defendant to plaintiff, dated in 1836, for certain claims, for collection, and an endorsement thereon in 1850, acknowledging-$150 to be due thereon, with interest since October 1,1836.

<p>Appeal from Harrison. The facts are stated in the Opinion.</p>

Error from Smith. Chevaillier recovered judgment against the defendant, on which execution issued and was returned by the Sheriff on the 3rd of May, .1853, without having been levied, the officer having received information of the death of the plaintiff in execution. On the 10th of October thereafter, an alias execution issued upon the judgment, in the name of the appellee, as administrator of Chevaillier.

<p>Appeal from Smith.</p>

Error from Dallas. Trespass to try title by plaintiff in error against the defendant in error. (The transcript in this case not having been found in the Clerk’s office, we are unable to state the facts. Reps.)

<p>An action on a contract to deliver goods at a certain place, may be commenced in the county where the goods were to be delivered, or in the county where the defendant resides.</p> <p>In an action for damages for injury to goods delivered to the defendant for transportation, the bill of lading being alleged in the petition to have been signed by the defendant, is admissible in evidence without proof of its execution, if its execution be not denied by the defendant, under oath, in his answer.</p> <p>Judgment will not be reversed on account of the admission of improper evidence of facts which are fully established by other evidence properly admitted.</p> <p>Where the plaintiff proved bills of lading, dated in April, at Shreveport, Louisiana, for the transportation of goods for the plaintiff by the defendant, to Rusk, in Cherokee county, in this State, and proved a delivery of certain goods by the-defendant to the plaintiff at Rusk, in May next thereafter, and that the same were damaged, it was held that, in the absence of evidence to the contrary, the. presumption was that they were the goods covered by the bills of lading.</p>

Error from Rusk. Joel Hamilton brought suit in trespass to try title to land, and for damages for the rents and profits, against James R. Sartain. After the institution of the suit, Hamilton applied for and obtained a writ of sequestration. James R. Sartain executed a bond to retain possession of the land, with the plaintiffs in error as securities.

Suit by the appellee against appellants on a judgment recovered in the State of Alabama, since Annexation. It was objected by the defendant that a certified copy of the judgment was not filed with the petition, nor a fee of $25 paid for the use of the State, as required by the second Section of the Act of June 28th, 1845. The objection was overruled. The other facts will be found in the Opinion.

Error from Rusk. The plaintiff brought suit upon a promissory note, made by the defendant in error, payable to Lee, and by him transferred to Hill before maturity; who transferred it to the plaintiff after its maturity. The defence was a partial failure of consideration.

<p>Appeal from Harrison.</p>

Error from Rusk. Action by the defendant in error against the plaintiffs in error, on promissory notes. The petition gave the names of the defendants, as Joel B. Crain, George H. Ramey and Sampson Christie.

Error from San Augustine. Action by the plaintiffs in error against William T. White and Cader B. Powell, late merchants trading under the name of White & Powell, on an account dated in December, 1851, with a written acknowledgment thereon, of a certain amount due, dated February 10th, 1853, and signed “ White & Powell, in liquidation.” At the return Term, on the 18th of April, 1853, Powell filed a demurrer and general denial.

Oertiora/ri to the County Court, obtained by the appellant, to revise an order for the payment of a privileged claim. The certiorari was allowed by the Judge of the Fifth District, the Judge of the sixth being disqualified. It appeared from the statement of facts, that there was property, but no money in the hands of the administrator. The County Court had issued execution.

Error from Smith. Action of trespass to try title, by the plaintiff in error against the defendant in error, commenced September 13th, 1852.

Indictment for betting at a gaming table. The evidence was that “ checks ” were used in betting, without any further evidence that the “ checks ” represented money or other property.

Pacts in addition to those stated in the Opinion. The petition alleged that “ the said defendant repre- “ sented and warranted the said mare to be sound in all re- “ spects; that the said representations were false and fraudu- “ lent, because,” &c. The evidence which was excluded proved the warranty. There was no other evidence of a warranty. The defendant had represented the mare to be sound, so far as he knew; and there was no evidence that he knew the mare was unsound.

The indictment charged that the defendant “ in and upon one Patrick M. Calhoun, did make an “ assault, and with a certain large and heavy chair, which he “ then and there had and held in both Ms hands, then and there “ did strike, beat, bruise and grievously wound the said Patrick “ M. Calhoun, by then and there striking and beating him with “ the said chair, and by then and there by force of the blows, “ striking and beating aforesaid, fracturing the bone of the “ skull…

The appellee was convicted of a crime and fined $250, and appealed to the Supreme Court, where this judgment was affirmed. Upon the mandate of this Court, the defendant duly came into custody again, till the fine and costs be paid, and the District Attorney claimed for the State interest on the judgment. The District Court discharged the defendant, upon payment of the principal of the judgment, without interest, from which order the State appealed.

The appellant was convicted, at the Fall Term, 1853, of the District Court of Rusk county, of playing at a game with cards, on which money was bet, and fined $19 50, for which, with costs of suit, judgment was then rendered against him; and it was therefore ordered “ that he stand committed to prison until said fine and costs be paid.” He escaped from custody, but appearing in the same Court, in person, at the Fall Term, 1854, he was, on motion of the District Attorney, by…

The appellee was indicted, at the Fall Term, 1853, for a misdemeanor, by the name of James E. L. H. Manning. At the Fall Term, 1854, he pleaded in abatement, that his name was not James E. L. H. Manning, but James E. H. L. Manning. The District Attorney asked leave to amend, by correcting the misnomer, which was refused.

The appellee was indicted for a violation of the Act of Jan. 28th, 1840, (Hart. Dig. Art. 870, et seq.) entitled “ An Act to suppress dueling,” in four counts, to this effect: 1st count (under Section 2nd of said Act) for that “ in the said county of Smith, the said J. H. W. did consent to be- “ come a second to one W. H. P. to fight a duel,” &c. 2nd.

<p>Proof that the defendant played and bet money at Rondo, within the county, within a year before the finding of the indictment, is sufficient.</p>

<p>Appeal from Harrison. It appears by the record that there was a trial and verdict for the defendants, at the Spring Term of the Court, 1849, but the Court failed to enter up, in proper form, a final judgment upon the verdict. Subsequently, at the Spring Term, 1853, upon the motion of the plaintiff, final judgment was entered upon the verdict nunc pro tunc. The plaintiff had given notice of appeal at the trial, and the entry now for then contains the notice. The appeal bond was filed after the entry of judgment.</p>

There was proof, that the defendant contracted with the plaintiff to make the articles for him, to be ready by the first of June, 1851; and that the defendant was to pay for them in corn, that season, at seventy-five cents per bushel; but there was no evidence of any special contract as to the price to be paid for them; it was proved that the defendant applied for them early in June, and was told that they were not ready, but would be ready by the time the defendant’s wagon…

<p>The Statute (Hart. Dig. Art. 464) plainly indicates the course to be pursued in the case of a lost indictment. The fact of the loss is to be entered upon the minutes of the Court,—which avoids the Statute of Limitations,—and a new indictment is to be prepared. The second indictment is, of course, to be found, in the same manner as the first, upon the testimony of witnesses, sworn to give evidence before the Grand Jury, touching the truth of the accusation.</p> <p>Eecitals in an indictment which are not repugnant or contradictory to the body of the indictment, and do not render unintelligible any of the material, traversible matters constituting the charge, are, at most, surplusage, which does no injury.</p>

<p>Appeal from Smith.</p>

Error from Cherokee. The plaintiff in error was convicted, at the Spring Term, 1854, of murder in the second degree, and sent to the penitentiary for ten years. There was no entry in the record, of any action by the convict, during the Term, indicative of an intention to appeal. This writ of error was obtained in the ordinary mode pursued in civil cases, by application to the Clerk. The Attorney General moved to dismiss, for want of jurisdiction.

Petition for a habeas corpus, alleging “ that he is (as he is informed and believes) thus un- “ lawfully imprisoned by and in pursuance of an order of the “ Court now in session, because he refused this day to answer “ questions concerning playing at cards, propounded to him by “ the- Grand Jury, then in session ; and your petitioner avers “ that the grounds upon which he so refused are, that he could “ not answer said questions without furnishing evidence against “ himself;…

Error from Rusk. The verdict of the jury commenced “we, “ the jury, find the allegations of plaintiff’s petition, relative to “ the divorce prayed for, to he true,” and then continued, as stated in the Opinion.

Indictment for gaming. Motion to quash, on the ground that it did not appear from the minutes of the Court, that the indictment had been returned into Court by the Grand Jury. The indictment was properly endorsed a true bill, and was marked filed at the proper date. The Court, on suggestion of the District Attorney, caused an entry of the indictment to be entered nunc pro tunc, and overruled the motion.

San Augustine. Motion against appellant for refusing to pay over money collected. The question was whether the defendant was entitled to retain commissions for collecting the amount referred to in the following order. San Augustine, Oct. 20th, 1850. To Messrs. Kinsey & Henderson.

<p>It seems that the petition for a writ of error and the citation may be waived, either expressly or by appearance of the defendant in error.</p>

Error front San Augustine. This was an injunction to restrain the execution of an order, issued by a Justice of the Peace, for the sale of certain cotton.

<p>But, whether the qualification, appended by the Court, (to a charge asked,) bo abstract—not based on the facts as proved—or whether it be correct as a legal proposition, is not very material, as we are of opinion that the verdict was authorized by the facts, and that the justice of the case, as made, has been attained»</p> <p>See this case as to the construction of the Statute, (Hart. Dig. Art. 1153,) allowing a year’s support for the widow and minor children, or either ; also, of the Statute, (Hart. Dig. Art. 1154,) which provides for setting aside the homestead and other property, exempt by law from execution, for the use of the widow and children, or either.</p> <p>In cases of solvent estates, where the family, one of whom /'is administrator, has cultivated the homestead for the benefit of the estate, the widow not dissenting, she cannot claim afterwards for the use and occupation of the property, unless she would show that the adult members of the family had misapplied or converted the proceeds to their own use.</p>

Error from Shelby. Injunction by the plaintiff in error to enjoin the sale of property taken in execution by the Sheriff, on a judgment in favor of the defendants in error. The ground alleged was that the levy had been made in violation of the defendant’s right to point out property. The execution was for $191 97j-, and was issued March 13, 1853.

The petition alleged the assign- ■ ment of the Eleury judgment to the plaintiff pending the suit of the defendant against him, and stated as a cause for not pleading the same in said suit, in set off, that said suit was for unliquidated damages.

Suit by the appellant against the appellee, for slander; words charged, “You are a damned old cow thief.” The plaintiff proved that in January, 1853, at the house of a Justice of the Peace, in said county, where more than twenty persons were assembled, the plaintiff being in custody (on what charge did not appear) but being allowed to go at large, the defendant called him, the plaintiff, a damned old cow thief, as alleged in the petition. It was on Court day.

The first answer was a general demurrer and general denial. The second answer was same, with pica of payment also. It was filed at one Term, and the motion to strike out was made at the next.

Error from San Augustine. Suit by the defendant in error, administrator of William W. Watts, against tho plaintiff in error, commenced 22d July, 1852, to recover for services rendered the defendant, by the plaintiff’s intestate, in the collection of a promissory note. The plaintiff resided in the county of San Augustine, and the defendant in the State of New York. An attachment and garnishment were obtained, but were after-wards quashed. Service by publication.

Indictment for forging and counterfeiting a deed in the name of John Price, to several tracts of land, one of which lay in Anderson County. The deed was set out in the indictment. It purported to have been made in the County of Harris, and to be dated June 5th, 1854, from said Price to the defendant, reciting the residence of Price at Galveston, and that of the defendant in Milam county ; and witnessed by two witnesses.

Error from San Augustine. The tripartite contract between Houston, Sublett and Dunn was made a part of the petition, and was as follows : Before me, Charles E. Greneaux, Parish Judge, and ex-officio Notary Public, in and for the parish of Natchitoches, in the State of Louisiana, and in presence of the undersigned witnesses, personally appeared Phillip A. Sublett and Samuel Houston, both of the State of Coahuila and Texas, in the Republic of Mexico, who declared, that'for the…

Suit by appellant against appellees on a draft drawn by the defendants on New Orleans, in favor of Mygatt & Edwards, endorsed to Justin Edwards, by Mm endorsed to the plaintiff. Amongst other defences, not necessary now to be noticed, the defendants pleaded a former recovery of judgment on the said draft, against these defendants, in Louisiana, by Justin Edwards, of which the plaintiff had notice. It was not alleged that said judgment had been paid.

Error from Houston. June 29, 1850, Miller, administrator, ■obtained judgment against Hall before a Justice of the Peace, for §100. February, 1851, arbitration under the Statute between Leaverton and Hall. February 21,1851, garnishment by Miller, administrator, on the judgment of June 29,1850, for Leaverton, garnishee. February 26,1851, garnishment served -on Leaverton.

Suit, January 23rd, 1851, by the appellant, administrator of John R. Little, against William H. Lawrence, to recover six hundred and forty acres of land, a part of the headright league of Solomon Bolin, commencing at the north-west corner of the south half of said league, and running thence south one mile, &c., in the form of a square.

Harper was merely offered to prove that the defendant occupied the land as his tenant. He was objected to as incompetent, but the ground of incompetency was not stated in the bill of exceptions. The bond recited that Stephens was then in possession of the land.

Action of trespass to try title, by the appellee against appellant. The petition was filed March 7th, 1850 ; was in the ordinary form ; prayed a recovery of the land and for damages ; but was not endorsed to the effect that the suit was brought as well to try the title as for damages.

Error from Red River. Petition filed August 16th, 1852, by Almira George, for a certiorari to bring up for revision the proceedings of the Probate Court of Red River county, in the matter of the estate of Fleming George, who died in 1842, anci of whose estate James Hefflefinger was then appointed administrator.

Trial of the right of property-in a slave, taken in execution on a judgment in favor of Thomas against White, and claimed by Earle. The judgment was rendered in the District Court of Sabine county, on the 6th of September, 1844. September 19th, execution issued to Sheriff of San Augustine. It did not appear from said execution, that another had been issued, nor that any showing had been made, that the defendant had no property in Sabine.

The judgment in the Justice’s Court was rendered on the 7th of August, 1852. The decision of the Supreme Court, on the constitutionality of the certiorari law of 1852, was made at Austin Term, 1852, which commenced on the first Monday in November.

Suit by appellee against appellants, on a note executed by them and one Reuben D. Wood, (who was alleged to be dead) for $100, payable twelve months after date, with interest at twelve per cent.

Error from Panola. Suit by tlie defendant in error against the plaintiffs in error, on a bill of exchange which was drawn and payable in Louisiana, and protested for non-payment. The bill was payable on the 1st of March, 1854, and was sued before that time.

Error from Panola. Suit by the plaintiff in error against the defendant in error on a note executed by Elizabeth A. AnsIey, 12th January, 1845, to the plaintiff, for $280, due one day after date.

The petition described the land as follows : “ a certain tract or parcel of land in the said county of Harrison, on the Walling Ferry road, about fifteen miles from Marshall, containing about one hundred acres, bounded on the east by the land of Albert Jones, on the south by that of Thomas W. Clark, on the north by that of Benjamin Kimberling and on the west by the lands of James, King and Forest ; that the said tract of land was the place of residence of the said John A.…

Suit commenced August 28,1846, By T. J. W. Gibson against Hugh F. Young, for the recovery The defendant answered, alleging that his wife inherited the slave Matilda, who was the mother of the others, from her father ; sold, with her children then born, by defendant’s creditors ; defendant then lived in Arkansas: went to Missouri and borrowed from his brothers-in-law, Lorenzo and William R. Gibson, $2000, for which he executed his note 15th October, 1837, to be applied to…

Action by a vendor, Hays, against his vendee, Bonner, to recover the land, on the ground that the latter refused to pay the purchase money.

<p>Under the Statute, (Hart. Dig. Art. 454) punishing the selling of ardent spirits to-a slave, the defendant cannot be convicted, if it appear that he gave the liquor-without consideration.</p> <p>Quere, whether proof of the delivery of ardent spirits to a slave, by a person who sells ardent spirits, is not sufficient proof to warrant the jury in finding-that the liquor was sold.</p>

Tlie indictment charged that the defendant “ did play at a certain game with cards, upon which “ money was bet, in a certain out-house where people resort, then and there situate, contrary,” &c. After the State had proved a playing as alleged, the defendant offered to prove that the playing proved was not the same playing upon proof of which the indictment was found, and that there was then pending in the same Court another indictment -against defendant, for the playing now…

Suit by Margaret Denton, after-wards intermarried with William G. Hall, against James Murphy, to recover a woman slave named Tennessee. The defendant claimed by purchase from H. L. Wiggins, the plaintiff’s father.

Suit by Ansimus Duffeil and. Martha his wife against Jameson S. Noble, administrator of Lydia Loving, for the recovery of a slave girl named Missouri, aged about fourteen years. Commenced January 28th, 1852.

At a sale of property of the estate of which the appellee was administratrix, a tract of land, containing one thousand acres, was knocked down to the appellant, at two dollars and a half per acre. This suit was brought by appellant, to enjoin the defendant, the appellee, from proceeding again to sell the land, on the ground that the plaintiff had failed to comply with the terms of the sale, and for other relief.

Error from Cass. The transcript of the proceedings in the suit in Louisiana, which was made a part of the defendants’ plea in reconvention, disclosed the following facts: Petition filed July 17th, 1852, by the plaintiffs against the defendants, founded on two promissory notes, one for $3,448 15, due June 21st, 1852, and the other for $4,661 76, dated February 19th, 1852, and due at 12 months; allegation that the plaintiffs resided in New Y ork and the defendants in Texas;…

Error from Cass. Suit commenced by tlie defendants in error against the plaintiff in error, on the 23rd March, 1850, to recover the amount of a note executed at Shreveport, Louisiana, on the 1st day of July, 1845, by John K. Mabry, for $113 96, payable to the intestate, on the 1st February, 1846, at New Orleans, and indorsed by the intestate ; and also to foreclose a mortgage given by the intestate to the plaintiffs on the 19th day of June, 1846, on six hundred acres of…

<p>Appeal from Wood.</p>

Error from Harrison. Jones and wife brought suit, for the use of Ogle against Hart, upon a promissory note, made by Hart, payable to Mrs. Jones, for the purchase money of certain lots in the town of Marshall. The plaintiff in error, McCown, having purchased the lots, was made a party defendant. The petition alleges the reservation of a lien upon the lots, for their price, and seeks to enforce it specifically.