Volume 16 — Texas Reports

This was a proceeding commenced in the County Court on the 24th day of November, 1854, under Article 1162 of Hartley’s Digest, against the appellant as administrator of John York, for a specific performance of the following contract: REPUBLIC OF TEXAS, dent citizen of this County and Republic, am held and firmly bound unto Thomas Talbot and Hall Talbot jointly or severally, in the penal sum of twenty-two hundred dollars, well and truly to be paid to them or assigns.

Suit by the appellees against appellants, on account. The petition made exhibits of two accounts, one of which footed up with balance in favor of the plaintiff of $3,50 ; the other with balance in favor of the plaintiff, of $216,50. The defendants pleaded a general denial. The jury found for the plaintiff $213,50. No instructions nor exceptions.

Error from Calhoun. Suit by the defendant in error against the plaintiff in error, commenced February 14th, 1854, on two promissory notes secured by mortgages on certain lots in the town of Lavaca.

Hughes a bond for title to eight hundred and thirty-four acres' out of said McNutt’s headright league, so soon as he, McNutt, should obtain from the Government a patent to said league.

This was a suit by the appellant against the administrator of John York, for the penalty of a title bond for a half league of land situated in Washington county, given by said York to one James Cox, and by Cox assigned to the plaintiff. The petition alleged that the bond was lost. The suit was commenced Nov. 6th, 1851.

Suit by appellee against appellant, commenced September 13th, 1855.

Indictment in the common form for an assault and battery on Charles Whaley. Plea of not guilty, and former conviction before a Justice of the Peace.

Indictment for assault and battery-on John L. Grace. Defendant was drinking in Grace’s bar room, and became very drunk and excited, and used abusive language ; Grace tried to quiet him ; defendant drew out a small self-cocking pistol, which was immediately wrested from his grasp by a bystander; defendant remarked it was not loaded ; he did not present it; it had no cap on; defendant then pushed Grace back behind the counter and choked him.

Error from Victoria. This was a trial of the right of property in a stock of goods, wares and merchandize, levied upon by virtue of executions in favor of the plaintiffs in error, against Lavius F. Chapman, and claimed by the defendant in error, under the following assignment: STATE OF TEXAS, Victoria County. ) These presents witness, that f whereas I, Lavius F. Chapman, of said county, merchant, am indebted to L. M. Wiley & Co'., of New York, in the sum of two thousand…

<p>TJhte omission by the Clerk, of the attestation clause of the citation, is a defect which may he cured by amendment, after motion to quash.</p> <p>Where the plaintiffs are partners, it is sufficient if the citation state their partnership style, the individual names being stated in the petition.</p>

<p>Error from. Calhoun. Suit to Spring Term, 1854, by the appellees, of the city of New York, against William R. Rawlins, late of Calhoun county and State of Texas, and now a resident of the State of Louisiana, on a promissory note dated New York, and payable at New Orleans; no allegation of property in this State, but prayer for attachment against the property of defendant; affidavit of the amount due, &c.; bond; writ of attachment levied on lots 1, 2, 7 and 8 in block 84, in the city of Indianola, County of Calhoun, &c.; allegation that Sterling T. Seawell and others, of said county, are indebted to said Rawlins, and prayer for writ of garnishment; Seawell and others cited as garnishees; Spring Term, 1854, death of Rawlins suggested ; Seawell answers as administrator of Rawlins, by a general denial, and prayed that he have leave to administer the property attached and garnisheed, as in other cases ; same day Seawell answers as garnishee, admitting the possession of certain property, including the property attached, and pleading an assignment thereof by Rawlins to him in trust for the payment of a schedule of debts, including the one sued on. The assignment and schedules of the property and debts were attached. The assignment covered the balances on the books of said Rawlins, who had been a merchant. The cause coming on for trial, on motion of plaintiff’s counsel “ it is “ ordered that the second plea, of the defendant Seawell, be “ stricken out of the pleadings, and the parties having waived “ a jury, the Court having heard and considered the evidence, “ decreed that the plaintiffs recover of the defendant the sum “ of sixteen hundred and ninety-eight dollars and ten cents and “ all costs, <&c.; and it is further ordered, adjudged and de- “ creed, that an order of sale issue commanding the Sheriff to “sell and convey the property seized under the attachment in “ this cause, as under execution, to satisfy the judgment rea- “ dered herein ; and that Sterling T. Seawell be receiver and “ commissioner to receive and collect all the claims and de- “ mands shown and exhibited by the garnishees in this canse ; “ and that after the payment of all the reasonable expenses of “ collection, he appropriate the residue to the discharge of “ whatsoever balance may remain unsatisfied of the judgment " herein, after the sale of the property attached, and that he “ account to this Court how he has executed this trust.”</p> <p>Petition for writ of error by Seawell as administrator of Bawlins.</p> <p>There was no statement of facts nor bill of exceptions. ¡</p> <p>The assignment of errors was as follows :</p> <p>1st. The petition was not sworn to, as required by law, and the prayer of the garnishee to set aside and dismiss the attachment was refused.</p> <p>2nd. The answer of the garnishee was uncontroverted by the parties and disregarded by the Court.</p> <p>3rd. After the administrator had been made a party to the . record, judgment was rendered against the property and a sale thereof ordered as upon a proceeding in rem.</p> <p>4th. The Court refused to uphold a trust, valid upon its face, and which stood unimpeached by any allegation or proof of its invalidity, from any cause whatsoever.</p> <p>5th, That the Court refused to set aside the attachment and garnishment and release the property seized, as prayed for by Seawell, when the record showeth that the orignal petition was not sworn to, and the writs of attachment and garnishment were void.</p> <p>6th. That by the proceedings it appeared that the property seized had long before the seizure been sold and conveyed in trust for the payment of debts, and was not subject to seizure or sale, as made and ordered by the Court.</p> <p>7th. That by the proceedings and judgment aforesaid, the rightful jurisdiction and cognizance of the Probate Court was improvidently interferred with, and unlawfully ousted, and the legal course of administration annihilated.</p> <p>8th. There is no allegation or proof contained in the. record to support the seizure by attachment, nor to warrant* the judgment against and sale of the property ; and the judgment, instead of being conformitory with the allegations and proof, is unsupported and contradicted by both.</p> <p>9th. The judgment is for the defendant in error, when it ought to have been for the plaintiff in error.</p>

<p>Appeal from Victoria. This was a suit for partition of land. The plaintiff claimed title under a Sheriff’s sale. The judgment, execution and deed were excluded on the ground that the judgment was null and void ; and the defendant had judgment.</p> <p>It appeared by the statement of facts, that the plaintiff offered in evidence a transcript of a suit in a Justice’s Court, in which there was judgment for the plaintiff for seventy-three dollars and costs of suit; appeal to District Court, June 29th, 1843, where there was judgment April 6th, 1844, as follows : “ In this case it is ordered that the judgment of the Court be- “ low be affirmed with ten per cent damages and stay of exe- “ cation three months, per agreement of parties.” To which the defendant objected on the ground that said judgment was null and void, and the Court sustained the objection ; to which the plaintiff excepted.</p> <p>The plaintiff then offered the execution thereon, endorsed to sell without appraisement; levied on the undivided half of the league of land in question; advertised to sell the same “or “so much thereof as may be necessary to satisfy said execution “ and costs; ” and returned sold eleven hundred and forty-seven 1-19 acres to the plaintiff in execution, at nine and a half cents per acre, which covered the principal, interest and costs.</p> <p>To which the defendant objected on the ground of the nullity of the judgment. The Court sustained the objection and plaintiff excepted.</p> <p>Same objection was sustained to the Sheriff’s deed, and to the deed from the purchaser to the plaintiff in this suit. The deed conveyed undivided eleven hundred and forty-seven 1-19 acres.</p> <p>The plaintiff had previously shown title in the defendant in execution.</p>

<p>Where the husband and wife united in the mortgage of their homestead, and . afterwards removed, and acquired another homestead, in an action to foreclose the mortgage, the Court said it was not different from a mortgage by thfe husband alone, and that the Constitution does not inhibit a mortgage of the homestead by the husband, subject to the contingency that the home- ■ stead may not be changed, or that the wife may not assent, and that in the mean time the claim may be barred by the statute of limitations, Ac.; and it was held that the mortgage be foreclosed.</p> <p>Where there was an agreed statement of facts, on an issue of foreclosure of a mortgage, to the effect " that about two years ago Mackey (the defendant)</p> <p>“ ceased to occupy said property as a homestead, and has since occupied the " place he now resides at, as a homestead, which is different fro* the pro- " party mortgaged,” it was considered, as between the husband and mortgagee, that there had been a change of the homestead, the Court remarking that no question was made as to the rights of the wife, none being set up for her by the record.</p>

The only question in this ease was on a challenge to the array, on the ground that the jury was summoned by the Coroner, there being no Sheriff. The suit was on promissory notes. The objection being overruled, verdict and judgment went for the plaintiff, and defendants appealed.

This was a suit againt Jonathan York and Caesar Eckhart, for the recovery of the purchase money which had. been paid, on the ground of failure to comply with the bond.

Error from Jackson. This was an action of trespass to try title, commenced in the ordinary form; afterwards the plaintiffs amended their petition, by alleging the particulars of their title, as follows : That the tract or parcel of land aforesaid, was granted by the Government of Coahuila and Texas, to a certain William Whitaker, as a colonist in the Colony of Austin, on or about the 18th day of May, 1831, and about the same time, the said Government of the State of Coahuila…

This suit was brought by the appellees Wm. R. Thomas, Rob’t. S. Thomas, Wm. T. Stevens, Jno. G. Thomas and Harris Tinker.

Error from Brazoria. The case had been, continued at a previous Term, on the application of the same defendant. The other facts are sufficiently apparent from the Opinion.

This was a suit by the appellee against the appellant, to recover the price, under a contract, of building a house. The defendant pleaded defects in the work, and incompleteness of the job, and claimed pay for board, and alleged payment in part; he also denied that he made any contract with the plaintiff.

This was a suit by the appellee against the appellant, to establish a boundary line.

The plea in abatement alleged that the defendant had “ not been served with copies of the petition “ and citation,” and further, “ that he has not been served with “ certified copy of petition and citation as the law directs.”— The jurat read, “ that he has not been served with copies of the petition and citation.” The bill of exceptions contained the copies served on the defendant, and the officer who served them, proved their identity.

Tried before the Hon. Nelson H. Hunger. Suit on a promissory note. Answer, of failure of consideration. The application for a continuance was made at the first Term after service. There was a bill of exceptions to the ruling on the application for a continuance, but it contained nothing respecting the same, except the affidavit, ruling and note of exception. The affidavit will be found in the second paragraph of the synopsis.

Tried before the Hon. Nelson EL Hunger. The petition alleged the payment of §1600 for the slave, and set out the bill of sale, which acknowledged that to be the consideration, and warranted the slave to be sound.

Tried before the Hon. Nelson 3BL Monger. Indictment of the appellant for an assault upon Wiley Pol - lard with intent to Mil, and verdict of guilty of an aggravated assault, and punishment assessed at six months imprisonment in the county jail. Motion for new trial, on the ground that the verdict was excessive and unwarranted by the evidence ; and on the ground of newly discovered evidence.

Error from Colorado. Tried before the Hon. Nelson H. Hunger.

<p>It devolves on the State, in a prosecution for cutting and carrying away timber off land not the defendant’s own, to prove that the land was not the defendant’s.</p> <p>There are two ways in which this proof may be made: 1st. By evidence of possession; which is sufficient evidence of title, as against a mere trespasser. 2nd. Evidence of title.</p> <p>The State is not supposed to be in possession of the evidence of title; but the owner is supposed to he known. If he resides in the county he may be made to produce the required evidence, by a subpoena duces tecum; if not, recourse may be had to certified copies from the records of titles, as the next best evidence within the reach of the State.</p> <p>Prima facie proof is all that is required, to throw on the defendant the onus of proving the license of the owner, or a superior right or title in himself.</p> <p>And to make out such prima facie proof, it will not be necessary for the State to prove a derivative chain of title from the Government; but the production of a deed, or other written evidence of title, will be sufficient.</p> <p>Mere hearsay is not only not the best, nor even secondary evidence; it is no evidence.</p>

' Appeal from Harris. Tried before the Hon. Peter W. ■Gray. Suit by appellee against appellant as acceptor of a draft in favor of the plaintiff. Answer that the draft was given for a slave, fraudulently represented to be sound, but which was unsound, being afflicted with hernia, upon the discovery of which defendant tendered him back, &c. Jury waived and judgment for the plaintiff.

<p>The acknowledgment by the administrator, and the approval by the Probate Judge, of a claim against the estate, having become a quasi judgment, as we have repeatedly decided, it must have (at least in a high degree) all the effects of a judgment in favor of the creditor ; and, as such, it established the right and concluded the matter in controversy.</p> <p>We have held, however, in repeated decisions, that where an account has been admitted and allowed from ignorance of the facts, or from the fraudulent representations of the holder, this quasi judgment might be annulled by a proceeding commenced in the District Court directly for that purpose.</p> <p>It seems that the plaintiff in such proceeding or suit, must, by the allegations of his petition, exclude the conclusion that the claim, although apparently barred, might have been within some exception to the statute, or supported by an acknowledgment in writing signed by the deceased within four years, or, if an account, that it might have been in fact founded on a contract in writing.</p> <p>The defendant would at least have the benefit of relief from pleading specially matters in his defence, as, on general denial, a foundation would be laid for such proof.</p> <p>A claim, though presented in the form of an account, if based on a written contract by correspondence, or on an offer by letter which the facts show to have been accepted, is not barred in two years.</p> <p>A petition or answer in a suit for injunction, as a portion of the final relief, is not, for the want of an oath, to be regarded, as a nullity, but is to be esteemed sufficient for the purpose of admitting proof on the final hearing.</p> <p>The effect of the want of an oath in a suit for injunction, is, that the plaintiff wiE not be entitled to an injunction, nor the defendant to its dissolution, during the pendency of the proceedings.</p> <p>A suit by an administrator to vacate the allowance and approval of a claim against the estate, must be commenced within a reasonable time.</p>

<p>The next Term of this Court, after the service of the citation in error, is the Term at which the transcript must, in general, be filed.</p> <p>There is an exception, where service was perfected during the Term of the Court, and forty days elapse after the service and before the end of such Term. In that case, the transcript must be filed at that Term, then pending.</p> <p>Where the citation in error has not been served, the defendant in error cannot file the certificate of the Clerk of the District Court, and claim an affirmance of the judgment, under Art. 2938, Hart. Dig.</p> <p>The defendant in error may acknowledge service of the citation in error, or waive the necessity of such citation ; but this he must do in the Court below.</p> <p>Where the plaintiff in error has prevented the issuance and service of the citation in error, it seems that the defendant in error may require the Cierk to issue execution notwithstanding the petition and bond for writ of error; and if the Clerk should refuse to issue execution, the defendant in error might» perhaps, upon a proper representation to this Court, have a mandamus to enforce the duty, or the petition in error may be dismissed.</p> <p>The Clerk of the District Court ought not to receive a petition and bond for writ of error, with instructions not to issue the citation in error until further direction ; or, if he do receive them, he should disregard such instructions and issue the citation immediately, as the law directs.</p>

<p>Where the defendants were found “ guilty of murder in the first degree,” “whereupon they were remanded to prison” “to await the sentence of the law;” motion for a new trial overruled, and notice of appeal; on suggestion of the counsel for appellants, that no judgment was entered upon the verdict, and whether this Court ought to take jurisdiction of the appeal, it was held that under the statute, (Hart. Dig. Art. 472, et seq.) there is a distinction between the judgment and sentence in criminal cases, and that in case of conviction and an appeal taken therefrom, the judgment must be entered in accordance with the verdict of the jury; and no judgment being entered in this case, the appeal was dismissed for want of jurisdiction.</p> <p>For form of judgment in capital cases see Shultz v. The Republic, 13 Tex. R. 403.</p>

Error from Colorado. Tried before the Hon. Robert J. Townes.

Error from Harris. Tried before the Hon. Constantine W. Buckley. Suit by Christopher H. Sterns against Emeline Sterns, for divorce. Decree rendered December 31st, 1852, granting the divorce and vesting in the said Christopher all the community property and all the separate property of the said Emeline, “ in accordance with the agreement or power of attorney filed in this cause and that the plaintiff pay all costs, for which execution may issue.

Error from Montgomery. Tried before the Hon. Peter W. dray. Judgment at the Fall Term of Montgomery District Court, in favor of Rice & Nichols against R. B. Martin and W. C. Kendrick. Execution issued Nov. 2nd, 1852, returned levied on personal property, and stopped by a writ of supersedeas, Februrry 7th, 1853, January 25th, 1854, judgment affirmed by the Supreme Court against Martin and his sureties, James H. Mitchell and J. M. Lewis, with ten per cent, damages for delay.

<p>Error from Montgomery. Tried before the Hon. Peter W. Gray.</p>

Tried before the Hon. Peter W. Gray. Suit by the appellant, Oct. 2nd, 1854, against the appellees, Strippleman and Boyce, on two promissory notes, dated and due in 1853, and to foreclose a mortgage made to secure their payment by Boyce. The defendants pleaded a release, and the plaintiffs denied that the release was made by their authority, and alleged that it was obtained by fraud.

Error from Galveston. Tried before the Hon. Joseph' Suit 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. There was no statement of facts, but there was a bill of exceptions which purported to state all the evidence produced on the trial.

<p>There can be no fixed, rule as to costs on error for mere mistake of calculation, which might have been corrected below.</p> <p>But where the judgment is by default, and the mistake is clear, and especially where execution issues, and the plaintiff makes no attempt to reform the judgment, the costs on error to this Court must be paid by defendant in error.</p>

Tried before the Hon. Peter W. Gray. Suit by appellee against appellants, commenced July 22d, 1854, for that the defendants, on the 6th day of July, 1853, sold the plaintiff three slaves, warranted sound, for the price of $3,300, one of which slaves, named Friday, was, at the time of said sale, unsound and diseased, and had long theretofore so been, and which was unknown to plaintiff, which unsoundness arose from a disease commonly called epilepsy or convulsions, which fact…

Error from Walker. Tried before the Hon. Peter W. Gray. The defendant in error was the mother of Youngblood.

Error from Harris. Tried before the Hon. Peter W. Gray. Suit by the defendant in error against the plaintiffs in error, on the note of the latter, payable to the former, dated at Houston, June 21st, 1853, for $242 50, due Oct. 1st, 1853. Answer, that the consideration for which said note was given, was unlawful, and usurious interest, upon a note for more than twelve per cent., which note has been paid off and discharged.

Tried before the Hon. Peter W. Gray. Indictment for murder, charging it to have been done “ feloniously, maliciously, wilfully, premeditatedly and of his malice aforethought.” At the Fall Term, 1854, the ,r?defendant being in custody, the Court ordered “ that a venire facias issue to the “ Sheriff of Liberty county, returnable forthwith, to summon “ thirty-six persons to appear at the Court House in the town “ of Liberty in the county of Liberty, forthwith, to serve as…

Tried before the Hon. Nelson EL Hunger. Suit commenced July 21st, 1849, by Thomas Chubb, the appellee, alleging a sale of certain property by him to Owen ID..

Error from Polk. Tried before the Hon. Peter W. Gray. Suit by appellant against William 0. Hicks and Rachael 0.

Tried before the Hon. Peter W. Gray. Suit by appellee against William C. Hicks, on an account for goods sold and delivered, for hire of negro, for money paid as surety, and on several small promissory notes. The defendant died before answer, and his administratrix was made a party. Answer of general denial and general plea of statute of limitations to the whole account. The general correctness of the account was proved, and the more important items were specifically proved.

Error from Brazoria. Tried before the Hon. Nelson H. Hunger. Suit by the plaintiff in error against the defendant in error, to recover one half of a certain stock of cattle, and the value of the beeves killed out of the stock, by the defendant, for Ms own use. Plea of adverse possession for two years.

Tried before the Hon. Peter W. Gray. The name was plainly written Mr. Glenn twice, and Glenn three times, in the statement of facts, and not McGlenn once. At Tyler, the Attorney General, being informed that the variance was caused by a mistake of the Clerk in making out the transcript, moved the Court to set aside the judgment of reversal and order a more perfect transcript.

Error from Goliad. Tried before the Hon. Janies Webb. Suit commenced May 16th, 1853, by appellee against appellant, on a note of the latter, dated August 9th, 1852, at eight months, to James W. Linam or bearer. Answer, among other frivolous pleas, that the note still belonged to the original payee, and that the defendant had an account against said payee, which he pleaded as a set off. Spring and Fall Terms, 1853, continued on affidavit of defendant.

<p>Appeal from Walker. Tried before the Hon. Peter W. Gray.</p>

Error from Nueces. Tried before the Hon. James Webb. Suit by the defendant in error against Thomas Parker and Rachel Parker, wife of the said Thomas Parker, for the value of work and labor done for them by the plaintiff, one hundred and one days, alleged to have been reasonably worth $2 per day. The two citations were both alike, and each commanded the Sheriff to summon both defendants. The returns are given in the Opinion ; they were dated the same day.

Tried before the Hon. Nelson BL Hunger. In the view of the case, taken by the Court, a statement of the pleadings and evidence is not deemed necessary to this report.

Error from Montgomery. Tried before the Hon. Peter W. Gray. At the Fall Term, 1852, of the District Court of Montgomery County, Eice & Nichols recovered a judgment against William C. Kendrick and Eobert 0. Martin, for the sum of $1,166 74-100 and costs of suit. On the 2nd day of February, 1858, Martin prosecuted a writ of error, with James H. Mitchell and J. M. Lewis as his sureties.

Tried before the Hon. Nelson H. Hunger. Suit March 20th, 1848, for land on which it was alleged that defendant had located plaintiff’s scrip. In 1838, Layton & Co. placed five pieces of land scrip, for 640 acres each, in the hands of Hall for location ; Hall to pay all expenses of making the location and procuring the titles, and to have one fourth of the land for Ms services.

<p>Where property is conveyed by a debtor, in failing circumstances, to a third person, and by the latter conveyed by deed of gift to the wife of the former, it is prima facie fraudulent and void as to antecedent creditors.</p> <p>Though the deed of the vendor may be fraudulent and void as to Ms creditor, yet, if the vendee go into possession, actual, exclusive and adverse, the Statute of Limitations will run in Ms favor and bar the rights of the creditor.</p> <p>A point frequently arises, in cases of this character, as to the time of the commencement of the Statute against the creditor : whether before or after the recovery of his judgment, and the opinion seems to be, that the Statute would not commence until after judgment, as until then the creditor had no effectual means of enforcing his claim. But in this case no such question can arise, <£sc.</p> <p>Under our former laws, donations between husband and wife were placed under restrictions. But, as the law now exists, there is no principle which would impair the right of a husband to settle his property upon his wife and family, when this can be done without injury to the rights of existing credit-</p> <p>Under the general policy of our laws, the right of the wife to hold property in her own right, without the intervention of a trustee, actual or constructive, cannot be impeached.</p> <p>As a general rule, a wife can claim the benefit of the Statute of Limitations to protect her possession, to the same extent that it can be claimed by any other person; and, in ordinary cases, it would not be material, nor would it affect the rights of the wife, that the property was under the control and supervision of the husband.</p> <p>In cases of this kind, where property (slaves) has been fraudulently conveyed, by an involved or insolvent debtor, for the benefit of his wife, and the property remains under the management and control of the husband as the law provides, the Statute of Limitations will not run in favor of the wife, against an antecedent creditor of the husband, unless the conveyance to her (or, perhaps, her claim of title) be recorded.</p> <p>In trials of the right of property, levied on by execution, the benefit of the Statute of Limitations may be claimed without pleading it—there being no formal pleadings in such cases.</p>

Tried before the Hon. Nelson H. Hunger. Suit by appellees against appellants, for the value of a slave, hired by the former from the latter, as an ordinary boat hand, on board the steamboat J. H. Bell, running from Galveston to Columbia, on the Brazos river, crossing the bars at the mouths of Galveston Bay and the Brazos river ; the slave having been drowned while in the employ of defendants. The contract of hiring and ownership of the slave were admitted.

Tried before the Hon. Nelson H. Hunger. There were pleas of payment and the Statute of Limitations. The case was submitted to the Court below without a jury. The facts appear from the Opinion.

Tried before the Hon. Nelson H. Hunger. The statement of facts merely said, in relation to the bill of exceptions— “ The draft not ruled out as appears by the bill of exceptions.”

Error from Colorado. Tried before the Hon. Nelson H. Hunger. Suit by Watkins L. Smith, commenced Sept. 12th, 1853, against William H. Strahan, for the partition of certain four hundred acres of land among the heirs of Delilah Strahan, the deceased wife of said William. The other heirs, being three children of said Delilah and William, were made defendants. The plaintiff had married a fourth child, since deceased, leaving a child since deceased.

<p>Error from Matagorda. Tried before the Hon. Robert J. Townes.</p>

Tried before the Hon. Robert J. Townes. Bremond sued T. H. McMahon & Co. upon a note made by them May 1, 1851, and payable ten days after date to A. W, Stewart, or bearer, for $175.

Error from Harris. Tried before the Hon. Peter W. Gray. Suit by J. F. Rice against Ryan. Herndon and McMahan, commenced in Fort Bend, and removed, by change of venue, the Judge of the first district having been of counsel, to Harris.

Tried before the Hon. Nelson H. Hunger. Harris & Lacy filed their petition in the District Court of Galveston county, alleging that plaintiffs, being merchants residing and trading in New Orleans, La., sold and delivered for cash payable on immediate demand, on the 5th day of that month, to Palmer & Luce, (also merchants residing in New Orleans at the time of the sale,) 171 barrels of flour, at the rate of §4 65 per barrel; that Palmer & Luce, having obtained possession of…

Error from Fort Bend. Tried before the Hon. Constantine W. Buckley. Suit by Samuel H. She'ton against Benjamin G-. Marshall and William Wade, on their promissory note, dated Sept. 4th, 1837, for $3,874 65, due Jan’y 1st, 1839, and payable to the plaintiff.

<p>Error from Goliad. Tried before the Hon. James Webb. The facts are stated in the Opinion.</p>

<p>Appeal from Victoria. Tried before J. J. Holt, Esq., appointed by the parties.</p>

Tried before the Hon. Nelson H. Hunger. Suit by a bidder at a probate sale, (the appellant,) to whom the property had been knocked down, against an executor, the appellee, to enforce the specific performance of the sale.

Tried before the Hon. Fielding Jones. Suit commenced April 16th, 1852, by appellee against appellant, on the following contract in writing : St. Joseph’s Island, Jan’y 27th, 1848.

Tried before the Hon. James Webb. The transcript had been taken from the Clerk’s office, and not returned ; but the Opinion will probably be found to contain a sufficient statement of the case.

<p>Appeal from Galveston. Tried before the Hon. Joseph C. Megginson.</p> <p>There was no statement of facts, nor bill of exceptions.</p>

<p>Where a party has been, brought into Court, the presumption of law, in effect, the rule of law, is, that he knows the proceedings.</p> <p>Where four years after judgment, the defendant applied for an injunction, on the ground that after the suit was commenced, the plaintiff contracted to dismiss the suit, but failed to do so, but took judgment without defendant’s knowledge ; and - it appeared that the judgment was not taken until three years after the alleged contract to dismiss, during which time the defendant was represented by counsel, it was held that the injunction was properly refused. . • ,</p> <p>An injunction will not be granted, where there is no real injury to be apprehended.</p>

<p>Appeal from Walker. Tried before the Hon. Constantine W. Buckley.</p>

Tried before the Hon. Nelson H. Manger. Stone, by advice of counsel, (not the gentlemen who represented him in this Court) had sold the perishable property at auction, and taken charge of the children of the deceased, and the negroes. The other facts are stated in the Opinion.

<p>Where an administratrix sued for the recoveiy of certain property, and the defendant answered that the deceased made a will, leaving the disposition of his property to defendant; that the Oourt had admitted the will to probate, but refused to appoint defendant administrator, but appointed the plaintiff administratrix; that defendant had appealed, giving bond and security, which appeal was still pending ; and that the defendant held the property under the will; Held, that the answer presented a meritorious defence; that the appeal suspended all proceedings until it was decided.</p>

<p>Where the Court instructed the jury that the grant (from the Government) to plaintiff was prima facie evidence that all the prerequisites of the law, including the survey, had been complied with, and that the plaintiff was entitled to recover under it, unless it was void for want of certainty in the description of the land; and the assignment of error was, in general terms, that the charge was erroneous, the Court said that the appellee (the defendant) might justly insist that the objection could not be made, in argument, that it appeared from the grant itself that the Commissioner who extended it, had no authority to do so. But, &c.</p> <p>The presumption that the grantee of a colonial title was admitted as a colonist within the time prescribed by law, although the title be not extended until after the expiration of the contract, is of a nature so conclusive, that Courts would, after the lapse of twenty years, be very unwilling to admit, if they did not absolutely exclude, all evidence to the contrary. But the point is immaterial in this case.</p> <p>The contract of Vehlein was extended for three years by decree Ho. 192, (L. G. & T. p. 195,—from the 21st day of December, 1832.) This was a fact in the public history of the country, published among its laws, and which the Court was bound to notice, without averment or proof.</p> <p>Where it was objected to a grant to a colonist of Vehlein’s colony, extended by Commissioner George Antonio Hixon in 1835, that under Article 32, of Decree Ho. 272, (which Decree repealed all previous Decrees then in force,) the Commissioner was not empowered to issue titles to any but occupants of lands, and for the lands they occupied, and the proof was that the grantee did not reside on the land, the Court said, Without attempting to construe the provisions of Article 32, of Decree Ho. 272, (that not being necessary in this case,) it is sufficient to say that Hixon was not acting under that article, but as a Commissioner to issue titles to colonists in contracts made under the Colonization Law of the 24th March, 1825.</p> <p>An inspection of the laws in relation to the public lands will show, that amidst all their repeals and modifications, no attempt at change was made or intended, in relation to contracts ratified under the law of 1825.</p> <p>That George Antonio Hixon was a Commissioner for extending titles in Vehlein’s Colony, is known to the Court, without averment or proof. Such proof, even if necessary, would, in this instance, have been wholly gratuitous, as the title was not questioned, at least at the trial, in this particular.</p> <p>notwithstanding the repeal of the Colonization Law of the 24th March, 1825, there is no doubt that it remained in force as to contracts made previous to its repeal, and that the other repealed decrees, affecting lands, remained in force so far as might be necessary to complete these contracts.</p> <p>If a rigorous construction were given to the provisions of the law relative to the duties of surveyors, in running off land, and of the Commissioner, m obliging colonists to set landmarks upon their lands, with fixed and permanent boundaries, (Arts. 6 & 7 of Instructions to Commissioners, p. 71 L. C. & T.,) a grantee could not claim, unless under a survey actually made, and with permanent corners and boundaries. But such construction would be fraught with inconceivable mischief and calamity, and would be a departure from the rule adopted by other Courts in-relation to similar statutes in other States, the condition of whose surveys and land titles were not dissimilar to our own.</p> <p>There was no error in the instruction, to the effect that if a beginning corner on a navigable stream) be established, and the others could not be found, the plaintiff was entitled to a league, with the proper front on the river, the parallel lines being run back, from the points of such front, a sufficient depth to include the quantity.</p> <p>There is no doubt of the rule, that where the calls of the grant can be established by the aid of extrinsic evidence, such evidence is admissible, and that it may be admitted for the correction of the mistakes of a surveyor.</p> <p>Where the call was for a mound for a corner, from which was a walnut thirfy inches in diameter to the south 70° east, at twenty varas distance, and an ash eighteen inches in diameter to the south 15° east, at eleven varas distance, and the original field notes described the corner as opposite to a notorious corner on the other side of the river ; and it appearedfrom the evidence, that a pecan and an ash were found some short distance below the place described by reference to the opposite survey, bearing the characteristic marks of witness, or bearing trees, facing in such a direction as to indicate the position of the comer as was fixed in the field notes; and the surveyor testified that that was the actual corner which he established, having mistaken the pecan for a walnut; but the ash, instead of being S. 15° E. 11 varas, was S'. 62° W. 16 varas ; it was held that the evidence, in connection with some testimony as to the liability of a surveyor to make such mistakes, was competent to establish the comer, and that the finding of the jury showed it to have been sufficient.</p> <p>Where one of the corners of a survey on a navigable stream is well known in the neighborhood, a subsequent locator cannot claim priority on the ground that the call misdescribed the corner, and that the survey did not appear on the county map.</p> <p>In order to sustain a plea of the Statute of Limitations of three years, the title or color of title, by written transfers, and the adverse possession, must concur for that period; but there would be no necessity for a transfer, where the party claims by inheritance; and possession held by several persons successively, in privity with each other, will be considered one possession.</p> <p>It would make no difference as to the dates of the transfers, provided there was a chain of transfer, and there were three years possession subsequent to the actual date of the primary transfer. (That is, we presume, after adverse possession under title or color of title has commenced, the dates of subsequent transfers are not material; but what is material is, that the possession continue to be held under the same title or color of title under which it was first claimed.)</p>

Tried before the Hon. Peter W. Gray. Indictment presented June 14th, 1855, for murder of Charles Butler. Returned, defendant arrested same day. Tried at Fall Term, 1855, and convicted.

Tried before the Hon. Nelson H. Hunger. Suit by appellee against appellant, to recover two lots of ground in the city of Galveston, and cancel a deed for same, which the defendant had obtained unfairly from the plaintiff.

<p>Application of J. F. Burkhardt for letters of naturalization.</p>

<p>A power to sell contained in a mortgage or deed of trust given to secure the payment of a debt, although not revoked, on general principles, by the death of the constituent, is inconsistent with our statutes respecting the settlement of estates of deceased persons, and therefore cannot be executed after the death of the constituent.</p> <p>It seems that funeral expenses, expenses of the last sickness, expenses of administration, the allowance to the widow and children, and the expenses incurred in the preservation, safe keeping and management of the estate, have preference over a specific lien created in the life time of the decedent, except where such lien is for the purchase money of the property to which it is attached.</p> <p>The principle recognized, that the payment of the purchase money is the essential constituent of title to real estate.</p>

Tried before the Hon. C. W. Buckley. Suit by appellee against appellant, to recover one half of a league and a quarter of land, granted to Daniel Rawls, as his headright.

Tried before the Hon. R. E. B. Baylor. Action of trespass to try title, commenced on the 6th day of February, 1843, by Edwin Morehouse, the heirs of Nathaniel H. Watrous, and the heirs of John R. Cunningham, against. Elizabeth McGrew, William McGrew, Hardin McGrew and Flood McGrew, for four leagues of land on the east bank of' the Brazos river, opposite the town of Nashville, in Robertson County. Venue changed by plaintiff to Washington.

Error from Galveston. Tried before the Hon. Nelson H. Hunger. Motion to dismiss the writ of error on the ground that the petition did not contain a sufficient description of the judgment, and on the ground that the citation in error was served on the attorney, instead of on the defendant in error.

<p>An affidavit of the loss of an important instrument, of recent date, should, show distinct acts of diligence to find the instrument, where it was deposited, when last seen; and should state, if a bond, its execution and delivery to the obligee.</p> <p>Where the objection to the admission of oral evidence of the contents of a lost instrument was general, the Court said the objection to the testimony was clearly to the foundation for its introduction; because not obnoxious to any other; and it cannot be said that it deprived the party of an opportunity to fortify his case with additional testimony, as the only means of so strengthening it, would have been by an additional affidavit, (of loss and diligent search,) and the impolicy of allowing such additional affidavit is obvious, as it would have been too strong a temptation to the affiant, to go to the standard prescribed by the Court.</p> <p>Where, in a suit for the specific performance of a bond for a title, alleged to be lost, the evidence was that the obligor sold the land to plaintiff, at a certain time; that he executed a bond, in the sum of two hundred and fifty dollars, or double the price of the land, to make the title as soon as the patent was issued, and that the obligee was to give two bits an acre for the land, it Was held there was no evidence that the purchase money had been paid, but rather the contrary.</p>

Tried before the Hon. William S. Todd. Indictment for larceny¿ of $70, property of James 0. Duty. Witness, Richard Duty, kept a grocery for James 0.

Error from Red River. Before the Hon. William S. Todd. Suit by defendants in error against plaintiff in error, on a note of the defendant payable to Joseph Dickson, (not or or. der ;) the petition averring that the plaintiffs “ are the owners and holders of said promissory note.” Judgment by default. It appeared from the note, copied in the transcript, that it had been endorsed to the plaintiffs below.

Before the Hon. William S. Todd. Petition by appellant for certiorari to Hezekiah Bayless, Justice of the Peace, to remove to the District Court, for trial de novo, a judgment rendered by said Justice on the 12th December, 1854, against petitioner, favor of the defendants, Charles Lewis and John W. Leigh, in an action of forcible entry and detainer, which judgment is illegal and against the evidence, for the following reasons : Former judgment before another Justice of the…

Error from Clarksville. Before the Hon. William S. Todd. Suit by the defendant in error against the plaintiff in error and five others, on a promissory note. One citation issued for all the defendants ; returned executed by delivering to each of the defendants a copy of the citation and a certified copy of the petition. Judgment by default.

Error from Fannin. Tried before the Hon. William S. Todd. Suit by defendant in error against the plaintiff in error for the recovery of money. There was no statement of facts nor bill of exceptions. The depositions of the Clerk and of an attorney for defendant below, was taken to prove the loss and contents of a charge given to the jury, for the plaintiff, and what the evidence was.

Tried before the Hon. William S. Todd. ' Indictment for gaming. Plea in abatement, sworn to, that James W. Sims, one of the grand jurors who found the bill of indictment in this case, was not, at the time of impanneling said grand jury, or at the finding of said bill of indictment, a freeholder in the State or a householder in the county of Red River. Demurrer to plea sustained. Conviction and appeal.

Before the Hon. William S. Todd. Indictment for an affray. Motion to quasi), on the ground that it did not appear from the minutes of the Court, that J. W. Clark, the person appointed by the Court, took the oath prescribed for the foreman of the grand jury.

Error from Red River. Tried before Samuel A. Roberts, Esq., appointed by the parties. Suit commenced April 22, 1850, by the defendant in error against the plaintiffs in error, alleging the following order : Mr. Irwin, Sir, Please pay to Joseph B. Glass six hundred fifty dollars out of the first money you collect, and the interest on the same from this date ; this 26th May, 1849. HENDERSON & CARTER.

<p>A suit on a judgment of a Court of record of another State is barred in ten years; not sooner.</p>

Error from Eannin. Tried before the Hon. William S. Todd. * Certiorari to Justice’s Court. It appeared from the docket entries of the Justice, that after a trial by jury, McDonald moved for a new trial, which was granted, and the cause ordered to be continued ; and that McDonald afterwards “ appeared by attorney and dismissed his motion for a new trial.”

Error from Bowie. Tried before the Hon. William. S. Todd. Trespass to try title, by the defendent in error, against the plaintiff in error. Plea of not guilty and general denial. The controversy appeared to be about the boundary line between adjoining lands patented to the parties, respectively, involving a spring of water. There was no statement of facts.

Error from Upshur. Tried before the Hon. W. W. Morris. Suit by defendant in error against plaintiff in error, commenced January 12th, 1853, on a promissory note of the defendant, dated Nov. 6th, 1851, for $154, payable on or before December 25th, 1852, to plaintiff, expressed to be for value received, and “ This note is given for an assignment of an agreement given by Mr. William Phillips, for land in Upshur County, Texas.” Plea of failure of consideration ; fraudulent…

<p>Error from Hunt. Trid before the Hon. William S. Todd.</p>

<p>Where the citation was returned. “ came to hand May 8th, 1855, served by giving J. S. Stevens a copy of the same this 9th May, 1855,” it was held insufficient on error from a judgment by default.</p>

Error from Lamar. Tried before the Hon. William S. Todd. Suit by defendant in error by petition filed April 20th, 1853. Spring Term, 1853, came the parties by their attorneys and filed their written agreement for the arbitration of said cause. Then followed the agreement, without reserving the right to appeal. Award of the arbitrators, dated July 11th, 1853, $253 80 for plaintiff. Filed same day.

<p>Error from Red River. Before the Hon. William S. Todd.</p>

Error from Cass. Triéd before the Hon. W. W. Morris. The facts are stated in the Opinion. The law was correctly given in charge by the Court below.

<p>Error from Red River. Before the Hon. William S. Todd.</p>

<p>Railing to prosecute an appeal from the Gounty Court, after claiming it, is no objection to a certiorari subsequently obtained; nor is it necessary to state in the petition for certiorari, the cause of failure to prosecute the . appeal.</p>

<p>The confessions of a slave are not evidence in a suit against the master, on a contract of hiring, for injury caused by the wrongful act of the slave.</p> <p>Where seivice is by publication, judgment by default does not dispense with proof of the material facts alleged in the petition.</p> <p>Where service has been made by publication, and the trial ex parte, it is error if there be no affidavit that the defendant is a non-resident, or absent from the State, or a transient person, or that his residence is unknown.</p> <p>That the statute allows the defendant, where service has been by publication and the trial ex parte, two years to file a petition for review, does not prevent the defendant from prosecuting a writ of error to such ex parte judgment.</p>

Error from Wood. Heard before the Hon. W. W. Morris. Suit by plaintiff in error against defendants in error, to recover four fold certain fees alleged to have been illegally exacted of the plaintiff by the defendant, as Clerk of the District Court, by his deputy.

Error from Cass. Heard before the Hon. W. W. Morris. The note was dated at Jefferson, Texas, July 27th, 1854, due one day after date. The suit was commenced February 15th, 1855. The petition alleged that all the defendants resided in Cass county when suit was commenced. The other facts appear in the Opinion.

Tried before the Hon. W. W. Morris. Suit by appellant against appellee for property bequeathed, to her by defendant’s intestate, and ordered to be delivered to her by the County Court of Rusk County. The deceased had died in Georgia, where the will was probated.

Error from Fannin. Tried before the Hon. William S. Todd. Wofford denied under oath the existence of the partnership alleged in the petition, and the execution of the note by him or by his authority.

<p>Where a motion v^as made to reinstate a cause which had been dismissed at the previous Term, and the ground of the motion was that the plaintiff was dead at the time of the judgment, and the motion was overruled, on appeal it was said : The record does not state affirmatively, that notice was given the defendants, nor is there any indication that such notice was not given. Had there been no notice, the probability is that it would have been ordered, and time allowed the plaintiff to serve the notice. The costs are adjudged to the defendants, as if they were before the Court; and, upon the whole, the presumption is that there was notice sufficient in terms of the law.</p> <p>Where the plaintiff is dead when suit is dismissed, a motion at the succeeding Term of the Court, is the proper form of proceeding to have it reinstated.</p> <p>Where the death of the plaintiff is suggested by his attorney, as cause for not proceeding to final judgment, such suggestion may be contested by the defendant, and it would seem that the trial should be by the Court; and if it be found in the negative and the suit be dismissed, but it afterwards appear that the plaintiff was dead, the cause will be reinstated on motion at the next Term.</p> <p>Where the plaintiff dies no other proceeding can be taken by the defendant, except a scire facias to his representatives, after service of which, the suit may proceed to trial, or, on failure to prosecute, may be dismissed.</p> <p>In this case the Court revised the judgment of the Court below, on a mo. tion triable by the Court, although there was no statement of facts; this Court being satisfied that the decision of the Court below was based on what was supposed to be the law and not on the facts, about which there was no cause to apprehend that there could be any controversy.</p>

<p>The titles extended by Juan Antonio Padillo, Jose Francisco Medero and Geo. W. Smyth, Special Commissioners of the State of Ooahuila and Texas, appointed under the 32nd Article of the Law of the 26th of March, 1834, granting land and providing for issuing titles to the inhabitants of the frontier of Nacogdoches and those residing East of Austin’s Colonies, held to be valid as well within the littoral and border leagues as without, and without regard to whether the settlers lived on the particular land granted or not.</p>

<p>The question whether a suit can be sustained upon an express, oral promise, made within two years before suit brought, to pay a note, where four years have elapsed since the maturity of the note, is not presented in this case.</p> <p>Where there is no statement of facts, instructions to the jury, or the refusal of instructions, will not be revised.</p>

<p>Generally, in case of Hie inability of the Sheriff to execute process, the Coroner, by virtue of his office, is authorized to act as his substitute; and where he has acted, the legal presumption is that the facts existed, which rendered it proper for him to act in the particular instance.</p> <p>See this case as to a mistake in the names of the pallies plaintiff, as stated in the copy of the citation served on the defendant.</p> <p>It devolves on the plaintiff in error to bring up the record so presenting the facts, as that it may be seen on what state of case the Court below acted; and, if there be error, that it may certainly be seen in what it consists.</p>

Error from Lamar. Tried before the Hon. William S. Todd. Suit by defendant in error against plaintiff in error, to recover one hundred dollars, paid to the former by the latter, in what purported to be Louisiana State Bank bills, but which were alleged to be counterfeit and worthless.

Error from Harrison. Tried before the Hon. W. W. Morris. Suit by the plaintiff in error against Delilah Harwell, as the donee of Spire M. Hager by, and C. K. Andrews and James H. Hughes, as the executors of said Spire, to have a certain woman slave and her two children inventoried as part of the community property of the plaintiff and said Spire. Spire M, Hagerty died before service of the citation upon him in the suit for divorce, and said suit was abated by his death.