Volume 17 — Texas Reports

Error from Harrison. Tried before the Hon. W. W. Morris. The Court commenced in Harrison under the former law, on the 24th December, 1855, at which Term the judgment in this case was rendered.

<p>Appeal from Harrison. Tried before the Hon. W. W. Morris.</p>

Error from Rusk. Heard before the Hon. W. W. Morris. The petition alleged thatk the County Court had made an order that the claim should be paid out of the first money coming to the hands of the administrator. There was no statement of facts, nor bill of exceptions.

Error from Rusk. Tried before the Hon. W. W. Morris. Suit commenced Oct. 15th, 1853, by Henry M. Lawson and others against William Yardeman for the specific performance •of a bond for title. The bond was alleged to be lost.

Tried before the Hon. W„ W. Morris. Suit by the appellees, by their next friend, against Obadiah Hendrick, administrator, with the will annexed, of Gabriel Moore, and William A Hill, to establish their freedom ; an amendment of the petition claimed pay for the services of said Mary Minerva.

Tried before' the Hon. W. W. Morris. The transcript in this case contained the pleadings in case No. 2296, of Francis and her children against Gabriel Moore’s administrator and Hobert Key and Benjamin F. Young, the two latter being charged as hirers, in possession. After several orders and continuances, there was an order entitled No. 2296, Francis et al.,by next friend O. T. Boulware, v. 0. Hendrick, Adm’r. et al.,—No. 2297, Charlotte alias Caroline, by her next friend 0.

<p>Where the plaintiff sued for the recovery of certain property, claiming the same by ordinary allegation of ownership, and by amendment claimed that if her title was not sustained as alleged, she was nevertheless entitled to a widow’s share of said property and of the other personal property of her deceased bus-band under the laws of "Virginia, it was held that the amendment presented a new cause of action, subjecting the plaintiff to the payment of costs previously incurred, and such new cause of action to any defences which might have arisen since the commencement of the suit.</p> <p>The Statute of 1852 requires the law of limitation to be specially pleaded in the answer, but whether this be done by demurrer or in the answer to the facts of the case, is immaterial. The whole of the defensive pleadings or allegations constitute the answer.</p> <p>Quere, whether limitation would commence to run against the claim of a widow for her thirds, under Statutes declaratory of the Common Law, where she was pretermitted in the will of her husband, before a reasonable period for the payment of the debts of the estate had elapsed.</p> <p>It appears that by the Statutes of "Virginia, the husband has not the capacity to bequeath the whole of his personal estate from his wife, and that upon her petition, a will without adequate provision for the wife, shall, as to her, be declared null and void.</p> <p>The rights of the widow under these Statutes, as against the will of a husband, are similar to those of an heir unjustly disinherited, as against the will of a parent under our own Statute ¡'and the time allowed an (adult) heir to contest such will and contend for his rights, should be extended to a widow who, in our Courts, and under laws applicable to her case, contends for similar rights. That period is four years from the probate of the will.</p> <p>Without further examining this point, there seems no reason why a pretermitted heir should not have at least as much time to, in effect, contest a will, as one who has been expressly disinherited; or why a widow, under the laws of Virginia, pretermitted by her husband, should not, when suing in the Courts of this State, have the time allowed to an heir in a like suit, whether be be pretermitted or disinherited.</p> <p>Where a widow sued for one third of the personal property of her deceased husband, under the laws of the State of Virginia, but failed to state that the domicil of her deceased husband was in that State at the time of his decease, and a demurrer to the petition was sustained on other grounds, which were not well taken, the judgment was reversed and the cause remanded, in order that the plaintiff might amend.</p> <p>It would seem that the rule that the appellant, or plaintiff in error must put his finger on the very error of the Court below, does not apply where the ruling is only sustainable on a ground not suggested in that Court, and which can probably be obviated by amendment, so that there is a probability that injustice has been done.</p>

The transcript in this case not being-found in the Clerk’s office, the Reporters are unable to give a-statement of the case.

Error from San Augustine. Tried below before the Hon. A. W. 0. Hicks. Suit by Otis M. Wheeler and another against Alexander Horton, Reuben D. Wood, Robert W. Martin, Donal McDonald and Burwell J. Thompson, on their joint and several promissory note. All the defendants were residents of San Augustine County ; were served and answered ; Alexander Horton separately, the other defendants jointly.

<p>Error from Harrison. Tried below before the Soil William W. Morris.</p> <p>----for plaintiff in error, cited Jeremy, Eq. Jur. 477 ; 4 Yerg. 130 ; 2 Johns. Oh. R. 526; 9 Johns. R. 357; 1 Ball and B. 47, 374.</p>

Tried below before the Hon. Archibald W. 0. Hicks. Suit commenced Oct. 4th, 1853, by appellee against appellant on a bond in the penal sum of twelve hundred dollars, reciting that the defendant had delivered to the plaintiff Ennis Hardin’s headright certificate for two thirds of a league and labor of land, which plaintiff was to locate on the waters of Beach Creek, in the county of Tyler, and defray all the expenses in perfecting the title; and conditioned that the defendant…

Tried below before the Hon. William W. Morris. Trespass to try title, brought by appellee against appellant, for a tract containing sixty-six and 58-100th acres, described as about three quarters of a mile north-east from the centre of the public square of the town of Marshall. The plaintiff had purchased the land in controversy in 1848, and not finding a suitable building place upon it, purchased five or six acres adjoining, in the direction of the town.

<p>Appeal from Nacogdoches. Heard below before the Hon. Archibald W. 0. Hicks.</p>

<p>When recourse is had upon the drawe/ of a bill of exchange, interest (and damages, if any,) is recoverable according to the law of the place where the bill was drawn; "and in like manner, when recourse is had upon the indorser of a bill of exchange, interest is recoverable according to the law of the place where the indorsement was made.</p> <p>Able v. McMurray, 10 Tex. B., 350, overruled.</p>

Tried below before the Hon. Archibald W. 0. Hicks. The plea was as follows : And now comes the said defendant by his attorney, leave of the Court being first had and obtained, and amends her original plea, heretofore filed herein, by averring that if any such draft as described and set forth in plaintiff's petition, was ever given by this defendant to plaintiff, it was given by this defendant to said plaintiff for the sale and delivery of a certain horse, at and for a…

The appellants sued the appellee to recover a tract of land, and had judgment by default.— After the expiration of the Term, and after the issue of a writ of possession, appellee presented Ms petition to the Hon. Lemuel Dale Evans, then Judge of that District, asking an injunction and that the judgment by default be set aside.

Tried below before the Hon. Archibald W. 0. Hicks. Suit for $125 upon .special contract for the hire of a slave for the year 1852. Plea that without any fault of defendant, the slave died about the first of February, 1852. General demurrer to plea sustained. Instructions to the effect that if the defendant hired the slave for the sum of money mentioned in the petition, and the slave was delivered to him in pursuance of the contract, they should find for the plaintiff.

Error from Cherokee. Tried below before the Hon. Wm. W. Morris.

Tried below before the Hon. John H. Reagan. The verdict of the jury was, “ We, the jury, find for the plaintiff, without damages.”

Tried below before the Hon. Archibald W. 0. Hicks. Suit by appellant against appellee on the joint and several note of appellee, and S. W. Blount and E. Price, who signed as sureties of the appellee.

<p>Appeal from Houston. Tried below before the Hon. John H. Reagan.</p>

<p>Appeal from Smith. The transcript, in this case was not found in the Clerk’s oEce.</p>

<p>Where a decedent left a wife and child, and the inventory of his estate con. tained only a house and three acres of land, which the wife sold to the administrator, after which she removed with her child to the State of Alabama, in a proceeding commenced in the County Court to compel the administrator to sell the house and land to pay debts, it was held, without prejudice to the rights of the wife and child, if any, that the property should be sold as prayed for.</p>

Error from Houston. Tried below before the Hon. John H. Reagan. The plaintiffs below were minors. The other facts are stated in the Opinion.

<p>Evidence that the defendant played at a game of Pin Pool, which required the Pool played for to be made by the different persons playing for it, by putting up a certain amount of money, and that he was playing when the Pool was up, is sufficient to sustain a conviction for betting money at a certain gaming table, commonly known as, and called a Pool Table, without further evidence that he actually put up money.</p>

Tried below before the Hon. Archibald W. 0. Hicks. Suit commenced January 19th, 1848, by the appellee against appellant, to recover one half of a league of land. The league was patented to the defendant as assignee of the plaintiff.

Tried below before the Hon. William W. Morris. The 11th, 13th and 14th interrogatories to witness Averyi and the answers thereto, were as follows : Int. 11th. Were you and the friends generally of said Buford, requested to keep a lookout for said money and'the thief, and to apprehend the same ? and was the said Mathis so requested ? and to receive from him, if caught, the said money lost ? Ans.

Error from Houston. Tried below before the Hon. John H. Reagan.

Error from Houston. Tried below before the Hon. John H. Reagan.

Tried below before the Hon. John H. Reagan. Suit commenced Sept. 11th, 1851, by the appellee against appellants, to recover a tract of land.

Tried below before the Hon. John H. Reagan. Suit by appellant against appellee on a bond for title ■ to land lying in Henderson County. The petition alleged the residence of defendant to be in Nacogdoches County. Defendant pleaded in abatement, that he was entitled to be sued in Nacogdoches County. The plea was not sworn to ; but no objection was made to it on that ground. Exceptions to the plea were overruled, and the suit abated.

Error from Cherokee. Tried below before the Hon. John H. Reagan. The petition charged the defendant as guardian, and the judgment was against him as guardian, but concluded with the words “ for which let execution issue,” without saying of whose property to be levied.

<p>Appeal from Houston. Heard below before the Hon. John H. Reagan.</p>

<p>Appeal from Anderson. Tried below before the Hon. John H. Reagan.</p>

<p>The witness, for the want of whose testimony the continuance was sought, resided two hundred miles from the Courthouse, and the commission not having issued until the fifth of March, the trial being on the second of April, there was not such diligence as would entitle the application to favor.</p> <p>The affidavit, (for a continuance) does not state positively, that the witness would testify to certain facts, but that the affiant was told by reputable persons, the witness would so testify.</p> <p>The fact to be proved, viz : the place of domicil of the deceased, was one which most probably would be known to many in the town of Jefferson and vicinity, where the deceased had formerly resided, and the refusal of the continuance would not be likely to operate to the prejudice of the plaintiffs. On the trial there was testimony to the fact, from five or six witnesses.</p> <p>Further, this was the third application for a continuance, and the discretion exercised by the Court on the third and succeeding applications, over the question of continuance, is not, as a general rule, the subject of revision; at least this is not such a case of such flagrant injustice and wrong, as to induce the interposition of an appellate Court.</p> <p>Under the law of 1848, the homestead or substituted allowance is not to be designated out of every estate, for the widow and children, but only in cases where the estate is insolvent; or, if set apart from a solvent estate, no permanent interest or estate can enure to the beneficiaries, as the whole estate, including the portion for the widow and children, is distributable among the heirs and distributees.</p> <p>The payment and division of the allowance to widow and children of a deceased person, where the property of the estate of such person, exclusive of the allowance, is insufficient to pay the debts, is final and absolute, without remainder', or ultimate liability to creditors, or others interested in the estate.</p> <p>The right of the widow and children of a deceased person, whose estate is insolvent, to the homestead or substituted allowance, depends on the question whether the domicil of the deceased was in this State at the time of his death, and is not affected by the fact that the widow and children may have abandoned the State, or may intend to abandon it, as soon as the homestead or substituted allowance is assigned to them.</p> <p>It seems that the homestead may be assigned to the widow of a deceased person, on application of the administrator.</p> <p>Taking the case in connection with .Edmiston v. Long, Ante, 135, quere, whether the right of a widow to have the homestead set apart to her, is assignable before the order of Court has been made so setting it apart.</p>

<p>Appeal from Anderson. Tried below before the Hon. John H. Reagan.</p> <p>The charge was for betting money at, &c.</p>

<p>Where a defendant removes a case from a Justice’s Court to the District Court, by certiorari, the plaintiff, or appellee, cannot be ruled to give security for costs on the motion of the defendant, or appellant.</p> <p>Where the defendant, against whom judgment has been rendered in a Justice’s Court, obtains a certiorari, and the judgment of the District Court is for a less amount than the judgment of the Justice’s Court, the defendant is entitled, under the statute, to recover the costs in the Justice’s Court, but must pay the costs of the District Court.</p>

<p>Appeal from Sabine. Tried below before the Hon. Archibald W. 0. Hicks.</p> <p>In the month of December, 1853, defendant removed from the State of Georgia to Texas. About the first of January, 1854, he rented the Smith place in Sabine county, on which he had several negroes and other property. He had not yet removed his family. He was fifty-nine years of age. He brought Saunders with him as his overseer, employed for the year. Biddle, Ms brother-in-law, had moved in company with him, and rented a place in same vicinity. About the first of Feb., 1854, witness (Biddle) was approaching Bush’s place, which was on the main road, with his wagon, and he saw Saunders in the act of riding by the house and looking towards it; that after passing the gate, he suddenly stopped, went back, got down and hastily went into the house. Witness, getting opposite the house, went in and saw Saunders standing in the entry cursing Bush and talking loudly, being very angry; and his wife, or the woman he had with him, (witness did not know whether she was his wife or not,) passing through the entry at that time, Saunders pointed at her, and said that she and Bush had been having sexual intercourse (nof 'in this language exactly.) Witness did not see Bush in the house, or hear him say anything. Witness passed through the entry, got water, and went back to the gate. Bush, coming out of the house, followed witness to the gate, and denied to witness Saunders’ charge. Saunders came on to the gate, also, abusing Bush, and had a stick in his hand, but made no attack on Bush. Witness started off with his wagon, and Bush walked along by the wagon ; seemed to be alarmed, and Saunders was cursing and abusing him as he went off. Saunders did not follow further than the gate. Witness, thinking that it would not do to leave them together, asked Bush to go on home with him ; which he did. This was a while before sundown. That same evening one of Bush’s negroes brought a note from Saunders to Bush, together with Bush’s trunk, clothes and matress or bed. Bush remained at witness’ house all night, and seemed to be distressed and alarmed. Said he was in a strange country ; did not know the people, and was afraid that he would be mobbed. The morning after, Bush sent one of Biddle’s negroes after Thompson Allen, who lived on the road between his house and Milam, to come to him. and Biddle went to Bush’s place, and talked to Saunders. Saunders swore that he would kill Bush if he ever saw Mm ; that Bush had ruined Mm and destroyed Ms happiness. Saunders had a double-barrel shot-gun. Witness proposed to Saunders that he and Bush should leave the matter to their neighbors, and named Thompson Allen, and Saunders said he would select Mr. Somers, and expressed Ms willingness to leave it to them. Witness went home, and during that day Thompson Allen, A. H. Me Go wen (the plaintiff) and Mr. Somers came to witness' house and .walked out with Bush, and seemed to be consulting about the difficulty. Witness heard nothing of their conversations, as Bush and Saunders were Masons, as he understood, and whenever he, witness, would be about them, that is Allen and others, they would quit talking about it. In the evening Bush, Allen, MeGowen and witness went by the Smith place, (did not see Saunders,) to Mr. Allen's house, where witness left them. Witness, understanding that Bush was about giving his notes for some large amount, advised, him not to do so • and Bush replied that he did not know what to do : that it was better to do that than to do worse. Witness heard Saunders say that Bush should not come on the place, and that he would not leave the place till he had full satisfaction; and upon being asked by witness what would satisfy him. he said six thousand dollars. Witness being asked by plaintiff’s counsel if Bush did hot seem penitent, answered no, that Bush was scared to death. Witness stated that he had known Bush for forty years, and regarded him as a man of ordinary firmness ; never saw him frightened before. From the first evening of the difficulty, until after the notes were given, Saunders remained on the place, in possession of the place, and negroes, &c. A day or two after the notes were given, McGowen and Allen and Bush were at Biddle’s, and it was proposed (as witness thinks, by Mr. Allen,) to Bush, that he had better borrow the money and pay the notes, if Saunders would discount them at twelve and a half per cent. Witness entered the credit of three hundred dollars on the note sued on, which credit was for two mules and a carryall or carriage, which Bush paid to Saunders. After Saunders got the mules and carriage, he and Emily, the woman, his wife, went to A. H. McGowen’s house and remained some time ; and the next time he saw Saunders, he and McGowen were riding to town in the said carriage, drawn by said mules. Saunders had nothing, that witness knew of, more than one bed, and he came with him to this country. Bush is fifty-nine years of age. Witness told Bush what Saunders said.</p> <p>There was a good deal of other testimony from which it appeared that Saunders went armed with a double-barrel gun, and swore repeatedly that he would kill Bush, if he did not give him satisfaction, meaning in money ; and that he would keep the property of Bush’s then in his possession, until he got satisfaction. Some of these threats were in Bush’s presence ; others were told to him. Bush appeared to be entirely unmanned. When assured of protection privately by one or two of the witnesses, was afraid to trust them, and that all had conspired against him. Saunders made no threat of a legal prosecution.</p> <p>As to whether there had actually been any illicit intercourse between Bush and Emily, the evidence, aside from Bush’s compliance with Saunders’ demands, was merely that Saunders said he saw one of them pass out of one door and the other out of another of the same room as he rode up. It was in Bush’s house ; whether Saunders’ private room, did not appear. Witnesses who were at the house while the negotiation was going on, testified that Saunders and Emily were cheerful and pleasant to each other, as if nothing of the sort had happened. The Court excluded evidence offered by the plaintiff, that Saunders and Emily lived together as man and wife.</p> <p>The notes given were for four thousand dollars.</p> <p>It was proved that McGowan had no property which he could have given for the note sued on, which was for $1000, with the credit of $300.</p> <p>Saunders soon afterwards left the country with the woman Emily.</p>

<p>The legal proposition that a vendee, under a conveyance fraudulent against creditors, in the actual adverse possession of personal property for more than two years from the date of the judgment of the creditor, can claim the protection of limitation, is sound both on principle and authority.</p> <p>An execution is not a lien on personal property, from the date of its issuance, under the Act of 1842, now in force.</p>

<p>Appeal from Limestone ; taken to Tyler by agreement. Tried below before the Hon. Henry J. Jewett.</p>

<p>Where the plaintiff sued on a note and to foreclose a mortgage on a negro boy, given to secure the note, and there was judgment on the note merely, but no order of foreclosure or sale, and the plaintiff afterwards sued to foreclose the mortgage, to which the defendant pleaded the former judgment, it was held that the plea was not bad on demurrer.</p> <p>See this case as to discontinuance of one or more of several causes of action.</p> <p>Where the plaintiff sues to recover an amount due and to foreclose a mortgage given to secure the same, and judgment is rendered to the effect that the plaintiff have and recover, dec., but there is no order of sale or judgment of foreclosure of the mortgage, a bona fide purchaser of the property, subsequent to such judgment, would take the same exempt from the mortgage.</p> <p>It would seem that in order to sustain a suit on a judgment of the District Court, if the objection be taken, it must appear that the judgment, by reason of failure to issue executions, or for other cause, is not in condition to be enforced without such suit.</p>

Tried below before the Hon. John H. Reagan. Suit commenced Sept. 2nd, 1854, by Thomas against Aspley.

Tried below before the Hon. Wm. W. Morris. Suit by the appellant against appellees, Sanford and Carr, on a contract as common carriers. The defendants were comxnon carriers, and undertook to transport plaintiff’s goods from Shreveport, in the State of Louisiana, to Rusk, in Cherokee county. The goods were injured by water in the course of transportation, and this suit was brought to recover damages therefor.

Heard below before the Hon. Wm. S. Todd. This was an indictment for betting at Rondo, and the case went off on the question of the substitution of the indictment, which had been stolen.

<p>Where several Judges preside in succession at the same Term, all the proceedings, in criminal cases as well as in civil, remain subject to the order of the Judge presiding, until the close of the Term, in the same manner as if one Judge had presided during the whole Tenn.</p> <p>Where a defendant was found guilty of a misdemeanor and committed to the custody of the Sheriff until the fine and costs should be paid, and at the next Term the District Attorney took a rule against the Sheriff to show cause why judgment should not be rendered against him for the fine and costs, on the ground that he had permitted the defendant to go at large, the Sheriff was permitted to prove by parol evidence, in discharge of the rule, that at a subsequent day of the same Term at which the defendant was committed to his custody as aforesaid, the defendant, being still in his custody, was called into Court, and discharged from custody, and that by inadvertence, the order was not entered of record ; and the case was distinguished from the cases where it is proposed to contradict the record.</p> <p>See this case as to the entry of judgment at a subsequent Term, name pro tune, on a verdict in a criminal case.</p>

Tried below before the Hon. Archibald. W. 0. Hicks. Appellee was indicted for playing at cards, &c., and pleaded in abatement of the indictment, that twenty-nine jurors of the original venire appeared, and that the Court instead of having the grand jury drawn out of th/s number, directed a special venire for a sufficient number mjore to make up the original thirty-six, and that the grand jury' was drawn out of the whole number thus brought in.

Error from. Nacogdoches.. Tried below before the Hon. Archibald W. O. Hicks.

<p>See this case as to the necessity of proving the law of another State, where the rights of parties depend on transactions occurring there.</p> <p>A hill of sale under execution by a Sheriff in another State, will be presumed to conform to the laws of such other State, until the contrary appears.</p> <p>It would seem to be no objection to the validity of a bill of sale under execution, where all the facts are proved, that it contained no recitals showing by virtue of what execution the sale was made.</p> <p>It seems that when the law of another State, in which the transactions occurred, are not alleged and proved, the law of such other State will be presumed to be the same as our own, at least so far as our laws are founded in common right.</p> <p>A bill of exceptions should state facts so as to exclude any reasonable conclusion of fact from those stated, upon which the decision could be sustained.</p> <p>Where a bill of exceptions merely showed that the plaintiff had offered in evidence the deposition of a witness taken in another cause between the same parties, the Court said, It is not shown by the bill of exceptions, the statement of facts, nor any other part of the record, that the witness was either dead, or beyond the jurisdiction of the Court even, which must be shown before such evidence can be received.</p> <p>Where properly levied on is claimed by a third person, who gives bond to tiy the right thereto, and the claimant establishes his right to the principal part of the property, but fails as to some items, it would seem not to follow that the plaintiff in execution would be entitled to recover the costs of the suit but that they.might be apportioned by the Court.</p> <p>See this case as to the statute of limitations in favor of persons holding under a conveyance in fraud of creditors, where such conveyance is to minor children.</p>

Tried below before the Hon. John H. Reagan. The application to set aside the .judgment was made by-David Pierce and Josiah Barnett, for themselves and the other defendants. The affiants stated that the note was given for money loaned by plaintiff to said David, and that the others were sureties for the payment thereof; that David Pierce was absent from home on business when the Sheriff went to serve him, if the Sheriff ever did so.

Tried .below before the Hon. Henry J. Jewett. The suit was on the following account: One log chain, $3 ; cow and calf, $10 ; 20 bush, corn, $10 ; 60 lbs. bacon, $6 ; 1 yoke oxen, $35 ;—$64 60. Account of defendant as follows : 1287 feet plank, $64 35 ; cash, $3 65 ; 1 log chain returned, $3 ;■—$71.

The transcript in this case was not found in the Clerk’s office, and it is impossible for the Reporters to give a complete statement of the facts. The counsel for appellants and appellee, differ, too, in their statements. It appears that the appellee was a 'school teacher, and that thirty-six persons subscribed articles of agreement with him, sending fifty-two or three pupils, at §1 50 each per month.

<p>Where the law gave aright of pre-emption to anypersonwho should settle upon and improve a portion of the vacant public domain, which “ has been neither " filed upon, entered, located nor surveyed by virtue of some genuine, legal and " valid certificate, or other evidence of title to land, previous to such settle- “ ment and improvement,” it was construed to mean the same as if it had said “ on which there is not at the time a subsisting file, entry, location or survey “of,” <fec.</p> <p>Where a person, with or without right, has settled upon and improved land which has been located or surveyed, and by failure to make or return the survey within the time required by law, or other cause, the land becomes vacant, such settler, the moment the land becomes vacant, is in the position of a pre-emptioner, and if he continues on the land, and applies in proper ' time, counting from the date when the land so became vacant, he cannot be •deprived of his right of pre-emption, by locations made after the land became vacant and before he took any step to secure his right, or even knew the land was vacant.</p> <p>‘The only condition which the law imposes, is that of settlement and improvement on vacant land. The acts of the applicant are alone the subject of inquiry. Was the land vacant, and has it been settled and improved ? and not * what the settler thought, or imagined, or supposed about the title, or whether he imagined it vacant or otherwise.</p> <p>The case before us is not one where the location was made on the day the land became vacant, or where a settler had been holding in trust for another. No question of that character, or whether the rights of the settler can be affected by such considerations, is before us for examination.</p>

Tried below, before the Hon. John H. Reagan. Suit by appellant against appellee, on a decree of the Circuit Court for the Seventh District, in and for the State of Mississippi, in the county of Tishamingo. The defendant demurred, and pleaded general denial, and that there was no such record. The parties waived a jury, and submitted the case to the Court.

Tried below before the Hon. John H. Reagan. The evidence- as to the fraud was “ that defendant Coombs “ sold the land described in the bond (the Adm’r gave a bond “ for title, in his representative capacity, to be made as soon “ as a patent could be obtained,) at public auction, and repre- “ sented publicly to the bidders at said sale, through the auc- “ tioneer, that the land mentioned in the said bond was the land “ belonging to the estate of Elizabeth Gray, located by…

It did not appear from the transcript what Judge presided at the trial of this causo in the Court below. The facts are stated in the Opinion of the Court.

<p>See this case for circumstances under which the judgment was reversed because of the refusal of the Court to grant a new trial, on the ground that the appellee, who was a colonist in Peters’ Colony, had abandoned his settlement.</p>

Error from San San Augustine. Tried below before the Hon» Archibald W. 0. Hicks. Speak and Willard both resided in Cass county, and were both served with process. The writ of garnishment was issued in San Augustine, and all the garnishees, except Willard, answered without commissions.

<p>Appeal from Van Zandt. Tried below before the Hon. John H. Reagan.</p> <p>Indictment against appellant charging that the said Rufus B. Sigler then and there being the overseer duly appointed and and acting p.s such, of the road from the Noches to Canton^ the county seat of said county, the said road then and there being a public road, leading from said town of Canton to the county line of said county of Van Zandt, in the direction of Tyler, he, the said Rufus B. Sigler, did then and there wilfully fail, neglect, and refuse to keep the road, bridges and causeways within his precinct clear and in good order, and did then and there suffer them to remain uncleared and out of repair for twenty days, at one and the same time, he, the said Rufus B. Sigler, not then and there having been prevented by high water, or other sufficient cause, against the peace, &e.</p> <p>On the trial, the State gave in evidence the order of the County Court establishing the road, as follows: Ordered, That the road marked by the jury of review previously appointed, to wit: leading from Canton to the county line of Smith, (Smith and Van Zandt adjoined at the crossing of this road, Reps.) in the direction of Tyler, be, and the same is hereby» established, with the name and style of the Tyler road j made at the June Term, 1854, of said Court. The State also gave in evidence the order appointing the defendant overseer, as follows: Ordered, That Rufus B. Sigler, he, and he is hereby, appointed Overseer of road Section No. 3, of the Tyler road from Canton to the Neches river, and to have all hands within the bounds of said section. To the introduction of these orders, when offered, the defendant objected that they did not correspond with the allegations in the indictment. Objections overruled, and defendant excepted.</p> <p>The State proved by witnesses, that the defendant acted as overseer of the road described in the orders last year, (trial in 1855,) and that he worked the road three days last summer or Pall; that the road had never been put in good order ; that the bridge on the road had been frequently seen out of repair ; that the road was much washed into gulleys, and remained so for three months. One witness said he rode across said bridge once without breaking his arm, or horse's neck. To so much of the parol evidence as proved that the defendant acted as Overseer, his counsel objected, on the ground that it was not the best evidence.</p> <p>The Court instructed the jury as to what the law meant by good order and repair, and instructed them that the overseer could not excuse himself for not having the road in good order and repair, unless he showed that he warned in his hands, and worked out his ten days ; or showed some other good excuse for the non-performance of his duty ; that it was not necessay to prove by the written copy of the order of the County Court, and the return of the Sheriff thereon, his appointment of the defendant as Overseer ; but that it was sufficient if the proof showed that he acted as Overseer, under an order of the County Court, appointing him Overseer ; and also that it was unnecessary for the State to prove that the road in question had been classified.</p> <p>The defendant asked the Court to give the following instructions :</p> <p>That it is necessary for the State, to recover in this indict" ment, to prove, first, That the road in this indictment alleged is a public road, duly established as such by the County Court, by order entered upon record. 2nd. That the defendant was duly appointed by order of the County Court as Overseer of said road. 3rd. That he had been notified of his appointment as Overseer by a copy of the order of his appointment, with an endorsement thereon of all the hands liable to work on said road, and the order embracing the boundary of his precinct.</p> <p>The foregoing charges are refused, and the following given in lieu of the first charge, asked. The fact that the road over which the defendant acted as Overseer was a public road, must be proved by the records of the County Court, showing that it had been established as a public road ; but the records of the County Court need not give the same description of the road which is contained in the indictment, but it will be sufficient if the road described in the indictment is proved to be the same as that described in the orders of the Court. It is also sufficient, if the order of the County Court establishes the road in question, without using the word public. (Signed by the Judge.)</p> <p>Conviction, and fine fixed at $10. Motion for new trial</p>

Tried below before the Hon. John H. Reagan. Indictment against appellant, charging that said defendant then and there being Overseer of a certain public road leading from Kickapoo to Duval’s Ferrry on the Meches, did then and there, wilfully, knowingly and negligently, fail to measure such parts of said, road as falls within his precinct, in continuation, and to set up posts at the end of each mile leading from the courthouse, or other noted place or town, and to mark on the…

Tried below before the Hon. William W. Morris. The land for which this suit was brought, was described in .the petition as follows, to wit: on the north-west corner of the Cordova league, and on the north side of said league, being the belt or strip of land supposed to contain one hundred and fifty acres, south of the old and well-marked league line, to wit: the true north line of the said Francisco Cordova league.

Tried below before the Hon. Archibald W. 0. Hicks. ; The note to Green, Douglas & Co. was for $219 57, and was dated June 4th, 1858 ; the note to Green & Douglas was for $291 71; and was dated January 16th, 1854, each payable one day after date, and bearing interest at eight per cent. The plaintiffs were merchants at Shreveport, and the notes were dated there.

<p>Administration granted in 1842 ; administrator’s final account filed and ad-proved and administrator discharged in 1848 ; application filed in 1854 by creditor, for payment of a judgment recovered against said administrator in 1850, and affirmed on appeal to the Supreme Court in 1851 ; it appeared that notwithstanding the discharge in 1848, the administrator had afterwards acted and been recognized in that capacity by the Probate Court: Held, on the authority of Townsend v. Hunger, 9 Tex. B. 300, and Poor v. Boyce, 12 Id. 440, that the presumption was that the order of discharge was revoked; and the judgment of the District Court which reversed the judgment of the Probate Court sustaining the application, was reversed, and the judgment of the Probate Court was affirmed.</p>

Tried below before the Hon. William W. Morris. Suit commenced by appellants against appellee, Nov. 15th, 1853. On the 18th day of the Spring Term, (which commenced on the ninth Monday after the third Monday in March, 1855,) there was an entry as follows: Now come the plaintiffs by their attorneys, and dismiss this case as per agreement filed.

Tried below before the Hon. William W. Morris. Action of trespass to try title to three hundred and twenty acres of land, by appellee against appellant, commenced Oct. 17th, 1853. Plaintiff introduced a deed to himself from D. C. Clark,, in whom it was agreed the title was at the date of the deed, to wit: March 22nd, 1851, and proved that defendant was in possession at the commencement of the suit.

<p>Where the defendant paid the plaintiff twenty-five dollars, and gave him his note for $175, for disclosing to him a secret system of medicine, which was contained in a pamphlet delivered by the plaintiff to the defendant, and it was agreed that if the defendant should at any time become dissatisfied with his bargain, and wish to discontinue the practice of said system, he should return the pamphlet, and the plaintiff would refund the twenty-five dollars, and return the note, it was held in a suit on the note, which was payable more than a year after date, that the defendant could not avail himself of the stipulation for rescission, after the note had fallen due and suit had been commenced thereon; and held further, that having practiced the system, and received money therefrom, he could not avoid the note by proving that the system was worthless, and its practice dangerous, hut that he should have returned the book, as stipulated, or shown good excuse for not so returning it.</p>

Error from Travis. The transcript was taken out by the attorney for the plaintiff in error, to prepare an application for a re-hearing, and was mislaid.

<p>Where judgment was taken against several"defendants by default, and the transcript did not show that they either appeared or were served with citation, the Court said, The fair and reasonable presumption would be, that the transcript is imperfect, but we are not authorised to act upon such presumption, as the defendant in error seems to be satisfied with it as presented. And the Court reversed the judgment as to such of the defendants as had joined in the writ of error.</p>

Tried below before Jfie Hon. Thomas H. Duval. Suit by the appellees, to set aside a sale of lands and land certificates alleged to have been fraudulently made by the defendant McGaffey to his co-defendant Mercer. The appellees claimed the property as only heirs of Henry Millard, deceased.

<p>Appeal from Travis. Tried below before the Hon. Thomas H. Duval.</p>

Error from Bastrop. Tried below before the Hon. Thomas H. Duval. The whole substance of the bill of exceptions is stated in the second paragraph of the syllabus of this report.

Tried below before the Hon.. Thomas J. Devine. Suit commenced Oct. 4th, 1854.

<p>It was clearly error to take judgment (by default) at the same Term after continuance of the cause, without having the continuance first set aside; but this is not assigned as error.</p> <p>Onere, whether a return of citation," not found,” simply, is sufficient to authorize theissuance of a judicial attachment, the Statute requiring that the return should be, that the defendant “ is not to be found in his county."</p> <p>A judicial attachment is returnable in the same manner as original writs, and the defendant has the same time to appear and plead as if he had been served with citation at the date of the service of the attachment.</p>

Tried below before the Hon. Thomas H. Du Val. The petition alleged that the said Gustavus Martel violated the condition of his bond as administrate r as aforesaid, in this that he did not make out and return a full inventory and appraisement of all the estate of said testator as required by law.

Error from Travis. Tried below before the Hon. Thomas H. Bn Yal. The bond for title was as follows : Republic of Texas, county of Fayette.

Error from Caldwell. The judgment was rendered on the first day,, of May, 1856 ; the Court adjourned on the third ; the petition for writ of error and' bond were filed on the 8th of September; and the certificate was filed in this Court on the 23rd of October, 1856.

Tried below before the Hon. Thomas H. BuVal. Suit by appellee against appellant, commenced in a Justice's Court, on a promise in writing as follows : I promise to pay G. W. Holden or order one hundred dollars, which may be discharged by delivering to him the mare which I got of him, or any other nag worth one hundred dollars. If the nag which I tender Mm is not worth a hundred dollars, I am to pay Mm .the balance in cash.

<p>The defendant in a prosecution before the Mayor of a town, for violating an. ordinance of the town, is entitled under the Constitution, (Art. 4, Sec. 19,) to a trial by jmy.</p> <p>The proceedings of a Mayor’s Court in a prosecution for the violation of a town ordinance, are examinable on certiorari from the District Court; but it would seem that the prosecution is not triable de novo.</p> <p><$uere, whether a defendant who has been convicted and punished before a Justice of the Peace, for an assault and battery, can be tried and punished in a Mayor’s Court, for the same act, under an ordinance of the town.</p>

<p>See this ease as to a conveyance of a specific portion of the land, by any number of tenants in common less than the whole number.</p> <p>A parol partition of land is not obnoxious to our Statute’of Frauds, but is valid and binding, and is placed beyond all doubt, where the parties have acted upon and acquiesced in such partition, and have never attempted to repudiate it.</p> <p>The purchaser of a married woman’s interest in an estate cannot object to a parol partition of a certain tract of land, to which the mamedwoman was a party, on the ground that she was not bound by such parol partition.</p> <p>The purchaser of the interest of one of several heirs, in the estate, cannot object to a partition of a certain tract of land, to which his grantor was a party, on the ground that Ms grantor, being a minor at the time, was not bound by such partition.</p> <p>If a minor makes a deed, purporting to be for a valuable consideration, such as would be valid against an adult, it is valid until the infant has avoided it by disaffirming it, after arriving at majority; and it is indispensable to the disaffirmance, that the consideration, if money or other property, should be tendered to the purchaser.</p> <p>"Where a party in the cross-examination of a witness asks questions which are not pertinent to the direct examination, he thereby makes the witness lus own to that extent.</p>

<p>Error from Fayette ; returned to Austin, instead of Galveston, by consent. Tried below before the Hon.. Thomas H. ThiYal.</p>

■ Error from Travis. Tried below before the Hon. Thomas H. DuVal. Suit by defendant in error against plaintiff in error on a promise in writing as follows : Due S. Gr. Sneed five hundred dollars for his fee in the case of Thomas F. Chapman against Edward P. Oliver; and this is to operate asa lien on said judgment, this 30th day of March, 1856. T. F. Chapman.

Tried below before the Hon. Thomas H. DuVal. ‘ Suit by appellee against appellant and others, bn a promissory note made by John H. Herndon and John T. Cleveland, in favor of John Burleson. The note was given for part of the purchase money of a lot sold by Burleson to Juliet M. Herndon, wife of the said John H. Herndon, but such fact did not appear in the note. Burleson executed his bond for title to said Juliet, upon the payment of the purchase money.

Error from Guadalupe. Tried below before the Hon. Thomas J. Devine. The petition was filed April 23rd, 1855. The demurrer was special, on the grounds stated.

Error from Travis. Tried below before the Hon. Thomas H. DuYal. The petition alleged that the judgment was obtained Sept. 28th, 1853 ; original execution issued Dec. 1st, 1853, returned no property ; alias execution issued Jan. 25th, 1854, on which some property was sold ; and that the pluries execution, which the plaintiff sought to enjoin, was issued June 11th, 1855.

Error from Guadalupe. Tried below before the Hon. Thos. H„ BuVal. The entry of judgment did not conclude with the usual order, “ for which let execution issue from which It might he inferred that the Court below did not consider the judgment final. But it does not appear that even an interlocutory judgment by default would be proper in such a case. Execution had issued.

It did not appear from the transcript who presided in the Court below. The Act of the Legislature referred to in the Opinion, was as follows: An Act regulating and restricting the Sale of Spirituous Liquors. Section 1.

<p>Eveiy agency carries with it, or includes in it, as an incident, all the powers i" which are necessary or proper, or usual, as means to effectuate the purposes , for which it was created, and none others.</p> <p>Im this respect, there is no distinction, whether the authority given to an agent is general or special, express or implied.</p> <p>If the agency arises by implication from acts done by the agent with the tacit consent or acquiescence of the principal, it is deemed to be limited to acts of a like nature ; if from the general habits of dealing between the parties, it is deemed to be limited to dealings of the same kind.</p> <p>An agent employed to receive payment, is not, in general, clothed with authority to compound the debt, or to commute it for something else, as, for example, his own debt; but can only receive it in money ; unless his particular employment confers the authority, or it can be implied from the general usage of business, or the habits of dealing between the parties.</p> <p>See this case for circumstances under which the judgment was reversed for ■erro!' in overruling the motion for a new trial, on the ground that the evidence did not warrant the jury in finding that the agent had authority to receive payment by commutation for his own debt.</p> <p>See this case for evidence which was held to be sufficient to warrant a finding that a certain person was held out to the world by the plaintiff, as his partner.</p> <p>The admission or declaration of an agent binds his principal, only when it is made during the continuance of the agency, in regard to a transaction then depending.</p> <p>The refusal to reverse, where improper testimony has been admitted and excepted to, on the ground that the party was not prejudiced thereby, is only applicable where the case, is made out by competent evidence, beyond a question.</p>

Tried below before the Hon. Thomas H. DuVal. The plaintiff based her title upon the gift from her father, and proved her marriage in Tennessee in 1829, and the death of her husband in 1853, in order to avoid the defendant’s plea of the Statute of Limitations, it being admitted that the latter had adverse possession of the slave since 1851; this suit having been commenced May 30th, 1854.

Error from Travis. Tried below before the Hon. John Hancock.

Tried below before the Hon. John Hancock. Suit by Francis Dieterich, Thomas Glasscock’s administrator, and H. G. Blakey, appellees, against G. W. Glasscock, appellant, and one Malitzky, a tenant, to recover the south half of lot No. 4, in block No. 69, in the city of Austin.

Tried below before the Hon. John Hancock. Suit by appellee against appellants, commenced in Travis county, Feb. 28th, 1853.

Error from Bexar. Tried below before the Hon. Thomas J. Devine. Suit by defendant in error against plaintiff in error on a promissory note. Verdict for plaintiff for $375, with interest until paid, from maturity of the note. Judgment for $497 50 : $17 59 too much. No notice of appeal. Writ of error by defendant, with the single assignment, that the judgment on the verdict should have been for only $479 91.

Tried below before the Hon. Thomas H. DuVal. Suit by appellants, who were merchants in New Orleans, against appellee for $249 12, for goods sold and delivered, April 13th, 1853. Pleas of general denial and payment to B. F. Hill, the agent of the plaintiffs. The plaintiffs proved the sale and delivery of the goods, the order therefor coming through B. F. Hill, whom the witness for plaintiffs called the agent of the defendant.

It did not appear from the transcript, who presided in the Court below. Indictment for an assault upon Martin, with intent to murder. Plea of not guilty. Verdict of guilty of simple assault and battery, and fine assessed at $100. Motion for new trial overruled. The facts were as .follows :, -William L. Lochlin, witness for the State, testified that he went to defendant’s store in Milam county early on the 10th December, 1855.

Error from Bexar. Tried below, before the Hon. Thomas J. Devine. The judgment below was rendered June 6th, 1853. The citation in error was served Nov. 16th, 1854. The transcript' was filed in this Court Nov. 6th, 1856.

Tried below, before the Hon. B. B. B. Baylor. Suit by appellees against appellant, on note and account, commenced March 20th, 1855 ; attachment obtained same time, returned levied on a stock of merchandize. Motion, October 4th, 1855, to quash the attachment. Motion, April 16th, 1856, to quash an amended return of the attachment.

Tried below before the Hon. Thomas J. Devine. Held: and process issued on the 19th and 20th days of April, A. D. 1854.

Tried below before the Hon. R. , E. B. Baylor. The instrument called a bond for title, was not a bond in a penal sum, upon condition to make title, but was an agreement in writing, signed by Burns, in which he stated that he had sold the land to the plaintiffs, for the sum of one thousand dollars, payable January 1st, 1854, and undertook to “ convey, release and warrant1’ to the plaintiffs, the said land, when they should pay the said sum of one thousand dollars.

<p>Appeal from Hill. Tried below before the Hon. Henry J. Jewett. *</p>

Error from Lavaca. Tried below before the Hon. Fielding Jones. Suit by appellees against appellant, on his note to them for the sum of $150.

Tried below before the Hon. Thomas H. DuVal. Action of forcible entry and detainer, commenced by Francis Kelly against Joseph Warren, in a Justice’s Court, to recover the possession of certain premises, from which it was alleged the plaintiff had been forcibly ejected by the defendant, who still continued forcibly to detain the possession thereof. The plaintiff in his petition described the premises as included in a survey of Thomas Mays, assignee of Daniel J. Gilbert.

Tried below before the Hon. Fielding Jones. Suit by appellee against appellant for work and labor done and materials furnished, in the erection of a mill or machine, and the patent right thereof, which plaintiff alleged belonged to Mm. A bill of particulars was referred to in the petition, as being part thereof. The amount claimed was $879 36. .

Tried below before the Hon. Thomas H. DuVal. This was a suit, commenced Oct. 21st, 1854, by H. G. Henderson, appellant, against the San Antonio and Mexican Gulf Railroad Company, appellees, to cancel two deeds, executed by the appellant to Enoch Jones, in trust for the appellee, and also to cancel two deeds executed by Jones to the appellee by virtue of said deeds of trust.

Tried below before the Hon. Robert J. Townes. The debt on which the judgment was obtained, was contracted after the present Constitution of the State went into, effect. The lease to Gray was made in Oct., 1851, for one year, which had not expired at the date of the levy.

Tried below before the Hon. Thomas J. Devine. Suit by appellee against appellants for damages done the former by reason of a mill dam which the latter had erected immediately below him on the Medina river. The petition claimed damages and abatement of the nuisance. Both premises were in the town of Castroville. The proceedings are stated as fully in the Opinion, as is necessary to show the points of law decided. There was no question of prescription involved.

Tried below before the Hon. Henry J. Jewett. A jury was waived and the case submitted to the Court. All the facts are stated in the Opinion, except that the debt was contracted since the present Constitution of -the State took effect.

<p>Commissioners appointed by the Governor to take acknowledgments of deeds, &c., in other States, have authority to take and certify the answers of a party to a suit, to interrogatories propounded by the adverse party.</p> <p>See this case as to the construction of Statutes.</p>

Tried below before the Hon. R, E. B. Baylor. Suit by appellee against appellant on three promissory notes for $3,919 39 each, with interest from date ; sundry credits allowed ; among others, an account current between the parties, in which interest was computed on the items on both sides, -with a balance in favor of defendant of $124.0 38. Prayer for attachment.

<p>Appeal from Robertson. Tried below before the Hon. R. E. B. Baylor.</p>

<p>Appeal from Freestone. Tried below before the Hon. Henry J. Jewett.</p> <p>Indictment for playing at a game of cards, on which money was bet, at a certain office, being the same then occupied as a physician’s office and druggist’s store, by the said Redditt, and being then and there a public house.</p> <p>The only assignment of error was, that the Court erred in overruling the defendant’s motion for a new trial. The grounds of the motion were, that the verdict was contrary to the evidence, and contrary to the charge of the Court and the law.</p> <p>The evidence was as follows : Richard Ellis, for the State, testified that he saw a game of cards played by the parties named in the indictment, with money bet on the game, in the back room of Dr.T.H. Redditt’s office in the town of Fairfield in Freestone county, about the time charged in the bill of indictment; that the house contained a front room occupied by Redditt as a physician’s office, and where said Redditt also kept his drugs ; but he did not know whether he kept them for sale generally or only to supply his own patients ; that the backroom, at the « time of the card playing, wasoccupied by Mr. Lumpkin or Mr. Thomson as abed room, but neither of them was present on the night of the card playing. Witness and H. H. Noland, and the parties named in the indictment, went through the front room into the back room and locked the door after them, and that the window of said back room opened upon a back lot, and that blankets were hung up over the window; that said office is situated on a public street in the town of Fairfield about thirty yards from Noland’s grocery and about the same distance from Bragg and Clough’s store; that there was a bed in the back room, and that neither before nor since has witness known of other card playing in that room, and that there was a door from the back room opening into the back lot.</p>

• Appeal from Lavaca. Tried below before the Hon. Field ing Jones. The lease was as follows : The State of Texas, County of Lavaca.

<p>Error from Gonzales. Tried below before the Hon. Fielding Jones.</p> <p>Suit by defendant in error against plaintiff in error, on a promissory note. Answer of payment and failure of consideration, to prove which defendants propounded interrogatories to the plaintiff, the answers to which were filed February 11th, 1855. October 23rd, 1855, it being the second day of the Term, defendants filed exceptions to certain of the answers to the interrogatories, and moved that the corresponding interrogatories be taken for confessed. Same day the case being called for trial, the defendants, upon the plaintiff’s announcing himself ready for trial, presented their exceptions to the plaintiff’s answers to interrogatories, &c., which being heard and overruled, the parties announced themselves ready for trial, &c.</p> <p>The officer who took the answers to the interrogatories, certified that the plaintiff came before him, and being first duly sworn, made the following answers to the interrogatories (here follow the answers, then) sworn to and subscribed before me this first day of February, A. D. 1855. In testimony, &c.</p>

Error from Gonzales. Tried below before the Hon. Fielding Jones. Suit to revive judgment of A. H. Jones for the use of E. C. Frisbie, against plaintiffs in error. The judgment was rendered April 20th, 1849. The petition alleged the issue and return of execution thereon, and that the last execution was issued May 9th, 1850, and returned Aug. 2nd, 1850. The petition acknowledged credits as follows : $41 05 paid October 1st, 1849 ; $70 May 7th, 1849 ; $100 May 1st, 1850.

Tried below before the Hon. Fielding Jones. Suit by appellants against appellee, in Justice’s Court, for account of $55 ; attachment obtained on the ground that the defendant was about to remove out of the State. Levied on a mule, which defendant replevied. Plea of reconvention for the wrongful suing out of the attachment, damages laid at $100. Trial by a jury and verdict for the defendant for $100, less plaintiffs’account of $55. Certiorari by plaintiffs.

Tried below before the Hon. Henry J. Jewett. This was a suit brought on a promissory note for §2,445, which was given by Benjamin J. Fortson to the appellee in part payment of lands purchased by said Fortson from appellee.

Tried below before the Hon. Thomas •J. Devine. Suit, December 29th, 1854, by appellee against appellant, alleging her title and possession of a lot in the city of San Antonio, fronting on Calabooza street, on the North side thereof, nine and one half varas, and running back North 22| East towards Calle Real or Commerce street, within twenty varas of said street,¡to a lot owned and occupied by the defendant, and being bounded on the East by a lot of Justo Travieso, and on the…

Error from Guadalupe. Tried below before the Hon. Thomas J. Devine. The note was not payable in Guadalupe on its face. It seems, from the instructions of the Court, that the plea of privilege was submitted to the jury with the general issue. The plea was not sworn to ; but there was no exception to it.

Error from Washington. Tried below before the Hon. R. E. B. Baylor. Nov. 8th, 1852, affidavit by J. W. Brooks, before the Justice of the Peace, “ that the distress warrant now prayed for by him, is not sued out against Robert W. Smith for the purpose of “ vexing or harrassing the said Robert W. Smith.” Bond of plaintiff filed and approved same day.

Tried below before the Hon. Thomas •J. Devine. The petition of Smith, after stating the proceedings before the Mayor, continued as follows : The petitioner further says, that to avoid the necessity of being imprisoned, this petitioner paid the said one hundred dollars fine, under protest, all of which proceedings will more fully appear by a copy of the record of said proceedings hereto attached and marked exhibit “ C” and made part hereof.

Error from Brazos. Tried below before the Hon. Henry J. Jewett. Judgment by default in the Court below. No question was made in the Court below as to the sufficiency of the Sheriff’s return of the citation. The “ leave to amend the return” which was granted, was no doubt intended to cover a defect in the return of the attachment, which appeared to have been amended.

Error from Gonzales. Tried below before the Hon. Fielding Jones. Suit on a draft by defendant in error against plaintiff in error. Answer of payment, and interrogatories propounded to plaintiffs to prove payments. Answers taken before a Commissioner for Texas in New Orleans, denying payments. No action on the answers, except that they were read in evidence by the plaintiffs, apparently without objection.

Error from Lavaca. Tried below before the Hon. Fielding Jones. In addition to what appears in the Opinion, it may be stated, that the plaintiff had obtained a writ of sequestration, which was returned executed; and it did not appear that the wagon had been replevied.

<p>Appeal from Gonzales. Tried below before the Hon. Fielding Jones.</p> <p>Wilborn J. Williford having been indicted by the grand jury of Gonzales county, for an assault with intent to commit murder, and having been arrested by the Sheriff of said county, gave bond approved by the Sheriff, as follows :</p> <p>The State of Texas, County of Gonzales. We, Wilborn J. Williford, as principal, and Hugh W. Branch and Stephen H. Darden and O. M. Christian as sureties, acknowledge ourselves to owe and be indebted to the State of Texas in the sum of five hundred dollars, to be levied upon our respective goods and chattels, lands and tenements; but to be void nevertheless upon condition that Willborn J. Williford shall be and personally appear before the next Term of the Hon. District Court of said State, to be begun and holden in and for Gonzales county, at the Court house thereof in the town of Gonzales on the 7th Monday after the 1st Monday in September, A. D. 1855, and attend from day to day and Term to Term, then and there to answer the State of Texas on a charge contained in an indictment, presented and filed in said Court, against him, at the Spring Term thereof, A. D. 1854, for an assault with intent to murder 0. E. Dewitt, and shall not depart'without leave of the Court,</p> <p>The defendant and his sureties failing to appear at the next Term of the Court, an order was entered that the said bond " is hereby forfeited, and that a scire facias issue against said defendant and his sureties,” &c.</p> <p>At the succeeding Term the sureties appeared and filed a general denial, and moved to annul the judgment nisi and quash. the bond for tie following causes :</p> <p>Because it did dot bind the defendant to appear at the proper time and place, as„provided for by the statute in such cases.</p> <p>Because it was taken by the Sheriff under color of office, and was more onerous on the defendants than the law prescribed— in this that the bond was conditioned that said Williford attend from day to day and Term to Term of said District Court of Gonzales county, &c., contrary to the statute made and provided.</p> <p>The Court overruled the motion to quash and defendants excepted. Trial and verdict for plaintiff for the full amount of the bond.</p> <p>Motion for a new trial overruled ; and defendants appealed.</p>

Travis. Tried below before the Hon. Thomas H. DuYal. This was a suit by the defendant in error against the plaintiff in error and three others, who were subsequently dismissed for want of service, on their joint and several promissory note for the sum of $254 and interest, payable to Isaac Wyatt and assigned to plaintiff.

<p>Where it was proved that A had authority from B to sell a slave, and it was also proved that A afterwards, setting up a claim to the property as his own, or upon some claim of unsettled accounts with B, ran the slave off and sold her, with a view to appropriate the proceeds to himself, it was held that the fraudulent conduct of A worked a revocation of his authority as B’s agent.</p> <p>Where a purchaser buys from an agent, with a knowledge that the agent is acting in violation of his duty as agent, he cannot, in a suit by the principal to recover back the property, avail himself of the fact of agency.</p> <p>Instructions must be referred to the facts in evidence, and if they are correct, in application to such facts, it is sufficient..</p> <p>Where a person comesi into the possession of personal property, and sells it as his own to one who is ignorant of the want of title in his vendor, his ignorance of the true state of the title will not prevent the owner (except in the cases provided for in the statute of frauds, and the registry laws,) from recovering the property. And it seems that this rule would apply where property comes to the possession of a person as agent for sale, who, in fraud of his principal, runs the property off with a view of selling it and appropriating the proceeds to his own use ; so that the purchaser could only maintain his title by proof that he knew of the original agency, and by failure of proof that he had knowledge of the fraud of the agent, or of circumstances of suspicion sufficient to put him on his guard.</p> <p>It would seem that in order to sustain a plea of innocent purchaser, ifr is not necessary to prove the payment of the purchase money, but that it is sufficient, in this particular, if the purchaser has given his negotiable note, which has been assigned to an innocent holder, for value.</p> <p>See this case for circumstances under which the Court refused to reverse for error in giving and refusing instructions, on the ground that the verdict wae right on tire facts.</p>

Tried below before the Hon. R. E. B. Baylor. Suit commenced January 29th, 1853, by appellant, in his own right and as administrator of Edward Berry, for the partition of certain undivided interests in a tract of six hundred and forty two acres of land, including the site of the town of Washington.