Volume 18 — Texas Reports

<p>Error from Guadalupe. Tried below before the Hon. Thomas H. DuVal.</p>

Tried below before the Hon. Henry J. Jewett. This suit was commenced September 6th, 1852, by the ap pellant against her husband, for a divorce on the ground of de sertion. In the petition, she described the land in controversy, alleged that it was common property, and prayed that one half of it should be vested in herself and the other half in her three minor children who were made defendants.

. Tried below before the Hon. Nat. M. Burford. The petition in this case was filed December 22d, 1855, and was as follows : Tour petitioner, Stephen H. Miller, who resides in the county of Grayson and State of Texas, respectfully represents, that heretofore, to wit, in the month of March or April, 1848, he was residing in the county of McMinn and State of Tennessee ; that he then and there entered into a contract with Joel Roberts, who resides in the county of Dallas and…

Tried below before the Hon. Nat. M. Burford. Suit by appellee against appellant on a mortgage, praying judgment for the amount secured, $500, and a sale of the land to pay it. General demurrer, general denial, and plea of payment ; amended answer that since the mortgage sued on, defendant executed and delivered to the plaintiff his promissory note in satisfaction of said mortgage, which note said plaintiff now holds.

Tried below before the Hon. Nat. M. Burford. Suit by appellee, administrator de bonis non of Sutherland Mayfield, against the appellant, administrator of Sarah May-field, wife of said Sutherland, to recover a slave named Randle.

Error from Travis. Tried below before the Hon. Thomas H. Duval. Suit by defendant in error against plaintiff in error and three others, on a joint and several note, signed by the plaintiff in error and two of his co-defendants, payable to the fourth defendant, and by him indorsed to the defendant in error, the plaintiff below. All the defendants were served with citation.

Tried below before the Hon. Thomas H. Duval, Indictment for gaming with cards at a public place.

Tried below before the Hon. John H. Reagan. Suit commenced December 17th, 1850, by Mahala Duncan the appellee, against Alexander de la Garza and Marcus L. Fulton.

Tried below before the Hon. R. E. B. Baylor. Action of trespass to try title, commenced March 10th, 1846, by appellant against appellee. There was a statement of facts, showing that at the trial the plaintiff offered his title in evidence, that it was rejected, and that no other evidence was offered. The trial was at the Spring Term, 1852.

Tried below before the Hon. John Hancock. This suit was originally brought by the appellee against the appellant before W. H. Cushney, a Justice of the Peace, who rendered judgment in favor of the plaintiff on the 21st of November, 1846. On the 25th of November, 1853, the plaintiff brought an action of debt on this judgment before J. T. Allen, a Justice of the Peace, who rendered judgment in favor of the plaintiff, on the 7th of January, 1854.

Error from Travis. Tried below before the Hon. Thomas H. Du Val. Suit by James S. Payne and John J. Grumbles, partners, defendants in error, against Fielding S. Roy, George L. Walton and William M. Walton, partners trading under the name and style of F. S. Roy & Co., for the recovery of a balance alleged to be due them on an open account. Two of the defendants, G. and W. Walton, filed original answers by way of demurrer and general denial. There were two amended answers.

Tried below before the Hon. Thomas H. DuVal. Suit by appellees against appellants. March 16th, 1852, the plaintiffs, merchants in New Orleans, sold to the defendants, merchants at Lockhart in this State, a bill of merchandize, which, including the premium of insurance and interest for six months, amounted to $4847 88, for which the defendants gave their note at twelve months.

Error from Travis. Tried below befor the Hon. John Hancock. Suit by defendants in error against the plaintiffs in error to recover six hundred and forty acres of land. The petition alleged that Susan 0.

<p>Appeal from Bexar. Tried below before the Hon. Thomas J. Devine.</p> <p>Action of trespass to try title, commenced October 14th, 1853, by Rowland Soye, Elizabeth Soye, and Ellen Soye, a minor, against John M. McCallister, John S. McClellan, John James, Andrew Spira, James Newton, James R. Sweet, Claiborne Rector and Edward Gallagher. The defendants claimed different parts of the league and labor of land sued for, under a sale by the administrator of John Soye, the ancestor of the plaintiffs ; and the plaintiffs prayed a recovery of the land and a cancellation of the administrator’s deed, which they alleged was a cloud upon their title.</p> <p>The plaintiffs proved an original grant from the State of Ooahuila and Texas, of one league and labor of land, to Juan Delgado, on the west bank of the Cíbolo, dated September 10th, 1833 ; a deed dated October 6th, 1838, from Juan Delgado, of the first part, to John Soye, Rowland Soye, Elizabeth Soye, and Ellen Soye, “heirs and legal representa- " tives of John Soye, deceased, of the second part,” for said league and labor of land, expressed to be “ for and in con- “ sideration of the sum of five hundred dollars, paid by the “ party of the second part to the party of the first part, the “ receipt whereof is hereby acknowledged,” with general warranty. Recorded same day. Proof that John Soye, brother of plaintiffs, died in 1842 without issue. Here the plaintiffs rested.</p> <p>Defendants read in evidence the petition in another suit, by plaintiffs against J. M. McCallister and others, commenced April 30th, 1853. It alleged that their father, John Soye, of said county and State, departed this life many years ago, leaving your petitioners, and John Soye, his sole heirs and legal 'representatives; that the said John Soye has since departed this life without issue; that at the time of the death of said John Soye, he owned one league and labor of land, lying, being and situated in said county of Bexar, on the east side of the Gibolo, just below the Gonzales road, originally granted to Juan Delgado, and conveyed by said Delgado to the said John Soye, and afterwards also conveyed to your petitioners, &c.</p> <p>The defendants then read in evidence the proceedings of the Probate Court of Bexar county in the matter of the succession of John Soye, the plaintiffs excepting to the reading of the same, so far as they showed any action of the administrator at any time after the lapse of one year from and after the 20th day of December, 1836. First: bond of John McMullen as administrator of John Soye, dated and filed August 29, 1837 ; it contained a recital as follows : “ who was previously “ appointed administrator,” &c. • petition of administrator, August 30,1837, for continuance of the Term of administration ; August Term, 1837, petition of a creditor for order for payment of a debt; order made ; October 30, 1837, citation for John McMullen, administrator of the estate of John Soye, to appear same day and await the order of the Court; April 12th, 1838, citation to John McMullen, administrator, &c., that he, the said administrator, be and appear at the next Term of the Probate Court, to be holden at the Courthouse, in the city of San Antonio, on the last Monday of April, 1838, (being the 30th day of the present month,) then and there to make settlement of the said administration and that the necessary division among the heirs be made, so that the guardian may receive the same in due form ; recitation in the citation as follows : Order of the Hon. the Probate Court in and for the county of Bexar, at the January Term, 1838, continued at February Term, and same at March Term, 1838. May 21,1838, citation to same, reciting a peremptory order of the last Term, to settle his account at the next, and also to pay claims; April 31st, 1840, citation to same to settle his account, “ so that the same (the “ estate) may be finally closed, and the estate, property, money, “ &c., delivered to the guardians of the infant heirs of said “ deceased May 4th, 1840, notice to John M. McMullen, administrator, &c., that a judgment was rendered against said estate, at the last Term, for $800 in favor of, &c.; another similar notice, same date, for amount of $96; June Term, 1840, petition of curator ad litem, for allowance of his claim for $250 for services; July 22, 1840, notice to appraisers to appear and be sworn ; July 24th, 1840, inventory and appraisement of all the real property known to the administrator as belonging, &c.; it consisted of “ one league and “ labor of land, purchased of Juan Delgado, $1,000 ; another league and labor, $1,000; deceased's headright certificate, $150; concession of league and labor to Jesus Valdez, purchased, &c., $150 ; one-eighth interest in the Hernandez tract, in forks of the San Antonio and ¿San Bartolo, $450 50 ; September 30, 1840, petition of said administrator representing that there “ are debts due and owing by said estate, over and “ above the cash assets in his hands, as will appear by refer- “ ence to his account current, as filed in the Court,” and praying an order “ to sell so much of the property of said estate as “may be sufficient,” &c. ; November 30, 1840, return “that in “ pursuance of an order of Tour Honorable Court, he offered “ for sale, as required by the law, on the first Tuesday of No- “ vember, instant, the property specified in said order, when he “ sold one league and labor of land on the Cíbolo to C. Van “Ness, at twelve and a half cents per acre, amounting, &c.; “ there being no bidders for the rest of the property, no fur- “ tlier sale was effected, and the same has been advertised for “ sale at the next judicial sale day ;” December 5, 1840, similar return of sale of all the other property in the inventory, the concession of a league and labor to Jesus Valdez to Samuel A. Maverick for $26, and the headright of the deceased to same for $101. Here followed the certificate of the Clerk of the Court, “ that the foregoing transcript contained a true “ copy of the papers filed in the estate of John Soye, deceased.’ The defendants then introduced a transcript certified to be “ a full and correct copy of all the entries on the minutes of the “ Probate Court of said County.” It commenced with on entry as follows : Docket of the Probate Court, May Term, 1837.</p> <p> </p> <p>The first column is probably the date of the opening of the succession or grant of administration. There were orders entered at the following Terms: May, 18.37; June, 1837, “ continued until the next Term of this CourtJuly, 1837, same order ; August, 1837, several orders ; September, 1837 ; October, 1837 ; November, 1837, docketed, but no order; December, 1837, “ continued until next Term of this Court j” January, 1838, order, &c.; February, 1838, order, &c.; March, 1838, same ; April. 1838, same ; May, 1838, same ; June, 1838, several orders; July, 1838, several orders; August, 1838, order, &c.; next entry June, 1839, order, &c.; next entry February, 1840, order, &c.; March, 1840, “ continued April, 1840, order as follows : This case came on to be heard, the administrator and attorney ad litem present. It appears to the satisfaction of the Court here, that there are twenty-five hundred and fifty-three dollars, seventy-six and one-half, assets in hand, &c.; March, 1840, “ continued July, 1840, same ; August, 1840, order, &c.; September, 1840, order as follows : The administrator came and presented an account current of the estate, and also presented and filed petition praying sale of the real estate to cover the debts of the estate. Order of sale granted, and that the administrator proceed and make the sale as the law directs for cash; October, 1840, “ continued November, 1840, order, &c.; December, 1840, “ second sale bill “filed 5th December, 1840, the first having been filed Decem“ber 1st, 1840 February, 1841, “ continued March, April, May, 1841, entries of continuances ; June, 1841, administrator having given notice and filed his account, was -discharged. If the jury had been permitted to do so, from the papers in evidence, they would no doubt have found that the adminis. trator had sufficient assets in his hands to pay the debts of the estate, without selling the real property. The defendants then proved that the father and mother of plaintiffs died in San Antonio de Bexar in August, 1834, leaving plaintiffs and one John Soye, Jr., their only children and legal heirs.</p> <p>Defendants read in evidence the following document :</p> <p> </p> <p>In the city of San Fernando de Bexar, on the second day of December, 1833,1, the citizen Juan Delgado, resident of the town of San Felippe of Austin, native of this city, and for the present living in it, declare by these presents that I acknowledge to sell, with my free will, to the citizen, Juan Soye, a resident and merchant of the same town, to-wit: A concession of the Supreme Government of the State for one sitio of land and one labor, of the public domain of this Department, bearing date 20th April, 1831, for the consideration of eighty dollars, I have received of the aforesaid citizen Juan Soye to my full satisfaction ; being a condition agreed upon and understood between both buyer and seller, that the first will have sufficient power from the second in order to obtain, in the name of the grantee, from the Supreme Government, the possession and title for the aforesaid land, in the place he may point out. Four years must elapse from the date of the title and possession, to change this private instrument to a public one, with all the solemnities and requisites of the law ; being understood that, during these four years, the buyer shall be entitled to use said land as his own, and perform all kinds of work and improvements, which he may see proper, to enhance its value, under the express and agreed penalty, that if the vendor, after the expiration of four years mentioned in the foregoing clause, should refuse to grant the public title herein mentioned under any pretext, the vendor binds himself to ex-Mbit to the buyer an amount of four thousand dollars in ready cash money, or equivalent property, as an indemnity for the cost, damages and losses, resulting to the buyer for want of title to the property, such as one public document in due form, and moreover in consideration of the expenses that said buyer may have done on the aforesaid land. It is also understood and agreed between the buyer and vendor, as a condition, that, if by some unforseen accident, the buyer should die before the expiration of the four years fixed for the execution of the title deed of sale, this one must be made, in the aforesaid term, in favor of the widow and heirs of the buyer, in conformity with the established laws. And it is the will of the vendor that, in the unforseen case of death, his administrators and heirs shall comply exactly with the provisions of this document, which I will and it is my volition, shall have the same value as if it was judicial, and to that effect I renounce all the laws and customs that can favor me, and I submit myself to the jurisdiction of all Justices and Courts which may take cognizance of my case at law; si convenerit de jurisdictions omnium judicium, with the general law, el derecho en forma.</p> <p>In testimony whereof I have granted this, and knowing not how to write my name, I pray the citizen Ynacio Herrera of this place to do it for me before the undersigned witnesses, in the aforesaid city, on the same day, month, and year.</p> <p>At the prayer of the granting party I do sign.</p> <p>YNACIO HERRERA.</p> <p>Attested by seven subscribing witnesses.</p> <p>Defendants then read a deed from McMullen, as administra, tor, &c., to Van Ness, dated November 5th, 1840. It was admitted that all the estate which Yan Ness took by reason of said deed, was vested in the defendants by regular mesne conveyances. There were suggestions of possession and improvements in good faith, and evidence thereto, which is omitted, as not now important. No order was shown expressly continuing the administration, in the sense in which those terms have been understood when applied to administrations.</p> <p>The plaintiffs then introduced a transcript from the records of the Court of the first instance, of proceedings in* 1834, showing the death of John Soye, and the appointment of McMullen as curator, &c., of his estate ; and proved that Rowland Soye was twenty-three years of age on the 17th of June, 1854; Elizabeth Soye, twenty-one, and Ellen Soye, between nineteen and twenty ; and that defendants were in possession of the land sued for.</p> <p>The Judge instructed the jury, without request, as follows :</p> <p>1st. The plaintiffs sue for the recovery of the land described in their petition, which land it is alleged, the defendants claim by a pretended sale made by McMullen, claiming to be administrator of their deceased father’s estate.</p> <p>2d. The defendants deny the right of the plaintiffs to recover, and assert a right to the land through conveyances from the vendees of Van Ness, the purchaser at a sale made by McMullen, acting as they assert as administrator of John Soye, the father of plaintiffs.</p> <p>3d. The defendants also claim to be purchasers in good faith, and in possession of the land for twelve months before the commencement of this suit, and they claim pay for their improvements.</p> <p>4th. The real or supposed inadequacy of price; the want of any necessity for an order to sell the land, or any real or supposed unfairness on the part of McMullen, while acting as administrator, are questions that are not in issue on the trial. They are questions with which you have nothing to do.</p> <p>5th. The sole questions for your consideration, in making up your verdict, are simply these ; had the estate of John Soye such an interest in the land, as would make it liable for the payment of his just debts or claims against his estate? Was McMullen the administrator of Soye’s estate ? Did he petition for, and, as administrator, obtain from the Probate Court, an order of sale, and did he as such administrator, and by virtue of such order, sell in accordance with law the same to Van Ness ?</p> <p>6th. The recognition of a party as administrator by the Probate Court, and the continuous action of the Court with reference to the administrator while acting as such, is legal evidence of the party’s character, and will support rights acquired by a third party, at a sale made under the order of the Probate Court, obtained and carried into effect by such administrator.</p> <p>7th. The records of a Court of competent jurisdiction are evidence of what they contain or assert, and are conclusive on such matters, unless attacked for fraud, and such fraud proven.</p> <p>8th. The fact of land claimed by an intestate’s estate being conveyed by the original grantee to the children, as heirs of their deceased father, will not destroy or weaken the right of creditors, or others in such estate, unless the facts show that the transfer to the heirs was made upon such valuable consideration as would justify and enable a stranger to hold the land against the estate, or those representing such estate.</p> <p>9th. If from the evidence you believe that this land was claimed by “ Soye’s estate,” and the transfer from Delgado to the minor children was made by him, not to the children, as purchasers in their own right, but to them as the heirs of John Soye, deceased, and as carrying out in good faith the agreement or understanding between himself (Delgado) and John Soye, the plaintiffs’ father, and that McMullen, as the administrator of Soye’s estate, petitioned for and obtained an order to sell, and, as administrator did sell in accordance with law, the land to Van Ness, then you will find a verdict for defendants.</p> <p>The instructions as to the issue of valuable improvements, not being now important, are omitted.</p> <p>The plaintiffs requested the Judge to charge the Jury as follows :</p> <p>1st. That the act, or contract, between Juan Delgado and John Soye in reference to the land in controversy was in violation of the law then in force, which inhibited a sale by Delgado, before the expiration of four years after the date of the grant, and said act was therefore a mere nullity, which conveyed no estate to Soye or his heirs, legal or equitable ; gave the heirs no right in the property or to the property, nor did it divest the said Delgado of any property in the estate, or create any obligations upon him to specifically perform the contract, or to convey to Soye, his legal representatives or heirs; nor did it operate as an estoppel on said Delgado, but he was still left free to dispose of the land as soon as the inhi. tion was removed.</p> <p>I give you this instruction with this qualification : That if you believe Delgado conveyed to Soye’s children by way of carrying out in good faith his original understanding or agreement with Soye, and that it was intended to convey, for the benefit of the estate of Soye, it was liable for the debts of his estate. (Signature of Judge.)</p> <p>2d. That as soon as the legal inhibition was removed, Juan Delgado had the legal right to convey his estate in it; and his conveyance to the plaintiffs created in them a legal and valid estate, independent of any rights of the creditors of their ancestors, the administration and all other persons.</p> <p>3d. That the law, prima facie, presumes that the consideration, acknowledged in the deed, was paid by the grantees ; but whether the deed was with or without consideration paid by the defendants, it was binding upon the grantors, and the defendants can have no benefit from the want of consideration.</p> <p>4th. The admissions in the deed are evidence of the facts recited as between the parties and privies thereto, and by privies is meant those who derive title under a deed ; therefore the defendants cannot be heard to deny the recitals in the act between Delgado and Soye, but they are bound thereby.</p> <p>5th. And if such recitals show that the act is void, it forms no foundation for title in the defendants.</p> <p>6th. That the deed from Delgado to Juan Soye conveyed no property, and therefore was no evidence that the land was assets of the estate of John Soye subject to administration.</p> <p>7th. That if the jury believe from the evidence that the land in controversy was not the property of John Soye, but the property of the plaintiff, then the administrator had no right to sell the land, and the sale by him did not affect the rights of the plaintiffs, and the purchasers took nothing by the sale.</p> <p>8th. That, even had the heirs purchased and held in trust for the benefit of creditors, they could not have been divested of the estate by the administrator’s sale, but it could only have been divested out of them by their own voluntary conveyance, or by a decree of the District Court.</p> <p>9th. If the deed from Delgado to the plaintiffs had been duly registered before the administrator's sale it was notice to all the world, and the defendants are charged with this notice of adverse right.</p> <p>10th. That if the jury believe from the evidence, that more than one year had elapsed after the appointment of McMullen as administrator, before the pretended sale, then the sale was void, unless the jury believe from the evidence that he, McMullin, had been duly and legally appointed administrator.</p> <p>(No. 11 is wanting in the transcript, and was probably embraced in the general charge of the Judge.—Reps.)</p> <p>12th. The records of the Probate Court having been given in evidence to the jury, they are not at liberty to presume the existence of any records not therein found.</p> <p>13th. Presumptions of facts and records, which form the basis of title, cannot be indulged against the plaintiffs who were infants.</p> <p>14th. The records and judicial proceedings of Courts of record cannot be presumed, but they must either be proved by the records themselves, by copies thereof, or by proving their destruction or mutilation, and then proving their contents.</p> <p>15th. That, if the jury believe from the evidence that at the time of the administrator’s sale the land was the property of the plaintiffs, then the Probate Court had no power and jurisdiction to sell the land at the suit of the administrator, and their rights were unaffected by said sale.</p> <p>16th. That, if the jury believe from the evidence that, before the sale the administrator had fully paid the debts of Soye and been discharged, then there was no power in the Probate Court to re-appoint him, and the fact that the Court subsequently recognized him as administrator, gave him no right to sell the land, and all his subsequent acts were void.</p> <p>llth. When the estate of a decedent is so far administered that nothing remains to be done, but to discharge the administrator formally, after his compliance with an order for distribution, the Probate Court has no power to appoint another administrator on said estate, or to re-appoint the same, and the act of the Probate Court in making such appointment, would be void and of no effect.</p> <p>18th. When the Probate Court has once entered a judgment or decree against the personal estate of an administrator in favor of creditors, the same becomes final and the Court has no power at any subsequent term to alter, or revise, or set aside said judgment.</p> <p>19th. Even admitting that the contract between Delgado and John Soye created an equitable estate in John Soye, still any such interest enured to the benefit of Soye and his wife, as community property, and the administrator could at most have conveyed one-half the estate, and the children have the right to recover one-half the estate.</p> <p>20th. That if John Soye died bfore his wife, one-half of all the property held by him and his wife, as community property, vested in his heirs immediately, subject only to his debts, and the other half remained the property of the wife, and upon her death vested immediately in her children, and they could not be divested of such property, descended from their mother, by any act of their father’s administrator.</p> <p>21st. That, if the jury believe from the evidence that a petition for the sale of the land and the decree to sell it, does not describe the land in controversy with such certainty to convince them, the jury, that the land in controversy was decreed to be sold, then the sale did not pass the land, and the jury are to determine from the record what land was intended.</p> <p>22nd. That the administrator of John Soye had no right to sell any property except what belonged to him.</p> <p>23rd. And had no right to sell his estate except for the payment of debts and the expenses of administration.</p> <p>24th. And a sale, with a view to defraud the infant children, was void and could convey no property to the purchaser.</p> <p>25th. That, if the decree for the sale was procured by fraud, it was void, and fraud may be proven by circumstances.</p> <p>26th. Fraud vitiates every act, even the most solemn decree of Courts of Justice.</p> <p>27th. As to whether John McMullen was, or was not re-appointed administrator of the estate of John Soye, deceased, is a question of fact to be determined by the jury from the record and proceedings of the Probate Court, and, if from an examination of said records, the jury believe McMullen was not re-appointcd administrator of the estate of John Soye, within twelve months of the date of sale, or that he did not renew his bond as such, they will find for the plaintiffs, as he was without power to sell.</p> <p>28th. If more than five years elapsed from the original appointment of McMullen, as administrator of the estate of John Soye in 1834, before the order of sale was granted, the Court had no power to continue him in his functions and his acts, after five years had elapsed from his original appointment, in selling the land claimed were null and void.</p> <p>29th. If the jury believe from the evidence that McMullen had in Ms hands sufficient assets to pay all the debts of the estate, and that this appeared from a judgment of the Probate Court, and the account current of the administrator, there was no necessity for the sale, and the Court was without power to grant an order of sale, and a purchaser would be presumed to have full notice of the want of such power.</p> <p>.1 give instructions Nos. 1 and 11, and decline giving Nos-2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27. 28.</p> <p>(Signature of the Judge.)</p> <p>Verdict and judgment for the defendants. Motion for new trial overruled, &c.</p>

Tried below before the Hon. Thomas J. Devine. This was a suit by the same plaintiffs as in preceding ease, to recover from the defendant the headright of their father John Soye and the land in the concession to Valdez. The facts are all stated in the report of the other case.

Tried below before the Hon. Henry J. Jewett. Suit Sept. 8,1851, by appellants against the appellees, on the bond of Jane Allsbrooks, (now Jane White) as administratrix of Wm.H. Allsbrooks, deceased. The petition alleged maladministration, and appropriation of the assets of the estate by the administratrix, in general terms ; an amendment specified one horse of the value of $150, and a house and lot in the town of Springfield, of the value of $400.

Tried below before the Hon. R. E. B. Baylor. Sait by appellee against appellants, commenced April 8th, 1840, for a specific performance of a bond for title, as follows : -of the county of Washington, are held and firmly bound unto John N. Wilson, of the said county in the penal sum -of one thousand dollars, good and lawful money of the Republic of Texas, to be paid to the said John N. Wilson, his heirs, attorneys, executors, administrators or assigns ; to which payment, well…

Error frota Lavaca. Tried below before the Hon. Fielding Jones'. Suit by plaintiff in error against defendant in error.

Tried below before the Hon. Thomas H. DuVal. Suit by plaintiff in error against defendant in error and one A. W. Caperton, commenced July 13th, 1855, on the joint promise of the defendants in writing, as follows : Dec. the 9th, 1853.

Tried below before the Hon. Thomas H. DuVal. Suit, July 25, 1854, by appellee, against appellant.

Tried below before the Hon. Thomas J. Devine. The only fact of any importance, not distinctly stated in the Opinion is, that the present value of certain real property which had been sold for the support of the appellants by order of the Probate Court, was reported by the Commissioners, and the appellees claimed that the appellants were justly chargeable therewith; whereas the Court below decided that the appellants were only chargeable with the proceeds of the sale of said…

Tried below before the Hon. R E. B. Baylor. Suit by appellant to enjoin an execution, on the ground that the judgment had become dormant by reason of the failure to issue executions from year to year. The defendant answered by plea in reconvention, setting out all the facts, allowing credits for payments made, and praying judgment for the balance due.

Tried below before the Hon. R. E. B. Baylor. The second Judge of the first instatíce did not profess to act - in the absence of a notary, except that he referred to “thoseof my assistance, with whom I authenticate, in conformity with the law.” The conveyance was signed Sarah Hensley, her mark, with a cross. It had two certificates of authentication as follows : Republic op Texas, i I, Thomas ¡3. Lane, Clerk pro tem.

<p>An amendment alleging the presentation of the account sued on duly authenticated, and its rejection by the administrator, before suit brought, is not subject to defences that may have intervened since the suit,' and therefore limitation does not run in such case to the date of the amendment.</p> <p>The question is renewed in the Opinion in this case, whether it is necessary to allege in a suit on a claim against an estate, that it has been presented to the administrator duly authenticated and rejected by him, "whether it is not sufficient to prove it at the trial, under the usual allegations of refusal to pay.</p>

Tried below before the Hon. Nat. M. Burford. Suit by appellant against appellee.

Tried below before the Hon. John Hancock. Suit by appellant against appellee, February 3d, 1854.

Tried below before Robert J. Townes, Esq., appointed by the parties. Suit by appellants, as heirs of Edwin xblexander, deceased, against appellee, commenced Aug. 19, 1854, in Bexar county and afterwards removed by change of venue to Travis, to clear the title to three and one-third leagues of land, describing them and setting forth the facts. Answer by defendant, setting up title in himself. A jury was waived, and the cause submitted to the Court upon the following evidence.

Error from Travis. Tried below before the Hon. John Hancock. The record in this case was before this Court on the appeal of a co-defendant of the plaintiff in error, at Austin, 1855, reported in 15 Tex. R. 400, Oliver v. Chapman. About the time that suit was brought, and before the service of the writ of sequestration issued in the case, the personal property in controversy was run beyond the jurisdiction of the Court.

Tried below before the Hon. Thomas H. DuVal. Suit by appellee to enjoin the sale of real property under a deed of trust, given to secure the payment of a note for money lost by plaintiff and defendant in dealing faro in partnership ; the plaintiff alleging that the defendant fraudulently obtained said note and deed of trust by falsely representing that he had paid said losses, when in fact he had not, &c. ; and that the note and deed of trust were given without lawful…

Tried below before the Hon. Thomas H. DnYal. Suit by appellee against appellant, commenced January 23rd, 1854, to recover in right of his mother, Stacy Barton, one-half of the headright league of his father, William Barton. A jury was waived, and the cause submitted to Court upon the following admissions and statement of facts.

Tried below before the Hon. Henry J. Jewett. Suit by appellee against appellant, for that (after describing the land and alleging title and possession thereof in plaintiff) your petitioner being so the lawful owner and possessor of said land, the said Kolb, on or about the third day of April, A. D. 1854, with force and arms unlawfully entered the close of your petitioner on said land, and with force and arms, did unlawfully cut and fell the timber then and there growing upon…

<p>Appeal from Freestone. Tried below before the Hon. Henry J. Jewett,</p> <p>The facts are sufficiently stated in the Opinion.</p>

Tried below before the Hon. Fielding Jones. Suit by appellant against appellee, to enjoin a judgment recovered by the latter against the former in a Justice’s Court. The petition contained a prayer for general relief. The defendant answered a general demurrer and general denial.

Tried below before J. J. Holt, Esq., appointed by the parties. Action of trespass to try title by appellant against appellees. Bill of exceptions as follows : Be it remembered that on the trial of this cause, the following facts were proved, to-wit: Plaintiff proved location and survey for himself made in 1850, and admitted, for the purposes of this statement, (but not to conclude the defendants in a future trial,) to be valid; and here rested.

Tried below before the Hon. Fielding Jones. Suit by Jamos W. Allen and Ann E. Allen, guardians of James G-. Robinson, Frances E. Robinson, William H. Robinson and Thomas A. Robinson, minor heirs of William Robinson, deceased, against Jacob B. Reid and Jesse 0. Wheeler, on their promissory note for §2,650, dated January 23rd, 1854, and payable December 5th, 1855, and to foreclose mortgage on land for which said note was given.

Tried below before the Hon. Fielding Jones. Suit by appellee against appellant on an account. The plaintiff's account was kept against the steamboat Kate Ward and owners ; commenced April 19, 1849, and closed December 18th, 1850 ; aggregate charges $4,004 83 : credits $1,928 94 ; then due $2,075 89.

Tried below before the Hon. Fielding Jones. Suit by appellee against the master, Thomas Forbes, and the unknown owners of the steamship Perseverance, for the value of a trunk and the contents thereof, lost on the passage of plaintiff from New Orleans to Indianola, on board of said ship, “ some time in the month of August, 1853.” The petition was filed March 2nd, 1854.

Tried below before the Hon. James H. Bell. Suit by appellant against appellee, alleging that on the 8th day of November, 1854, the defendant, one M. Ware, and plaintiff, made an agreement in writing whereby each of said parties bound himself to contribute five bales of cotton, of good middling quality, of 500 lbs. each, or in lieu thereof $250, to form a purse to be run for by two year old colts, the distance of one mile, at the track of the plaintiff in the county aforesaid…

Tried below before the Hon. Fielding Jones. Petition by appellee, filed December 20,1854, as follows: To the Hon. Fielding Jones, Judge, &c. Tour petitioner, Robert Thompson, a citizen of Gaudalupe county, State of Texas, would respectfully represent unto your Honor, that during the year 1853, petitioner and one Matthew W. Lindsay, entered into a partnership in selling merchandise in Seguin, Texas, using, as a firm name, the name and style of “ Lindsay & Co. that during the…

Error from Victoria. Tried below before the Hon. Fielding Jones.

Tried below before the Hon. Fielding Jones. Petition filed July 25th, 1854, as follows : Tour petitioners, Thomas Haynes, Edward Clegg, and Mariah J. Clegg, his wife, all citizens of said county of Calhoun, would most respectfully represent, that in November, 1846, your petitioner, Edward Clegg, purchased of Henry Kitchen, now deceased, lots Nos. one, two, eleven and twelve in block No. six in the town of Port Lavaca, in the said county of Calhoun, and received from him,…

Error from Jefferson. Tried below before the Hon. Peter W. Gray. Suit by plaintiff in error against defendants in error, on a promissory note. Answer that the note was obtained by fraud and without consideration, and that the plaintiff had notice, and did not pay value for the note.

Tried below before the Hon. A. W. Arrington. Suit commenced by appellee against appellant, before a Justice of the Peace, on an account of $85, for services in herding and droving in March, April and May, 1853, upon which a credit was allowed of sundries, $34; removed by the defendant to the District Court; and the certiorari dismissed on account of insufficiency in the petition therefor.

Error from Victoria. Tried below before the Hon. Fielding Jones. This was a trial of the right of property in a stock of goods, wares and merchandise, levied upon by virtue of executions in favor of the defendants in error against Lavius F. Chapman, and claimed by the plaintiff in error as his property. It was before this Court once before, in 1856, on a writ of error by the present defendants in error, and the decision then made will be found reported in 16 Tex. R. 34.

Tried below before the Hon. Fielding Jones. Appellant was indicted' at the Spring Term, 1855, for the murder of John Yan Zile.

Error from Harris. Tried below before the Hon. Peter W. Gray. j Suit by plaintiff in error, against defendants in error, commenced December 10th, 1846, on three promissory notes for $635 each, dated January 2d, 1843, payable one, two and three years after date, signed by the said Ann E., then Ann Eliza Hunt, and Ann D. W. Page, and indorsed to the plaintiff.

Sent to Galveston by consent. Tried, below before the Hon. Fielding Jones. Petition filed August 20th, 1856, as follows: Your petitioners, Joseph J. Ballard and Robert M. Tevis, both resident citizens of the county and State aforesaid, would respectfully represent unto your honor, that on or about the 31st of May, 1855, Richard J. Anderson and Ann Anderson, his wife, made, executed and delivered unto 0.

Tried below before the Hon. Thomas H. DuVal. Indictment as follows : That James Gain, late of Fayette' county aforesaid, yeoman, with force and arms in the county aforesaid, on the thirteenth day of January, A. D., one thousand eight hundred and fifty-six, did then and there entice away from the possession of his master, William Scallon, a certain negro man slave, of the valúa of five hundred dollars, named Dick, of the property of said William Scallon, without the consent…

Tried below before the Hon. Thomas H. DuVal. Indictment for larceny, in stealing a horse.

Tried below before the Hon. James H. Bell. The transcript from the docket of the Justice of the Peace, after stating the commencement of the suit and the service of the citation, read as follows : May 3, 1856. This case came up for trial, and, after hearing the testimony, the parties being present, it is decided that the defendant have a judgment for the costs of the suit.

Tried below before the Hon. James H. Bell. Suit by appellant against appellee for the sum of $264, being the difference between the price at which a tract of three hundred acres of land was bid off by the defendant at administrator’s sale by plaintiff, and the amount for which it was afterwards sold, and five' per cent, on the amount of the defendant’s bid. The land was the headright of G. Guinn.

<p>Where it appeared that the Clerk of the District Court refused to deliver the trrnscript on a writ of error, unless the plaintiff in error would file a bond, with sureties, for the costs of the writ of error, this Court issued a mandamus to compel the delivery of the transcript, on the ground that the Statute does not require any bond to be given in such case.</p>

Tried below before the Hon. James H. Bell. Suit by Charles Messer, commenced February 17th, 1855, against John P. Carson, Samuel G. Powell and Charles W. Coen, late partners trading under the name of Carson & Co., on a note signed Carson & Co., dated March 1st, 1853, for $1124 28, with interest at ten per cent, from date, payable to plaintiff seven months after date ; with a credit of $100, Oct. 20th. 1853.

Tried below before the Hon. James H. Bell. Suit by appellees, 'Cornelius Ennis and James R. Ennis, partners trading under the style of C. Ennis & Co., against appellant, on three several promises in writing to pay money. The plaintiffs claimed by indorsement of “ H. B. Andrews & Co., by E. M. Tyne.” The promises in writing, were filed with an amendment of the petition. Defendant filed a general demurrer and general denial.

<p>The Constitution does not reserve to the head of a family, exempt from forced sale, two hundred acres of land, not included in a town or city, for a homestead ; but, a homestead not to exceed two hundred acres.</p> <p>A homestead necessarily includes the idea of a house, cabin or tent, which is the home of the family.</p> <p>There must be a homestead over which the Constitution may throw its shield, and not land merely, upon which the owner may or may not put his cabin, mansion or improvements, and claim it as a home.</p> <p>See this case as to the continuance of a homestead when once acquired.</p> <p>See this case as to the time at which the homestead exemption will attach, by preparation to improve, with the intention to complete the improvements and occupy them as a home.</p>

Tried below before the Hon. James H. Bell. Suit by appellees, William and Daniel Coleman, partners, against appellant, commenced October 20th, 1856, on an account for goods, wares and merchandize, sold and delivered. The account was filed with the petition and amounted to $307.

Error from Colorado. Tried below before the Hon. James H. Bell. Suit by defendant in error against plaintiff in error on a promissory note, given for the hire of a slave for the year 1854. The note was given at the time of the hiring, and the slave died within two weeks after the hiring, without any fault on the part of the defendant. The slave received proper attention and medical aid. He was not sick when he went into defendant’s possession under the contract.

Error from Colorado. Tried below before the Hon. Nelson H. Hunger. Suit b,y Daniel A. Conner, plaintiff in error, against R. Autrey and the executor of W. H. Secrist, defendants in error, on a note for §1000. The petition called the instrument sued on a promissory note, but alleged that it was signed “ R. Autrey, (seal) W. H. Secrist, (seal.)” The defendants pleaded, not under oath, that the note was given for money won at cards at a public place.

Error from Colorado. Tried below before Hon. James H. Bell. Suit by plaintiff in error against defendant in error,' on an account. The suit was instituted on the 17 th day of November,' 1854 ;■ the account was dated in 1853. Citation to Colorado county being returned not found, plaintiff amended by alleging that since the commencement of the suit, defendant had removed to Gonzales county, and prayed citation to that county.

<p>The failure of the plaintiff to join one of two or more joint obligors as a defendant, cannot betaken advantage of on error, although judgment wen thy default, and the fact that there was such othgr joint obligor is apparent on the face of the petition; such omission can only be taken advantage of ,by plea in abatement, unless it also appear on the face of the petition, not by presumption of continuance of life merely, but in fact, that such otherjoint obligor is living.</p>

<p>Error from Brazoria. Tried below before the Hon. James H. Bell.</p> <p>The facts are stated in the Opinion.</p>

Tried below before the Hon. James H. Bell. The facts are stated in the Opinion, except that the plaintiff filed an amendment, claiming damages for cutting and carrying away timber off the land in controversy. To this amendment defendants excepted on the ground of misjoinder of actions. The exception was overruled, and appellees assigned it for error.

Error from Colorado. Tried below before the Hon. James H. Bell. Petition by defendant in error, for a certiorari to a Justice’s Court.

Tried below before George Quinan, Esq., appointed by the parties. Suit by appellee against appellant, for the value of work and labor done, and materials furnished, in extracting and putting in teeth for Sarah, the wife of the defendant: the labor and material were alleged to be reasonably worth $225 ; it was alleged that the same were necessaries for said Sarah ; and it was also alleged that they were done and furnished with the knowledge and consent of the defendant.

Tried below before the Hon. James H. Bell. Suit by appellant against appellee, commenced before a Justice of the Peace, and removed by certiorari to the District, Court by plaintiff. The suit was commenced on the 5th of October, 1853.

Tried below before the Hon. James H. Bell. Trespass to try title to ten acres of land, by appellee against appellant. The plaintiff gave in evidence an instrument of writing, as follows : Know all men, by these presents, that I, Benjamin Babbit, have bargained and sold to Thomas Bell ten acres of land at the north-east corner of my three-quarters of a league, including the spring, which land I do warrant and defend to said Bell and his heirs forever.

Error from Brazoria. Tried below before the Hon. Nelson H. Hunger.

Tried below before the Hon. James H. Bell. Suit by appellant against appellee for §596 82, the value of certain merchandise which the defendant undertook to transport by wagon, for plaintiff, from Texana to La Grange, and which he failed to deliver. It was alleged that the defendant received the goods in the capacity of a common carrier. An amendment of the petition charged the defendant as a private carrier, in case of failure to prove that he was a common carrier.

Error from Colorado. Tried below before the Hon. Nelson H. Hunger. Suit by defendants in error, William B. and George L. Perry, against plaintiffs in error, Asa Smith and the sureties on his bond,[for failure of said Smith, as Sheriff of Colorado county, to return two executions in favor of plaintiffs, one against D. H. Rhine, and the other against A. 0. Crawford.

Error from Polk. Tried below before the Eton. Peter W. Gray. Suit by appellee against appellants, John 0. Shelby and his wife, Rebecca S. Shelby, on their joint promissory note.

Tried below before the Hon. J. M. Maxey. Suit by appellees against appellant on a promissory note for $993 98, payable to plaintiffs.

Tried below before the Hon. Peter W. Gray. The suit was commenced on the 17th of May, 1856, and the conviction and sentence of the defendant was alleged to have taken place on the 20th of December, 1854. The petition did not allege to whose injury the forgery was committed. It alleged that the plaintiff was left without any means of support, except from her father.

Tried below before the Hon. Peter W. Gray. Scire facias on forfeited recognizance of John Henesy and Algernon P. Thompson, for the appearance of said Henesy, to answer a charge of assault and battery. Answer by defendant Thompson, of general demurrer ; that there has been no judgment rendered by this Court against this defendant upon said recognizance, upon which an execution can rightfully issue. At next Term, amended answer, alleging, 1.

Tried below before the Hon. Peter W. Gray. Suit by appellant against appellee for divorce, commenced October 22, 1856.

Error from Walker. Tried below before the Hon. Peter W. Gray. Suit by defendant in error against plaintiffs in error on a promissory note. Plea of failure of consideration. There was an affidavit by defendants, for a continuance on the ground that a commission to take the depositions of certain witnesses in Tennessee, had not been returned. But it did not appear that any order was made on it, or that it was called to the attention of the Court.

Tried below before the Hon. Thomas H. DuVal. Indictment as follows : That John S. Lewellen and one M. Kee, whose Christian name is unknown to the Grand Jurors, late of Fayette county aforesaid, Yeoman, with force and arms in the county aforesaid, on the first day of August, A. D., one thousand eight hundred and fifty-four, did then and there bet money upon the result of an election ordered and held in Fayette county, according to law, for the election of a Clerk of .the…

Tried below before the Hon. James H. Bell. Petition filed February 5th, 1856, as follows : The petition of Isaac Duncan, a citizen of the county of Austin, praying for an injunction and certiorari in a suit lately-decided in Austin county, before William Cooke, a Justice of the Peace, in beat No. 1, in Austin county, wherein Leonard Bullock was plaintiff, and petitioner defendant, on the 1st Saturday in October, 1855, when and where judgment was entered up against your…

Tried below before the Hon. Peter W. Gray. Action of trespass to try title, to one fourth of a league of land, by appellees, against appellant, commenced September 8th, 1854. Defendant pleaded the title which he afterwards proved, to the north-east quarter of the fourth league, and suggested improvements in good faith.

Error from Walker. Tried below before the Hon. Peter W. Gray. Suit by plaintiff in error against defendant in error, commenced in a Justice’s Court, September 7th, 1855, on a promissory note, for $124, dated September 10th, 1851, due one day after date, payable to Martha McAdams or bearer, and signed by the defendant; thirty-five dollars credited on the back, Nov. 12, 1852.

Tried below before the Hon. Peter W. Gray. Suit by appellee against appellant on note and account to Henry Sampson, with allegation that plaintiff was a partner of Sampson, at the time, and that Sampson had since sold and transferred the note and account to him. The note and account were copied in the petition. Answer of general demurrer, and plea claiming a credit for a certain amount. Verdict and judgment for plaintiff. No statement of facts.

Tried below before the Hon. James H. Bell. Suit by appellant, Eleanor Spann, against appellees, Elam Stockbridge and Melinda Stockbridge, administrators of Christopher H. Sterns.

Tried below before the Hon. James M. Maxey. Motion by appellant against appellee, an attorney at law, for failing to pay over money collected by him for the plaintiff, on an execution from a Justice’s Court, in favor of plaintiff, against one A. J. D. Sapp.

Error from Montgomery. Tried below before the Hon. Peter W. Gray.

Tried below before the Hon. Peter W. Gray.y' Petition as follows : Your petitioner, Moses L. Choate, a citizen of Polk county in said State of Texas, would respectfully represent unto your Honor, that one J. F. Redding, now temporarily a citizen of said county and State, recovered a judgment against your petitioner before D. D. Moore, a Justice of the Peace for said county, on the 26th day of January, 1856, for the sum of sixty-one dollars and twenty-three cents and costs of…

Error from Walker. Tried below before the Hon. Peter W. Gray. The exception discussed by this Court was taken in the Court below, and overruled. The Court charged the jury that the measure of damages was reasonable rent for the ferry and for the land. They found $150 damages. There was no statement of facts nor bill of exceptions.

Error from Walker. Tried below before the Hon. Peter W. Gray.

Error from Walker. Tried below before the Hon Peter W. Gray. This suit was commenced on the 13th of October, 1856. The petition alleged the title of the land in plaintiff, his ouster by the defendant, and prayed judgment for the land and general relief. The petition was not indorsed as in cases of trespass to try title. The answer of defendant-was as follows : Now comes the defendant, and, for answer, says he is not guilty of the trespass in plaintiff’s petition mentioned.

Tried below before the Hon, James H. Bell. Suit by appellee against appellant.

Tried below before the Hon. Peter W. Gray. Suit by appellee against appellants, Branch & Waring, commenced in a Justice’s Court, October 4th, 1854, to recover pay for driving and selling a drove of beeves, for defendants,, thirty-three days at $3 per day, less credit of $10, $89. Defence that the plaintiff had not discharged his duty in managing and disposing of said beeves, and had wilfully violated his instructions. Judgment in Justice’s Court for plaintiff for $89.

Tried below before the Hon. Peter W. Gray. Suit by appellees, commenced in the District Court, August 25th, 1854, for damages and failure to pay over money. For the facts out of which this case arose, see previous case of Branch v. Dever. Verdict and judgment for plaintiffs for $250, and interest, making $291 22. No statement of facts, or bill of exceptions.

Tried below before the Hon. Peter W. Gray. On the 19th day of September, 1854, one Charles H. Howard died intestate, at the house of the appellee, in the city of Houston, leaving no children, and no relations in this State.

Error from Montgomery. Tried below before the Hon. Peter W. Gray. Suit by defendant in error against plaintiff in error, for divorce, commenced August 24th, 1853. Plaintiff and defendant were married in what is now Montgomery county in this State, in 1834. The defendant owned, before marriage, a slave, Jane, and her child, Mary.

Tried below before the Hon. Peter W. Gray. Suit by appellee against appellants, commenced April 16th, 1855, on two promissory notes, one for §200, and the other for . §1350, and to foreclose a mortgage on four slaves, given to secure the same. Both notes were dated Nov. 16th, 1853 ; the §200 note was due January 1st, 1854, and the other January 1st, 1855 ; payable to the order of Elbridge Walbridge.

Error from Montgomery. Tried below before the Hon. Peter W. Gray.

Tried below before the Hon. Peter W. Gray. Petition filed by appellee May 6th, 1854, against appellant.

Tried below before Constantine W. Buckley, Esq., appointed by the parties. June 15th, 1837, William Smothers sold and conveyed to Robert E. Handy, a half league of land situated in what was then Gonzales county, now Lavaca county, taking his notes for the purchase money, and a mortgage on the land to secure their payment. One note was for $851 96, payable thirty-six months after date.

Tried below before the Hon. Peter W. Gray. Suit by appellee against appellant for the dissolution of a partnership between them, in the business of a brewery.

Tried below before the Hon. Peter W. Gray. Indictment returned into Court May 30th, 1856, against Daniel M. Wall, appellant, for murder of Middleton A. Praytor. The indictment was in the common law form, not using the words “ premeditated and deliberate.” The killing had taken place after dinner of the 29th May, the day before the indictment was found ; and the defendant had been pursued and immediately arrested.

Error from Galveston. Tried below before the Hon. Nelson H. Munger.

Tried below before the Hon. Nelson H. Hunger. The appellants, James Burrell and James R. Burns, were indicted on the 8th of November, 1854, for the murder of William Bird. The indictment charged the immediate act of killing upon each, and that the other was present, aiding, &e. The murder was alleged to have been committed on the 15th of August, 1854; and the defendants were in custody.

<p>Appeal from Colorado. Tried below before the Hon. James H. Bell.</p> <p>Benjamin F. Stockton, a resident of Colorado county, on the 7th of March, 1842, being about to start on an expedition against the Mexicans, who were invading the country, made his last will, devising the bulk of his property to his only daughter, now the defendant Anne E. Montgomery, making certain special bequests to two nephews and a niece, the children of Henry Terrill, and making said Terrill executor of his will and guardian of the said Anne, and giving him “ full and efficient powers to act for her in all respects until she becomes of age or marries, when such executorship and guardianship to cease, at her will.” The will was admitted to probate June 27th of the same year, and letters testamentary issued to said Terrill.</p> <p>On the 27th of June, 1852, the said Anne, by her next friend, R. Stockton, filed her petition in the' County Court, for an account and for partition ; service of this was acknowledged same day by Terrill; R. Stockton was afterwards dismissed, on the ground that he had never authorized his name to be used ; the dismissal to be without prejudice.</p> <p>In February, 1853, the said Anne was married to John G. Montgomery ; and in March, thereafter, they filed another petition, and prayed the removal of said Terrill from the executorship, because he had failed to file an account, &c. ; service in March; at March Term executor ordered to account; amendment in April alleging gross neglect of duty, as ground for removal; service in April. June 27th, 1853, an amended petition filed, in which petitioners withdraw all their previous petitions and amendments, and pray the removal of Terrill, by virtue of the provision in the will, which limited said Terrill’s executorship at the will of the said Anne after her marriage. At August Term, an order was made accordingly for said Terrill’s removal. No person was appointed in his stead, and no order was afterwards taken on the estate.</p> <p>In December, 1853, agreement as follows : State of Texas, county of Colorado. This agreement, entered into between Henry Terrill, of the first part, and John E. Montgomery and wife, Anne E. Montgomery, late Stockton, daughter of B. F. Stockton, deceased, of the second part, witnesseth; that whereas said Terrill was the executor of the last will and testament of B. F. Stockton, deceased, probated in said county, and whereas said Terrill has not made a final settlement of the estate of said Stockton, deceased ; and whereas said B. F. Stockton in said will devised to Edmond, Clarisa and Henry Terrill, children of said Henry and wife, Maria L. Terrill, the following named slaves : Clara, Nathan, Joe and Jane, and six hundred and forty acres of land to be taken out of the half league occupied by him, and in a square form ; and whereas the party of the first part, as guardian of his said children, has instituted suit in the District Court of Colorado county, one for the land, against James S. Montgomery, and one against the party of the second part for the negroes ; and whereas the unsettled condition of the affairs of the said estate is likely to result in tedious, protracted and unpleasant litigation ; and believing it to be the mutual interest of all concerned, the parties hereto (the party of the first part acting in his own right, and as guardian of his said children) have come mutually to the following compromise of all matters between them, appertaining to or growing out of the said estate, viz : the party of the first part, H. Terrill, for himself, his heirs and assigns, does hereby transfer, assign or release to the said Ann E. Montgomery, all rights, claims, dues, interests and demands which he has against the said estate, or against them for services, rendered in behalf of said estate, commissions or other compensation owing or coming to him from said estate, or said party of the second part, or for debts, dues and demands against said estate, satisfied, paid off or discharged by him, as executor or otherwise, or that may be duo or owing him from any cause, or in any manner connected with the said estate, all of which is hereby transferred to them, and forever released, and he hereafter holds no claim against the said estate, or said party of the second part; and, as guardian of his children, he does transfer and release all claims they, or either of them, have for the hire or services of said slaves and their increase, rent for use of the land aforesaid, or that may be coming to them, or either of them, from said estate or party of the second part, in any manner or from any cause whatever. And the said party of the first part guarantees the party of the second part, that his said children, or either of them, shall never set up any claim against said estate, or the second party, for any thing connected with the said estate, except what is here. inafter provided for. The said Terrill, party of the first part, at the next Term of the District Court is to dismiss the said suits at the costs of the plaintiff; and the party of the first part is to deliver to the party of the second part the negro woman named Martha, about sixteen years of age. In consideration of the above, the said John G. Montgomery and wife, Anne Elizabeth Montgomery, have deeded by quit claim deed to the party of the first part the land devised to them as aforesaid, and do deliver to them by their guardian, H. Terrill, the negroes willed to them, as aforesaid, and also their increase as follows: Eliza, aged about ten years, George, aged about twelve years, Henry, aged about five years, and Nancy, aged about one year; and they do release all charges for raising the said negro children, and also all hire for the negro Martha, to this time, and do further release the party of the first part from all responsibility to them on account of said estate, and bind and obligate themselves to hold the party of the first part harmless against the payment of or liability on account of any debt or claim for which the said estate of B. F. Stock, ton is now justly or legally bound, and also to hold harmless the said children of the party of the first part from said debts or claims to any person except the claims of the said Terrill and his said children ; but it is understood this guaranty does not deprive them of any defence there may be against such debts or claims. The claims and demands hereby transferred and released to the party of the second part are not to be enforced against said Terrill or his said children. Given under our hands and seals in duplicate this third December, 1853.</p> <p>(Signed, &c.)</p> <p>The said Anne and John G. Montgomery took possession of the Stockton estate, except the special bequests, in a wéek or ten days after the marriage, and continued to hold the property belonging to the same ever since. The plantation was worth $15,000 to $20,000 ; the negroes worth $10,000 ; other plantatation property in proportion; defendants raised several crops of considerable value. The unpaid debts were few and not of large amount, compared to the value of the property.</p> <p>This suit was commenced by John Culton, as assignee of R. H. Stockton, to recover from the said Anne and John G. Montgomery two claims in favor of said R. H. Stockton, against the estate,-which had been allowed by Terrell and approved by the Chief Justice. It did not appear when the suit was commenced, except that it was between the 9th of February and the Spring Term, 1856, of the District Court of Colorado county. One claim consisted of an item of $400 for overseeing the Stockton plantation for the year 1852; an item of $49 99 for overseeing a month and a half in 1853 ; cash paid blacksmith for plantation, $15 ; and building cistern $15. Credit, $3 90. This account was proved February 26, 1853 ; allowed by Terrill same day, and approved by the Chief Justice on the 28th. The other claim was for $400, said Stockton’s services as overseer for the year 1851, with a credit of proceeds of nine bales of cotton, to-wit: $368, as cash November 30, 1852, and $42 as cash, October 11, 1852 ; and allowed by Terrill May 31, 1852, and approved by the Chief Justice February 28, 1853. Both accounts assigned to plaintiff without recourse, February 9, 1856. The accounts, with the authentication, allowance, approval and assignment, were filed with the petition. The original petition sought to charge the defendants on the ground that the claims which were attached to the petition, were approved during the executorship of Terrill, and that at his removal the defendants, the said Anne being the sole heir, had taken exclusive control of all the property of the estate, and appropriated it to their own use, without taking out letters of administration, and that there was ample property to .pay all the debts, &e.</p> <p>The defendants pleaded in abatement the non-joinder of Edmund, Clarissa and Henry Terrill, the special legatees; demurred generally ; and for special cause assigned.</p> <p>1st. That the pretended claim, sued on, is but an account in favor of R. H. Stockton, and is not assignable, so as to enable the plaintiff to sue in his own name.</p> <p>2d. Petitioner shows that the pretended claim is barred by limitation.</p> <p>3d. The said petition does not show any contract or employment of the said R. H. Stockton, and shows no consideration for the pretended indebtedness.</p> <p>4th. Said petition seeks to charge the defendant Anne E. as heir at law of B. F. Stockton, when he left a will, without showing that any property was devised or bequeathed to her.</p> <p>If demurrer should be overruled defendants answered by general denial of all allegations not expressly admitted ; by plea that if any action ever accrued to said Stockton or said plaintiff, the same accrued more than two years before this suit was commenced; by further plea that said Stockton never was overseer of said plantation, and that after proceedings had been commenced by said defendants in the County Court for the removal of Terrill, as executor, said Stockton and Terrill had combined and colluded together to defraud said estate, and had trumped up said claims, and caused the same to be allowed and approved, without any foundation therefor, and in order to collect the same, pretended to transfer the same to plaintiff; by further plea as follows :</p> <p>And for further answer, these defendants say, that on the first day of January, 1853, these defendants removed and took possession of so much of the property of said estate, as had not been used, appropriated or wasted by the said Terrill; and have continued to hold the same ever since in proper and just right of the said Ann E. Montgomery, adversely to said plaintiff, the said Stockton and the said Terrill and all other persons whatever, with the full knowledge thereof on the part of said Stockton and of said plaintiff; wherefore these defendants say that if the said plaintiff or the said Stockton ever had any just cause of action against these defendants, the same accrued more than two years before the commencement of this suit, and is barred by limitation.</p> <p>Plaintiff filed an amended petition, in which he alleged all the facts of the case, making the agreement between Terrill and the defendants a part thereof.</p> <p>The Court instructed the jury, without request, as follows : That Terrill was the executor of Stockton until he was removed by the County Court, or resigned his trust as executor, and was competent to allow claims against the estate.</p> <p>A claim against the estate of a deceased person, allowed by the executor, and approved by the Court, becomes the judgment of the County Court on the claim, or has the same effect as the judgment of the Court upon the claim.</p> <p>If the claims sued on were allowed by Terrell, as executor, and approved by the Chief Justice of the County Court in February, 1853, or at any time since, they are not barred by limitation.</p> <p>If the defendants received the estate ofB. F. Stockton from the executor, and have since possessed and enjoyed it, they are liable for alllegal demands against it.</p> <p>The following instructions were asked by defendants, and refused:</p> <p>1st. That, if the jury believe from the evidence that in February, 1853, the defendants received from the executor and took into their possession the property as the property of the defendant Anne E., either in her own original right, or in her right as heir, legatee, or devisee of B. F. Stockton, her father ; and if they further believe that the defendants have ever since had and held said property and the possession thereof as the property of the said Anne E., and if more than two years elapsed after they so took possession of the property, before the commencement of this suit, then the claim of plaintiff, as against these defendants, is barred by limitation.</p> <p>2d. That if the jury believe from-the evidence, that the defendants received from the executor and took into their possession the property mentioned in the inventory of the estate of B. F. Stockton, as the property of the said defendant Anne, either in her own original right, or as heir, legatee or devisee of said B. F. Stockton, and have continued to hold the same ever since as the property of the said Ann E., and if they further believe that the administration of the estate was closed by order of the County Court, in August, 1853, and if more than two years elapsed after the defendants thus took possession, and after the order of the County Court closing the administration of said estate before the commencement of this suit, then the claim as against these defendants is barred by limitation.</p> <p>3d. That the claim sued on as against these defendants (if they ever were liable therefor) is but matter of account and will be barred by the Act of Limitations in two years after the cause of action accrued, and that this right of action accrued to the plaintiff whenever the administration was closed by order of the County Court, and the defendant received the estate from the executor.</p> <p>4th. That to enable the plaintiff to recover on this claim against these defendants, he must prove the correctness of the claim or that the services were rendered. ■</p> <p>5th. That an order of the County Court was not necessary to terminate the executorship of H. Terrill; that the executor-ship under the will of B. E. Stockton, deceased, could be terminated at the will of Anne E. Montgomery, after marriage, and that by an open control over the property of the estate in her own right, such as taking possession and use thereof in her own right would have that effect.</p> <p>Verdict and judgment for the plaintiff. Motion for new trial overruled, &c.</p> <p>There were bills of exception as follows :</p> <p>This case comes on for trial, and the Court overruled all the exceptions and demurrers of the defendants, and motion of defendants to make the other legatees parties defendants, to which ruling defendants except. The plaintiff offered to read to the jury the accounts made part of the petition sued on, marked -——— without proving the items of the account by any evidence, or proving the genuineness of the signatures of H. Terrill or Archibald McNeill, or that they filled the capacities they assumed at the date of the allowance and approval ; to reading which the defendants objected for the want of proof aforesaid, and also for the want of the seal of the County Court of Colorado county to the approval by McNeill; their objections were all overruled and the paper, with all the indorsements thereon, read to the jury to which defendants except.</p> <p>The plaintiff offered to read to the jury the written transfer of the account by Richard Stockton, without proving the genuineness of the transfer or sale of the claims by Stockton, or the genuineness of the signature of Stockton. The Court overruled the exceptions, and the said transfer, with signatures, was read to the jury, to which defendants except.</p> <p>After the plaintiff had closed his testimony, the defendants offered and proposed to prove by Janies S. Montgomery, a witness who had been sworn, and who was on the stand, that he, witness, was well acquainted with the property and plantation of B. F. Stockton, deceased ; that it adjoins his plantation ; that witness is the uncle of the defendant Anne E. by marriage ; that he had the principal management and superintendence of the slaves and plantation with the consent of Terrill, the executor, for several years, including years 1851 and 1852 ; that R. H. Stockton was the uncle of the said Anne E ; that he came to the plantation as a mere visitor, sometime before the 1st of January, 1851; that he was entirely destitute, and his habits were very dissipated ; that about the last of the year 1850, or the 1st of 1851, Terrill told witness that he would have to drive Stockton from the place ; witness remonstrated with Terrell, on account of Stockton being a relation of the defendant Anne E., and because he had no means of support and no where else to go, and, being unfit for any business, it would be difficult for him to get a support, with his habits ; that to this remonstrance Terrill replied that, if he suffered him to remain, he would spoil all the slaves. Witness then undertook and promised to prevent him from interfering with the slaves, and undertook to see to the slaves and plantation himself, as he had done some time before that. Witness did, with the consent of Terrill, take, have, and exercise control and management of the plantation and slaves, and continued to do so until they went into the possession of defendants, about February, 1853 ; that it was expressly understood and agreed between Terrill and witness, and between witness and Stockton, that he, Stockton, was not to interfere in any manner with either the plantation or slaves ; that said Stockton was there and suffered to remain upon mere charity, and that he never, acted, or pretended to act as overseer, and never attempted to exercise any control over, or management of the place; that said Stockton had not, and frequently admitted to witness that he had not, any knowledge of planting or farming, and had no capacity at all to manage slaves ; that witness was on the plantation every few days, and that, under his directions the negroes made the crops ; that it was expressly understood by Stockton and agreed to by him, that if he was permitted to remain on the place, it would be on condition that he would not in any manner attempt to interfere with or control the slaves or the plantation.</p> <p>Defendants further offered to prove by George W. Thatcher, that Terrill and Stockton both told witness, sometime in 1851, that Stockton was not the overseer on the plantation.</p> <p>To the introduction of which evidence the plaintiff objected and the Court sustained the objection, and refused to' permit the defendants to introduce said evidence, to which ruling of the Court defendants except, &c.</p>

Tried below before the Hon. James H. Bell. The pleadings in this case were similar to those in the case of same appellants against Calton, supra 736. The petition was filed March 18th, 1856.

Ti’ied below before the Hon. James H. Bell. Action of trespass to try title to a half league of land, by appellant against appellee, commenced May 20th, 1852, in Colorado county. The land in controversy was the upper half of a league which was granted to Samuel Kennelly, as a colonist of Stephen F. Austin’s colony, on the 28th day of April, 1831.

Error from Port Bend. Tried below before the Hon. H. H. Hunger.

Error from Matagorda. Tried below before the Hon. John. Hancock, Judge of the Second Judicial District. This suit commenced March 1st, 1851. Lann and the surviving trustee of Talbot, and the representatives of Mrs. Talbot, were joined as defendants. The petition sought to make the property a part of the trust fund, as well as to recover judgment for the debt. The facts are fully stated in the Opinion.

Error from Galveston. Tried below before the Hon. Constantine W. Buckley, Judge of the Seventh Judicial District. Suit by defendant in error against plaintiff in error, commenced February 25th, 1851, to enforce the specific performance of a contract to convey certain real estate. Jonas Butler and A. P. Thompson were joined as defendants. The contract sought to be enforced, was as follows : Galveston, December 27th, 1848. Messrs. Thompson & Drew, Gents.

Tried below before the Hon. James H. Bell. On the 18th day of August, 1842, John H. Bennett, of Galveston, executed a mortgage on lot number twelve in block numbered six hundred and eighty-one, and the improvements thereon, to secure the payment of his note to his brother Ezra B. Bennett of the city of Albany in the State of New York, for the sum of $1812 94, and interest thereon, on or before the first day of January next thereafter.

Tried below before the Hon. Edward J. Davis. Suit by Simon L. Jones and E. L. Ufford, late partners trading under the name and style of Jones & Ufford, against the Commercial and Agricultural Bank, Samuel M. Williams, James N. Reynolds and Theodore F. Brewer, commenced on the 24th of March, 1852, to recover the balance of a deposit to the credit of plaintiffs made in the Branch Bank at Brownsville on or about the 18th of May, 1850.

Tried below before the Hon. Peter W. Gray. Suit by appellee against appellant, commenced before a Justice of the Peace bn the-day of September, 1854, on & promissory note as follows : $100. Madison, Texas, May 25th, 1853. On the first day of January, 1854,1 piomise to pay to John T. Holt, or order, the sum of one hundred dollars, for value received. Signed by the defendant, and indorsed to the plaintiff, without date. Judgment for defendant.

Tried below before the Hon. Peter W, Gray. Ben Fort Smith died in July, 1841, leaving a will which was probated in Montgomery county, and in which, after many ■specific legacies, he bequeathed the residue to Ms nephew, the appellee, and his sister, Mrs. T. B. J. Hadley ; making the latter executrix of his will and testamentary guardian of her co-legatee, the appellee.

Tried below before the Hon. Peter W. Gray. The land in controversy was about two hundred acres, part of Faris’ headright. The bond from Hubert to Riley was not recorded. The facts are stated in the Opinion.»

Tried below before the Hon. James H. Bell. Suit by Felix W. Robertson against H. B. Hedgepeth, Jared E. Kirby and Joseph H. White, to’ recover damages, commenced March 2nd, 1853. Pleas of not guilty.

Tried below before the Hon. James Webb. Indictment of appellee, as overseer of a road, for failing to Peep the road in repair. Exception on the ground that the road was one of the streets of the town of Goliad, and was not under the jurisdiction of the County Court.

Error from Victoria. Tried below before the Hon. Field ing Jones. Suit commenced February 14th, 1856, by the defendant in error against the plaintiff in error, to recover one year’s interest due December 1st, 1855, on a promissory note, a copy of which is as follows : $13,370. Victoria, December 1st, 1853.

Tried below before the Hon. Nelson H. Hunger. Reports of this case, on two former appeals, will be found in 8 Tex. R. 36, and 13 Id. 497. The reader is referred to those reports, for the principal facts in the case. On the last trial, objection was taken to the execution, on the grotmd that it purported to have been issued on a judgment rendered on the 9th of September, 1843, whereas the judgment which had been introduced in evidence, was rendered on the 6th.