Volume 19 — Texas Reports

Tried below before the Hon. Thomas H. DuVal. Suit commenced July 25 th, 1854, by Thomas J. Haldeman, John R. Birch and his wife, Mary Rircli, formerly Mary Haldeman, of Cincinnati, Ohio, and John A. Haldeman, of Illinois, against Thomas J. Chambers, of Liberty county, and David Haldeman, of Bastrop.

Error from Red River. Suit by defendant in error against plaintiff in error on a promissory note. Citation returned as stated in the Opinion ; and judgment by default.

<p>Where there was a judgment by default, and the record did not show any service or waiver ofprocess, or appearance or answer by defendant, but the Clerk certified that at the time of the rendition of the judgment, there was an acknowledgment of service by defendant, which had since been lost or mislaid, the Court suggested that the defendant in error might take a certiorari for a more perfect record; and the defendant in error having failed to take a certiorari as suggested, the judgment was reversed.</p>

Error from Gass. Tried below before the Hon. William S. Todd.

Tried below before N. E. Sutton, Esq., appointed by the parties.

Tried below before the Hon. William S. Todd. Petition filed in the County Court on the 5th of December, 1855, by Richard Peters, in the matter of the estate of John C. Byers, deceased, for specific .performance of 11 a deed or “ bond in writing to convey to petitioner and John S. Peters, “ since deceased, twelve hundred and eighty acres of land out “ of said Byers’ headright. ’’The petition alleged that the consideration of the bond was two hundred dollars paid to said Byers…

Tried below before Hervey Dillahunty, Esq., appointed by the parties. This suit was commenced by the appellant. The charge of the Court was as follows : The first question for you to decide is, did the plaintiff fullfil his part of the contract, by selecting land on which to locate two-thirds of a league and labor, as he had stipulated to do ?

Error from Lamar. Tried below before the Hon. William. S. Todd. Execution in favor of defendants in error on judgments against Jesse Allen, issued January 7th, 1856 : reciting the judgment as recovered June 1st, 1855. Levied on certain negroes ; negroes claimed by Jesse Allen as agent of the heirs of Richard Crowder, deceased.

Error from Lamar. Tried below before the Hon. William S. Todd. Suit by Parr against Phillips in a Justice’s Court, for the value of six hogs, the property of Parr, which Phillips caused to be killed and appropriated to his own use. Judgment for plaintiff for §44. Certiorari by Phillips; afterwards dismissed on motion. The allegations of the petition are sufficiently stated in the Opinion.

Error from Lamar. Tried below before the Hon. William S. Todd.

Error from Titus. Tried below before the Hon. William S. Todd. Suit by defendant in error against plaintiff in error for breach of warranty of soundness of a horse sold to the former by the latter.

<p>Appeal from Wood. Tried below before the Hon. Charles A. Frazer.</p> <p>Indictment for gaming, quashed on motion of defendant. The averment of the indictment, in the particular objected to, is fully stated in the Opinion.</p>

Error from Panola. The entry of the order dissolving the injunction was as follows : The cause coming on to be heard on motion, it is ordered by the Court, that the injunction be dissolved, and that said Daniel H. Mallory have and recover of the said Jeremiah Albright and his sureties, John K. Williams and Stephen L. Davis, the sum of one hundred and fifteen dollars, together with a}l costs of suit in this behalf expended, for which let execution issue, on the said Daniel H.…

Error from Panola. Tried below before the Hon. William W. Morris. Suit by plaintiff in error on a claim against the estate of defendant’s intestate, the authentication of which was taken and certified in Louisiana by a Commissioner authorized by the Governor of this State to take' acknowledgment of deeds, &e. Demurrer on the ground that such Commissioner had no authority to take the authentication of the claim, sustained.

Tried below before the Hon. Charles A. Frazer. The statement of facts was as follows : Deed from Theodore J. Dorsett to defendant Bailey, for sixty-seven acres of land in Rusk county, dated March 29tli, 1853 ; consideration $106 50.

<p>Appeal from Titus. Tried below before the Hon. William S. Todd.</p> <p>The facts are stated in the Opinion.</p>

Error from Rusk. Tried below before the Hon. William W. Morris. Suit by appellee against Brown, Cornelius and Thompson. Three original citations were issued, each directing the Sheriff to summon Brown, Cornelius and Thompson ; but one endorsed “ original citation for Brown, issued Nov. 9th, 1854, John P. “Grigsby, 0. D. C,” and was returned served on Brown. Another was similarly endorsed for Cornelius, and was returned that Cornelius was not to be found.

Tried below before the Hon. William W. Morris. Suit by F. J. Tidwell, appellee, against Moses Boynton, John J. Boynton, John T. Bent and Elizabeth Boynton, for false imprisonment.

Tried below before the Hon. Charles A. Frazer. Indictment for murder ; conviction of manslaughter. Bill of exceptions as follows : The jurors summoned in this case being called, twenty-four of the same answered, appeared, were duly sworn, tried and qualified, and a portion of the same accepted as jurors by the State and prisoner, but not a full jury of twelve men selected from them.

Error from Upshur county. Tried below before the Hon. Charles A. Frazer. Suit by defendant in error against plaintiff in error, to recover for care and medical attendance provided by plaintiff for one James Hughes, an indigent transient person, who was brought to plaintiff’s residence in said county, with a broken leg. A demurrer to the petition was overruled, and plaintiff had verdict and judgment.

Tried below before the Hon. William W. Morris. Indictment of Darling Washington and William Phillips for an affray. The charging part of the indictment is stated in the synopsis of this report. The defendants excepted and moved to quash, on the ground that it was not alleged that any fighting took place.

<p>Appeal from Panola. Tried below before the Hon. William W. Morris.</p> <p>The facts are stated in the Opinion.</p>

Tried below before the Hon. William W. Morris. It appeared from the bill of exceptions, that the mark which defendant had recorded was the same as McCauIy’s ; but it was recorded May 1st, 1856, whereas the indictment was found at the Pall Term, 1855; the capias was executed May 2nd, 1856.

<p>Error from Rusk. Tried below before the Hon. William W. Morris.</p> <p>The facts are stated in the Opinion.</p>

Error from Rusk. Tried below Ipefore the Hon. William W. Morris. The defendant in error recovered judgment against Archibald Dixon before a Justice of the Peace for $30. Dixon obtained a certiorari, giving bond with the plaintiffs in error as his sureties in the sum of $100. In the District Court, the defendant in error obtained a verdict for $50, on which judgment was rendered against Dixon and his sureties for the $50 and the costs of the suit.

Error from Rusk. Tried below before the Hon. William W. Morris.

Error from Rusk. Tried below before the Hon. William W. Morris. The petition was filed Oct. 18th, 1854; amended petition filed Spring Term, 1856 ; and judgment at same Term. The amended petition was filed by the attorneys of the original plaintiff.

Tried below before the Hon. William W. Morris. Suit commenced February 1st, 1856, in a Justice’s Court, by C. W. Crawford against J. B. Crain and GL H. Ramey, on-a witness certificate in favor of T. R. Pitner, assigned to the plaintiff.

Tried below before the Hon. Charles A. Frazer. There was no statement of facts or bill of exceptions. The entries on the Justices Docket commenced, “ Action on account for,.......$80 50 Cr. by.......... 33 50 $47 22 The other facts are stated in the Opinion.

<p>Appeal from Wood. Tried below before the Hon. William W. Morris.</p> <p>The facts are stated in the Opinion.</p>

<p>Error from Ellis. Tried below before the Hon. John H. Reagan.</p> <p>Suit by plaintiff in error against defendant in error, on a note apparently barred by limitation ; the affidavit of authentication of the claim was made by Charles A. Warfield, who was not described as the agent of the holder, nor his means of information stated, nor did it appear that he had any connection with the matter. The claim was rejected by the administrator, on the ground that it was barred by limitation. There were allegations of facts to take the case out of the Statute. When the claim was offered in evidence, the defendant objected to its introduction “ as authenticated,” and the objection was sustained ; exception by plaintiff; judgment for defendant, &c.</p>

<p>Order of the County Court as follows: The State of Texas, County of Harrison, County Court, February Term, 1854. Marshall and Gilmer road ; class No. 1 ,• precinct No. 4; commencing at Gum Creek and ending at Mocasin Creek. Ordered by the Court that Henry Tincher be and he is hereby appointed overseer of said precinct of said road, for the ensuing year, and that he have the following hands. Held to be sufficient evidence that the said road was a public one, and belonged to the first class.</p>

<p>It is a rule of the Common Law, that where a Statute prohibits an act which was before lawful, and enforces the prohibition with a penalty; and a succeeding Statute, or thé same Statute in a subsequent, substantive clause, prescribes a mode of proceeding for the penalty, different from that by indictment, the prosecutor may, notwithstanding, proceed by indictment,upon the prohibitory clause, as for a misdemeanor.</p> <p>An indictment lay, under the Act of 1848, to prevent burning the woods and prairies. (Hart. Dig. Art. 490, et seq.)</p>

Error from Rusk. Tried below before the Hon. Charles A. Frazer. Judgment in favor of the defendants in error against the plaintiff in error, in a Justice’s Court, for $80 30. Gertioro/ri by plaintiff in error; verdict for defendants in error for same amount, increased by interest since accrued ; judgment for defendants in error for the amount of the verdict and for ten per cent, damages thereon.

Tried below before the Hon. Archibald W. 0. Hicks. Indictment charging that the defendant, on the fifteenth day of April, in the year of our Lord, one thousand eight hundred and fifty:five, in the county aforesaid, with force and arms, did maliciously disturb, by fighting, swearing in a loud voice, and challenging to fight with weapons or otherwise, a congregation of men and women, then and there assembled at a meetinghouse, situate in said county of Nacogdoches, known and…

Tried below before the Hon. Archibald W. 0. Hicks. Suit by appellee against appellants on two promissory notes, dated September 2nd, 1851, for $840 each.

<p>The mere failure of an administrator to return a sale within thirty days, the time prescribed by the Statute, unaccompanied by any circumstances showing that the delay had produced any injury or disadvantage to the estate or purchaser, is not a good ground for setting aside the sale.</p> <p>Though there are no regular and formal pleadings in the County Court, our Statutes evidently contemplate that any person wishing to contest any matter or proceeding before the Court, shall file his complaint or exception.</p> <p>Where objections were filed in the County Court, to the confirmation of an administrator’s sale, on the ground that the order of sale was invalid, and that the sale was not returned within thirty days, on appeal from the order of the County Court, which overruled the exceptions and confirmed the sale, the Court said the contestant might have amended in the District Court and set up other objections to the sale, but as he had not done so, he could not be permitted to prove that the sale was not fairly made.</p>

Tried below before the Hon. Charles A. Frazer. The defendant pleaded a general denial. The other facts are stated in the Opinion.

Tried below before the Hon. Charles A. Frazer. Indictment, one count for an attempt to steal a slave, another for an attempt to entice the slave away. The defendant was convicted, and the punishment assessed at three years confinement in the penitentiary. A motion for a new trial was overruled.

Tried below before the Hon. Archibald W. 0. Hicks. The notes were dated July 10th, 1854. They were described in the citation issued by the Justice, and in the docket entry of the Justice, as dated July 15th, 1854. In both, the amount of the notes, time to run, parties and rate of interest, which was twelve per cent., were correctly stated. The objection on the ground of variance, was first raised when the notes were offered in evidence, at the trial in the District Court.

Error from Rusk. Tried below before the Hon. William W. Morris.

Tried below before the Hon. Archibald W. 0. Hicks. Trespass to try title to two leagues of land, brought by Chas. Chevaillier against the appellee. Chevaillier having died, Haden H. Edwards, his administrator, became a party. The plaintiff claimed by conveyance from the heirs of Bernardo Dortolan, (D'Ortolan, de Hortolan, or Hortilano.) At the trial, the plaintiff offered in evidence a certified copy from the General Land Office, as follows: Mr. Lieutenant Governor.

<p>Error from Wood. Tried below before the Hon. William W. Morris.</p> <p>The facts are stated in the Opinion.</p>

<p>The statute of this State, which secures to possessors of real property, in good faith, reimbursement from the true owner, for permanent and valuable improvements made on the property by the former, shown to be consistent with equity, and the civil law, and not inconsistent with the constitution.</p>

<p>Error from Shelby. Tried below before the Hon. Archibald W. 0. Hicks.</p>

Error from Rusk. Tried below before the Hon. William W, Morris, Suit by plaintiff in error against defendant in error to recover the undivided interest of one of the defendants, James F. Lane, in certain slaves in possession of defendants. The plaintiff claimed by purchase at Sheriff’s sale, under an execution in favor of Andrew J. Wills against the said James F. Lane.

Tried below before the Hon. William S. Todd. Suit by appellee for mandamus to the District Surveyor, Mathew R. Parish, to receive and record the field notes of plaintiff’s pre-emption claim, or in the alternative, to survey said claim for plaintiff, upon his claim of pre-emption.

Error from Cherokee. Tried below before the Hon. John H.Reagan. There were two notes for $1500 each; the tract of land contained six hundred and forty acres. The case was decided on a demurrer to the pleadings, and the presumption from the pleadings was, that the notes were for all the purchase money.

Tried below before the Hon. John H. Reagan. Indictment for stealing twenty bushels of corn, of the value of twenty dollars, the property of J. A. Lawrence. Plea of not guilty. It was proved that defendant took a basket and several arms full of corn, from Lawrence’s crib, at different times, and went with it into a stable were defendant kept his horse. A witness proved that from the appearance of the crib, he estimated that at least twenty bushels were taken.

<p>Appeal from Nacogdoches. Tried below before the Hon. Archibald W. 0. Hicks.</p> <p>The facts arc stated in the Opinion.</p>

Tried below before Hon. John H. Reagan. The gin was delivered to Meriwether by Hall late in the Spring, and Meriwether notified Hall that it would not perform and that he would not keep it, in October thereafter. The other facts are stated in the Opinion.

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

Error from Shelby. Tried below before the Hon. Archibald W. 0. Hicks. Suit by defendant in error against plaintiff in error, service by publication, and judgment by default. The affidavit for publication of the citation, stated that the residence of the defendant was “ known to affiant, and that in consequence personal service can not be had on him.” There was no statement of facts, upon which the judgment w#as rendered.

Tried below before the Hon. John H. Reagan. Suit by appellee against appellant, in a Justice’s Court, for detaining a red steer, marked split in each ear, three years old, of the value of fifteen dollars. Judgment for defendant, July 5th, 1856, on the verdict of a jury. There had been two previous trials, in which the jury failed to agree. Certiorari by plaintiff.

Tried below before the Hon. -John H. Reagan. Suit by appellant against appellee in a Justice’s Court. Certiorari by appellant. The affidavit to the petition for certiorari was certified by the officer, but not subscribed by the affiant. Exceptions were filed to the petition on several grounds, one of which was that the affidavit was not subscribed by the affiant. The exceptions were sustained, and the petition dismissed.

Tried below before the Hon. Archibald W. 0. Hicks. Suit by Calloway Been, administrator of Sebastin Francois, commenced September 12th, 1855, to revive a judgment recovered by him on the 2nd day of May, 1850, against Almanzon Huston.

Tried below before the Hon. John H. Reagan. Suit by appellee against appellant on a promise in writing, as follows : $325 00. On or before the first day of July next, I promise to pay to the order of G. B. Hardwick, two hundred and twenty five dollars, for value received, which may be discharged in groceries, at Magnolia, at the cash selling prices, this March 28th, 1854. L. W. Dumas.

Tried below before the Hon. Nat. M. Burford. \ Petition by appellant, for certiorari to remove a judgment of a Justice’s Court to the District Court for revision. Order that the writ issue, upon petitioner’s giving bond, &c. It did not appear that bond had been given, or that the writ had been issued. At next Term a motion to dismiss, on the ground of failure to give the bond, was sustained.

Tried below before the Hon. John H. Reagan. Suit in a Justice’s Court, by appellee against appellants, for a yoke of oxen or their value. Trial by jury ; verdict and judgment for plaintiff. . Certiorari by defendants. Plaintiff claimed by purchase from Lavassa, January, 1854 ; and Lavassa claimed by purchase from Edward Peters in the summer or Fall of 1852. Defendants claimed by purchase from William Peters, the father of Edward Peters, in the Spring of 1852.

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

<p>Error from Anderson. Tried below before the Hon. John H. Reagan.</p> <p>The facts are stated in the Opinion.</p>

Error from Cherokee. Tried below before the Hon. John H. Reagan. Suit by defendant in error against plaintiffs in error, on two promissory notes, dated April 16th, 1853, payable to Joel J. Frost, and assigned to the plaintiff.

Tried below before the Hon. John H. Reagan. Execution from Galveston county on a judgment in favor of Robert Mills and John W. Joekusch against John P. Walton and George W. Tuggle, levied upon a storehouse and stock of goods, and the stock of goods claimed by the appellee as his property. The judgment was rendered on the 29th of December, 1854; the execution was levied May 2nd, 1855.

Tried below before the Hon. William W. Morris. The facts are stated in the Opinion. The defendant had taken leave to amend ; and had filed the amendment twenty-one days before the case was called for trial.

Error from Anderson. Tried below before the Hon. John H. Reagan. Suit by appellee against appellant, on a promissory note.

Tried below before the Hon. John H. Reagan. Execution on judgment in favor of Robert Mills and John W. Jockush, against John P. Walton, levied on forty-six head of horned cattle, twenty-one of which were claimed by the appellee, by purchase from the defendant in execution.

Tarrant. Tried below before the Hon. John H. Reagan. In 1850 J. J. Godman proved his claim to six hundred and forty acres of land, as the head of a family, before the Commissioner appointed under the Act of January 21,1850, to secure to all actual settlers within the limits of the colony granted to Peters and others, commonly known as Peters' colony, the land to which they are entitled as colonists. (Hart.

Trespass to try title by appellee, Nancy Bodine, against appellants, Alexander Horton, Martha R. Wood, William Harrell, Sen’r, and Richard 3EL Cartwright.

Tried below before the Hon. Archibald W. 0. Hicks. Suit by the appellant against the appellee for three hundred dollars, on a contract of hiring of the former by the latter, as overseer, for the year 1854.

Error from San Augustine. Tried below before the Hon. Archibald W. 0. Hicks. Suit by appellee against Samuel G. Jewett and Charlton Payne on their joint and¡several promissory note. Immediately after the petition in the transcript, followed an acknowledgment of service “ of the foregoing petition,” &c., by Payne, Jewett was served and and answered.

Error from Lamar. Tried below before the Hon. William S. Todd. • Suit by defendant in error against plaintiff in error and Jacob Long, on a promissory note for $495, payable to Long and by him indorsed to plaintiff. The note was dated January 17th, 1853, payable twelve months after date, with interest at ten per cent, per annum from maturity. Judgment by default, and amount assessed at $495 principal, and $90 75 interest.

Error from Panola. Tried below before the Hon. Charles A. Frazer. On the 14th of December, 1855, the plaintiff in error entered into recognizance in the District Court, conditioned that Benjamin McDonough should appear at the next Term, to answer to an indictment “ now pending in said Court, against him, for betting money upon a certain game with cards.” At the next Term, McDonough failing to appear, judgment nisi was entered on the recognizance, and scire facias issued.

Error from Henderson. Tried below before the Hon. John H. Reagan. Tandy Howeth, Sheriff, levied an execution in favor of Robert Mills and John W. Jockuseh against John P. Walton and another, on a lot of ground and storehouse, and stock of goods in the storehouse, in possession of Fletcher 0. Howeth. The property was pointed out by the attorney of the plaintiffs in execution.

<p>Where the ground for attachment is, that the defendant is about to remove out of the State, it is not necessary to add that the plaintiff will thereby probably lose his debt; such additional stalementis only necessary where the ground is, that the defendant is about to remove his property beyond the limits of the State.</p> <p>ÍTone but an intrinsic defect, or one which appears on the face of the bond, can. be reached by amotion to quash an attachment; objections to extrinsic defects, or objections which must be sustained or rebutted 'aliunde, must be taken by plea.</p> <p>It is not necessary in the present aspect of the case on hand to intimate whether in our opinion, this principle from the law of agency, as to the effect of subsequent ratification, will apply to bonds taken as preliminary to an attachment.</p> <p>Quere whether an agent or attorney cannot give bond, in his own name, with securities, in behalf of his principal, to obtain an attachment.</p> <p>On a motion to quash an attachment, on the ground of defect in the bond, everything that appears on the face of the bond is admitted to be true ; this includes an admission of the authority of the agent or attorney, where the bond purports to be executed by agent or attorney; and the agent or attorney will not be ruled, on motion, to produce his authority, which can only be questioned by plea.</p>

Tried below before the Hon. William S. Todd. . . , Petition filed September 21st, 1855, as follows : The petition of.

• Appeal from Rusk. Tried below before the Hon. William W. Morris. Suit by appellee, administrator of Robert Woocjall, against John Woodall, to recover a slave named Moses.

<p>Appeal from Houston. Tried below before the Hon. John H. Reagan.</p> <p>The facts are stated in the Opinion.</p>

Tried below before the Hon. John H. Reagan. At November Term, 1856, on petition of Charles L. Wall, the County Court granted him letters of administration on the estate of Margaret Clark, deceased. It did not appear when she died. At the same Term the administrator applied for an order to sell the perishable property belonging to said estate, describing it. In this petition the administrator said there were no children. The order was then granted.

Tried below before the Hon. Charles A. Frazer. Charging part of indictment as follows: That Albert Vick-ery, late of the said county of Wood, laborer, being a person of vicious and disorderly habits, and fraudulently intending to defraud and swindle the heirs of St. Clair Patton, deceased, who are to the grand jurors unknown, out of the property hereinafter mentioned, on the 16th day of June, in the year of our Lord .one thousand eight hundred and fifty-three, in the county…

Tried below before the Hon. John H. Reagan. Indictment charging that the defendant “ did then arid there sell spirituous liquors in quantities less than one quart, without having obtained a license therefor.” The statement of facts was as follows : The State proved by witness Bloomfield, that he, witness, frequently, between the first of April, 1856, and the finding”of the bill of indictment, in the county of Cherokee, in the town of Rusk, applied for and obtained spirituous…

Tried below before the Hon. William W. Morris. Suit by appellant against William D. Little, late a Justice of the Peace, and Lemuel Mullins, for trespass, &c. The facts were as follows: Mullins obtained from Little on the 10th of October, 1853, a distress warrant against Mabry, on a note signed by the latter, due October 1st, payable to Mullins, for $108, purporting to be for rent for the place on which Mabry then lived.

Tried below before the Hon. John H. Reagan. Indictment for wilfully and maliciously killing a bull, on the first day of August, 1856, the property of one Cicero Waits, of the value of twenty-five dollars.

Error from Smith. Tried below before the ¿on. John H. Reagan. The petition, after alleging the note to be for three hundred and fifty-six dollars, contained a further allegation that the note was in substance as follows, and then followed a copy of the note, with the figures $355, and the amount in words three hundred and fifty-six.

<p>Error from Rusk. Tried below before the Hon. William W. Morris.</p> <p>The facts are stated in the Opinion.</p>

Error from Cherokee. 'Tried below before the Hon. John H. Reagan. After judgment, plaintiff' filed a copy of the judgment in the suit of Truit and others against the defendants in error, from which it appeared that the land which the latter had sold to Taylor, the defendant in this suit, had been released from the incumbrance; and they prayed, in the event a transcript should be made up for the Supreme Court, that the said copy of decree be certified as a part of the record.

Tried below before the Hon. William S. Todd. Petition of the widow and heirs of Fleming George, some of whom were minors, filed March 16th, 1855, alleging as follows : That Fleming George who then resided in the county of Lamar and State of Texas, departed this life sometime in the year A. D.,-; that said Fleming was the husband of Almira George, one of petitioners, and the father of the said Eliza Wilson, William, James, Martha, Charles, and Robert George, who are all heirs…

Error from Kaufman. Tried below before the Hon. John H. Reagan. Removed by change of venue from Dallas. The cause was submitted to the Judge, without a jury. The only property sold, so far as it appeared, was the one lot on the public square. The facts are stated in the Opinion.

Error from Cherokee. Tried below before the Hon. John H. Reagan. Suit by defendants in error against plaintiffs in error, on a note signed by the defendants payable to Allen A. Cameron, or bearer, and assigned to plaintiffs.

Appeal.from Smith. Tried below before the Hon. John. H. Reagan. Suit commenced January 14th, 1856, by appellants against appellee, to recover two hundred and forty dollars for the use and occupation of sixty acres of improved land in the county of Smith, for the year 1855.

Tried below before the Hon. William S. Todd. Suit by Bonta against Wright for a cow and calf, commenced in a Justice’s Court, where Bonta had judgment, from whence the suit was removed by Wright to the District Court by certiorari.

Tried below before the Hon. John H. Reagan. Suit by appellees, Simon Mathews and his wife, Hannah Caroline Mathews, formerly Ellis, against the appellants, Hannah Ellis, the mother of said Hannah Caroline, and John J. Ellis, the brother of said Hannah Caroline, to recover a family of negroes, which they alleged the said defendants wrongfully detained.

Error from Cherokee. Tried below before the Hon. John H. Reagan. The plaintiff did not prove that he had the materials ready when he gave the notice. The facts are stated in the Opinion.

By mistake a wrong transcript was furnished to the reporters in this case; and we are unable, therefore, to give a statement of the case.

Tried below before the Hon. John H. Reagan. On the 7th of October, 1850, Allen & Dexter recovered a judgment against Benjamin W. Wright, in the District Court of Houston County, for the sum of $602 and costs, on a note secured by mortgage on 4285 acres of land in said county, which was ordered to be sold to pay the judgment. The same mortgage secured a similar amount not yet due.

Tried below before the Hon. Archibald W. 0. Hicks. The defendant proved payment of the $40. Defendant pleaded that the horse, for the value of which the plaintiff sued, was seized by writ of attachment at the suit of this defendant in the Parish of Calcassieu, in Louisiana, and that the title to said horse was then in controversy between plaintiff and defendant in the Court of that Parish, from which said attachment issued.

<p>Appeal from Cherokee. Tried below before the Hon. William ,W Morris.</p> <p>The facts are stated in the Opinion.</p>

Tried below before the Hon. Archibald W. 0. Hicks. Petition filed on the 2nd of September, 1844, as follows :— The petition of Thomas F. McKinney and Samuel M. Williams, formerly partners, trading under the name and style of McKinney & Williams, against Philip A. Sublett, respectfully represents that the said defendant, heretofore, to-wit: on the nineteenth day of April, in the year of our Lord one thousand eight hundred and forty-one, at San Augustine, made his certain…

Error from Cherokee. Tried below before the Hon. William W. Morris. Suit by defendants in error against plaintiff in error, for account of partnership transactions. November 10th,- 1854, two auditors were appointed by the Court, to examine'the papers and hear testimony, and state the accounts between the parties.

Tried below before the Hon. Henry J. Jewett. Indictment for murder of Benjamin J. Fortson. On the night of the 17th of September, 1855, the prisoner and the de-ceased went fire-hunting from the premises of the deceased, and in the night the prisoner returned and reported that the deceased had been shot by some person unknown.

Tried below before the Hon. Charles A. Erazer. Suit by appellant against appellee on a promissory note.

Error from Anderson. Tried below before the Hon. John H. Eeagan. Suit by appellee’s intestate against appellant, on account of partnership transactions from December 1st, 1853, to December 1st, 1854, in a saw and grist mill and a ferry and farm in connection therewith. The parties were joint owners of the property; the plaintiff furnished three hands and the defendant two.

Tried below before the Hon. John H. Reagan. Suit by appellee against appellant to enjoin a sale of six bales of hides, taken in execution at suit of defendant against Larkins Robinson, and claimed by plaintiff under a contract with Robinson, whereby, as plaintiff alleged in his petition, plaintiff had advanced $130 41 to said Robinson, upon said hides, which had been delivered to plaintiff by Robinson, to be shipped to Galveston for sale, the proceeds, after paying all…

<p>Where the defendant pleaded two years adverse possession of the slaves sued for, he sustained his defence by proving that he possessed the slaves for the period alleged, claiming them as the property of his son, who was a minor, adversely to the plaintiff.</p>

Tried below before the Hon. John H. Reagan. Indictment found November 1st, 18.54, charging that the defendant, on &c., at &c.,did then and there keep a storehouse for the sale of spirituous liquors by retail, and did then and there deliver whisky to Levi Franklin in smaller quantities than one quart, without having first obtained license therefor, a majority of the qualified electors of said Tarrant county not having, at an election held for that purpose on the seventh day…

Error from Cass. Tried below before the Hon. William W. Morris. Suit by Hugh Allen and Caroline M. Allen, his wife, against Allen Urquhart, to recover three women slaves and their increase, or the survivors of them; sequestration, &c. The women were from twenty to twenty-three years of age in January, 1838, when Mrs. Allen received them by inheritance from her father.

Error from Lamar. Tried below before the Hon. William S. Todd. Suit by plaintiff in error against defendants in error, commenced March 14th, 1855.

' Tried below before the Hon. Charles A. Frazer. Suit by Robert M. McAlpin and others against William H. Burnett, John E. Hamlett and Solomon R. Perry, commenced August 8th, 1856.

<p>In a suit by the husband and wife to compel the District Surveyor to record the survey of a pre-emption claim in the name of the wife, the defendant answered that the claim conflicted with another survey, but on the trial when plaintiffs offered the evidence rof the wife’s pre-emption claim, defendant objected that a pre-emption claim could not be sworn out by a married woman, and the objection being sustained, defendant had judgment ; on appeal, the Oourt said the mode of proceeding was calculated to take plaintiffs by surprise ; that under special circumstances, the wife certainly could assert a pre-emption claim, which would be community property : but that it would be inconvenient in practice, and productive of confusion to allow it as a general rule; and the Oourt reversed the judgment and remanded the case, with orders to allow the plaintiffs to amend their claim by substituting the name of the husband for that of the wife, wherever it occurred, with the same effect as if the claim and survey had been made by the husband in his own name. There was an opposing claimant, who was also a defendant.</p>

itus. Tried below before the Hon. William S. Todd. Suit by appellee against appellant, alleging that plaintiff and defendant, being the joint owners of two tracts of land, one for 320 acres and the other for 160 acres, agreed to divide the same, by defendant taking the 320 acre tract, and defendant the 160 acre tract, with the further stipulation that defendant should pay plaintiff $160 in cash, and assist plaintiff to make certain improvements on a tract of plaintiff near…

<p>Error from Cass. Tried below before the Hon. William W. Morris.</p> <p>The facts are stated in the Opinion.</p>

Error from Red River. Tried below before the Hon. William S. Todd. This suit was commenced May 12th, 1855. Notice of the application for partition by Young and wife, in 1841, was served on Elizabeth Fishback, one of the plaintiffs, on Philip Cornelius, another of the heirs, and on a guardian ad litem who had been appointed by the Court for the other heir, who was a minor.

Tried below before the Hon. William W. Morris. Charles Hamilton and Mary Jane, his wife, residing in Mississippi, the former died before the year 1830, and the latter gave birth soon afterwards to a daughter who was called Elizabeth. Elizabeth was the owner of slaves in right of her father. Afterwards Mary Jane, the mother, married Harrison E. Watson.

Appea.1 front Lamar. Tried below before the Hon. William S. Todd. Action of trespass to try title by appellant against appellee, commenced August 30th, 1845.

<p>In this case the defendant had contracted in writing, to deliver to the plaintiff at the warehouse of another, in the town of Shreveport, on a certain day, ten thousand pounds of merchantable lint cotton ; say one-half of the cotton was hauled by the defendant to the warehouse, and there deposited by the defendant, before the day of performance, and the other half three days after the day, the defendant taking the warehouse receipts in the name of the plaintiff; the warehouse and first half of the cotton were consumed by fire before the day of performance. Held that the evidence disclosed no circumstances which would vary the ordinary import of the contract, which was, that the cotton should all be delivered to the plaintiff at a certain place on a certain day, and could not he delivered without the consent of the plaintiff, before the time nor in parcels ; and held further, that the evidence did not show consent of the plaintiff to receive the cotton before the time, nor in parcels; and the jury-having found against the plaintiff as to the one-half deposited before the day, the judgment was reversed on the ground that th& verdict was contrary to the evidence.</p>

<p>I give and devise to my beloved wife, Sarah Howze, the settlement .of land on which I live in Rusk county, Texas, containing about three hundred and sixty-nine acres for a home during her lifetime. I also give and devise to her as long as she lives, the following negroes, to-wit: Primera and Hannah and her children; also all of my household and kitchen furniture, and all of my stock of different kinds,together with ample provisions for one year: Held, taken in connection with'other parts of the will, not to include the farming utensls, as a wagon.</p>

Tried below before the Hon. John H. Reagan. Suit by appellant against appellee to recover a tract of land, part of William Luce’s headright.

Tried below before the Hon. John H. Reagan. Suit in the District Court for partition of a league of land. The facts are stated in the Opinion.