Volume 2 — Texas Reports

Sterling C. Eobertson, claiming to be tbe empresario of the colony known as the Nashville or Eobertson’s colony, filed his petition in the district court in November, 1837, praying that his claims and rights as such empresario might be settled and •confirmed, etc. At the spring term, 1841, there was a verdict and judgment rendered, confirming the right of the petitioner, •or empresario aforesaid, to thirty leagues and thirty labors of land.

<p>The facts of this case are substantially stated in the opinion of the court.</p> <p>No counsel appeared for tbe appellant, the attorney general having informed the court that he had an interest in the cause and therefore could not appear.</p>

The plaintiff in error, Joseph F. Smith, for himself, and as agent for others, instituted suits in the district court of Travis county, praying for a peremptory mandamus against the commissioner of the general land office, to compel him to issue patents for certain lands which had previously been located and surveyed in the county of Befugio for him, Smith, and for those whom he represented.

<p>In the year 1839, the appellant commenced a suit in the district court of Bastrop county against the appellee and the commissioner of the general land office by filing a petition, the substantial allegations of which are in the following wordsr</p> <p>“ In the month of April, 1835, your petitioner arrived in-Texas and became a colonist and a married man, entitled to one league and labor of land as his headright, and on the 18th day of January, 1838, your petitioner applied for and; received from the board of land commissioners of Matagorda county, in said republic, his certificate for said league and-labor, in conformity with law, etc. That afterwards, to wit, in February, 1838, your petitioner located a part of his head-right secured by said certificate, to wit, one league thereof, on-a certain tract or parcel of land, situated and being in said county of Bastrop, and known and distinguished on the map of said county as league number one (1), fronting on the San Antonio road, 5,000 varas, and on the east margin of the Bio G-uadaloupe; that said location was duly entered in the office of the county surveyor of said county of Bastrop, in the name of your petitioner, and the field notes thereof recorded in his books; that your petitioner paid all government dues on said land, and caused the receipt of said payment to be forwarded, with the field notes of the survey of said league, to the commissioner of the general land office, by said surveyor. Your petitioner would further represent that the commissioner of the general land office returned said field notes to said county surveyor, and refused to issue a patent to your petitioner, because it appears that a deed of the following description, to wit, a, deed executed by Talbot Chambers, as commissioner of Mi-lam’s colony, in the spring of the year 1835, to one Henry Brown for league number (1) one, fronting on the San Antonio road and Bio Guadaloupe (being the same league located by your petitioner as aforesaid), is on file in the general land office, and that no judicial decision by a court of competent jurisdiction had declared said deed void and null. Your petitioner further showeth that the said deed ought not and does not, in law and equity, bar your petitioner’s just claim to said league, and that the said Brown ought not to hold said land by virtue of said deed thereof, in preference to your petitioner’s best right: Bor, that the said Henry Brown, the grantee of said land, was not at the time of the execution of said deed, or at any time previous or subsequent thereto, a colonist or a citizen of the state of Coahuila and Texas; that the said Brown did not then, or at any other time, nor never has resided in Texas; but your petitioner avers that the said Brown came into Texas at the time aforesaid, to wit, the spring of the year 1835, and departed therefrom in a few days, to wit, fifteen days from the time of his said coming, with the intention of not returning, and that in fact your petitioner says the said Brown never has returned, but is now a citizen of theHnited States of Horth America, and owes and pays allegiance to the government thereof, and is and always has been, in fact, in reference to the government of Mexico, the state of Coahuila and Texas and the republic of Texas, an alien. And your petitioner by leave of the court first had and obtained, and by way of amendment alleges that the said Henry Brown, at the time the aforesaid deed or grant was made to him by Talbot Chambers, commissioner as aforesaid, falsely and fraudulently represented, and caused himself to be falsely and fraudulently represented to said commissioner as possessing the necessary qualifications and requisites to be admitted as a colonist, and to be entitled as a colonist and head of a family to a league of land. 'Whereas, your petitioner alleges that the said representations were wholly untrue and fraudulent, and that the said ITenry Brown had neither wife, child, servant or any other person under his charge to constitute a family at the time of the aforesaid grant in the spring of 1835, nor at any time from the date of said grant to this present time. “ Wherefore ” (after a prayer for proper steps to bring the commissioner and Brown into court to answer, etc., the, petitioner proceeds) “your petitioner further prays that your honor will grant the writ of mandamus directed to the commissioner of the general land office, requiring'and commanding him to make out and issue to your petitioner a patent to said league of land, and for general relief,” etc.</p> <p>The record then recites a written acknowledgment of the service of “the petition and writ in this case,” signed by John P. Borden, commissioner of the general land office, but contains no answer on his part. At the spring term, 1840, an answer was filed on the part of the defendant, Brown, in these words:</p> <p>“ The defendant, by his curator, says that the facts set forth in the plaintiff’s petition are not sufficient in law to have and maintain his aforesaid suit. And this he is ready to verify. Wherefore he prays judgment, etc.</p> <p>(Signed) “ J. W. Bustos,</p> <p>“ Curator pro Def’t.”</p> <p>The action and judgment of the district court are exhibited by the record, in the following entry:</p> <p>“ This day came the plaintiff, A. C. Horton, by his attorney, and the defendant by his curator, Bunton, and said curator admits the facts alleged in the said plaintiff’s petition, but demurs to the same as insufficient in law; whereupon it was considered by the court that the demurrer be sustained, and judgment be entered for the defendant. But the court considering the points raised in the case as novel and difficult, it was ordered that they be reserved for the decision of the supreme court. Whereupon it is considered by the court that judgment be rendered in favor of defendant, and the proceedings had in this case be certified to the supreme court as presenting questions of novelty and doubt.”</p> <p>The matters presented by the record in this case are few.</p> <p>It shows that in the year 1835, Brown procured a deed to a league of land, the now subject of controversy, from the commissioner of Milam’s colony.</p> <p>In the year 183S, Horton entered his headright certificate on the same land, took all the preliminary steps to obtaining a patent, and had the field notes returned to the general land office for that purpose. The commissioner returned them to the surveyor’s office, with the reason for his refusing a patent to Horton for the land described by them, “ that it was upon and included the land claimed by said Brown in Milam’s colony.”</p> <p>Horton then filed his petition or bill in the district court where the lands lay, alleging that the deed to Brown was procured by false and fraudulent representations; that in truth and in fact he, said Brown, was never entitled to land as a colonist; that he was merely a visitor to the country and left and abandoned the same a few days after he procured the deed to the land. Horton insists in his said bill that the deed to Brown was and is a nullity; that nothing passed to him by said deed, and consequently the land claimed by it remained vacant and was then liable to his location.</p> <p>The commissioner general is made a party and the prayer is, that the title of Brown be set aside and a patent issued to him, Horton.</p> <p>Brown appeared by his counsel, and filed a general demurrer, intending thereby to admit all the facts alleged by Horton as true, which was so considered by the court, as appears by the record.</p> <p>The demurrer was sustained, from which Horton appealed.</p> <p>The appellant insists that the court erred in sustaining the demurrer.</p> <p>That the title set up by Brown, having been obtained by fraud, was void and null; that he took nothing under a deed procured by his own fraudulent devices, and consequently the appellant, who had a claim upon the government, had, a right to locate any lands that had not been otherwise lawfully appropriated. It is the policy of the law to make it the interest of all persons to investigate and suppress frauds. It is their interest to take care of the public good.</p> <p>By all law writers, fraud has ever been held so odious as to vitiate and nullify everything that it touches or comes in contact with. It will vitiate and destroy the most solemn proceedings of courts of record. 2 Stark. Ev. 339-40; 2 Coke, p. 80, note 3; 2 Bl. Com. 286-7; 3 Cruise D. 47; Story’s Conf. 499 and note; 1 Johns. Oh. 405; 1 Yesey, 120, 284-9; Barwick’s case, 3 Coke, 94. A patent obtained by fraud is utterly void. _2 How. (H. S.) 581; 3’Ala. 47-9.</p> <p>I would particularly press on the consideration of the court, the reasoning of the great Coke in the case referred to. Human nature has not changed since his day.</p> <p>The officer of the government for the distribution of public lands was intrusted with particular and special duties. If he was imposed on or deceived in the issuing of a title, in fraud of the law, it would be contrary to law, and of course null and void, as much as if a forged deed was attempted to be forced on the country; for whatever is done in fraud of the law is done in violation thereof. 2 Bet. Dig. 356; 4 U. S. Con. 71.</p> <p>There is no difference as to the effect on the public; there is none as to the morality of the act. And if we apply to the principle settled by the supreme court of the United States, no right through Brown’s own fraud could vest in him, “ those who came in under a void grant can acquire nothing.” 7 Pet. 231. Same doctrine in Legate’s case, 5 Coke, 110; 2 Bl. Com. 394; Bac. Abr. tit. Yoid and Voidable, 337; Cowp. 434; 3 J. O. R. 481; 3 "Wend. 411; 1 Fonb. Eq. 122, section 8 and notes; Stoddard v. Chambers, 2 How. U. S. 318. Same doctrine held in Louisiana reports, that fraudulent contracts are void ah in-itio. 3 Louisiana Cond. 477; id. Benj. and Slidell’s Dig. 274. This principle seems to be universal.</p> <p>In the New Pandect of Roman Civil Law, page 526, this principle is laid down: “ That if a contract is procured and made by fraudulent devices, it is absolutely null and void. And particularly when the contract is with the prince.” See also Puffendorf, 281 and notes.</p> <p>Story says fraud is more odious than force. Story Eq-sec. 186. According to this Brown stood in no better attitude before the court than a robber.</p> <p>In 2 Vesey, Jr., this principle is laid down: “ That a void deed having passed nothing, a reconveyance is unnecessary, page 294; ” id. 2 Johns. Ch. 512; 4 Johns. 597; 8 Yes., Jr., 233; 4 Phil. 88; Rob. 525.</p> <p>When public-utility is concerned, fraud vitiates any transaction which in its effect would tend to public mischief. Public Utility, Rob. 538; Hovenden, 13.</p> <p>In 1 White, 304-6, it is stated that a sentence against law and justice is absolutely null and void, and there is no necessity of any other proceeding to set it aside. Id. 244, Fraud on Governments.</p> <p>It was the policy and object of the Mexican government at the time of the pretended emanation of Brown’s title, to settle the country with actual cultivators of the soil; as is most conclusive from a mere glance over the numerous ordinances, decrees, etc., passed by her legislature on the subject of settling her wilderness territory.</p> <p>Such has been the constant object of the Spanish colonial governments since the establishment of the laws of the Indies. See White’s Recop. 48-54. A like system with the same object in view to that adopted by Mexico, and subsequently by the states of Coahuila and Texas, was long in force in the now states of Louisiana and Florida. And as many cases arising therefrom have subsequently been adjudicated in the state and United States courts, we may well look to their determination of like questions for some light on this subject.</p> <p>As to the mode in Louisiana, see White v. Wells, 5 Martin, 662; Fletas v. The Mayor of New Orleans, 1 N. S. 438; 2 White, 229-30, 280-5.</p> <p>The law expressly stipulates the terms and conditions upon which the colonists can acquire a legal title. ' They must conform to the law; the terms and conditions are precedent and must be complied with. Kinglev’s case and the Heirs of Mills, 12 Pet. 215, 477, 485; White, 49, 52,132, 284, 88, 258, 296; 1 La. Oond. 128; 4 id. 431; 3 id. 446; 2 Lou. 507; 6 Pet. 747.</p> <p>The mass of Florida cases can be ranged under three classes.</p> <p>Absolute grants in consideration of services already performed or passed, as in Perchman’s case, 7 Pet. 51; 2 White, 280; 2 Pet. Dig. 311-17.</p> <p>Next, grants for important services and considerations already passed with future stipulations and promises by the grantee, as in the Arredondo case, 6 Pet. 710; 10 id. 306-8.</p> <p>Lastly, the great mass were, like those in Coahuila and Texas, concessions or incipient grants permitting a present possession, and securing a future absolute or fee simple right, on certain conditions prefixed to the grant, always having in view the settlement and improvement of the country; which considerations were as essential to be performed as the payment of money to the country. 12 Pet. 477-85; 14 id. 340; 15 id.-224 and 76; 10 id. 313; 9 id. 168; 2 White, 2S9-90, 3S6.</p> <p>Although in Seton’s case, 10 Pet. 309, and in Sybold’s case, their claims were judged valid on the doctrine of cy pres compliance; they having proved they made repeated efforts to comply and were prevented. The same principle contained in Huidekoper’s Lessee v. Douglass, 1 U. S. Oond. 446.</p> <p>Such, also, was the law in the Indies, and if not complied with they were taken back and given to another. 2 White, 62, 64, 71, 300, 301; Strother v. Lucas, 12 Pet. 441, etc.</p> <p>By compliance, they received an absolute grant or royal title. 2 White, 283.</p> <p>Brown, having received the deed with the conditions thereunto annexed, during the existence of the civil law, it may be well to see what was its import. 1 Part. 465. It is laid down as the nature of a condition, that if accomplished, it confirms the contract; if not; the contract is invalid. The common law definition, as found in 4th Bac. Abr. 165-6, would not be much more favorable. We look on the matter in this way: Brown’s title is the evidence of the contract between him and the government. The circumstance of his having a deed cannot place him in any better situation than an emigrant who has arrived in the colony with his family, with all the qualifications requisite by law, received and admitted by the empresario and commissioner; his quota of land surveyed for him, and he put in actual possession. Could the party last designated claim the absolute title or foe without showing a compliance on his part? Then can Brown? His title is only ¶rima fcoeie evidence of the existence of the facts which entitle him to the land. This presumption is destroyed by the facts admitted.</p> <p>The officers of the government, who made out the title for Brown, were the attorneys in fact, with the law for their guide. Whatever the law has given passed, and no more; beyond the law,, no public officer could extend its operation.</p> <p>If the law impose a condition precedent to obtaining a right, without the performance of that condition, no right could ever vest. The documents that were given him, to serve as a title, would be as blank paper, and it would be idle to speak of a forfeiture or anything else, to divest what had never vested.</p> <p>At the common law, future conditions in a grant must be performed, and must be so found. 8 Term, 56; 2 Bl. Com. 154, 107, 86; 5 Coke; 94, Barwick’s case, 6 id. 56; 2 Cruise’s Dig. 3, 32.</p> <p>When an act of forfeiture takes place by a man’s own act, any person, even a stranger, may enter. Pennant’s case, 3 Coke, 65; Wilson v. Mason, 1 U. S. Cond. 251; 5 Hay. 263; 2 Term, 749.</p> <p>Having, then, established that the deed of Brown is, and was from tbe beginning, null and void, I maintain t-bat tbe plaintiff bad tbe right so to consider it; and that he has pursued the proper course to establish his own claim. He has shown that he held a good and valid certificate for lands, which the government promised to satisfy out of her public domain. This gave to the appellant the right to look into the state and character of the funds to which he had to look for payment. The claim of Brown can certainly stand in no better situation against the government of Texas than it did against that of Coahuila and Texas.</p> <p>If it was void as to them, it surely will be as to the republic of Texas.</p> <p>If, then, the pretended claim set up by Brown was void as against the republic of Texas, the means by which it was obtained from that government may be inquired into by any person having a just claim against the common fund, thus fraudulently appropriated to his prejudice. In the case of Polk’s Lessee v. Hill, Wendell et al., 3 H. S. Cond., 291, on this subject, the supreme court of the United States say, that it would be extremely unreasonable to avoid a grant for irregularities of the officers of government, whose duty it is to supervise all the proceedings from the commencement to the consummation. But that there are some things so essential to tbe validity of such a contract that the great principles of justice and of law would be violated, did there not exist some tribunal to which an injured party might apply, in which the means by which an elder title was required might be examined into. Id. 5 Coke, Legate’s case, 111, 115.</p> <p>Wbat other means pointed and allowed by our laws could the appellant have pursued? None other. By the common law, the party who conceived himself aggrieved could avail himself of the invalidity of the same in any shape or form of action in which it might be presented. In ejectment most certainly. In the courts of the United States some contrariety of opinion prevails, but that he could do so in equity, all agree. 3 U. S. Cond. 291; Term, 214, etc.</p> <p>Our proceeding is in the nature of a bill in equity. We set out our claim; we show the interference or prevention of its satisfaction; we ask that the intervening claim be annulled, and that the officers of government be compelled to allow and consummate ours,— all the qualities of a bill in chancery.</p> <p>But we further insist that should the court not be inclined to treat the claim of appellee as a nullity absolute, that the record in this case shows that the appellee has no right or claim to -the land in dispute. It shows that he was a colonist and received his title papers, now insisted on as such. It is important to understand the character of the claim he held.</p> <p>It was under the law and must conform to it. Was it an absolute conveyance by the government of the lands? A title to the property in fee? or was it an agreement for such, under conditions and limitations, both in the law and in the deed? That it was the latter is most manifest, wdien we consider the object of the donation and policy of the government. Mexico was endeavoring to settle a wilderness. The most practicable plan she could adopt was the empresario system. She gave large boons to empresarios and held out great inducements to the actual settlers. She said in emphatic language to the em-presario, if you fail in your contract, if you introduce ninety, nine settlers and not the hundred, the whole contract shall be absolutely null. Col. Law, 1825, sec. 8.</p> <p>It cannot be supposed that she would be more favorably inclined to the colonists than to the empresarios themselves. If the colonists fail on their part, the objects of the government are subverted.</p> <p>But they did not receive a fee simple title; they only received' a conditional one, that was to serve them as a title. Instructions, 1827, secs. 7 and 8.</p> <p>These could only be considered as merely conditional-fees. No entry or other proceeding was necessary to divest the im-pei'fect estate out of the colonist who failed to comply with conditions expressed in the grant, or the law under which he held. Noncompliance, ipso facto, revested the estate in the original grantor, the government.</p> <p>As the case put in the first instance, of Coke, 218, where land was granted to a man, that if in five years he pay forty marks he should have a fee,'but if not, his estate to continue five years; on failure no entry is necessary, the estate is. gone. Id. 2 Cruise, 38-41, note.</p> <p>The act of law, without office found, would cast the estate on the grantor. 3 Bl. Com. 256-7; 4 Bacon, 416, 165-6.</p> <p>Wherever the law declares a forfeiture, or that a deed or grant obtained under particular circumstances void, there is no necessity of any direct judgment or decree to render it a nullity. 2 Term, 568, 515; 1 Stuart, 18; 4 Porter, 141; 5 id. 182; 8 id. 325; 7 Mart. 341; 5 id. 54.</p> <p>And any circumstances of invalidity may be shown, in any possible action, before the repeal of a conditional grant. 1 Coke, 52; 2 id. 17, 33, 54; 5 id. 94; 6 id. 56; 10 id. 67, 109.</p> <p>Webb, for the appellee, presented the following propositions, as being sustained by the record and the law:</p> <p>1st. The land in controversy was granted to Brown, by an. officer of the government having full power and authority to make the grant. The authority of Commissioner Talbot. Chambers is not denied. Arredondo’s case, 6 Pet. 727-8-730.</p> <p>2d. The terms used to characterize the grant import that “ the right, title, legal estate, property and ownership ” of the land had passed from the grantor to the grantee. The grant must be taken as an absolute and unconditional one, unless the contrary be shown. Id. 6 Pet. 744.</p> <p>3d. “ Grant ” is a generic term. It may be applied in its lowest sense to a bare permission to do a thing, as in the case of Kingsley, 12 Pet. 476. But when applied to the eorweyance-of land as a technical term, it is then one of the strongest words in the English language to show that the conveyance was an absolute and unconditional one.</p> <p>4th. The court will never infer or imply that there are conditions to a grant which do not appear on the face, unless the law under which the grant is made imposes them. 10 Pet. 306.</p> <p>5th. The court will never presume fraud in a transaction which can be ascribed to an honest motive. No number of' frauds which a man may have perpetrated through the course of his life will vitiate or affect a transaction not directly connected or tainted with them. Fraud, to aifect an act, must-attach directly to the act. 6 Pet. 716; 1 Domat, 257; Potbier on Obi. 24, Nos. 31, 32.</p> <p>6th. If there be a law, under which the grant could have been made, without its being affected with the fraud alleged in the petition, the court will suppose that law to have been the one under which it was made, until the contrary is shown. 6 Pet. 716.</p> <p>7th. If Brown were a purchaser under the law of 1834, p. 247, no allegation of fraud contained in Horton’s petition could be made to apply to his grant.</p> <p>8th. The fact that the title to Brown was made by Talbot Chambers, the “ commissioner of Milam’s colony, ” does not repeal the presumption that the land was purchased by Brown under the law of 1834, because there is nothing to show that he was not either a “ general ” or “ subordinate ” commissioner, which that law authorized. He may have been a commissioner of Milam’s colony, and also a commissioner of Texas, to convey lands sold under this law; there is nothing incompatible in the two appointments. If he were a subordinate commissioner, his duties may have been confined to “ Milam’s colony, ” as by the law, the district in which he exercised his functions was to be limited.</p> <p>9th. If an officer of the government, acknowledged to be so, do an act virtute officii, the act will be considered as within the scope and power of his authority, until the contrary be shown. The omts probandi lies on the party denying the validity of the act. 6 Pet. 729.</p> <p>10th. If an act be done by an officer whose duty it is to judge of the performance and rectitude of the steps which are to precede it, the doing of the act is a determination and judgment that the precedent steps have been performed, and were performed in good faith. The act is res adjudícala of the preliminary and precedent steps. 2 H. S. Cond. 291.</p> <p>11th. If this were an absolute and unconditional grant of the land to Brown (and the terms employed to characterize the grant import it to have been such), the fee to the land was vested in the grantee immediately upon the execution of the grant, and the grant was indefeasible.</p> <p>• 12th. If Brown acquired tbis land by purchase under the law of 1834:, the only condition which could have attached to the grant was the one of settling in the state within twelve mouths. This was a condition in law and subsequent to the grant. Laws C. and T. p. 24:8, art. 9.</p> <p>13th. The conditions of taking the oath to support the constitution and laws, etc., and of becoming naturalized in one year, were conditions precedent to the grant and must have been performed before the grant could have been made. The making of the grant, therefore, is conclusive proof that these ■precedent conditions have been performed. Laws C. and T. p. 248, art. 8.</p> <p>14th. The only condition which followed the land in the hands of Brown, to wit: that of settling in the state within twelve months after the grant was made, being one to be performed subsequent to the grant, the fee vested in the grantee eo instanti, upon the execution of the grant, and it being a condition reserved for the benefit of the grantor, he alone could inquire into its performance or non-performance — third persons had nothing to do with it. 4 Kent, 122, 125-8; 2 Bl. Com. 154-6; also p. 110, notes 15 and 16; 1 Pet. Dig. 528, secs. 20, 26.</p> <p>15th. If the fee vested in Brown upon the execution of the grant, and the grantor sought to divest and reclaim it for the non-performance of a subsequent condition running with the land, he could only do it by a judicial inquiry and inves. tigation in the nature of an inquest of office, showing that the subsequent condition had not been performed. Until “ office found,” the grantor himself could not enter upon or take possession of the land. This principle is recognized both by the common and civil law. 3 Jacob, 454-5; 3 Bl.- Com. 25T; 2 Pet. Dig. 328, secs. 18, 19, 20; id. 312, secs. 9, 10; 2 Pet. Con. 622-33; 9 Pet. 742-3; 1 Munf. 134; 2 "White’s Pccop. p. 52, Nos. 84, 87. The six questions of G-audo and the answer of Saavedra thereto, 2 White’s Reeop. 274, 282. Argument in Revant’s claim, 1 White’s Recop. 723; 6 Pet. 747; 9 id. 743; 2 Domat, 372, sec. 4.</p> <p>16th. It is of no consequence whether the fee which vested in Brown was a fee simple, or fee conditional was tbe fee, and if it had passed, it would have to be reclaimed, before it could be reinvested in the grantor.</p> <p>17th. If Brown obtained this land as “ a colonist,” or “ head of a family,” and the fraud charged in the petition attached to the grant, still no person but the grantor would have a right to set aside the grant for the fraud. If he was content to submit to it, no third person would have a right to complain or inquire into it. If A. cheats B. out of his horse or land, C. would have no right to sue for or take possession of either.</p> <p>The former rights of Mexico in the land, having by the revolution inured to Texas, the government of Texas alone could inquire into the terms upon which the grant was made, and seek its forfeiture or annul it, for the fraud which was practiced in obtaining it.</p> <p>It is true the government might authorize others to make the inquiry, but until the authority be given, no third person could interfere, 5 Bacon, 337, letter F.</p> <p>18th. A grant fraudulently obtained is voidable, and not void. And none but the grantor or his heirs could avoid it. 5 Bac. Abr. old ed. p. 337, letters E and F, tit. Yoid and Yoidable; Pennant’s case, 2 Coke, part 3, p. 65.</p> <p>19th. If a grant of land were obtained by fraud, and before the grantor avoided it, the land was .conveyed to a third person for a valuable consideration, who was an innocent pup-chaser without notice of the fraud, the land could not be reclaimed from him; and this shows the grant in the first instance to be voidable only.</p> <p>20th. To avoid a voidable grant, a judicial inquiry and decision is as necessary, as it is to reclaim a fee which has vested in the grantee, for the nonperformance of subsequent conditions; and none but the grantor or his heirs can institute that inquiry.</p> <p>21st. There is but one possible case in which a third party could inquire into the validity of a grant of this kind, and impeach it for. fraud. And that is, where the grant affected his pre-existing rights/ and it will not be pretended in this case that Horton had any right to the land in controversy -when the deed was made to Brown. 2 Bibb, 134; 1 Bibb, 22, 229.</p> <p>22d. The commissioner, Chambers, was an officer appointed by the government to determine who were entitled to lands as “ colonists,” or “ heads of families.” His duties in this respect were judicial, and his decision upon the application of a party for lands was a judgment which determined that question. Can this judgment be inquired into collaterally? I think not. He certainly had jurisdiction over the subject matter. 2 Day, SO; 1 Pickering, 439; 3 Johns. 168; Yoorhees v. United States Bank, 10 Peters, 443; Grignon’s Lessee v. Astor et al. 2 How. U. S. 319; 2 Bibb, 487; 3 Bibb, 137; id. 426; 7 Dana, 141; 4 Yerg. 525. .</p> <p>23d. Articles 26, 27, 28, and 30 of the colonization law of 1825, p. 20; and arts. GO, 31, 32, and 33, of the colonization law of 1832, p. 193; and arts. 4, 8, and 9, of the commissioners’ instructions, p. 71, all show that the colonists received full titles to their land in the first instance; the fee therefore vested in them subject to be divested upon the nonperformance of the subsequent conditions. Laws Coahuila and Texas.</p> <p>24th. How could the grantees dispose of their land as authorized, by arts. 27 and 28 of the colonization law of 1825, and by art. 31 'of the colonization law of 1832, if the fee was not vested in them?</p> <p>25th. Articles 26 and 30 of the colonization law of 1825, and art. 33 of the colonization law of 1832, show that an inquiry and decision is necessary to divest the colonists of their lands previously acquired. How is the political authority to proceed to take baeh their lands and titles under article 26, unless it does something? And what is that something to be done? And how is it to be ascertained under articles 30 and 33, that the colonists did not alienate their lands according to the law, unless the matter was inquired into, by some tribunal authorized to make the inquiry? This inquiry is an inquest of office. The decision upon it is, “office found.”</p> <p>Again, how could the political authority “proceed to take back the land and titles ” of the colonists unless the colonists had previously obtained their land and titles?</p> <p>26th. Article 15 of colonization law of 1825 presents an illustration of a condition precedent to the grant, and shows the difference between that and a condition subsequent as defined by art. 26. Unmarried men are to receive only a fourth as much as married men, but if they marry, the quantity shall be made up. Their right to this additional quantity depends upon the performance of this condition precedent of marrying, and until they do marry, their right does not vest, but still it ■exists. But their right to the fourth vests immediately. They receive the land, and their titles for it.</p> <p>27th. If there was any law which authorized private individuals to hunt up land that ought to be forfeited for a noncompliance with subsequent conditions, or because the grants were obtained by fraudulent representations; and to denounce them and obtain a decree of forfeiture, and thereby obtain a grant to themselves of the same land, then the appellant .might have instituted an inquiry as to the mode by which Brown obtained his land. But there is no law giving any such ;power or authority; on the contrary, it is made the duty of the “ political authorities,” or agents of the government, alone to do it. 5 Coke, 109.</p> <p>2Sth. If the grants made to the colonists, or purchasers of ■land under the government of Coahuila and Texas, were permissions to go upon -the land to do certain specified acts, as in Kingsley’s and all that class of the Florida cases, then there would be a good reason for saying that they were conditions precedent, and that a title to the land had to be made after the ■conditions were performed. But it is the first time I have heard it asserted that all the titles made to the colonists in Texas had to be renewed or confirmed after the expiration of ■six years from the time they received their grants, and upon their showing that they had performed all the conditions re■quired by law. If this proposition were true, then there is not ra good Mexican title in Texas, for none of them have been confirmed in this way. 12 Pet. 476, 215.</p> <p>29th. The Mexican titles in Texas are not mere concessions. They are like the grant in "Arredondo’s case, absolute and vesting the fee <30 instanii in the grantee upon making the grant, having condition, however, running with them, upon the nonperformance of which, the grant may be opened and the fee divested, if the grantor think prosper to reclaim it. 6 Pet.</p> <p>30th. There is, besides, this broad distinction between all the Florida cases and the present one. There the parties were seeking to establish their grants. They voluntarily went before the courts, to allege and show that their grants were honestly obtained, and that they had performed all that was required of them by law to perfect them. The onus probandi was upon them. But here the grantees have never been called upon by any law or regulation of the government to-show that their titles were perfect and all the conditions performed. Had Texas after her revolution thought proper to subject them to this ordeal, they would then have had to do what' "was done in Florida, show that their titles were good-But Texas has required nothing of the sort, and no third person has a right to do it, or to interfere in the matter.</p>

<p>The material facts of this case are stated in the opinion of the court.</p>

<p>A person who was a citizen of Texas at the date of the declaration of independence; who was a single man, and contributed to the support and defense of the country previous to the 14th of December, 1837; who had received a certificate for one-third of a league of land, and subsequently married in Texas in 1839, is not, under these circumstances, entitled by virtue of the 3d section of the act of 1839 “extending donations of land to late emigrants,” to an augmentation of two-thirds of a league and labor of land.</p>

This was a suit brought by the appellant to establish his right to an augmentation of two-thirds of a league and labor of land. The facts proven at the trial, and relied upon as sustaining the claim, are substantially the same as those presented in the case of McNeese v. The Eepublic. There was a verdict and judgment for the defendant.

This was a suit for a divorce from the bonds of matrimony. The petition states the marriage of the parties on the 20th September, 1842; that in July, 1845, her husband became of an infamous and abandoned character, and perpetrated the crime of theft, petty instances of which are related, but no conviction of the offense is alleged.

This was a suit brought by the appellant against the appel-lees, upon an alleged liability incurred by them as partners in the business and trade of common carriers. The material facts are stated in the opinion of the court.

The appellant brought this suit to establish the right of his intestate to one-third of a league of land. It appears from the record that Charles W. Lockhart emigrated with his father to Texas in the year 1829, and the next year settled in DeWitt’s colony, a certificate of which, under the head of the empresario, Green DeWitt, was read in evidence to the jury.

This was an action brought by the appellee against John Eobbins and Lucy Eobbins, administrator and administratrix •of Nathaniel Eobbins, deceased, to recovera negro woman and •damages for her detention. Pending the appeal in this court the death of John and Lucy Eobbins -was suggested, and Olapp, .as administrator, was made a party.

This was a suit brought by the appellant, Tarpley, to recover from the administrator of Poage one thousand dollars-upon a promissory note, alleged to have been executed by his intestate.

The record in this case shows that Field Secrest, togethér with the appellee, bound themselves in a penal obligation of two thousand dollars, for the payment on the 3d day of September, 1840,. of one thousand dollars unto the appellant as chief justice, etc., or his successors in office, and that said Secrest died before the said obligation became due and payable.

The appellant was indicted and convicted under the 4th section of the “ act to suppress gaming,” of 1840. A motion was made in arrest of judgment, embracing a variety of objections to the regularity and legality of the proceedings, which motion was overruled and the case certified to the supreme court for revision. Among the grounds embraced in the motion in arrest are the following, which alone seem to have been regarded as relevant and material by the court, viz.: • “ 8.

. The appellant presented his petition to the judge of the district court for the county of Victoria, alleging that he had been legally elected judge of the probate court for the said county, and that the appellee had given him notice that he contested the election; that the proceedings before the chief justice and commissioners trying the contest were void and contrary to law; that the appellee claimed to hold the said office of judge of probate by the illegal decision of…

This suit was brought by the appellant against the appellee to recover land. The defendant was tenant of the Halls. The counsel for the plaintiff and defendant had a judgment entered, by consent in favor of the former. After this judgment had been so entered, but during the same term, the Halls moved, the court to open it and to permit them to come in and defend as the lessors of the defendant.

In each of the above entitled causes the plaintiff had been ruled to give security for costs.

<p>No appeal lies from an interlocutory decree or judgment. [Ante, 160.]</p> <p>A decree, dissolving an injunction, and leaving the bill to stand over as an original bill, is interlocutory, and can only be revised by writ of error.</p>

<p>The material facts of this case appear in the opinion of the court.</p>

<p>Account books, containing original entries, are not of themselves evidence,, but they may become evidence by the intervention of extrinsic circumstances.. [15 Tex. 441.]</p> <p>Where an account, copied from a tradesman’s book, had been compared with the original entries, and found correct, by the witness, who was himself a clerk of the tradesman at the time such account was made, and was given, in evidence without objection, it is no ground of objection in this court that the books themselves were not produced. [15 Tex. 441; 16 Tex. 222; 18' Tex. 249.]</p> <p>In such a case it was error in the court to exclude from the jury all such items- or articles charged in the account, the sale and delivery of which could not be distinctly proven by the testimony of the witness, given upon his own recollection, independently of his entries.</p> <p>The provision in the act of 1840, which declares that “the adoption of the common law shall not be so construed as to adopt the common law system of pleading; but the proceedings, in all civil suits, shall, as heretofore, be conducted by petition and answer,” was not intended to prescribe the rules, but to designate the system of pleading to be observed in our courts.</p> <p>Under this system the pleadmgs may be carried beyond the answer; and a. replication to new matter set up in the answer is not only admissible, but would seem to be most consonant to principle, and convenient in practice.</p> <p>But, according to the practice long pursued, and acquiesced in by our courts, evidence which seems to have the effect of rebutting that adduced in support, of the answer, or of repelling the legal effect of the latter, must be received, though it be in proof of no averment in the pleadings.1</p> <p>It is not error in a court to permit a remittitur of a part of a verdict to he-entered and render judgment for the residue.</p>

<p>If an administrator, having possession of the personal effects of his intestate, abuses his trust, and uses such property as his own, he thereby renders himself and his securities liable to the heirs, creditors and other persons interested in the estate. [Post, 400; 4 Tex. 187; 7 Tex. 210; 8 Tex. 182; 10 Tex. 560; 21 Tex. 513, 664; 28 Tex. 732.</p> <p>In such a case, the person to whom such property may have been illegally transferred and delivered is not, ordinarily, liable for the same or its value at the suit of the heirs. Their remedy must be against the administrator and the securities on his official bond.</p>

This was a suit brought in 1841, by the plaintiff against the defendant, on a written contract for the hire of a slave, The defendant answered by alleging payment and set-off, and filed interrogatories to be' answered by the plaintiff in the court below, which was done. There were several continuances, two of which- appear to have been entered under a consent of the parties to arbitrate, without naming the referees.

This was a suit brought in 1843 by the appellant against the appellee on two promissory notes which, from their face, appear to have been given in the state of South Carolina. They were made at “Camden,” and are payable at “the Branch Bank of the State of South Carolina.” Defendant pleaded the general issue, the statute of limitations, and payment.

<p>Where suit was brought in the district court on a note, the amount due upon which, exclusive of interest, has been reduced by .payment to less than $100: Selcl, that the court had no jurisdiction over the case. [5 Tex. 141; 11 Tex. 269; 20 Tex. 61, 340; 25 Tex. 354.]</p> <p>The want of jurisdiction in the court below, although not pleaded there, will be noticed in the revising court.</p>

The plaintiff in error was defendant in the court below. The process in that court was returned duly served at the-term which commenced on the 19th day of September, 1846. On the 21st of the same month, being the thi/rd day of the-term, judgment was taken by default; and on the 24th, being the sixth day of the term, and the defendant not having answered, a final judgment by default was taken.

<p>The material facts of this case will he found stated in the-opinion of the court.</p>

<p>It is not essential to the validity of a verdict that it be signed by the foreman- or any member of the jury.</p> <p>The appearance of a name, appended to a verdict, which is not found in the-list of jurors sent up in the record as those which tried the cause, does not. invalidate the verdict. It is mere surplusage.</p> <p>If the verdict is so certain that the court can give judgment upon it, it is sufficient; and this is the proper test of its sufficiency. Technical objections as-to form are to be disregarded. [1 Tex. 93; 7 Tex. 230; 10 Tex. 116; 12' Tex. 57; 15 Tex. 24; 17 Tex. 868; 21 Tex. 688.]</p>

<p>The points presented for the decision of this court, are-stated in the opinion.</p>

The appellee in this case having obtained a judgment in the •district court of Harris county against one Tarpley and another, sued out an execution to Yictoria county, there being no property found in Harris, and had it levied upon a negro boy slave, as the property of Tarpley, which was then in the possession of the appellant.

<p>This was an application by tbe appellee to the district court of Bexar county for a peremptory mandamus to the appellant to compel him to restore the office, books, papers and records of, and belonging to, the clerk’s office of the county court of said county, of which it was alleged he had been illegally deprived, and which were then held by the appellant.</p> <p>The application was founded on a controversy and dispute which grew out of an election for clerk of the county court, and was resorted to by the parties to determine their respective rights by a judicial decision. The material facts embraced in the controversy being stated in the opinion of the court, it is unnecessary tc repeat them here.</p> <p>presented the following points for the consideration of the court:</p> <p>1st. That the individual in Bexar county who assumed to act as chief justice, in determining the first election to be a tie, and in ordering a new one, was not at the time the chief justice of the county, he having vacated his office by accepting the appointment of interpreter to the United States army under Col. Harney.</p> <p>2d. That if the chief justice had not vacated his office by the acceptance of another, he was on the 23d, 21th and 25th days of July incapable, from continued and extreme intoxication, of comparing the election returns, and performing the duties of his office connected therewith.</p> <p>3d. That Whitehead and Lee as associate justices were authorized by law to act in place of the chief justice when that office was vacant, or tbe incumbent incapable of performing its duties.</p> <p>4th. That the associate justices rightfully rejected the poll-book of precinct No. 4.</p> <p>5th. That the office was vested in the appellant by the certificate of the associate justices, and the lapse of ten days, without contest by appellee.</p> <p>Cth. That the chief justice was precluded from acting in the matter after the action of the associate justices; and</p> <p>7 th. If not precluded, his receiving and counting the poll of precinct No. 4 was illegal, and that he should have rejected it and given the certificate of election to the appellant.</p> <p>In support of the first and second points, the counsel referred to the testimony in the record; upon the third he referred to the acts of the Texas congress of 1841, p. 68, sec. 2, .and of 1842, p. 29 and sec. 1; and also of 1845, pp. 110, 111; and 1836, p. 141, sec. 25, and p. 147, sec. 1. Upon the 4th and 7th points he cited, Acts of Leg. 1846, p. 209, sec. 16; p. 211, sec. 10; p. 210, sec. 7, and p. 213, sec. 16; and to the 5th point, he cited Acts of 1846, p. 214, see. 21.</p> <p>contended,</p> <p>1st. That the action of the chief justice was conclusive. It ■could not be reached except on a charge of fraud. 8 Pet. 729; 16 id. 85; 3 Hill, 45.</p> <p>2d. The jurisdiction of the associate justices must appear affirmatively on the certificate. 4 J. H. 292; 1 How. 340.</p> <p>3d. The appointment of a person to a second office, incompatible with the first, is not absolutely void; accepting the second and qualifying, ipso facto vacates the first. 3 N. T. Dig. 595; 2 Hill, 93; 3 id. 243.</p> <p>4th. It was sufficient that the returns from precinct No. 4 were capable of being made certain by addition. 5 Hill, 623.</p> <p>5th. The chief justice was not incapable of acting; the best evidence of it is that he decided according to law. In that view of the case, he was more sane than those who objected to the act.</p>

This suit was brought by the appellee against the appellant, for the recovery of certain improved real estate in the city of Houston. The appellee claimed under a deed from the sheriff of Harris county, executed to him as the purchaser of the property, under a decree of foreclosure and order of sale of the mortgaged property.

This was an action brought by the appellee to recover fifteen hundred dollars, alleged to have been received by the appellant as his trustee. The defendant below pleaded payment and setoff.

This suit was commenced in the county of Galveston by Henry H. Williams & Co., the appellees, against Ohevallier,, the appellant, to recover the amount alleged to be due on a promissory note. The plaintiffs below, having made the oath required by the statute, that the defendant was about to remove his property beyond the republic, whereby he would probably lose his debt, procured an attachment to be issued and levied on sixty-nine bales of cotton belonging to the defendant.

<p>In a suit against two defendants, both of whom, the petition alleges, reside in Red River county, and process against both is directed to the sheriff of that county, but is served by him only on one: Held, that the law makes no provision for sending process against the defendant not served, to another county; and service by the sheriff of L. county, on such defendant, of process from R. R. county, directed to him for that purpose, is a nullity. [8 Tex. 36, 295; 19 Tex. 115.J</p> <p>A promise to pay in “ cash notes” is not equivalent to a promise to pay the nominal amount in money. In a suit upon a note payable in “ cash notes,” the value of the notes must be ascertained before a judgment can be rendered. [21 Tex. 466 ; 30 Tex. 53.]</p>

A judgment having been rendered in the district court of Harris county against the plaintiff in error, Janes, in favor of the intestate of the defendants, he, Janes, enjoined its execution and gave the other plaintiffs in error, Clapp and All-bright, as his securities in the injunction bond.

<p>Where it appeared that interrogatories had been propounded in the court below to the plaintiff by the defendant, for the purpose of sustaining the defense relied on by him, and there was in the record no bill of exceptions nor statement of facts: Held, that every presumption was in favor of the legality of the judgment rendered for the plaintiff, notwithstanding the interrogatories did not appear to have been answered.</p>

<p>A writ of injunction to stay an execution on a judgment must be made returnable to the district court of the county where the judgment was rendered.</p>

The facts of this case are stated in the opinion of the court. contended that the court erred in refusing to make the charge requested by Thompson’s counsel, and in giving that which was made to the jury. In support of this position, they cited Chitty on Bills, pp. 587, 615, 627.

This was a suit brought by the appellee, in 1842, to establish his claim to a headright for one league and one labor of land. The most material facts of the case will be found stated in the opinion of the court.

This was a suit instituted by tbe appellants at tbe spring term, 1847, of Travis county district court to obtain a head-right certificate for one league and labor of land to which they claimed to be entitled as heirs of Isaac' Tichner, deceased.

This suit was instituted by the appellant to recover from the defendant the amount of a draft which he had received by indorsement. The draft was drawn in New Orleans on the-26th of January, 1836, by Edward Hall as purchasing agent of the republic of Texas, upon the defendant as general agent of the republic, and accepted by him as agent.

The plaintiffs in error sued the defendants upon a promissory note made by the latter to “ Mrs. A. B. Eberly, curatrix of the succession of J. G. Peyton, deceased,” and by her assigned to them. The defendants answered, and excepted to the legal sufficiency of the petition, upon the ground that the note, being payable to the assignor, “ curatrix,” etc., could not be assigned by her.

The republic of Texas, having obtained a judgment against William I). Lee, an execution sued out upon that judgment was levied upon a negro man named Edward, as the property of Lee. replevied the negro, and interposed the claim as trustee for one Eli Hart. At the trial the appellant introduced as the evidence of his right to the negro, a bill of sale from William H. Lee, dated August 10, 1840, which sale was made for the use and benefit of Eli Hart of Hew York.

The appellant was indicted and tried for murder, and a verdict of “guilty” found by the jury. Motions were made to set aside the verdict, and in arrest of judgment, both of which were overruled. Among the various grounds assigned in support of these motions in the court below, only one appears to have been regarded as material in this court.

The appellees sued the appellant upon a promissory note. The defendant in the court below pleaded a failure of con■sideration, and alleged that the note sued on was given to the intestate, Anderson, as a part of the price of a negro man sold by him to the defendant, and warranted sound, but which proved to be unsound and valueless. The defendants prayed judgment against the plaintiffs for two hundred dollars, a part of the purchase money, which had already been paid.

The appellee, the plaintiff in the court below, filed his petition, stating that he and the appellant, French, had formed a copartnership for the purpose of doing such labor as they or either of them might bargain for or procure; that under such connection they had performed work and labor to the amount of about nine hundred dollars, which, according to the terms of their partnership, should be equally divided between them; that the said French had collected and appropriated…

<p>Where suit was brought before a justice of the peace on a promissory note, 'and the defendant confessed judgment and appealed to the district, court,, where the appeal was dismissed and a pivcedendo awarded: Held, that such judgment was erroneous, under the 58th section of the act of 1846, “to regulate proceedings in the district courts.”</p>

<p>“When no exception appears, from the record, to have been taken to the refusal of the court below to grant a new trial, nor to its judgment or action in any respect whatever, and there is no bill of exceptions or statement of facts showing what was the evidence before the j'ury, the appellate court ■will presume that the verdict and j'udgment are correct.</p>

This suit was brought on two notes of hand given by Lewis, the defendant below, in New Orleans: the first dated the 3d day of April, 1830, for two thousand six hundred and forty-six dollars, payable two years after date; the second dated the 23d of January, 1830, for two hundred and ninety dollars, payable on demand. The defense relied on was prescription. The suit was brought to the October term, 1841. The time of filing the petition is not disclosed by the record.

Tliis was a suit commenced on the 21st day of December, 1844, upon two written obligations, one of which fell due on the 7th day of May, 1837, and the other on the 1st of January, 1838. The defendant, Carson, in his answer, pleaded, among other things, the statute of limitations, in bar of the action. There was a verdict and judgment for the plaintiff.

<p>Where none of the evidence adduced upon the trial of a cause is sent up in the record, and the charge of "the court below (which has been excepted to) relates to and has a bearing upon facts which could be shown only by the evidence, it is impossible to decide whether such charge had any influence on the issue between the parties. This can be ascertained only by the application of the charge to the facts actually adduced on the trial. [Ante, 284; post, 305; 4 Tex. 235; 11 Tex. 649; 16 Tex. 335, 563; 18 Tex. 616; 23 Tex. 441.]</p> <p>In such a case, the facts being embodied in the record, the cause stands in the appellate court as if either no evidence, or such only as authorized the verdict, had been adduced, and the charge excepted to must be regarded as an abstract proposition unconnected with the case or with the issue, and as not affecting the correctness of the judgment. [12 Tex. 209.]</p> <p>Every reasonable intendment should be made in favor of the correctness of a judgment. [8 Tex. 143.]</p>

<p>The facts of this case, so far as the same are necessary to present the questions discussed and adjudicated in this court, are stated in the opinion.</p> <p>insisted that there was error in the charge of the judge “that the admissions or confessions of the accused to a witness were the highest character of testimony to establish the guilt of the accused, and upon such testimony the jury were authorized to convict; ” and they cited in support of this position, Joy on the admissibility of confessions, Law Lib. vol. 37, pp. 12, 65 and 111; 1 Phil. Ev. 166-67; 1 Bibb, 611; 4 Littell, 186; Hardin, 547; 1 Pirt. Dig. 376.</p> <p>They also insisted “ that the act of 1840, adopting the common law, brought with it the common law offenses, and the common law meanings, and expressions and definitions. It did not include within its operation offenses committed either by slaves or upon them.” Phil. Dig. p. 185, sec. 19; 1 Hill, 454; 2 Bailey, 98.</p> <p>"We, must look to our own laws for the punishment of offenses of this character, as they could not be punished at common law; and by our laws there is no such offense as manslaughter committed on the body of a slave by a free white person. Acts of 1840, 172; id. 1837, 87; Const, of the State, art. 8, sec. 3; 3 McCord, 533.</p> <p>• There is in the very nature of slavery a difference and distinction between the acts and conduct of a white man to a negro, and the acts of a white man to his fellow. Starkie, 524, note.</p> <p>“A full confession of guilt, although it be but presumptive evidence, is one of the surest proofs of guilt.” 1 Stark. 58; 1 Chit. 570; 1 Phil. Ev. 110.</p> <p>There being no statement of facts, the record does not show that the instructions were applicable, and therefore the court will not reverse the judgment. 14 Ohio, 473, 474, 479, 480.</p> <p>The evidence will be considered sufficient to sustain the verdict unless the party excepting sets out all the evidence in his bill. 8 Greenl. 19; 3 Mass. 551; 9 Oranch, 233, note; 3 Terg. 157.</p> <p>Slaves are included in the generic term “ persons,” as used in our laws in reference to crimes and offenses. Those statutes which specially provide punishment for certain offenses, committed on the bodies of slaves, were intended to throw additional guards and shields around that class of “persons.” The felonious slaying of a slave, without malice, is manslaughter. 1 Yerg. 156.</p>

<p>If any land be due a deceased intestate under the laws of the country, the administrator is authorized to sue the government for the same, as well from the special laws permitting such suits to be brought as from the powers conferred by general laws on executors and administrators. [16 Tex. 413; 20 Tex. 81; 24 Tex. 441; post, 433.]</p>

<p>A suit to obtain a headlight certificate, brought under the 11th section of the a,ct of February 4, 1811, supplementary to “an act to detect fraudulent land certificates,” etc., could only be sustained prior to the passage of the act of February 2, 1848, by a compliance with all the formalities prescribed by the act of 1841.</p> <p>'The joint resolution of May 24, 1838, which made the certificate of the secretary of war sufficient evidence before the board of land commissioners for the establishment of the headlight claims of those who fell while under the command of Fannin, Travis, Grant and Johnson, became dormant from the 2d January, 1840, and was not revived by the act of February 4,1841.</p> <p>The act of February 2, 1848, gives to the certificate of the adjutant general all the effect -which the joint resolution of May 24, 1838, gave to the certificate of the secretary of war. The latter act is, therefore, in effect, a revival of the former.</p>

This was a suit brought under the 11th section of the act of 1841, “ supplementary to an act to detect fraudulent land cir-tificates,” etc., to establish the headright claim of petitioner to one-third of a league of land. There was a verdict and judgment in favor of the state, from which the plaintiff appealed.

The plaintiff, being appellant in this court, sued the defendant for the recovery of $143.07, due upon an open account for goods and personal property sold to the defendant. The petition was filed on the 26th of November, 1844. The answer of defendant, filed 4th April, 1845, presented pleas of the general issue, payment and set-off, with his account for $311.74 in reconvention. The plaintiff filed a replication of the statute of limitations to defendant’s account.

<p>The following are the material facts of this case, as disclosed by the record:</p> <p>At the fall term of the district court of Eannin county, 1846,. Palmer J. Pillans, on the third day of the term of said court,, appeared in open court and filed a power of attorney, made by said A. S. Johnston and Beuben EL Boberts, to confess a judgment in favor of John P. Loop, on two notes payable to E. McKinstry or order, one for the sum of $533.34, and the other for the sum of $533.52, with interest. Petition had been •filed in the suit, and service had on Johnston, but none on Roberts; that afterwards, on the 27th day. of November, 1846, Alexander S. Johnston filed his bill in chancery against said ■John P. Loop, Edwin McKinstry and Reuben Ii. Roberts, as ■defendants, and obtained an injunction, by order of John T. Mills, judge of said court.</p> <p>The bill charges that Johnston and Roberts formed a co-partnership for the sale of goods, etc., for one year, in the ■month of December, 1845, and that, on the 13th day of December of the same year, they gave four several promissory notes to said McKinstry for store goods then bought of him, ■one for $533.54, due ninety days after date, one for $533.52, ■due in six months, and two for $533.52, due in nine and twelve months. And, after giving of said notes, the said Roberts and Johnston paid to said McKinstry the sum ■of $1,165.92, in cash, store goods and horses, all of which will appear by bill of items in this bill exhibited. Said bill states that Johnston and Roberts made their power of attorney to Palmer J. Pillans, to confess a judgment in favor of Loop, on the two first notes above mentioned; and that at the time of giving the power of attorney, Johnston and Roberts had dissolved partnership; and that at the same time, it was agreed by said Johnston, Roberts and McKinstry, that all the credits that they were entitled to, and all the credits which might accrue after giving said power, should be fully and fairly made ■on said first two notes, and that the overplus should be given ■on the other two of nine and twelve months. It charges that McKinstry was to give a bond that all the credits should be given on said notes, and that he had them in possession and had full control over the notes mentioned in the power of attorney; and that reposing confidence in the statements and inducements held out by McKinstry, said Johnston signed the power of attorney, believing that a full settlement could be ■made as well as if the said power had not been given, and that such was the representation of McKinstry. The bill further ■charges that Johnston and Roberts gave up to McKinstry, as collateral security on the two last notes, $900 in soldiers’ discharges, which, when • collected, were to be credited on their notes; that the power was obtained by fraud, and with a view to prevent the payments and accounts of McKinstry to be credited on the two first notes. It charges that Loop is a fictitious person. It charges that McKinstry is wholly insolvent, and unable to pay his debts. It also charges combination with Roberts, etc. The bill prays that all the just credits above alluded to may be given on the two notes mentioned in the power of attorney. The answer of Reuben Roberts confesses the partnership, etc., and refuses to join in the bill with Johnston, confesses the purchases of the goods, and giving the four notes to McKinstry as charged in the bill, but does not state the exact sum which had been paid to McKinstry since giving the notes; that they gave the power as stated in the bill to confess a judgment to Loop, but denies the agreement, as stated in the bill, as to the credits; that three of the notes given to McKinstry were due at the time the power was made; that there was no agreement on the part of McKinstry to give a bond to apply credits, etc.; admits the $900 as collateral security on the two last notes; denies the fictitious character of Loop, and enters into a long argument to show that Johnston knew that there was such a person in existence as John P. Loop; admits the confederation with McKinstry, but denies all contrivance, etc, for the purposes charged in the bill.</p> <p>The answer of McKinstry admits the partnership of Johnston & Roberts, etc., and also the sale of goods and the giving of the four notes specified in the bill; denies the payment of $1,165.92 to be applied as stated in the bill, but to be applied as a credit to Roberts for his share of stock brought into the concern, and sold to Johnston at the dissolution; admits the balance of credits to be correct; denies that the credits were to be given on the two first notes mentioned in the power of attorney, but were to be settled with Roberts on a settlement between Johnston and Roberts; denies that there was any bond to be given, etc.; states that he was indebted to Loop, etc., and that there is such a person as Loop.</p> <p>The defendant,.Loop, answers by attorney, Palmer J. Lil-ians, not under oath; he excepts to the sufficiency of plaintiff’s petition in six exceptions, and rests his defense upon the validity and irrevocability of the power of attorney and tbe confession of judgment.</p> <p>On the 24th day of April, 1847, this cause came on upon bill, answers and exhibits, and the testimony of witnesses,, when the judge submitted the following facts to be found by the jury:</p> <p>“ 1st. Did or did not McKinstry enter into an agreement with Johnston and Roberts to credit their notes with $1,165.92 previous to giving the power of attorney?”</p> <p>The jury find, “he did not.”</p> <p>“ 2d. Does or does not the evidence sustain the charge in complainant’s bill, that an agreement was made between McK- and J. and R., that the credits should be placed on the notes-assigned to Loop?”</p> <p>Jury answer, “ it does not.”</p> <p>“ 3d. Did or did not McKinstry agree to secure Johnston by bond, as charged in the bill, as to the performance of said agreement to make the credits alluded to?”</p> <p>Jury answer, “he did not.”</p> <p>“ 4th. What amount has been proved to be paid by Johnston to McKinstry since the giving of the power of attorney?”</p> <p>Jury answer, “ nine hundred dollars.”</p> <p>“5th. Does the jury believe that McKinstry held out any misrepresentations or made use of any fraudulent practices in the matter of power of attorney.”</p> <p>Jury answer, “wedo.”</p> <p>“ 6th. Has there been any testimony as to the insolvency of McKinstry? If so, is he insolvent from such testimony?”</p> <p>Jury answer, “ he is insolvent from such testimony.”</p> <p>“7th. Do the jury believe that John P. Loop, at the rendition of the judgment, was a living person? ”</p> <p>Jury answer, “ we do.”</p> <p>Upon which verdict of the jury the court rendered the following decree: Injunction dissolved, and that execution issue in favor of Loop for the amount of judgment confessed, with interest and ten per cent, damages, and that McKinstry deliver the notes he holds against J. and R. to the cleric, and to be credited with the nine hundred dollars; providedj said notes equal or exceed that sum, and in case they do not, judgment shall be rendered for the excess of said nine hundred dollars against said McKinstry, and that execution issue, •etc. From which judgment and decree the complainant, Johnston, appealed to this court.</p> <p>contended that as the hill charged fraud against McKinstry and Roberts in obtaining the power ■of attorney, and as this fact was expressly found by the jury, it was error in the court to dissolve the injunction and render .a decree in favor of Loop. That if the power was obtained by fraud, it followed, as a necessary consequence, that the judgment based upon it was fraudulent and void, and should have been so adjudged. He cited 2 Starkie, 340; 1 Madd. Ch. 298 to 300.</p> <p>argued that Loop was really the party •defendant in the court below; that from the testimony, admissions made, and verdict of the jury, he was clearly a Iona fide ■creditor, and entirely free from fraud; that no matter how fraudulent the conduct of others may have been, his rights could not be affected thereby.</p>

<p>By the constitution of the republic of Texas, the common law was made the rule of decision in all criminal cases, not provided for by legislative enactment.</p> <p>There is no law known to this court which would subject the owner of a slave, executed for murder, to the payment of the costs incurred in the prosecution ■of the slave.</p>

The appellee brought suit against the appellant on a note of hand as follows, i. e.: “La G-raNGe, July 1, 1845. “Twelve months after date, we or either of us, jointly .and severally, promise to pay William Lewis, administrator of Jasper H. Sargent, or bearer, two hundred and twenty dollars for value received.

The material facts of this case will be fou'nd stated in the opinion of the court. contended — 1st. That if the paper purporting tp be a deed of manm mission was genuine, still it was inoperative, because the same was made in violation of the laws of Georgia, which were then in full force in that portion of the Chickasaw nation where Gunn resided.

<p>The possession of an instrument not negotiable by simple delivery does not create such a presumption of ownership as to dispense with proof of' that fact. [19 Tex. 171; 22 Tex. 58.]</p> <p>When a demurrer or exception does not appear to have been acted on by the court, and the parties have gone to the jury on pleas to the merits of the action, the demurrer or exception will be considered as having been waived.</p> <p>The holder of an instrument, not negotiable, may maintain a suit upon it in his own name, but he must show his right to the paper, either by an indorsement or proof of ownership. [15 Tex. 25; 16 Tex. 549.]</p>

The appellee instituted this suit in the court below against the appellant to recover a sum of money which he alleged the appellant had obtained from his agent, Josiah Merritt, without authority. The defendant below demurred to the petition, pleaded a general denial and payment. The demurrer was overruled, and on the pleas the plaintiff had a verdict and judgment. The defendant then moved for a new trial on the ground of newly discovered evidence.

The appellant was indicted for a violation of the 4th section of the act of 1840, “ to suppress gaming.” There was a motion to quash the indictment, which was overruled, and the defendant being convicted, he appealed to this court.

<p>Case stated in the opinion.</p>

<p>The act of 1846, requiring the jury in certain cases to assess the amount of punishment to be inflicted, is not an ex post facto law in reference to offenses for which there were prosecutions pending at the period of its enactment. [6 Tex. 347; 14 Tex. 402.J</p>

<p>It is a rule of universal application in courts, both, of law and equity, that fraud will not he presumed, and until it is proved the presumption is in favor of the fairness of the transaction.</p> <p>This court cannot judicially know the powers of the Mississippi courts, and foreign jurisdictions are never supposed to exceed their powers, until it is proved.</p> <p>'The terms on which amendments of pleadings are made are at the discretion of the court, but the discretion should not be exercised in a way to produce surprise to the opposite party.</p> <p>.if in the amendment of a petition new matter is embraced, its only effect will be to give the defendant a ground for a continuance of the cause, to enable him to make his defense.</p> <p>When an original petition in a cause has been lost or mislaid, it is proper for the court to allow another one to be filed as a substitute for it, and it is competent to allow a new count to be added to the substitute which was not embraced in the lost petition; such an addition is within the legitimate rules of amendment.</p> <p>.After a jury have retired to consider of their verdict, and returned into court stating that they could not agree, it is not error for the judge then to give them a charge, and more especially if they had not been charged by him previous to their retiring.</p> <p>.Nor is it error for the judge to state in his charge to the jury, that he judicially knew the time when suit was commenced, the knowledge of which was derived from the records of his court in that suit.</p>

<p>The 23d section of the act of limitations of 1841 authorizes suits to be brought on certificates of headright which have been surveyed, but a survey unaccompanied by the certificate is not sufficient to support a suit.</p>

This suit was brought in the name of William Brewer, for the use of Miles Beed, against Edward West, on a note in the following words: “ Six months after date we, or either of us, promise to pay William Brewer the sum of four hundred dollars, being the balance in full payment of a negro boy named Jack. Witness our hands and seals. Clarksville, 4th October, 1843. (Signed) ‘ “Edwaed West, [seal.] “Wm.

<p>By the laws of Spain and our statute controlling marital rights, the wife is disqualified from prosecuting and defending actions, without the authorization or joinder of her husband, except in certain cases specially provided for by law.</p> <p>The general rule being that suit must be brought in the name of the husband, or of the’ husband and wife jointly,' the exception which allows the suit to be brought in the name of the wife alone must be positively averred and proved.</p> <p>It is not necessary to obtain the authority of the court for the wife to sue separately torn her husband, previous to the institution of the suit. When the facts are shown to exist which give her the right to sue, the permission to do so will always be presumed. It is a matter of right, of which she cannot be deprived. [4 Tex. 283; 9 Tex. 297.]</p>

The transcript of the record in this case presents the following pleadings and evidence: “James Cole vs. “ Thos. H. DuggaN. | Travis District Court, Fall Term, ’Jfl. “ The amended petition filed by leave of the court and with the assent of all parties, and to go in this cause in the place and stead of the original petition now withdrawn.

<p>Case stated in the opinion.</p> <p>submitted tbe cause with a suggestion of delay.</p>

<p>The interest of a legatee in the property bequeathed to him can in general only be asserted through the legal representative of his testator, according •to the laws regulating the settlement of the estates of deceased persons. [Ante, 182.]</p>

The plaintiff in error was surety for one Wood, upon a bond in the penalty of two thousand dollars, conditioned that the latter would make to the defendant in error a title to a. certain tract of land in twelve months after the date thereof. The cause of action accrued thereon in December, 1840, and this suit was brought in April, 1845, against the surety alone..

This suit was brought by the appellee as the assignee of' two-notes given by the appellant to Sarah J. Sharp, administratrix of John Sharp, deceased. The notes are in the following words: “ $756 77-100.

This suit was instituted by the appellant against the ap-pellee on the 27th of August, 1844, on two promissory notes executed in the state of South Carolina, one of which was executed on the 17th of May, 1838, and was payable six months after date, and the other was executed on the 14th of June,. 1838, and was payable on demand. The defendant pleaded the statute of limitations of South Cai’olina, and also the statute of limitations of this state, in bar of the action.

<p>In setting out an instrument of writing as the evidence of a debt, all that is required by our system of pleading is that the instrument should be described in the terms in which it is written, without regarding the name by which it is called.</p>

This was a suit by the appellee against the appellant to recover the possession of certain negro slaves. The defendant in his answer admitted that he had given an instrument of writing to the plaintiff conveying the slaves, but that it was done solely upon the promise of the plaintiff to reconvey them to his, the defendant’s, son, who was the nephew of the plaintiff, and that there was no other consideration for the conveyance.

<p>A judgment ought not to be reversed for mere irregularities, when it substantially appears that the proper steps were taken in the cause.</p> <p>The omission of a clerk to enter judgment nisi may be corrected by the order of the court to have it entered nuno pro tunc at the time of taking the final judgment.</p>

<p>The law requires that all process except subpoenas shall be under seal. Process calling upon a party to answer to a suit which is not under sea-1 is void, and* can exact no obedience.</p> <p>A party upon whom defective process has been served may appear and take advantage of it in limine, by a motion to quash, or he may, upon writ of error, obtain the reversal of any judgment rendered by default in the suit. [4 Tex. 49; 25 Tex. 583; 28 Tex. 368, 635.]</p>

This suit was instituted for the recovery of the amount due upon a promissory note, executed by Gerlach and Levenhagen to Elisha Eloyd, and indorsed by Floyd to Smith and Janes. It is in the following words: “ Houston, August 28, 1888. “ On the first day of January, one thousand eight hundred aud forty, we promise to pay Elisha Eloyd, or order, the sum of five thousand and seventy dollars, value received.

<p>In a suit in chancery all persons who have a direct interest in the subject matter in controversy can be made parties, either as complainants or defendants, and each may set up his own interest in opposition to the others, and claim a decree disposing of such interest. [21 Tex. 501.]</p> <p>In our system of jurisprudence, where the courts have both law and equity. jurisdiction, a third person having a direct interest in a pending suit may come in as an intervenor or -warrantor, and assert or protect that interest.</p> <p>A party to a suit who has an interest in it is an incompetent witness to sustain that interest; but if one of two defendants is called by the other, and testifies in the cause, and it does not appear that his testimony was objected to, the objection to his admissibility will be considered as waived.</p> <p>The verdict of a jury will not be disturbed on the ground of its being contrary to the evidence, when it appears that the evidence was contradictory in its character. [Ante, 323.]</p>

This case, so far as the principles involved' in the decision • are concerned, is so fully stated in the opinion of the court ■that it is deemed unnecessary to make any further reference to the facts presented in the record. This suit is brought not upon the monied claim against the administrator of the estate of Yining, but to enforce the spe•cific lien on the mortgaged property. Acts of 1846, p. 393, •sec. 118, and the mortgage act of 1840, p. 69.

<p>After a new trial has been granted in the court below, this court will not look behind that to correct errors which may have been committed on the former trial. . '</p> <p>In the absence of a statement of facts and bill of exceptions, the presumption is that there was evidence before the jury sufficient to warrant the verdict.</p>

<p>This suit was brought by the appellees against the republic of Texas in conformity with the provisions of the act of congress of February 4, 1841, “supplementary to an act to detect fraudulent land certificates,” etc.</p> <p>The record presents the following facts: The wife of Fisk, one of the appellees, resided in Texas anterior to July, 1835. She was then a widow by the name of Lindsey, and owned two slaves over which she exercised dominion control, but having no children, she herself resided in the house of her father. In July, 1835, she i’eceived from the government of Coahuila and Texas a grant for a league of land as a colonist and the head of a family. This grant was for a tract of land, which it was afterwards found had been previously granted to another; and subsequently, in 1838, she presented it, under the provisions of the 38th section of the general land law of 1837, to the board of land commissioners of Bastrop county, in which she resided, to be cancelled. It was received and cancelled by that board, and a certificate for an equal quantity of land was issued to her in lieu of it. This certificate was not recommended for patent by the board of commissioners appointed under the act of 1840, “to detect fraudulent land certificates,” etc., and this suit was brought to establish it. There being a verdict and judgment for the plaintiffs in the court below, the republic appealed.</p> <p>contended that Mrs. Lindsey was not the head of a family in contemplation of law, and therefore not entitled to a league of land as a head-right. He referred to 2d Partidas, 1231; Wood’s Civil Law, 116; Laws of Coahuila and Texas, p. 18, articles 14 and 15; Land Law of 1837, sections 17, 20 and 28.</p> <p>It is too late to inquire whether or not Mrs. Lindsey was entitled, under the colonization laws of Coahuila and Texas, to the land which was granted her in 1835. It is not now an open question. It is res ad/judioata. The commissioner who made the grant had full and complete jurisdiction over the subject. He decided that she was entitled, and his decision was conclusive. Colonization Laws of Coahuila and Texas, 15, 189; Commissioners’ Instructions, id. 70, 146; 6 Pet. 729; 8 Pet. 452; 2 Pet. 163.</p> <p>If the question were now an open one, it could be shown that Mrs. Lindsey was entitled as a colonist and head of a family to the land granted to her. She was a widow; had all the components of a family, and was the head of that family. It was not essential that she should reside in a house separate from another family. As to what constitutes a family, see 2 Partidas, 1230; 1 Bonvier’s Law Die. p. 400; 1 Tom. L. D. 759; 2 Howard, H. S. 590; 2 White’s Recop. 294; Diccionario de Legislación, tit. Familia.</p> <p>The duty of the'investigating board of commissioners was to ascertain whether any fraud had been practiced upon or by the board which granted the certificate, and whether it had been granted according to law. There is nothing to excite even a suspicion of fraud in this case, and by referring to the 38th section of the general land law of 1837, under which this certificate was granted, it will be seen that the aetion of tbe first board was in strict accordance with its provisions. The investigating board, therefore, either went beyond or did not perform its duty.</p>

This suit was brought by the appellee against the appellant upon a written contract in the following words: “ The republic of Texas, county of Nacogdoches.

<p>The representatives of a deceased joint mortgagor should not be joined with the survivor in a suit brought to foreclose the mortgage in the district court. [23 Tex. 486.]</p> <p>The mortgagee should pursue his remedy against the representatives of the deceased mortgagor in the probate court; while the remedy against the surviving mortgagor would be by a suit to foreclose the mortgage, so far as his interest was concerned, in the district court.</p> <p>The decree of foreclosure in a suit brought against one joint mortgagor, the other being dead, should only direct a sale of the interest of the party sued in the mortgaged property.</p>

This suit was instituted by Sherwood, the appellee, against ;Smith, the appellant, for the tortious taking and conversion of •one hundred and twenty bushels of corn which the former alleged the latter had sold and delivered to him. The ^answer contains a general denial and a plea of set-off.

<p>This was an appeal from the probate court of Victoria county to the district court, and subsequent^ from the judgment of the district court to this court.</p> <p>The probate judge, by his order entered upon the minutes •of the court, allowed the appellant, Margaret, who was the widow and administratrix of ~W. Nuner, deceased, four hundred and sixty dollars, for the support of herself and family ■during the first year after the death of her husband. At a subsequent term of the court this order was rescinded, and the ■allowance revoked, and from which decision the administratrix appealed to the distinct court, but ultimately dismissed the appeal without bringing it to trial, and charged the amount against the estate in her administration account.</p> <p>Upon the settlement of the account in the probate court this item of $460 was rejected. There was also another class of items presented in a separate account called exhibit B. These related principally to money alleged to have been collected by Nuner in his life, which was the separate property of his wife, but which he appropriated to his own use. Most of these items were also rejected by the court, and exceptions taken to the decision rejecting them. The administratrix appealed to the district court.</p> <p>At the trial in the district court, the judge refused to permit any testimony to go the jury in reference to the item of four hundred and sixty dollars, upon the ground that the judgment of the probate court in rejecting the items in exhibit B was alone brought to the consideration of the district court by the appeal. To this decision an exception was taken, and the cause was finally brought into this court by appeal from the district court.</p>

<p>When the record in the case of an award shows that a day of trial was appointed, the court will presume it was done according to law, unless it is-shown affirmatively that it was not; and this presumption receives confirmation from the record showing that the parties appeared, and that their respective claims were heard and considered. [Ante, 185. ]</p> <p>The clerk is not required by law to make a record of the form of the oath to-be administered in the arbitration, the substance only being expressed in. the act. [16 Tex. 516.]</p>

This suit was instituted in the court below by the plaintiffs in error against the defendants, and while pending, the court, at the instance of the defendant, continued it for the term, for reasons deemed insufficient by the plaintiffs, and to revise which they brought it into this court by writ of error.

<p>Case stated in the opinion.</p>

<p>Case stated in the opinion of the court.</p>

<p>Fines imposed for a violation of the laws, for the punishment of crimes and misdemeanors, are not debts within the scope and meaning of that provision of the constitution which prohibits imprisonment for debt.</p> <p>The 47th section of the act of 1836 for “punishing crimes and misdemeanors,” which provides that “For all fines assessed and costs of prosecution in criminal cases not capital, the person convicted may stand committed to prison by the order of the court until such fine and costs be paid,” etc., is not unconstitutional. [14 Tex. 400.]</p>

All the material facts are stated in the opinion. in support of the demurrer, cited Smyth v. Lehie, 1 Const. 6; also 2 Mass. 441, 444: 7 Johns. 75; 1 Day, 315; 3 Halst. 69; 6 Martin, 6, 10. In reference to the plea of limitation, he cited the 3d, 4th and 5th sections of the statute, vol. 5 of laws, p. 164.

Case stated in the opinion. It is shown by the statement of facts that there was a mis'.take made in the settlement at the time the note was given,, and by which the appellant was deprived of a credit for the proceeds of nineteen bales of cotton, worth six hundred and four dollars and ten cents.

<p>The statute which requires the copy of the record of an appeal or writ of error to be filed with the clerk of the supreme court on or before the third day of the term next succeeding the taking of the appeal or writ of error, is as applicable to the state, when a party appellant or plaintiff, as to an individual. When the transcript of the record has not been thus filed, the former, as well as the latter, must show good cause for the omission, in order to authorize the court to refuse a motion made to dismiss the case. [28 Tex. 488.]</p> <p>Where no exception has been made by law, the state must prosecute her suits for civil rights in the same way, and under the same forms of remedy, prescribed by the laws of the forum for individual suitors. [16 Tex. 305; 21 Tex. 753.]</p>

<p>Where a bond for title to land in Texas, with two subscribing witnesses thereto, was executed in the state of Arkansas, and its execution acknowledged before the presiding judge of a county court in that state, who subsequently made oath before a notary public in Texas that it had been executed and acknowledged before him, and that his certificate of such acknowledgment was genuine: Held, that the execution of the bond was not proven in the manner required by the laws of this state, nor in accordance with the known rules of evidence. Before secondary evidence of this nature was admissible, it must first have been proven that the subscribing witnesses were dead, or beyond the jurisdiction of the court, so that their testimony could not be had.</p> <p>Where an. instrument is not proven in the mode required for its admission to record, it acquires no authenticity tom having been, in point of fact, recorded.</p>

The plaintiff, the appellant in this court, filed his petition in .the district court of Galveston county on the 30th June, 1847, alleging tbat lie wras, by lawful transfers and assignments, the-owner and holder of a certificate of which the following is a copy: “ No. 604.

The defendant in error sued the plaintiff in error in 1844 on a promissory note made at Manchester, in the state of Mississippi, for the payment of several thousand dollars due on the 1st day of January, 1838. The defendant pleaded the statute of limitations of the state of Mississippi of six years, and a former recovery in that state-upon the same cause of action.

This suit was brought by the appellee, who was plaintiff in -the court below, to recover a sum of money alleged by the; plaintiff in his petition to have been paid by him to the Bank of the State of Arkansas, as security for the defendant, Reynolds. The note of the defendant, signed by the plaintiff as security, was filed with the petition, having a receipt indorsed thereon by an. agent of the bank, showing that the same had been paid by the plaintiff.

<p>Under the laws of this state, an appeal does not He from the award of a district court refusing hail, and remanding a prisoner charged with a crime, ■upon the return and examination, upon a habeas corpus. [14 Tex. 436.]</p>

<p>Case stated in the opinion of the court.-</p>

In addition to the facts of tbis case, as stated in the opinion of the court, the record presents a bill of exceptions substantially as follows: “Beit remembered that in this case the defendant, by his counsel, came into court when said case was called for trial, and excepted, ore teniis, under the general demurrer, that the petition of said plaintiff was defective in not setting forth the name of the party plaintiffs in the cause, as a corporation, if they sued as such, or…

All the important facts adjudicated in this cause being stated in the opinion of the court and the dissenting opinion, the reporters deem it unnecessary to give a farther statement of them here.

The material facts of this case are stated in the opinion of the court. in opposition to the defendant’s first exception to the petition, cited Major v. Hammond, 9 JB. & 0. 364; Boche v. Campbell, 3 Camp. 247; Block v. Bell, 1 M. & Bob. 149; 3 Kent, 75. As to the second ■exception, he cited the case of Wallace v. McConnell, 13 Pet. 136.

<p>In the absence of a statement of facts, the legal intendment is in favor of the correctness of the judgment. [Post, 594; 3 Tex. 60; 7 Tex. 465; 13 Tex. 394; 21 Tex. 485; 28 Tex. 263.]</p>

<p>Robert J. Clow, the defendant in error, filed his petition in, the district court, alleging that he was the surviving partner • of a mercantile firm, then lately in business, under the name of Merritt & Clow. That upon the death of his-partner, Martin, Samuel Patterson, who is made defendant,, had possessed himself of the partnership effects, and had been- and, was wrongfully disposing of and converting them to his. own use, to the damage of the plaintiff twenty thousand dollars.. Tie alleges, also, a loss of credit consequent upon the illegal-acts of the defendant, to his further damage five thousand dollars.</p> <p>Process issued, and property was attached; upon which, on the 22d day of May, 1840, Patterson entered into a 'replevy bond in the sum of thirty-six hundred and thirty-eight dollars-(the alleged valuation of the goods then in his possession), with. Joseph IT. "Wood and Richard R. Peebles as his sureties. Subsequently, having been ordered to give additional security on the 20th day of March, 1841, he renewed his bond, with Gordon, Farral, White and Merritt as sureties. Some time after, upon a suggestion of the death of Patterson, Merritt, by consent, was made defendant to the suit.</p> <p>At the fall term, 1843, by what is termed in the record an “interlocutory decree,” the defendant, Merritt, was adjudged to pay the plaintiff the sum of three thousand five hundred and thirty dollars and fourteen cents, with interest; and the matters not embraced therein, and unsettled, were referred te a commissioner for his report upon them.</p> <p>At the October term, 1844, by what is called a “ final decree,” it was adjudged that the plaintiff recover of the defendant, Merritt, six thousand nine hundred and nine dollars and fifty-six cents, in addition to the sum formerly adjudged to the plaintiff. Subsequently, at the same term, a final judgment, by consent and agreement, was entered as follows:</p> <p>“ And on this day came the complainant, Robert J. Clow, >n his own proper person, and the said Robert Merritt, Joseph H. "Wood, Richard R. Peebles, Jesse Farral and Hardin White, securities for said Samuel Patterson, by their attorney and agent Josiah J. Crosby, Esq., one of the attorneys [584] of 4his court, and agreed and consented to the following:</p> <p>“ That the said parties of the second part, the said Merritt, Wood, Peebles, Parral and White, shall pay to said complainant, Robert J. Clow, the sum of twenty-five hundred dollars in cash on or before the 1st day of December next; and the sum of eighteen hundred dollars by the first of December, 1845, bearing interest at the rate of eight per cent, from this date. And it is further agreed, that in satisfaction of the last payment, said Clow shall admit all legal and just claims in the hands of said parties of the second part against the said firm of Martin & Clow, provided it does not exceed eight hundred dollars; but should it be over that amount, to be retained by said parties of the second part as a subsisting claim in their hands, and should any dispute arise as to the legality or justice of said claims, they are to be referred to a referee chosen by each party, with the privilege of selecting an umpire, whose decision shall be final. And upon the compliance of the parties of the second part to and with this agreement, then it shall operate as a full acquittance and discharge of both the interlocutory and final decree rendered in the said case, and annul all the rights the complainant has therein, or which he may have under any sale made under the interlocutory decree; and should it become necessary to enforce this agreement by an execution, the same shall issue for a peremptory sale, without appraisement, and defendants to pay the costs in the case of complainant against said Samuel Patterson and others expended. It is therefore ordered and decreed that a judgment be and is hereby entered in accordance with the said agreement now consented to, and admitted in open court by the parties aforesaid.”</p> <p>In the vacation, 'after this compromise and confession of Judgment, the defendants therein — the present plaintiffs in error — petitioned the judge for a rehearing and a perpetual injunction of this judgment, representing that the attorney, Crosby, had never been empowered by them to act as their .attorney in the premises; that the judgment had been rendered against them without their consent or knowledge, and that it was otherwise illegal. The judge awarded the injunction; but, on motion, upon the coming in of Clow’s answer, denying all the equity set up in the petition, and alleging that the attorney had acted in the premises with the authority and assent of all the complainants, the injunction was •dissolved, but, on motion, the petition was continued over for final hearing. Before the next term of the court, in May following, this writ of error was obtained for the purpose of bringing up the proceedings in the original cause, and upon the petition for a review and injunction. At the fall term thereafter, 1845, the parties entered into an agreement, in 'which, after reciting the substance of the proceedings of the ■previous spring term, and the suing out of the writ of error from the order of the court dissolving the injunction and that the petition for review and an injunction, “through mistake, •was ordered to stand over as an original bill for a further hearing, when, in fact, they say the dismissal of said superse-deas and injunction did operate, in effect, as a dismissal of •said bill.” They agree that “ the said decree, dismissing said injunction and supersedeas, did, in effect, dismiss said complainant’s bill, and that the entry thereof be so amended, mmo pro tunc, as to show that said bill was dismissed.”</p>

<p>Upon the Spanish or Louisiana law the period of prescription within which proceedings might be instituted to contest the validity of a will was five years. [9 Tex. 123, 129; 10 Tex. 246; 11 Tex. 430; 15 Tex. 285.]</p> <p>Where a will was probated in 1837, and a party interested brought suit to-contest the validity of the same, on the 29th of January, 1844: JHeld, that under the 3d section of the probate law of 1840, and the rule adopted by this court in the case of Gautier v. Franklin, the action was barred.</p>

This suit was brought by Cocke, a surety, against the administrator of his principal, to recover the amount of a debt which lie had been compelled to pay for the latter. There was a verdict and judgment in his favor.

This suit was brought in the county of Galveston by the appellee on behalf of the republic of Texas against the appellants, the collector of customs for the district of Galveston, and his sureties, on their bond to secure to ' the government the faithful performance of the official duties of the collector» The bond is set out in the petition, bears date on the 15th day of January, 1842, and stipulates for the payment to the president of the republic and his successors in…

The material facts of the case will be found stated in the opinion of the court, and in the separate opinion of Mr. Justice Wheelee.