Volume 20 — Texas Reports

Error from Austin. Tried below before the Hon. Thomas H. DuVal. Suit by defendant in error against F. W. Chandler, A. J. Hamilton, and George H. Gray, on their joint and several promissory note. Citation returned served on Chandler and Gray, and “not served” on Hamilton. Judgment by default against all of the defendants. Writ of error by all of the defendants.

Error from Travis. Tried below before the Hon. Thomas H. DuVaL Suit by defendant in error against plaintiff in error on two promissory notes. Defendant denied all and singular, &c. The notes were copied in the petition.

Tried below before the Hon. Thomas H. DuVal. The facts will be found in the Opinion, and in a former report of the same case, 15 Tex. R. 354.

<p>There was no law in November, 1856, under which an indictment could be sustained against the master for permitting a slave to hire his own time.</p>

<p>Error from Travis. Tried below before the Hon. Thomas H. DuVal.</p> <p>The facts are stated in the Opinion. The judgment was by default.</p>

Tried below before the Hon. Thomas H. DuVal. Suit by appellee against appellant, commenced June 9,1856, on the agreement set out in the Opinion.

Tried below before the Hon. Nat. M. Burford. Suit by appellant against appellee to recover fourteen and a half acres of land near the town of Dallas. Plaintiff had purchased the land at a sale under an execution against defendant; and the defence was, that the premises were defendant’s homestead.

Tried below before the Hon. Nat. M. Burford. Petition filed Nov. 20th, 1856, as follows:— The petition of George Akers, A. G. Walker, John R. Wallace and James H. Hughes as plaintiffs, all resident citizens of the County of Tarrant, and State of Texas, would respectfully show unto your Honor that on the first Tuesday in November, A. D. 1856, there was an election held at the various precincts in the County of Tarrant, and State of Texas, “to locate the county seat of said…

Error from Johnson. Tried below before the Hon. Nat. M. Burford. There was an indorsement on the petition as follows:— “ I accept service in the within suit on my own behalf and the firm. December 9th, 1856.

Tried below before the Hon. Thomas H. DuVal. Suit by appellee against appellant, commenced January 17th, 1856, to recover a house and lot in the town of Bastrop, which she alleged to be her homestead. Answer that defendant became the owner of the premises by purchase at Sheriff’s sale under execution against the plaintiff, and that at the time of said sale, plaintiff had abandoned and ceased to claim the property as her homestead.

Error from Johnson. Tried below before the Hon. Nat. M. Burford. Petition by plaintiff in error for certiorari as follows : That he brought suit against said defendant for the sum of ¡§83 49 for various articles of merchandise, and that said cause came on to be heard on the 5th day of August, 1854, before David Mitchell, Esq., Precinct No. 8, where your petitioner appeared by attorney, and that said account was acknowledged to be just.

Error from Travis. Tried below before the Hon. Thomas H. DuVaL. Suit by Newell W. Burdett against the plaintiff in error for the rent of one hundred and two acres of land at $5 per acre.

Tried below before the Hon. Thomas H. DuVal. Indictment for maliciously killing a jack, the property of one C. E. Metcalf. Motion to quash on the ground that it was not averred that the killing was done with intent to injure the owner, and that no value was placed on said jack. Motion overruled. Conviction; appeal, and recognizance in the form described in the Opinion.

Error from Caldwell. Tried below before the Hon. Thomas H. DuVal. Suit by Jonathan Nix, receiver, &e., against Kimbro W. Barton, on an open account, for balance of $273 37, commenced 20th February, 1855.

Error from Travis. Tried below before the Hon. Thomas H. DuVal. The levy was on land in the county of Travis, and the lien of the judgment was still subsisting. Letters of administration had been issued on the estate of Newell W. Burdett, the defendant in execution; and the administrators had notice of the motion for a venditioni exponas.

Error from Caldwell. Tried below before the Hon. Thomas H. DuVal. Action of trespass to try title, commenced July 20th, 1854, by Archibald W. Templeton and Drucilla M. Templeton, his wife, as administrators of William P. Patterson, former husband of the said Drucilla, against several defendants, among whom was the plaintiff in error, to recover thirty-six acres of land, part of the town tract of the town of Caldwell.

<p>Error from. Dallas. Tried below before the Hon. Nat. M. Burford.</p>

Tried below before the Hon. Thomas H. DuVal. The petition alleged as follows: That on or about the 21st day of April, 1855, your petitioner and the said defendant Duffau had a settlement of their matters then outstanding, of all accounts, judgments, claims and demands, and that upon such settlement your petitioner was debtor to the said defendant in the sum of sixty-three j-09o dollars; that thereupon your petitioner then executed and delivered to the said defendant his bill…

Tried below before H. McLester, Esq., appointed by the parties. Motion to retax the costs in suit of Thomas J. Haldeman and others v. Thomas J. Chambers and another; the item objected to being $90 for “ making complete record.” Motion sustained, and said item ordered to be struck out.

Error from Travis. Hon. Thomas H. DuVal presiding in the Court below. The judgment went by default. It appeared from the petition and exhibits, that the claim had been made in 1836 for $2,848 90, and audited for $2,000 only, which had been paid. The other facts are stated in the Opinion.

Error from Dallas. Tried below before the Hon. Nat. M. Burford. The plaintiff’s claim consisted of an account of several items, none of which exceeded $100. The other facts are stated in the Opinion.

Tried below before the Hon. Thomas H. DuVal. Suit by appellee against appellant for damages for breach of contract to convey 640 acres of land. In 1853 defendant, residing at Austin, Texas, wrote a letter to his mother and sister, Mrs. Hopkins and Mrs. Rogers, in Tennessee, in which he told them that if they could get any one to bring them to him he would pay such person 640 acres of land, or 320 acres and the expenses of the trip.

Tried below before the Hon. Thomas H. DuVal. Suit by James L. Dabney, Elizabeth W. Dabney, Susan E. Kimbrough, formerly Susan E. Dabney, now wife of Thomas T. Kimbrough, (citizens of Morehouse Parish, Louisiana, who joins with her said husband in this action,) James H. Dabney, George B. Dabney, Margaret E. Nash, formerly Dabney, and her husband John Nash, Thomas W. Dabney, Delia A. Dabney, Charles E. Dabney, Laura L. Dabney and Dangerfield L. Dabney, children of the said…

Error from Guadalupe. Tried below before the Hon. Thomas H. DuVal. Suit by defendant in error against plaintiff in error, commenced April 10th, 1854, on a promissory note of the defendant for $1197, dated November 28th, 1840, payable to Winston L. Reausseau.

Error from Travis. Tried below before the Hon. Edward H, Voutress. Action of trespass to try title, commenced in Williamson county, Oct. 17th, 1855, by William E. Owen and Eliza Ann Owen, his wife, to recover of defendants the east half of a league of land in Williamson county. The plaintiffs claimed as sole heir of Sherrod J. Dover, who died in 1835, and by patent to the heirs of said deceased.

<p>Austin, March 17th, 1851. We, the undersigned, agree to donate the cash or property set opposite our names, for the purpose of erecting a Protestant Episcopal Church in the city of Austin, signed by the defendant, among others, with a certain amount set opposite his name, and delivered to one of the Vestry of the Church; and upon the faith of which the Vestry incurred pecuniary liabilities and expense; held to be a valid contract; and held further that the contractor who undertook to build the church, and to whom said subscription was assigned by the vestry in payment, could maintain an action therefor in his own name.</p> <p>There is nothing, in this case, in the objection that at Common Law there is no authority in the Courts to enforce a subscription for charitable purposes.</p>

<p>Appeal from Dallas. Tried below before the Hon. Nat. M. Burford.</p> <p>The facts are sufficiently apparent from the Opinion. The charge was full and clear, and entirely consistent with the decision.</p>

<p>Where a person delivers personal property to another, his declarations made at the time are admissible to prove the character of the delivery, in a controversy between other parties respecting the title.</p>

Tried below before the Hon. Thomas H. DuVal. Suit by William Ellison against William D. Larrimore; attachment ; James Culbertson and two others, garnishees. Oct. 30th, 1856, answer of Culbertson, denying, &c. Same day trial of the cause; judgment against Larrimore, and in same entry judgment for same amount against Culbertson and another of the garnishees, reciting that they had been duly summoned and had failed to answer, but not reciting that they had been called.

Error from Travis. Tried below before the Hon. Thomas H. DuVal. Suit by defendant in error, administrator of William Baker, deceased, against plaintiffs in error, on a note for §904.

Tried below before the Hon. Edward H. Yon tress. Suit commenced April 3d, 1855, by appellant against appellee, to recover a bounty warrant for 1280 acres of land, or its value.

Error from Washington. Tried below before the Hon. R. E. B. Baylor.

<p>Appeal from Collin. Tried below before the Hon. Nat. M. Burford.</p> <p>The facts are stated in the Opinion.</p>

Error from Washington. Tried below before the Hon. R. E. B. Baylor. The suit was commenced 27th January, 1857. The note was dated March 6th, 1855, and was payable twelve months after date.

Error from Bastrop. Tried below before the Hon. John Hancock. On the 30th of April, 1852, Campbell Taylor agreed to sell to John B>. Slocumb a lot or parcel of land in the town of Bastrop, for which the latter gave his two promissory notes for $450 each, one due 28th August, 1853, and the other 28th February, 1855; the former giving his bond to convey the land upon payment of the said notes.

<p>Error from Washington. Judgment by default, and damages assessed by the Clerk. The facts are stated in the Opinion.</p>

Error from Washington. Tried below before the Hon. R. E. B. Baylor.

Tried below before the Hon. Nat. M. Burford. Some time during the year 1851, the defendant in error, Frederick A, Massey, who was plaintiff in the Court below, gave to John M. Thomas, one of the defendants in the Court below, a bill of sale of a negro woman named Catharine and her child, and two boys named Will and Sandy.

Error from Washington. Tried below before the Hon. R. E. B. Baylor. The writ of error was sought and obtained, to the original judgment and all subsequent proceedings thereon; but the only assignments of error went to the variance between the first execution and the delivery bond. The execution was in favor of Neilson, Wardwell & Co.; and the delivery bond recited it as in favor of Neilson Wardwell. The other facts are stated in the Opinion.

Tried below before the Hon. Nat. M. Burford. It was proved that plaintiff knew that the wife had left her husband’s home, when he sold her the necessaries. The facts are sufficiently apparent from the Opinion.

Tried below before the Hon. Thomas J. Devine. Suit commenced November 17th, 1851, by the heirs of William B. Culver, minors, by guardian, against A. P. Manly, to recover a slave Ben, and damages for his services.

<p>An indictment for an assault and battery upon a slave, alleged to be the property of arother, is good; if there are circumstances and relations which would justify the act, it is incumbent on the defendant to show them in his defence.</p> <p>Under the Code of Criminal Procedure, it is not necessary for the State to assign errors in the Court below.</p>

Tried below before the Hon. R. E. B. Baylor. On the 7th of Sept., 1852, Scurry and Wynne purchased from John M. Brown the press, type &c., of the “ Lone Star and Southern Watchtower,” for the price of $2,000, for which they gave their notes secured by mortgage on the property.

Error from Gonzales. Tried below before the Hon. Fielding Jones. Suit by defendant in error against Henry Trammell, Harrison Askey and Alfred Bailes, on the following contract in writing:— $560. One day after date we or either of us promise to pay to Alfred Bailes or bearer the sum of five hundred and sixty dollars, in horses, for value received of him this the 5th day of April, 1856. Indorsed by Bailes, for value received, in blank. Suit commenced Sept. 19th, 1856.

<p>Error from Falls. Tried below before the Hon. Henry J. Jewett.</p>

<p>Error from Washington. Tried below before the Hon. R. E. B. Baylor.</p> <p>The petition alleged all the facts, and made the under lease a part thereof. There was a bill of exceptions, that after the plaintiff had read his petition and amended petition to the jury, and defendants’ attorney had announced his defence, the attorney of plaintiff offered to read in evidence the under lease, to the reading of which defendants objected, on the ground that said under lease, although made a part of the petition, was not as such read ; objection overruled, &c. The amendment struck out the words “ James Baldridge, who sues for the use of,” from the original petition. Exceptions thereto overruled. The other facts are stated in the Opinion.</p>

<p>Where fraud or misrepresentation is alleged, the facts constituting it should be stated.</p> <p>Where a carrier gave a bill of lading for goods in good order, and the consignee required him to pay damages which they agreed the goods had sustained, and the consignee gave to the carrier a certificate that the goods must have been wet when received by the carrier, to induce the intermediate consignees to find out where the goods had been wet; the carrier having sued the consignee, first named, to set aside their settlement, alleging fraud, &c., it was held that the latter was not merely not concluded by his said certificate of opinion, but that the prima facie case made in his favor by the settlement, was not affected thereby; there being no evidence that the settlement was not a real transaction.</p> <p>The verdict in this case held to be contrary to the evidence, and the judgment reversed, notwithstanding the appellant had had two new trials.</p> <p>Where the Court in instructions to the jury, submits issues upon which there has been no evidence, and it is not clear that the jury have not been thereby misled, the judgment must be reversed.</p>

<p>Error from Guadalupe. Tried below before the Hon. Thomas H. DuVal.</p> <p>This was an action of trespass to try title, by Hall against Pearman; the defence was not specially pleaded; there was no statement of facts; and the first paragraph of the synopsis of this report recites the language of the bill of exceptions, and conveys the only information before this Court as to the real facts. There was a third objection to the evidence, as follows: Because</p> <p>the Court rendering the judgment was a Court of competent jurisdiction, and the jurisdiction over the subject matter and the parties having attached, the plaintiff could not now inquire collaterally, into the validity of said judgment.</p>

Tried below before the Hon. Henry J. Jewett. Suit commenced August 5th, 1854, by Dread Dawson, administrator of Elizabeth Sessom, against William D. Miller, for that plaintiff, as administrator as aforesaid, on the first day of November, 1853, by order of the County Court, had sold at public auction, on a credit of twelve months, a certain tract of land, of which defendant and one S. A. Johnson became the purchasers, at the price of |1118, but had failed to comply with the…

<p>Appeal from Ellis. Tried below before the Hon. Hat. M. Bur-ford.</p> <p>The facts are stated in the Opinion.</p>

Tried below before the Hon. John Gregg. Suit by appellee against appellant on a promissory note for $347, dated April 3d, 1855.

Tried below before the Hon. E. E. B. Baylor. Suit by the appellee against appellant, to recover damages for breach of a contract for carriage of “ a certain quantity of goods and furniture,” of the value of $1,200, from Houston to Chappell Hill, on the day of 1853 ; breach, that said Hall, not regarding his duty, and intending to defraud and injure petitioner, voluntarily and unnecessarily delayed said goods and furniture, and failed to deliver them within a reasonable time,…

Error from Lavacca. Tried below before the Hon. Fielding Jones. Suit by defendant in error, commenced March 10th, 1856, against plaintiff in error and Thomas A. Hester, on their joint and several promissory note for $780, dated Oct. 4, 1854, and payable on the first day of Oct. 1855.

Tried below beforethe Hon. John Gregg. Suit by appellee against appellants for partition, commenced March 17th, 1853.

Tried below before C. M. Winkler, Esq., appointed by the parties. Suit by appellee against appellant, administrator of Thomas E. Sloan, and guardian of his minor children, Alexander Q-., and Mary E. Sloan, to set aside an order of the County Court granting an allowance for a year’s support, to said minors, out of the estate of said Thomas E. Sloan, their father. The petition was accompanied hy certified copies of all the orders of the County Court in the premises.

Tried below before the Hon. B. E. B. Baylor. Suit by appellant against appellee for the value of a slave.

Error from Lavacca. Tried below before the Hon. Fielding Jones. At the Spring Term, 1855, plaintiff in error entered into recognizance for the appearance of William B. Gage to answer a charge of unlawfully altering the mark and brand of a heifer, the property of William Hudgens, without the consent of said Hudgens. At Fall Term, 1855, the recognizance was forfeited, and scire facias ordered to issue thereon.

<p>Where the charge of the Court is correct as far as it goes, but does not cover the whole ground, it is the duty of parties to ask an additional charge, if they wish it.</p> <p>In this case it was held that the Sheriff showed no excuse for failing to make a levy as requested; and the judgment was reversed on the facts.</p>

<p>Appeal from Washington. Tried below before the Hon. R. E. B. Baylor.</p> <p>The facts are stated in the Opinion.</p>

Tried below before the Hon. John Gregg. Suit by appellee on two promissory notes of Goody, and the collateral guaranty of F. J. Satterwhite.

Error from Navarro. Tried below before the Hon. Henry J. Jewett.

Tried below before the Hon. R. E. B. Baylor. There was no allegation that defendants did not know the condition of the title, when they made the purchase; on the contrary there was evidence to the effect that the plaintiff and Wallis, before the purchase by defendants, got Cook and another to appraise the value of the lot without the improvements, Wallis saying that he owned half the ground; and that the lot was appraised by them at $25.

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

Error from Washington. Tried below before the Hon. R. E. B. Baylor. The suit was commenced Sept. 5th, 1856; the judgment sued on and the execution, were made parts of the petition; the judgment was dated July 18th, 1846 ; the execution was addressed to all the Sheriffs of the State, was dated July 28th, 1846, and was indorsed as follows: Lodged, 28 July, 1846. Thos. J. Wilder, S. S. D. Nulla bona, Aug. 19, 1846. W. A. Colclough, D. S. Turned over by Thos.

<p>Where the partners in two firms are the same, they may join causes of action in favor of the one with causes of action in favor of the other, in one action.</p> <p>Where a bond for attachment was signed with the partnership name of the plaintiffs “per William Stuart,” on a motion to quash the attachment because the partnership name was signed instead of the names of the individual members of the firm, it was held that it was not necessary for the bond to be signed by the plaintiffs, at all, under the statute, but that it might be signed by Ms agent or attorney, describing himself as such or not.</p> <p>Where the affidavit for attachment was made by Wm. Stuart, and recited that he was the agent of the plaintiffs, and was signed with the partnership name of the plaintiffs, “per Wm. Stuart,” and by said Stuart, and two others as sureties, and the bond was approved by the Clerk, (the signature of the partnership name being treated as invalid,) it was held, on a motion to quash, that the bond purported to be executed by the agent or attorney of the plaintiffs; and that if the defendant would question the authority of the agent or attorney, he must do it by plea in abatement.</p> <p>As a general proposition every Court may allow amendments of returns upon its process, and the statute affirms the general principle. (Hart. Dig. Art. 681.) It is not sufficient in making a return of the levy of an attachment, to describe the property as “a stock of goods, wares and merchandise” appraised at so much, and claimed by a third person who has given bond to try the title. The return should, as nearly as it can reasonably be done, give a specific description of the articles attached, either in the body of the return, or in a schedule or inventory annexed to or accompanying it.</p> <p>For the purpose of executing an attachment the officer may enter the store of a third person, where the goods of the defendant are, and may remain there long enough to seize, secure and inventory the goods.</p> <p>The overruling of a motion to quash an attachment or return thereof, will be revised on appeal or error, after final judgment, on the merits in favor of the plaintiff; such motion is not addressed to the discretion merely of the Court below; nor does the defendant waive such revision by pleading to the merits.</p>

Tried below before John C. McCoy, Esq., appointed by the parties. The evidence as to the execution and consideration of the bond was as follows: The bond, which was made a part of the petition, was signed Abraham Bast his mark, attested by James Bentley; acknowledged the payment of the consideration, which was $75.

Error from Cass. Tried below before the Hon. William W. Morris. Suit by defendant in error, as assignee of Isaac A. Jones, to establish a certificate for a league and labor of land, recommended by the Travelling Board upon condition that when the boundary line between Texas and the United States should be run, said Jones should prove to have been a resident of Texas. Verdict and judgment for plaintiff.

Tried below before the Hon. R. E. B. Baylor. Suit by appellee against appellant and Job C. Chambers, on a promissory note for $228 33£, dated April 16th, 1855, payable January 1st, 1856, with a stipulation that if it was not paid at maturity, it should draw twelve per cent, interest from date until paid; signed by appellant; payable to said Chambers; and indorsed by Chambers to plaintiff.

Tried below before the Hon. C. A. Frazer. Suit by appellant as sole heir and executor of Afred Cleveland, deceased, against appellee, for the penalty of a bond given by the latter to said Cleveland on the 7th of September, 1844, to convey fifteen hundred acres of his headright as soon as he should obtain a patent.

Error from Washington. Tried below before the Hon. R. E. B. Baylor. Suit by the children, and heirs, of Uraney Wilkinson, against Livingston Wilkinson, William W. Buster, John Estis, Valentine Hoffman, and William Bock, to recover their interest in 640 acres of land, and for a partition.

<p>Appeal from Bastrop. Tried below before the Hon. Thomas H. DuVal.</p> <p>The facts are stated in the Opinion.</p>

Tried below before the Hon. R. E. B. Baylor. Action of trespass to try title to four hundred acres of land, by appellant against appellee, commenced in Austin county* and removed by change of venue to Washington. Plaintiff claimed by purchase at Sheriff’s sale under execution on judgments, dated April 18th, 1851, and November 12th, 1851, recovered by plaintiff against Charles Railey in Austin county, in suits commenced on the 6th of June, 1849.

Tried below before the Hon. Fielding Jones. Suit by appellee against appellant on a promissory note. The petition recited the residence of the parties as shown in the second paragraph of the synopsis of the report. There was no citation in the Transcript. Defendant filed an answer containing a plea in abatement, claiming his privilege to be sued in Colorado county where he alleged he resided; also a plea in re-convention. Plaintiff filed exceptions to plea in reconvention.

Tried below before the Hon. Fielding Jones. Held: dated 18th Oct. 1854. The petition alleged that by reason of defendant’s failure to pay promptly the note for $500 due January 1st, 1856, he had “ forfeited all rights which he might hold under said bond, and that petitioners are no longer bound to fulfil any conditions in said bond, they being subsequent to the prompt payment of…

<p>As a general rule it may be sound law, that a covenant on the part of the vendee to pay the purchase money at a particular date, and of the vendor to convey at some indefinite period, as, for instance, after a patent is obtained from the Government, are not dependent upon each other, and that the purchaser must pay the money when due, and rely upon the covenant of the agreement for his remedy.</p> <p>But this rule does not hold where the vendor’s covenant is to convey within a reasonable time and without any unnecessary delay after obtaining a patent from the State, and it is shown that the land has been patented to another who is not a party to the suit, and the validity of whose patent is therefore presumed.</p> <p>The vendee in an executory contract may set up the defects of title as a defence against the recovery of the purchase money, and is not bound to allege his ignorance of these defects at the time of the sale. It is for the plaintiff to reply and prove knowledge of the condition of the title by the defendant.</p>

Error from Gonzales. Tried below before the Hon. Fielding Jones. Suit commenced March 4th, 1857, by appellee against appellant, for damages for failure to deliver corn according to contract.

Tried below before the Hon. Thomas J. Devine. On the 15th of February, 1842, the following contract, commonly known as Castro’s, was made with the President of the Republic of Texas:— Whereas by the fourth Section of an Act of Congress passed the fourth day of January, A. D. 1841, entitled “ An Act granting land to emigrants,” the President of the Republic of Texas is authorized to contract with certain persons therein named, for the purpose of colonizing and settling a…

Error from Gonzales. Tried below before the Hon. Fielding Jones. * Suit by defendant in error against plaintiffs in error, on two promissory notes, expressed to be in consideration of negro hire “ for the farm.’’ Amendment alleging that the farm was the separate property of the wife, that the debt was incurred for its benefit, &c. The defendants had been served with citation and copy of the original petition; the amendment being filed after-wards.

Tried below before the Hon. Fielding Jones. On the 3d day of May, 1856, Monroe & Brother recovered judgment against Clinton E. De Witt, for $735 41, and costs of suit, to bear interest at ten per cent. May 7th, 1856, execution issued ; May 9th, levied on negro woman named Yiney and her child named Nelly; May 9th, returned not satisfied, by order of a writ of supersedeas, defendant in execution having sued out a writ of error.

Tried below before the Hon. Fielding Jones. John K. Castleman died in 1840, leaving a widow, Sarah Castleman, and as part of his estate a league of land in Gonzales county, which he had purchased from Byrd Lockhart, and which was community property.

Error from Gonzales. Tried below before the Hon. Fielding Jones. Defendant requested the Court to charge the jury, that a warranty of soundness in mind and body in a slave, covers all defects, whether defendant knew the defects or not; and that if they believed that the slave was so weak and stupid at the time of warranty as to lessen his value, they should reduce the amount of the note accordingly. These charges were refused. The other facts are stated in the Opinion.

Tried below before the Hon. Fielding Jones. The bidder complied with the terms of the second sale before the return day of the execution, and the sale was completed.

Tried below before the Hon. Fielding Jones. Suit by A. L. Reid and others, composing firm of Reid, Sprague & Co., against A. C. Blair, John G. Logue, and Isam Tooke, commenced March 4th, 1857, on a promissory note for $3000, signed by Blair, payable to Logue or order, and assigned to Tooke, by whom it was assigned to plaintiffs.

Error from Washington. Tried below before the the Hon. R. E. B. Baylor. Suit by James F. Nalle and James Baldridge, late partners, trading under name and style of Nalle & Baldridge, “ who sue for the use and benefit of J. F. Nalle,” against William P. Gates on a promissory note, dated March 4th, 1854, payable one day after date, for $175 21,. bearing interest at 10 per cent. The suit was commenced Sept. 24th, 1855.

Tried below before the .Hon. Thomas H. DuVal. Suit by appellee against appellant on a note signed by Logan Vandever as principal and defendant as surety. The petition alleged the particulars of the plaintiff’s diligence in having the note allowed and approved as a valid claim against the estate of Vandever, who had departed this life.

Error from Ellis. Tried below before the Hon. Nat. M. Bur-ford. The note sued on was dated Sept. 3d, 1855, and was payable by defendant to plaintiff. The note and order, pleaded in set-off, were filed as part of the answer, and there was no acceptance in writing. The allegations are fully stated in the Opinion.

Tried below before the Hon. Nat. M. Burford. Suit commenced May 20th, 1856, by Freeman and Wife against Logan Vandever’s administrators.

<p>In an indictment under the Act of 1850, (Ch. 58, Sec. 1,) against a master, for knowingly permitting his slave to carry fire-arms at other place than on his own plantation, it was held to be erroneous to instruct the jury that the law presumes that every man is informed of any habitual or usual acts of his own slave, unless that presumption is rebutted by the proof.</p>

Error from Bastrop. Tried below before the Hon. A. W. Terrell.

-' Motion by appellant for leave to docket appeal from Williamson, and file the transcript. The facts appear from the Opinion.

Tried below before the Hon. John Gregg. This was a proceeding commenced in the County Court to May Term, 1856, by appellee as a creditor of the estate of James Hughes, deceased, to compel the administrator de bonis non, to sell property to pay the claim of the complainant.

Tried below before the Hon. Fielding Jones. William and Isabella Ponton, husband and wife, came to Texas, and as colonists obtained a headright league of land in the year 1832, from Empressario Stephen F. Austin. In the year 1834, the said William Ponton was killed in Texas, by the Indians, and left a widow, Isabella aforesaid, and four children, to wit: Andrew Ponton, Joel Ponton, Sarah Ann Ponton, and Mary Jane Ponton.

Tried below before the Hon. A. W. Terrell. Indictment charging Barney Cain and John Persons with selling intoxicating liquors, on the first day of July, 1857, in quantities less than a quart. Motion to quash the indictment, on the ground that there was no such offence known to the laws of the State. Motion overruled. Verdict as follows: “We, the jury, find the defendants guilty, and assess the fine at fifty dollars.” Judgment against each defendant for fifty dollars.

Error from Washington. Tried below before the Hon. R. E. B. Baylor.

<p>Error from Washington. Tried below before the Hon. R. E. B. Baylor.</p> <p>The facts are stated in the Opinion.</p>

Tried below before the Hon. Thomas J. Devine. On the 5th September, 1855, Mrs. Amacetta M. Cooley died at San Antonio, in a house where she had then been residing for two years, leaving a sister, Mrs. Emeline V. Wells, since intermarried with James Vickers, as her next of kin; a niece, Susan Wells; and a step-son, Simeon Cooley, whom she had raised from infancy, and who was then a small boy. She was a widow.

Tried below before the Hon. Thomas H. DuVaL The motion to complete the jurat was filed after the motion “to dissolve the injunction and dismiss the petition.” The grounds of the latter motion were, that the pleadings show that there is no equity set forth in the petition, and that the petition is not verified by affidavit. The jiat for the injunction had been granted by the same Judge who presided at the trial of the motion. The other facts are stated in the Opinion.

Tried below before the Hon. Thomas H. DuVal. Chauncey Johnson and his. wife Emily emigrated to Texas in 1840. In 1846 a patent was issued by the State of Texas to the said Emily, as assignee of Daniel Winchel, for one-third of a league of land situated in what is now Burnett county, and was recorded in the office of the County Clerk on the 14th of June, 1851.

Error fromGonzales. Tried below before the Hon. Fielding Jones. .... Suit by defendant in error against plaintiff in error, commenced September 29th, 1853, for breach of warranty of soundness of a slave Jack, sold by the defendant to the plaintiff on the 8th of January preceding.

Error from Washington. Tried below before the Hon. R. E. B. Baylor. Suit, March 11th, 1854, by Anthony Butler’s Administratrix against James McMiller, to recover a tract of 400 acres of land. Defendant claimed the land by purchase at Sheriff sale as the property of said Butler; and in case he could not retain the land, he prayed a recovery of the price paid by him for it. The levy was made in March, 1849 ; Butler died in April; and the land was sold in May.

Tried below before the Hon. Fielding Jones. In February, 1844, Philip Trammell departed this life, domiciled in the State of Arkansas, leaving no widow, and but one child, Nicholas, then eight or ten years of age, to whom he willed the whole of his estate.

Tried below before the Hon. Fielding Jones. Suit commenced February 11th, 1856, by the heirs of N. M. Newsom, deceased, against M. M. Davis and Felix Chenault, to recover a certain tract of 1280 acres of land. It appeared from a copy of the patent, which was made a part of the petition, that the land was patented to N. M. Newsom, assignee of Thomas Casey, and situated in Gonzales county, south of the Guadalupe river. The patent was issued February 7th, 1846.

Error from (¡ronzales. Tried below before the Hon. Fielding Jones.

Tried below before the Hon. Fielding Jones. Suit by Arthur Swift (appellant’s intestate) against Elizabeth Coe and others to recover a quarter of a league of land, commenced Sept. 17th, 1853. The land was originally granted to William A. Sowell, who was a son of John and Rebecca Sowell. William A. Sowell died about July, 1834, at Gonzales, leaving him surviving, an infant daughter Rachel.

The Reporters were not furnished with the transcript in this case, by the Clerk. It was probably supposed that the statement of the facts given in the Opinion, was sufficiently full.

<p>It is no objection to an appeal bond, that it is conditioned to prosecute the appeal with effect or perform the judgment, sentence or decree of the Supreme Court, instead of, and perform the judgment, &e., the word used in the statute.</p> <p>A general denial, not under oath, in a suit on a note, imposes on the plaintiff the duty of producing and offering the note in evidence; or in case the note is lost, of proving its execution and contents; a demurrer to such plea cannot therefore be sustained.</p> <p>A plea of failure of consideration of a note sued on, showed that the note was assigned by the payees after maturity; that it was given on a settlement, as the balance due the payees, who were millwrights, for services and labor by them performed in building a mill for defendant; that they had contracted to do the work in a good, faithful, substantial and workmanlike manner; that defendant was ignorant of the defects, being no judge of such work, at the time of settlement; that said work was not done in a faithful, substantial and workmanlike maimer; and then proceeded to point out certain defects, and claimed $1000 damages; held to be good on demurrer; but, as the case would be remanded on another ground, said plea might be amended if necessary.</p>

Error from Bell. Tried below before the Hon. R. E. B. Baylor. The defendant had pleaded a set-off of $100. The facts are stated in the Opinion.

Error from Gonzales. Tried below before the Hon. Fielding Jones. Action of trespass to try title to a quarter of a league of land, by plaintiff in error against defendants in error, commenced April 1st, 1854. Both parties claimed under Edward Hughart, to whom the land was originally granted June 19th, 1832.

Tried below before the Hon. Thomas J. Devine. Indictment of Robert Augustine for assault with intent to kill, on Francisco Perida and Jesus Perida, The indictment commenced, “State of Texas, county of Bexar,” &c.; described the grand jurors as elected, &c., to inquire in and for the body of the county of Bexar, State of Texas; and charged that “Robert Augustine, late of the county aforesaid, on the thirtieth of August, A. D. eighteen hundred and fifty-six, at the county…

Error from Washington. Tried below before the Hon. R. E. B. Baylor. The petition alleged the note was dated January 3d, 1855, and in addition set it out as follows:— $1505 70. On or before the first day of March next, we or either of us promise to pay A. B. Easley or order, fifteen hundred and five dollars and 70 cents, value rec’d. 3d January, 1855.

<p>Error from Washington. The Reporters were not furnished with the record in this case, by the Clerk.</p>

Error from Dallas. Tried below before the Hon. Nat. M. Burford. The judgment of the Justice was rendered on the 1st of December, 1854.

Error from Dallas. Tried below before the Hon. Nat. M. Burford. The plaintiff laid his damages at $500. The plea of the defendant to the jurisdiction alleged that the lots sued for did not exceed in value $30 each.

Tried below before the Hon. Fielding Jones. On the 14th of September, 1857, appellants filed a petition in the form of an original suit, alleging that at the Spring Term, 1857, of said Court, they had obtained judgment against one Joseph F. Gay, a resident of said county, for $2339 10 ; that execution was issued and levied on two negroes, Ada and Pamila, appraised by the Sheriff at $1500 ; that James L. Gay, a resident of Fayette county claimed said slaves as the trustee of…

Tried below before the Hon. Thomas H. DuVal. At the Fall Term of Fort Bend District Court, 1845, commencing on the 29th day of September, Morgan L. Smith recovered a judgment against Nathaniel Townsend, in Fort Bend District Court, for $879 45, and against Robert Peebles, garnishee in said suit, for $150 with interest on the latter from 15th February, 1836, at five per cent, per annum until paid.

Tried below before the Hon. E. B. 33. Baylor. The petition, which was filed September 15th, 1855, by the executor of Letitia Landrum against Stephen R. Roberts and James H. Swisher, alleged that plaintiff recovered a judgment against defendants, on the 15th day of March, 1851, as will appear by reference to the records of your Honor’s Court, the said judgment being substantially as follows. Here followed the judgment of that date, as set out in the Opinion.

<p>Error from Fayette. Tried below before the Hon. John Hancock.</p> <p>On the 5th of October, 1850, Thomas Chadoin commenced an action of forcible entry and detainer against Richard A. Ma-gee, to dispossess him of a certain league of land in Lavaca county, making oath that he was in the peaceable possession of said land, when said Magee illegally entered into and now detains said league of land. On the 31st of same month said Ma-gee and Nicinda M. Magee, his wife, obtained an injunction from the Hon. Fielding Jones, Judge of that District, restraining said Chadoin from prosecuting his said action of forcible entry and detainer, and the Justice of the Peace from proceeding further therein. Magee and wife set forth, as ground for their injunction, that on the 9th day of February, 1841, Samuel Alexander obtained a patent for the league of land in question, then in Fayette, now in Lavaca county, setting forth the field-notes of the same ; that on the 19th day of July, 1841, the said Samuel Alexander sold said league to Jerome B. Alexander, and that the said Jerome B., in the year 1842, departed this life, having willed one-fourth part of said league, after deducting the attorney’s fee of J. A. Morris, to Nicinda M. Magee; that at the February Term, 1850, of the Probate Court of Fayette county, the said league was partitioned amongst those claiming under said will; and the tract of which Magee and wife had taken" possession was allotted to the said Nicinda ; that on the 23d day of August, 1850, they took possession of the said part of said league, so allotted to them, and made improvements thereon of value; that a copy of the partition, and proceedings of said Probate Court of Fayette county, had been recorded in Lavaca county, before the commencement of said action, and that no person was in possession of said tract so allotted to said Nicinda Magee. They deny that they have possession of said league of land, but only of 640 acres, and pray an injunction, and decree quieting their title to said land.</p> <p>At the April Term, 1851, of the Lavacca District Court, Chadoin filed his answer, upon oath, admitting the issuance of a patent to Samuel Alexander, for the league of land in question, at the time specified in said petition, and the conveyance thereof to Jerome B. Alexander; and that J. B. willed the one-fourth thereof to N. M. Magee; but stated as basis of his claim, that in the year 1884, an order of survey, for said league of land, was granted him by Stephen F. Austin, Empressario, and that he had the same surveyed by Wm. R. Hensley, an authorized surveyor of Austin’s colony; that said order and survey were legally obtained by him, who was then and has been ever since a citizen of Texas; that the same was legally surveyed in all respects before the closing of the land offices, by act of the consultation ; and that the said survey was proven by said surveyor and two witnesses ; that at a Term of the Board of Land Commissioners for Washington county, he applied for and obtained a headright certificate for a league and labor of land, and applied the same to the said survey made for him prior to the closing of the land offices; that his said certificate was regularly approved and recommended by the Board called the Travelling Board of Land Commissioners, under the Act of 1840, to detect fraudulent land certificates; that the said Samuel Alexander had notice of defendant’s claim, long before he located upon said land, and he so located with the express purpose to defraud him out of his land; and that J. B. Alexander also had notice before said Samuel so located upon the same; and that the said sale from Samuel to J. B. was made without consideration, and for the express purpose of defrauding defendant out of his land; that on or about the 28th day of April, 1850, he took actual possession of said league of land, and made valuable improvements thereon, and held quiet possession thereof until the said Magee took forcible possession of the same ; whereupon he commenced an action of forcible entry and detainer, to remove him therefrom. He further set forth that James Webb, of Travis county, A. Emily Robison, wife of Joel W. Robison, and Lucretia J. Irwin, wife of Alexander Irwin, of Fayette county, and Jerome B. Alexander, a minor, also of Fayette county, have some claim upon said land, derived through the said Samuel and J. B. Alexander, all of whom he prays to be made parties to said suit, and prays a decree divesting them of all such claim to said land, and quieting the title to the same in him. At said Spring Term, 1851, defendant moved to dissolve the injunction, which was overruled by the Court.</p> <p>At the Spring Term, 1853, of said Court, the venue was changed, and said cause removed to Fayette county. The parties made by defendant’s answer, viz: Joel W. Robison and wife A. E. Robison, Alexander Irwin and wife J. L. Irwin, James Webb, and Jerome B. Alexander by guardian ad litem, all demur to said answer, and set out their claims to portions of said league of land, derived in the same manner in which N. M. Magee derives hers.</p> <p>At the Fall Term, 1853, of the Fayette District Court, the defendant Chadoin filed an amended answer, and set forth that in the year 1829, he immigrated to Texas, and became one of the recognized colonists of Austin’s and William’s colony, and on the 24th day of June, 1835, he applied in due form of law, for the league of land in question, as appears from a copy of said application, set out in said amendment, and that said application was granted and entered of record in said colony, and that the survey made of said league of land by Wm. R. Hensly, the Surveyor of said colony, was recorded in the records thereof, the field-notes of which are set forth; that a very short time elapsed, after said application, before the closing of the land offices by the act of the consultation, whereby he was prevented from perfecting his title to said land; that immediately after the opening the land offices, for perfecting claims to land, viz: on the day of Febr’y, 1838 defendant, after making the necessary proof, obtained his headright certificate for- a league and labor of land, from the Board of Land Commissioners for Washington county; that a short time after obtaining said certificate, he had the field-notes of his said survey examined by Wm. R. Hensley, who certified their correctness, and also proved them by two respectable chain carriers, and on the 23d day of June, 1838, applied to them his said certificate, paid all the Government dues thereon, to the Receiver of public moneys for Colorado county, as shown by his receipt, set forth in full, with also a certificate from the Commissioner of the General Land Office, showing that he had applied for said land; that after having his field-notes so examined, and proven, and paying all the fees required by law, he sent the same with his said certificate, recommended as aforesaid to the General Land Office for patent; but said field-notes were not admitted to record, because they were examined in Colorado county whilst the land lay in Fayette county; and because the said Samuel and J. B. Alexander, having full knowledge and notice of defendant’s prior location, had located on said land in Fayette county, after defendant had paid for the same, in Colorado county; that he paid for said land in Colorado county, because he had applied for the same long previous to the closing the land offices, and the' establishment of the counties of Colorado and Fayette; and upon the opening the land offices in February, 1888, the Commissioner of the General Land Office, mistaking in which county said land lay, sent to Colorado county a certified copy of said field-notes, with all the lands that had been previously surveyed, lying within the limits of said county, all of which were regularly recorded and recognized as appropriated land; which act of the said Commissioner misled defendant, who was not a surveyor, and had no means of knowing in which county said land lay, the lines of said counties having never been run out; that he had no intimation that his said land did not lie in Colorado county, until long after he had paid therefor, and as soon as he heard that it probably lay in Fayette, he notified the Surveyor of said county, of said claim, and requested him not to survey said land for any other applicant, until he might be able to take the necessary steps to perfect his title to the same; but before he was able to perfect his title, the said Samuel and J. B. Alexander, although defendant notified them in person of his claim, and that they would locate at their own risk, located upon said land, and succeeded in obtaining patents in violation of defendant’s rights; that defendant’s field-notes embrace the greater portion of the surveys made for both said Alexanders, viz: that of 640 acres patented to J. B., the field-notes of which are set out, and of the league made for Samuel, embracing all the front of said surveys, wherefore he asks an order of survey and plot to be made of all said surveys to show wherever they conflict, and also that John G. Holman, administrator, &c., of Jerome B. Alexander, be made a party to said suit; that he has at all times, since his immigration to Texas, in 1829, been a citizen thereof; that he located upon said land in good faith, and paid therefor, and has done all in his power to perfect his title to the same, which he would have been able to do, but for the mistake of the Commissioner of the General Land Office, and the fraud of the Alexanders in attempting to cheat defendant out of his rights. J. G. Holman, administrator, demurred to and answered said amendment, and all said parties by amendment demurred to the answer of defendant, which demurrer was sustained by the Court, at Spring Term, 1854, and the injunction made perpetual.</p>

Tried below before the Hon. John Gregg. At the Spring Term, 1855, Francis M. Hicks recovered judgment against James T. Cyrus and William H. Morrell, for a certain amount of money, from which said Cyrus appealed. On or about the 14th of November, of the same year, the Court House of Navarro county was destroyed by fire, and with it the records of said suit and judgment.

<p>Under the Act of January 21st-, 1850, (Hart. Dig. Art. 2229,) which gave to colonists in Peters’ colony a priority to the section of land including their improvements, such priority was not confined to cases where the colonist resided on the particular section, but extended to cases where the colonist resided on an adjoining section, selected by another colonist, and had improvements including land in cultivation on the section selected by himself.</p>

Error from Travis. Tried below before the Hon. Thomas J. Devine. On July 26, 1852, L. P. Alford and Wm.

Tried below before the Hon. Thomas H. DuVal. Wednesday, 14th May, 1856. The State v. Hodges, No. 262.

The transcript did not state who presided in the Court below. The bond was for the appearance of Henry Trammell to answer an indictment for “ betting at a game called Faro.” Scire facias for Trammell returned not found. The scire facias for Bailes, the surety, recited the forfeiture of a bond for the appearance of Trammell to answer an indictment for “playing cards for money;” returned served.

<p>Error from Collin. Tried below before the Hon. Nat. M. Burford.</p> <p>Suit by McQuinney H. Wright against W. A. Williams, commenced February 7th, 1857, on a promissory note of said Williams for $2,000, dated July 27th, 1855, payable on or before .the first day of January, 1857, to Mary Standifer or bearer, reciting that it was given in part payment for a tract of land that day purchased from the said Mary ; indorsed on the back “ pay to bearer, this 10th Nov. 1855,” signed M. W. Mathews; and assignment to M. H. Wright, Feb. 14, 1856, by D. J. Thomas and W. B. Thomas. Plaintiff alleged that he became the owner of said note, before due, giving a valuable consideration therefor. He also alleged the facts, and prayed an enforcement of the vendor’s lien.</p> <p>The defendant filed two pleas, one to the effect that he admitted the execution of the note sued on ; but pleaded in bar the pendency of a prior suit in the District Court of Kaufman county, commenced on the day of A. D. 1856, by one B. M. Musgrove against the said Mary Standifer, in which said Mary filed an answer in the nature of a cross-action, a certified copy of which was filed as part of this defendant’s answer; that this defendant and said Wright, the plaintiff, have been duly served with process in said cross-action ; prayer for protection, and that the suit be dismissed. Affidavit of the truth of the plea.</p> <p>Defendant filed another plea, in case his first was held insufficient, to the effect that he admitted his liability upon the note sued on, but that in March, 1856, said Mary Standifer published a notice, warning all persons not to purchase or receive said note, and gave special notice to this defendant not to pay the same, on the ground that it had been obtained from her by M. W. Mathews by fraud; and to the end that defendant might be protected, he asked that the said Mary Standifer, who resided in the county of Kaufman, be made a defendant in this suit, and that she be required to assert her claims to said note if any she had.</p> <p>The answer of Mary Standifer in the Kaufman county suit, purported to be an answer in a suit commenced by B. M. Mus-grove against her, on her promissory note; it alleged that said note was given in part payment for lands in Kaufman county, purchased by said Mary from said Mathews, detailing the particulars, in which she charged said Mathews, one Boydston and one Hanna with confederating to defraud her; that she gave beside the note sued on, a note payable to said Mathews by her for $150, payable January 1st, 1857, and a note executed by Wesley A. Williams, payable to said defendant, due January 1st, 1857, for two thousand dollars ; that said Mathews, for the purpose of further defrauding this defendant, and carrying out his fraudulent designs, confederated with William B. Thomas and Daniel J. Thomas, who reside in the county of Hunt, and who are prayed to he made parties to this suit, merchants trading under the style of Thomas & Bro., and made the fraudulent transfer of said note (that is the note sued on in the Kaufman county suit) that is indorsed upon the back of said note sued on, after the same became due, antedating the same in order that the defence here relied upon could not be made available, without any consideration therefor; and that the said Thomas & Bro. had full notice of the facts and allegations hereinbefore set forth, before they received said note, and that they received the same after it became due, and that the said Thomas & Bro. transferred and delivered said note to the said plaintiff after the same became due, without any consideration, and that plaintiff had full notice of the facts herein stated. The defendant would further show that the note for two thousand dollars upon Williams was transferred by said Mathews to said Thomas & Bro., and by said Thomas & Bro., to one McQuinney Wright, who also resides in the county of Hunt, some time since the first of January, 1856, (perhaps 1857 intended,) the precise time not known, under like circumstances, for a like purpose, and with a like design; and that each of the said Thomas & Bro. had notice of the facts and allegations hereinbefore stated; that said Mathews is wholly insolvent; that defendant fears said Williams, who resides in Collin county, and who is prayed to be made a party defendant to this suit, may and will pay to the said Mc-Quinney Wright the said sum of two thousand dollars, and thereby this defendant be deprived of her just rights; prayer that this answer be taken as a cross-bill, and that said Mathews, Thomas & Bro., Wright and Williams be cited, that said sale be set aside for fraud, that the said notes be redelivered to this defendant, and if this cannot be done, then give her such reduction upon the said notes as the facts may warrant; for damages against Mathews, and for general relief. Affidavit to the truth of the facts stated.</p> <p>The copy of the citation served upon defendant Williams in the Kaufman county suit, was also made an exhibit; it was issued on the 18th of Sept. 1856. The date of the filing of Mary Standifer’s answer in that suit was not given, but must have been prior to the date last mentioned.</p> <p>Plaintiff in this cause moved to strike out the defendant’s answer, on the ground that it was insufficient and presented no defence. This motion was sustained, on the ground, as stated in a bill of exceptions, that said answer was insufficient and presented no defence. Jury waived, and judgment for plaintiff for $2058 33, &c.</p>

Error from Guadalupe. Tried below before the Hon. Thomas H. DuVal. Scire facias on the forfeited bond of Eobert M. Fore, Thomas A. Gay and Floyd Layton for the appearance of said Fore to answer an indictment for “ stealing two bushels of corn, the property of one Archibald Cone,” as recited in the bond. The bond recited the indictment of said Fore, and his apprehension by the Sheriff upon a capias, and was taken and approved by the Sheriff.

<p>Appeal from Burnett. Tried below before the Hon. Thomas H. DuVal.</p> <p>Action of trespass to try title to a league of land, by appellee against appellant and six others, brought to Spring Term, 1856. Appellant disclaimed as to all except seven hundred and seventeen acres specially described, to which he claimed title under David F. Owens, to whom he alleged the league was granted by the Government in the early part of the year 1835. And for further answer defendant says he is informed that said plaintiff alleges that the aforesaid grant to Owens was and is void; and this defendant says, if it is true, which is denied, then that the survey of said league of land, made for said David F. Owens, as a colonist of the late Bepublic of Texas, was lawfully made, at a time when there was no law prohibiting said survey, by reason of which this defendant avers that said Owens obtained a valid legal and equitable title to said land from the Government of the Bepublic of Texas, and that the field-notes of said survey were returned to the General Land Office within the time prescribed by law.</p> <p>Defendant’s answer then set up a pre-emption claim to 320 acres in case it should be held that the title of Owens was void. Defendant also denied that plaintiff had any title to the land for which he took defence. There was also a suggestion of improvements in good faith.</p> <p>At the trial the plaintiff gave in evidence a copy of a letter from J. & P. De Cordova to the District Surveyor of Milam county, without date, requesting an entry of the league of land now in controversy, by virtue of a duplicate certificate to John Stephenson, described by its number and date ; certified on the 11th of August, 1854, by the District Surveyor of Milam Land , District, to be a true copy of the original on file in his office. Then followed a certificate, of same date, by the District Surveyor, that the certificate of John Stephenson, as above named, is on file in my office, with file of same. The foregoing copy and certificate was on a half sheet of paper, on the back of which was indorsed, “Received on file December 6th, 1853. Wm. Armstrong, D. S. M. D.” Same surveyor who gave the copy. Plaintiff then gave in evidence a certified copy from the General Land Office of the John Stephenson duplicate certificate for a league of land, and proved the transfer thereof to himself. Plaintiff also proved, by a son of Jennings, that the latter went on the land in the fall of 1851, under deed from one Casner, and had been there ever since. Here plaintiff rested.</p> <p>The defendant read in evidence, for the purpose of laying a predicate for possession in good faith, (in the language of the statement of facts,) a translated copy of the original grant from the Government of Coahuila and Texas, issued by William H. Steel, Commissioner of Robertson’s colony, to David F. Owens, for the same league of land covered by plaintiff’s location, dated 28th December, 1835; plaintiff admitting that the survey was made for Owens in the spring or summer of 1835. Defendant then proved a chain of title by mesne conveyances from David F. Owens to 718 acres of land to E. E. Casner, and a deed therefor from Casner to himself, dated May 27th, 1852, duly recorded. Defendant then proved his application for pre-emption survey of 320 acres, including his improvements, on the 24th of February, 1854, and a survey thereof on the 3d of March, 1854. Defendant then proved that seventy-seven acres of the pre-emption field-notes were on the Owens league, the value of his improvements, and the value of the land. There was no question as to the fact that the plaintiff had used due diligence to get his survey made and returned. A great many instructions were given and refused, but, in the view taken of the case by this Court, they are not now important. There were also bills of exception to the admission and exclusion of testimony. The jury found for the plaintiff, but that the defendant settled in good faith, and was entitled to the value of his improvements, assessed at $540; and valued the 718 acres at $1 75 without the improvements. Judgment accordingly. Motion for new trial by both parties overruled, and appeal and cross-appeal.</p>

Tried below before the Hon. Thomaa J. Devine. The venue was changed by consent to Bexar county. The facts are stated in the Opinion.

Tried below before the Hon. R. E. B. Baylor. Indictment for the murder of Thomas Harrison, in December, 1855, tried at the Spring Term, 1856. The evidence is stated in the Opinion.

Tried below before the Hon. John Hancock. The petition in the former suit, the judgment in which was pleaded by defendants (appellees) in bar of this, set out the title of the plaintiffs, Dangerfield and others, emanating from the Spanish Government; alleged that the defendants had made locations and surveys thereon, upon one of which they had obtained a patent; that defendants had notice of plaintiffs’ title, and made said locations and procured said patents fraudulently,…

<p>The provision of the Constitution of the Republic of Texas, that if any citizen of the Republic should die intestate or otherwise, his children or heirs should inherit his estate, and that aliens should have a reasonable time to take possession of and dispose of the same, &c., was prospective in its operation, and did not include alien heirs of persons who had died previous to the organization of the Republic.</p> <p>The headright fone-third of a league) of one who died in 1835, patented in 1846, did not descend to his heirs who were citizens of the State of Mississippi, they having no capacity to inherit at the time of the descent cast.</p> <p>A patent issued in 1846, to “the heirs” of one who died in 1835, inures to the benefit of those only who were heirs at the time of the descent cast, and not to those who afterwards acquired such capacity before the patent, by the removal of their alienage. It is otherwise in respect to the legislative grants to the heirs of those who fell under Fannin, Travis, Ward, Grant and Johnson.</p>

Error from Bexar. Tried below before the Hon. Thomas J. Devine. On the 13th of July, 1853, W. K. Baylor, who held the title bond of W. D. Mays for 640 acres of land included in the suit of Gilbeau v. Mays, commenced in the District Court of Bexar county on the 2d of July, and finally decided in this Court in favor of said Mays at the Austin Session, 1855, sold the same to J. B. Alexander, the plaintiff in this suit.

Tried below before the Hon. R. E. B. Baylor. Suit by appellees, Bennett Easterling, Frances E. Easterling his wife, and Josephine Baird, all citizens of Autauga county, in the State of Alabama, as heirs-at-law of Charles Baird, deceased, against Francis M. Blythe, to recover a quarter of a league of land, parcel of a league originally granted to E. D. Jackson. Edwin H. Winfield and Ann H. Winfield his wife, became defendants instead of Blythe, who was their tenant.

Tried below before the Hon. Thomas H. DuVal. Suit by John F. Gordon against Thomas W. Wilson, J. R. Johnston and Jonathan Barber, on a promissory note for $122, signed by the two former, payable to the latter, dated July 13th, 1853, due January 15th, 1854, and assigned to the plaintiff, as alleged in the petition, on the 8th of September, 1854, Johnston signed as surety.

Tried below before the Hon. Thomas J. Devine. This was a suit for injunction by Josiah Fisk against John Gr. Miller and Catharine, his wife, to enjoin the execution of a judgment recovered by Miller and wife against Fisk and others, at the Fall Term, 1852, affirmed at Austin, 1854, and reported in 13th Tex. E. 224 ; and for a new trial upon the merits.

Tried below before Robert J. Townes, Esq., appointed by the parties. At the Fall Term, 1852, of Travis District Court, on the 30th of September, John Gr.

<p>It seems that a call for an intermediate corner, to be S. 45° AY., 160 varas from a certain corner of another tract, will control the calls of the survey for course and distance; although such corner is not established on the ground, and can only be found by running the lines of said other tract.</p> <p>AYhere A owned half of a league of land, which half had been previously surveyed, and A and B purchased the other half, and with a view to the partition of the second half, went upon the ground with a surveyor and run out and marked the division line between the half leagues, which was a broken line, and a question arose, in making such survey, as to the location of one of the intermediate corners, which called for a certain course and distance from the corner of another tract of land, which latter corner was not marked on the ground; but A in good faith pointed out to B the place where he was informed it was, which afterwards proved to be very near it; and after a casual search for said corner without finding it, they marked the corner of the division line without reference to it, and continued the survey; and divided the half of the league with reference to such division line so run and marked; and it appeared that by the line so run about fifty acres more than half the league fell to A, and that by a line run with reference to the call for the corner of the neighboring survey, the league would have been about equally divided; it was held that B was concluded by his assent to the division line and the partition with reference thereto; there being no concealment on the part of A, nor any surprise or imposition practised on B by him.</p>

Tried below before the Hon. Fielding Jones. This is the third appeal in this case. The two former will be found in 11 Tex. R. 556, and 15 Id. 500.

Error from Tarrant. Tried below before the Hon. Nat. M. Burford. The note sued on was under seal. There were two answers by all the defendants, not materially different. The first was supported by the affidavit of Haynes to the effect that the facts stated, so far as the same relate to the want or failure of consideration of the note therein mentioned, are true as he verily believes.

Error from Tarrant. Tried below before the Hon. Nat M. Burford. Suit May 5th, 1856, by Elizabeth Blackburn, a resident of the State of North Carolina, as executrix of Samuel Blackburn, against Ann S. Hurt, Joseph M. Bounds and David C. Haynes, on a note under seal for $1100, expressed therein to be in consideration of two certain lots in the town of McKinney, (Collin county,) sold by said executrix to said Ann.

Tried below before the Hon. Thomas J. Devine. Action of trespass to try title to certain land, commenced March 18th, 1853, by Morgan G. Hamilton against Oscar Frederick. Spring Term, 1853, Albert C. Horton was made a defendant by agreement, and cause continued. Answer by Horton, claiming to be the real owner of the land sued for, and landlord of defendant Frederick, and alleging the particulars of Ms title. Replication of former judgment, alleging the particulars.

Tried below before the Hon. Thomas J. Devine. The colonial contract of Austin & Williams was dated Leona Vicario, 25th February, 1831. Arciniega, the Commissioner by whom the title to Avery was extended, was not Commissioner of the colony of Austin and Williams. The fourth Article, quoted in the Opinion, is from the contract for Austin’s Little Colony. This appeal was filed on the 16th of November, 1853. The other facts are stated in the Opinion.

Tried below before the Hon. Fielding Jones. Suit by appellant, Exum Luter, against appellee, John W. Eose, for partition of certain land, commenced August 29th, 1853. The land had been community property of Philip De Witt, deceased, and his wife Maria, who survived said Philip. On the 6th of April, 1844, one Thomas ifewcomb recovered a judgment against said Maria, for $80 30, in the District Court of Victoria county, in which county this land lay.

Tried below before the Hon. James Webb. May Term, 1853, without further date, personal recognizance of John A. J. Hamilton, in open Court, (after mistrial by a jury unable to agree upon a verdict,) in the sum of $5000, to answer indictment for the murder of Edwards Ragland; and of Quincy Davidson and David Emison, as sureties of said Hamilton, in the sum of $2500 each; and of Darwin M. Stapp, Hugh Stapp, Green Davidson and Quincy Davidson, as witnesses in behalf of the State…

Tried below before the Hon. M. P. Norton. Indictment of Nicolas Yanez, Sept. 17th, 1857, for assault with intent to kill and murder, upon the body of one Juan Gonzales, committed on the 23d day of August preceding. Next day c.ame the prisoner, with his counsel, and waived the time of service of a copy of the indictment, pleaded not guilty, was put upon his trial, and found guilty; the punishment being assessed at four years’ confinement in the penitentiary.

<p>Appeal from San Patricio. Tried below before the Hon. Edmund J. Davis.</p> <p>Smith first set out his claim of title, and possession by his tenant; then the institution of the action of forcible entry on the 10th day of February, 1857, in the name of Walter Henry, who is an alien, by one Patrick O’Docherty, who represented himself as the agent of said Walter Henry, against plaintiff’s tenant; then the nature of said Henry’s claim of title to the land, with plaintiff’s objections to the validity thereof; that the law of forcible entry and detainer does not apply to the case; then the allegations of want of jurisdiction, &c., as stated in the Opinion; that the action of forcible entry had been continued by agreement of counsel, until the first Saturday in May, then next. One Patrick Henry was also included in the charge of combination. Prayer for injunction; for citation to Ryan, O’Docherty and Patrick Henry; for perpetuation of the injunction ; for costs and for general relief. The petition was filed April 80th, 1857.</p> <p>Writs of injunction and certiorari ordered by Hon. M. P. Norton. Bond filed, and injunction issued, &c. Answers of all the parties defendant, under oath, denying the charge of confederation to harass the plaintiff. Motion to dissolve the injunction, and dismiss the petition. Fall Term, 1857, motion by Smith for a continuance to procure testimony. Motion to continue overruled ; injunction dissolved and bill dismissed.</p>

Error from Lavaca. Tried below before the Hon. Fielding Jones. Suit by Wilson Brooks, plaintiff in error, against Aretus W. Hicks, for $300 damages for the wrongful taking and conversion to his own use, by said Hicks, of a bay horse, a gelding, of the value of $100. Citation issued, and returned executed. Answer filed. Motion by defendant for rule on plaintiff for security for costs, at Fall Term, 1855, and cause continued.

Tried below before the Hon. Fielding Jones. Petition of George M. Reese, “ executor of the last will and testament of William Cox, deceased,” for a certiorari to bring up a case from the District Court. The ground was, that Hamilton had presented a claim for $96, which petitioner allowed for $45 and rejected for the balance; that the claim was presented to the Chief Justice, and approved by him for the $45.

<p>Appeal from De Witt. Tried below before the Hon. Fielding Jones.</p> <p>The facts appear from the Opinion.</p>

Tried below before the Hon. Fielding Jones. Suit by Barton Peck, appellant, against Mary T. Hensley, widow of W. R. Hensley, deceased, and others, heirs of said W. R. Hensley, on a covenant of warranty, in a tionveyance from said W. R. Hensley and his said wife, of a half league of land, situated in Colorado county and originally granted to John H. Dabney. The conveyance was on the 26th Sept. 1841.

Tried below before the Hon. Fielding Jones. The facts appear from the Opinion. The deed was authenticated by the acknowledgment of it before a Notary, by January, the grantor.

Tried below before the Hon. Fielding Jonea; _ _ Petition filed Sept. 11th, 1854, as follows: The petition of S. A. White, of the county of Victoria and State of Texas, com-I plaining of Edward Parish, of the county of Calhoun and State j aforesaid, would represent unto your Honor, that the said Parish •has undertaken, as administrator of Simeon F. Southern, to settle *the unfinished business of a copartnership which heretofore existed between the said Southern and your…

Tried below before the Hon. Fielding Jones. Petition of John York’s administrator, filed in the County Court on the 9th of December, 1854, alleging the execution of a bond for title to land, by John Tumlinson, in his lifetime, which bond was filed as part of the petition; the death of Tumlinson ; administration on his estate in that county; that said title had never been made; prayer for specific performance. Said bond was as follows:— The State of Texas, County of De Witt.

Tried below before the Hon. Fielding Jones. Suit by appellee, Jesse O. Wheeler, against appellant Charles H. Jordan, commenced December 12th, 1855, on defendant’s indorsement of the following bill of exchange. Ohio, Cincinnati, Sept. 8th, 1854. Bill of Exchange for f 100.

Tried below before the Hon. Fielding Jones. The appellee, in August, 1855, commenced this suit against S. A. White and James Ashworth, late partners under the name of S. A. White & Co., merchants doing a receiving, forwarding and commission business at Indianola.

Tried below before the Hon. James H. Bell. The bond for title was as follows:— September 28th, 1841. Republic of Texas, County of Colorado. This indenture witnesseth, that for and in consideration of the sum of eighty-five dollars in hand paid, the receipt whereof is hereby acknowledged, I, Hiram Emerson, of the aforesaid Republic and county of.

Tried below before the Hon. Fielding Jones. On the 22d of December, 1852, appellant’s intestate sued the appellees, alleging that on the 5th of May, 1851, the appellee David filed his petition in said District Court, praying for a writ of seizure of the goods, wares and merchandise of your petitioner, and of the books, notes, accounts and effects in his possession, and for a writ of injunction restraining petitioner from disposing of said goods, and from collecting said…

Tried below before the Hon. Fielding Jones. On the 5th day of Sept. 1855, William B. Davis purchased from M. B. and J. M. Bennett, trading as partners under the style of Bennett & Brother, lot No. 8, in block No. 1, in the town of Halletsville, and a stock of drugs, medicines, furniture, &c., then in the house erected on said lot.

Tried below before the Hon. James H. Bell. Suit by appellee against appellant, to establish a boundary line. The call in both titles, which were both issued in 1831, was for a straight line, same course, and same terminus on the river; one calling for the other. The defendant claimed that the line as marked on the ground, was a broken line, making a difference of nineteen acres, in a length of 3663 varas.

Error from Fayette. Tried below before the Hon. James H. Bell. This was an action commenced before a Justice of the Peace, by the defendant in error against the plaintiff in error, on a note for $82 28. Citation was served on the defendant Perry on Monday, the 30th day of April, which was only four days before the return day of the writ, to wit: On the first Saturday in May, 1855. The defendant did not appear, and judgment by default was rendered by said Justice.

<p>The effect of previous decisions is, that where one party sues out a writ of error, or perfects an appeal, the other may assign errors, and incorporate them in the record brought up by the plaintiff; this rule relieves the appellee, in such a case, from the necessity of giving bond.</p> <p>Where the proof was that husband and wife separated in 1829, and the wife married again eight years afterwards, and there was no evidence that the former husband was living at any time after the separation, it was held that the presumption of innocence was paramount to the presumption in favor of the continuance of human life; and that the second marriage was prima facie valid.</p> <p>Where husband and wife separated in 1829, and lived at places remote from each other, and the wife married again in 1835, and the husband in 1837, and the husband and last wife lived together, as man and wife, until his death in 1853 ; in a controversy between a child by the first wife and the second wife and her children, respecting the estate, it was held that the second marriage of the husband must be held valid, without proof of a divorce between the husband and first wife, notwithstanding the second wife knew of the first marriage of her husband, and that his first wife was still living, but married to a second husband.</p> <p>Where the language of the will was to the effect, that as soon as all the property of the testator, real and personal, should be known and could be made available and partitioned, the same should be divided among the testator’s wife and children, each to receive share and share alike of the testator’s property as aforesaid, it was held that the proper construction of the will was, that the wife should receive an equal share with each of the children, in addition to her half of the community estate, although the whole estate, with an insignificant exception, perhaps, was community property.</p> <p>Where the surviving wife is a legatee and executrix of her husband’s will, and returns all the property as belonging to his estate, she is not precluded by the inventory, from afterwards asserting her right to one-half of the community; nor can she be held to have elected to take under the will, instead of under her right to a share of the community estate, until the estate shall have been settled and she shall have taken her share under the will, to the exclusion of her legal rights on distribution.</p> <p>The terms “my wife and children,” in a bequest, means all the children of the testator, (legitimate and legitimated, at least) whether by his present or a former wife; but do not include the children of his wife by a former husband.</p> <p>Children born before the marriage of their parents, who afterwards intermarry, whether such subsequent marriage is valid or null, it would seem, are legitimated by the statute.</p> <p>As a general rule, a sale of property of a deceased person, under execution from the District Court, against executors or administrators, is null and void; and it is therefore not sufficient, in support of such sale, to produce a final entry of judgment against such executors, execution and deed ; but it must be shown further, that such judgment and execution were obtained under one of the Sections of the statute, which authorize the same in special cases.</p>

Error from Colorado. Tried below before the Hon. James H. Bell. Suit by Daniel A. Conner against John Mackey, executor of W. H. Secrest and R. Autrey, on a note under seal. The case was in this Court, on appeal, at Galveston, 1857, and will be found reported in 18 Tex. R. 427.

Error from Colorado. Tried below before the Hon. James H. Bell. _ _ Suit by Isam Toote against Asa Smith, former Sheriff of Colorado county, and the sureties on his bond, commenced on the 22d day of Oct., 1856, alleging that on the 19th May, 1854, said plaintiff instituted a suit in said District Court, for a certain amount against one A. J. Shannon, and obtained an attachment, which he caused to be placed in the hands of said Asa, Sheriff as aforesaid ; that at that time…

Error from Fayette. Tried below before the Hon. James H. Bell. Suit commenced Feb. 20th, 1856, by plaintiff in error against defendant in error, on defendant’s note for $1050, dated April 20th, 1853, and due January 1st, 1856, with interest from date.

Tried below before Clinton Terry, Esq’r, appointed by the parties.

Error from Colorado. Tried below before the Hon. James H. Bell.

Tried below before the Hon. J. M. Maxcy. Conviction for larceny of a hog, of the value of four dollars, at the Spring Term, 1857, on an indictment found on the 15th of Nov. 1855. Judgment arrested on the ground that the grand jury, by which the indictment was returned, was not a lawful grand jury.

Tried below before the Hon. Edmund J. Davis. The theft was committed in July, 1856; indictment found and conviction at the Fall Term, 1857. The facts appear from the Opinion.

Tried below before the Hon. James H. Bell. Held: under said order of sale, James C. Eccles became the purchaser of the whole tract, and received a deed therefor; leaving a balance in the Sheriff’s hands, after paying the judgment, which defendant refused to receive. On the 4th of May, 1857, Eccles brought this suit to recover the land.

Error from Brazoria. Tried below before the Hon. James H. Bell. Suit by defendant in error against Greenville Dowell, Sarah L. Dowell his wife, and John M. Prewitt, on a promissory note, and to foreclose a mortgage, or deed of trust, given to secure the same, commenced February 26th, 1857. Citation served on Greenville Dowell, in Harris county, March 11th, 1857. Service accepted by Prewitt, who was trustee and merely a nominal party. Ho service on Mrs. Dowell.

Tried below before the Hon. James H. Bell. Suit by appellee against appellant, as the keeper of a public inn, for the value of a horse, the property of the plaintiff, which, it was alleged escaped or was stolen from the stable or lot of the defendant, through the carelessness and neglect of the latter ; said horse having been received into defendant’s possession, in the capacity aforesaid, to keep and feed, from the hands of a certain person in whose service he then was, and…

Error from Fayette. Tried below before- the Hon. James H. Bell. Petition for certiorari, filed March 2d, 1855, as follows:— The petition of Socrates Darling, a resident citizen of the county and State aforesaid, respectfully showeth, that heretofore, to wit: on the- day of one John Davis, also a citizen of said county and State, instituted suit against your petitioner before IT. C. Joiner, an acting Justice of the Peace in and for said county, for the sum of $60.

Error from Fayette. Tried below before the Hon. James H. Bell.

Tried below before the Hon. James H. Bell. Suit commenced by appellant against appellee, in a Justice’s Court, for the value of three hogs, the property of plaintiff, killed by defendant by shooting, $25 ; exemplary damages for killing said hogs, $75. Judgment in the Justice’s Court for plaintiff for $10, value of the two hogs, and $75 exemplary damages. Removed by defendant, by certiorari, to the District Court.

Error from Colorado. Tried below before the Hon. James H. Bell. Suit commenced Oct. 20th, 1856, by defendants in error against plaintiff in error on store account. Defendant denied all and singular and pleaded the statute of' limitations.

Error from Galveston. Tried below before the Hon. Peter W. Gray. Suit by Orange Swan, commenced on the 27th May, 1857, on a promissory note for $1988 77, due Oct. 1st, 1855, against Hal Runnels, the maker, residing in Harris county, William J. Kyle an indorser, residing in Fort Bend county, and Henry B. Martin, also an indorser, residing in Galveston county.

Error from Orange. Tried below before the Hon. J. M. Maxcy. Suit commenced Sept. 27th, 1855, by Dark against Ashworth, on two promissory notes for $1000 each; both dated Oct. 80th, 1854; one payable at six, and the other at twelve months, with ten per cent, interest from date; and to foreclose a mortgage on a stock of cattle, amounting to about six hundred head, more or less, branded T. S. The mortgage was filed as part of the petition, and contained a clause authorizing…

Tried below before the Hon. Peter W. Gray. Petition of O. S. Sheldon, for writ of habeas corpus, to R. P. Boyce, Marshall of the city of Houston, by whom petitioner alleged he was illegally confined in the jail of said city. Writ issued, and returned executed by bringing the body of the petitioner before his honor, Judge Gray, June 8th, 1855, together with the writ of commitment, by which he was held. Continued on application of petitioner until June 9th.