Volume 21 — Texas Reports

Tried below before the Hon. Edmund J. Davis. Suit by appellee against appellant, commenced July 20th, 1857, on the promissory note of the defendant, for $2,572 30, dated Feb. 21st, 1857, and payable to plaintiff on or before the first of May.

Tried below before the Hon. R. E. B. Baylor. Trespass to try title, by the heirs of Jesse Bartlett against. Mary A. Hubert. In 1824 Samuel Miller received a grant for a league of land on the west side of the Brazos river, at the mouth of New Years creek, and conveyed the same, in August, 1837, to Bartlett.

Tried below before the Hon. Peter W. Gray. On the 25th November, 1852, Isaac Thayer and J. W. MeCown made an agreement in writing, to the effect that the former would give the latter full possession of the Houston House, a hotel in the city of Houston, together with all the furniture belonging to Thayer, (and also the use of Mrs. Wilson’s furniture till the 15th of April then next) for which McCown agreed to pay Thayer $3000, as follows : release all mortgages and then pay…

Error from Fayette. Tried below before the Hon. James H. Bell. The plaintiffs in error claimed and gave bond to try the right to a boy slave Frank, twelve years of age, levied on as the property of Nathaniel Trammell, at the suit of the defendant in error. The slave was taken in December, 1853, and the claim was made on the 14th of January, 1854.

Tried below before the Hon. James M. Maxcy. On the 11th day of March, 1854, Orlando S. Betsill and Martha A., his wife, united in a bill of sale of a slave boy Champion, about six years of age, to Anna Ratcliff, for the-price of $300.

Error from Harris. Tried below before the Hon. Peter W„ Gray. Petition filed March 18th, 1855, in Brazoria county District Court.

Tried below before the Hon. James 31. Maxcy. Suit by appellant against appellee for divorce, commenced ••September 8th, 1856.

Tried below before the Hon. Edmund J. Davis. Suit by John Reeves, executor of Daniel Lloyd, alleging that in May or June, 1856, his testator pledged to Jarnett & Morgan a note on John C. Brightman for $800, dated 6th February, 1856, payable to said Lloyd, or order, two years after date, with interest at the rate of ten per cent, per annum from date, to secure the payment of a debt of $51, due from Lloyd to said Jarnett & Morgan ; that Jarnett & Morgan had wrongfully and…

Tried below before the Hon. Jas. H. Bell. On the 17th of June, 1854, S. H. Summers & Co., wrote a letter from La Grange, to Whitney, Fenns, Shaw & Co., Boston, as follows : Enclosed please find order for sundries, which we have taken the liberty of sending to your house. We are sending out our orders a little earlier than usual this season, so as to get them hauled from Houston at low freights. The firm of our house has formerly been Summers & Dabney.

Error from Harris. Tried below before the Hon. Peter W. Gray. Suit commenced May 9th, 1856, by Thomas G. Birdwell .against A. M. Walker and George W. Grant, on a promissory note for $1625, with interest at ten per cent, per annum after maturity, dated January 1st, 1855, and payable January 1st, 1856, from Walker to Grant, and assigned to plaintiff; also to enforce a vendor’s lien on land for the purchase money of which the note was given.

. Tried below before the Hon. Joseph 0. Megginson. Trespass to try title, by Shubael Marsh against Reuben L. Weir, to the half of a league of land originally granted to said Marsh in 1824; commenced February 27th, 1847. Joseph M. McCormick, who was the landlord of Weir, became a party defendant.

Tried below before the Hon. James H. Bell. Suit by appellee against appellant for $187 57, for medical attendance to the slaves of the appellant.

Tried below before the Hon. James H. Bell. Action of trespass to try title, commenced in Colorado county, April 12th, 1853, by William J. Jones, against Washington Secrest and Larkin Secrest. The land sued for was-the upper half of share number two, allotted to John J. Tumlinson, one of the heirs of Elizabeth Tumlinson, deceased, in the division of the league and labor of land, granted to said Elizabeth by the Mexican Government, as her headright.

<p>Two of the defendants in this suit, Butterworth and wife, filed a bill against John H. Bennett and the present plaintiff, in the District Court of the United States for the District of Texas, to recover the property in controversy in this suit and for account. A decree was obtained against Bennett, who set up title to the property, and suit was dismissed as to present plaintiff, Hunt. Such decree held no bar to an action by Hunt, as administrator, to recover said properly upon the allegation that the deed from his intestate, under which the plaintiffs in the former suit claim and hold the property, was invalid and inoperative, no question upon this point having been made in the former suit.</p> <p>Where a fraudulent gift or deed has not been consummated by delivery to the donee in the lifetime of the donor, but the latter dies in possession and there is probate or grant of administration before the donee takes possession, such properly is assets in the hands of the administrator, and he may maintain an action for its recovery.</p> <p>The general question of the right of an administrator to impeach for fraud the deed of his insolvent intestate, left open.</p>

Tried below before the Hon. J. M. Maxcey. Samuel E. Bigham and Moses S. McCall instituted suits against the appellee, John F. Carr, severally, upon two separate promissory notes for §500 each, in defence to which Carr set up a contract entered into between him and the appellants, by the terms of which he agreed to sell them certain parcels of land therein described, and for which they agreed to pay the sum of two dollars per acre.

Tried below before the Hon. Fielding Jones. The defendant being about to leave Indianola, for New Orleans, received from the plaintiff a package containing $540) to be delivered in the latter city free of charge to one Hays, an attorney at law.

Error from Austin. Tried below before Hon. J. H. Bell. Trespass to try title by the plaintiffs, commenced 10th May, 1854, for the league of land granted to Willis Stanly, in 1831, as his headright. The plaintiff Elizabeth claims as the surviving widow of Willis Stanly, deceased, and the others as his heirs.

Tried below before the Hon. J. H. Bell. Tadlock, the appellant, applied to the County Court of Fayette county for a discharge in bankruptcy, and tendered a deed of assignment, in which he claimed to have set apart to him two • hundred acres of land as a homestead. The deed was rejected and his discharge refused. From this order he appealed to the District Court, which affirmed the decision of the County Court.

<p>Appeal from Austin. Tried below before the Hon. J. H. Bell.</p> <p>The facts are stated in the Opinion of the Court.</p>

Tried below before the Hon. J. H. Bell. Bice & Adams, merchants in Galveston, doing business under the name of Bice, Adams & Co., made advances and furnished supplies, to a large amount, to Love & Burnley, partners in the ownership and cultivation of a plantation in Brazoria county—the advances and supplies being for the use and benefit of the plantation.

Error from Fayette, Tried below before Hon. J. H. Bell. Suit by Wheatly against Cunningham and Hontz on a joint and. several promissory notes; the defendant, Cunningham^ answered and set up matter in reconvention ; Hontz not having answered, there was a judgment by default against him. The plaintiff then dismissed as to Cunningham, and took judgment final against Hontz, whereupon the defendant sued out a writ of error.

Error from Grimes. Tried below before Hon. P. W. Gray. Petition for injunction alleges that while the petitioner was ■absent from the State, suit was instituted against him by the plaintiff in error, and a judgment recovered against him for §97 67, and also judgment against other parties as garnishees.

<p>Where the general denial is pleaded, a plea of the Statute of Limitations is an admission of the debt in reference to that plea alone, and cannot be held to contradict the general denial.</p> <p>The Statute will not bar a payment when pleaded as such in defence to a cause of action which has been extinguished by payment.</p>

<p>The verbal gift of a slave, with immediate delivery, accompanied by the expressed intention and wishes of the donor that the slave should be manumitted, and so accepted by the donee, divested the donor of the property and vested it in the donee, subject only to such equities and conditions as may be lawful.</p>

Tried below before Hon. J. H. Bell. The appellant and one Dukes were jointly indicted for gaming. They severed, and Dukes was convicted and paid Ms fine. Upon the trial of the appellant he offered Dukes as a witness in his defence, who, upon objection being made to Ms competency, was excluded. The accused was found guilty and appealed, assigning as error this ruling of the Court.

<p>Appeal from Fayette. Tried below before Hon. J. H. Bell.</p>

Error from Fayette. Tried below before Hon. J. H. Bell. This was an action of trespass to try title. In the same suit the defendant in error claimed damage for trespasses committed on the premises. The plaintiff in error demurred to- the petition upon the ground that there was in this a mis joinder of causes of action; his demurrer was overruled. On the trial the defendant in error made out his title, and proved the trespass and his damages.

Tried below before the Hon. P. W. Gray. Indictment for keeping a disorderly house. As the opinion of the Court is confined to a question arising on the face of the indictment, a statement of the facts of the case further than may be found in the Opinion is deemed unnecessary.

Tried below before the Hon. B. E. B. Baylor. Suit by defendant in error, administrator of Lewis G. Dupree, to recover slaves which he alleges to have been conveyed by his intestate to the plaintiff in error by a bill of sale absolute on its face, upon the averment that the bill of sale was, though absolute in its terms, made only in trust to secure certain amounts paid by the plaintiff in error for the intestate 5 and that the reasonable hire of the slaves had more than…

Tried below before Hon. F. Jones. Adams, who was doing a commission and forwarding business in Lavaca, died on the 5th October, 1853, indebted, as Ms books showed, to Jordan, in the sum of §1215 86. In September' previous, Jordan, according to one of the witnesses, had purchased two-thirds of the warehouse and wharf, occupied and used by Adams, and there is some proof of a contemplated co-partnership between Adams and Jordan.

<p>Under an indictment for gaming, a place in the woods so distant as not to be seen from any house or road, held not to be a public place within the meaning of the law, without proof that persons generally resorted there for the purpose of playing cards or for other purposes.</p>

Tried below before Hon. P. Jones. Henry Gibson recovered a judgment in the District Court of Matagorda county against Claiborne Hill and Wm. Varnell on the 20th day of October, 1856, on which judgment execution was issued October 29th, 1856, and levied November 21st, 1856, on five negroes in the possession of Claiborne Hill, in Calhoun county. S. W. Hill, son of Claiborne Hill, set up a claim to the negroes, making affidavit and giving bond, as required by the' Statute.

Error from Brazoria. Tried below before Hon. J. H. Bell. The plaintiff in error purchased a tract of land and gave her own and her husband’s two several notes for the purchase money, with a lien on the land, falling due at different times. The first note falling clue suit was commenced on it, and a judgment rendered on it against them and other endorsers, and a decree ordering a sale of the land to satisfy the lien.

Error from Grimes. Tried below before the Hon. P. W. Gray. The defendant in error, Eotilda Chatham, with her husband, brought suit in 1856, alleging that she was formerly the wife of John H. Dunham, who died in November, 1853, leaving a considerable amount of property in his own right, and had control also of some of the separate property of said Eotilda. That Jos. H. Dunham administered on the estate of deceased, and made out and returned an inventory of the same.

Tried below before Hon. J. H. Bell. Action by appellee, as administrator of the estate of Eson Tyson, against appellant, to recover rent for the use and occupation of a plantation belonging to the estate of appellee's intestate for the years 1854, 1855 and 1856.

Tried below before Hon. F. Jones. This was an action brought in Gonzales county, (venue changed to DeWitt,) by McHugh against Gonzales College, and also against the above named appellants, who contracted as a building committee for the erection of a college building.

Tried below before Hon. James Webb. This was a suit brought to set aside a deed made by appellee to appellant’s intestate, upon the following allegations: Appellee alleged in his petition, that about the 1st of March, 1843, he executed a deed of conveyance to Gibson for one-half of his headright league of land; that the consideration named in said deed, of one thousand dollars, was nominal and never paid; that the inducement to make said conveyance was the promise, agreement…

Tried below before the Hon. C. W. Buckley. Rebecca Portis, representing herself as guardian of Samuel A. Cummings, demanded and received from P. D. McNeil, a former guardian, a sum of money due by said McNeil, and this suit was brought to recover it. Appellant pleaded coverture and limitation. Verdict and judgment for appellee. Motion for new •trial overruled.

Error from Fort Bend. Tried below before Hon. J. H„ Bell. The plaintiff in error, E. J. Jemison, sued defendants as representatives of Hudson Gaston, deceased, for such part of one quarter of a league of land situated in Fort Bend county, as she was entitled to as one of the heirs of Jesse Thompson, deceased, he having died in 1834, leaving as survivors his wife, Mary Thompson, and his children, H. M. Thompson, James M. Thompson, Jesse Thompson, Henry C. Thompson, Gracy…

Tried below before the Hon. P. W. «Gray. Suit on a promissory note for seventy dollars before a Justice of the Peace. Judgment for the plaintiff and brought by certiorari to the District Court. On the trial the plaintiff below read in evidence the note .and closed.

<p>In an action on a note executed by one as President of a Bailway Company, the Clerk issued the writ commanding the Sheriff to summon such person as President, <kc., and service was made on him. Held that the writ and service were good.</p>

Tried below before Hon. P. W. Gray. The appellant was indicted under Article 321 of the Penal ■Code and convicted.

Tried below before Hon. J. H. Bell. On the 26th day of December, 1842, League, Andrews & Co., recovered a judgment, in the District Court of Harris county against Stephen Richardson and Francis Moore for $2475 00 and costs of Court upon a debt secured by mortgage, in which judgment the Court decreed the sale of the mortgaged property.

Tried below before Hon. E. J. Davis. The indictment charged the defendant with stealing, taking, .•and carrying away two horses, the property of Antonio Mediano, then being found in the State of Tamaulipas in the.Republic of Mexico, without an averment that such act was there a crime. Upon motion the indictment was quashed.

Error from Fayette. Tried below before Hon. J. H. Bell. Action brought upon a warranty of a slave in the following words : “ Which said negro I warrant to be sound in both body and mind,” Ac.

Tried below before Hon. C. W. Buckley. Suit for a league of land.

<p>Appeal from Harris. Tried below before Hon. Peter W» Gray.</p>

Tried below before Hon. P. W. Gray. The appellant was indicted for the theft of a slave. Upon the calling of the cause, the accused filed an affidavit •for a continuance, in the following words: “ And now comes the defendant, Wiley P. Bruton, and says that he cannot go safely to trial in the above stated case for the want of the testimony of Christopher Foley and William G. Higgins, who reside in the county of Shelby and State of Texas.

Error from Harris. Tried below before the Hon. Peter W. Gray. The plaintiff in error filed his petition on 30th May, 1856, claiming that the defendant was indebted to them in a large sum for work, labor, &c. To the petition was attached and made a part thereof, an account showing the items of the plaintiffs’ claim, and which account states that these items all accrued before the month of May, 1854.

Tried below before Hon. J. H. Bell. On the 15th of January, 1853, the appellant, with Royall & Selkirk as his securities, executed three notes in favor of John L. Thorp or order, all to fall due on the 1st of January, 1856; one was for $137 50, for the hire of a negro boy named Taswell; the second for one hundred dollars for the rent of some cleared land ; and the third for $125 00, for the hire of a negro, woman named Bridget.

<p>Error from Lavaca. Tried below before Hon. F. Jones.</p> <p>Suit for 1000 acres of land. Plaintiff filed bis petition in April, 18 54, setting up title in himself to the land. The defendants answered and asserted title in themselves by sales made under and by virtue of a judgment in attachment obtaine d by Willie Cummings against the plaintiff, by which they became the owners and entered into the possession of said land. On the 11th April, 1856, plaintiff filed an amended petition averring that said judgment, and the sale made under the same were void, because he, the plaintiff, was never cited by process or in any other manner known to the law, and in no manner made a party to;the suit; and that said judgment, if ever rendered against him, it was so done fraudulently, by combination between Asa M. Lewis and R. H. Tobin, who was then the Sheriff of Colorado county ; and that the attachment, execution, levy, sale, and deeds to the present defendants, were parts of said fraudulent combination, and prayed that said Asa M. Lewis might be made a party, &c., which was refused. In an amended answer the defendant set up the Statute of Limitations.</p> <p>On the trial, the plaintiff read in evidence a patent from the State to Willie Cummings, and a bond for title from him, (Cummings,) to the plaintiff, for the land in controversy.</p> <p>The defendants offered in evidence the record of the judgment in attachment against the plaintiff, in favor of Willie Cummings, from the District Court of Colorado county, and the execution, levy and sale under the same, and mesne conveynace to themselves, to the introduction of which the plaintiff objected, and the Court overruled his objection. To this ruling the plaintiff filed the following bill of exceptions :</p> <p>1st. Because it appears from said transcript, that in said suit the said Bowers had never been cited, and had never been madé a party thereto ; and that he never appeared therein either in person or by attorney.</p> <p>2nd. Because at the date of the filing of the affidavit and bond in attachment, and at the date of the issuance of the writ of attachment, and at the date of its levy, there was no law in existence authorizing such levy on the real estate of a debtor, unless such debtor was a non-resident of the Republic.</p> <p>3rd. Because it appears from said transcript that the affidavit and bond were filed in the office of the District Court of Colorado county, and the writ of attachment issued and levy made before any petition was filed in said office.</p> <p>4th. Because it appears from said transcript that no personal service was had on Bowers, and that judgment by default was rendered at the first Term of Court after the institution of the suit.</p> <p>5th. Because the said suit purports to be a proceeding in rem, and judgment by default is rendered against the person, and execution ordered to issue.</p> <p>6th. Because it appears from said transcript that judgment by default was rendered against Bowers, without service of any citation or by publication.</p> <p>There were other exceptions filed which, however, are not necessary to a proper understanding of the Opinion.</p> <p>The Court charged favorably to the defendants, and there was a verdict and judgment accordingly.</p>

Error from Colorado. Tried below before Hon. N. H. Hunger. Trespass by plaintiff against W. H. Moore for land, and to recover the value of the use and occupation; amended petition makes C. Y. Hutchinson a party, alleging that he pretends to claim the land described in plaintiff’s original petition, and that Joseph H. Guy, under whom the defendant Moore pretends to claim the possession of the land, asserts a tenancy under said Hutchinson.

Tried below before Hon. Peter W. Gray. In scire facias against Wren and his sureties, Hogan and Hadley, upon the bail bond of said Wren, charged with the murder of Lewis Isaacks.

Error from Fayette. Tried below before Hon. T. H. Du Val. Suit to recover back the purchase money of a tract of land purchased by defendant in error of the plaintiff in error.

Error from Galveston. Tried below before Hon. J. H. Bell. This suit was brought in the Court below to recover freight on lumber delivered by the plaintiff to defendants at Galveston. The bill of lading which is in evidence shows that defendant’s lumber was shipped on the deck of plaintiff’s vessel at the port of Mobile, to be delivered at the port of Gal veston. The shipment on deck was therefore under a special contract, as shown by the bill of lading and statement of facts.

Error from Harris. Tried below before the Hon. Peter W. Gray. Suit by the defendant in error to recover money advanced for the benefit of plaintiff’s in error intestate. Judgment for appellee. The record contains no notice of appeal, but contains a statement of facts signed by the counsel for the plaintiff in error only, and signed also by the Judge without seal.

Rusk. Tried below before the Hon. W. W. Morris. The appellee obtained a judgment against David Howard before a Justice of the Peace. On 6th May, 1854, he sued out a writ of garnishment against the appellant, which was served, requiring him to answer what he owed David Howard & Co. On the 27th May, 1854, the garnishee answered that he owed nothing, and knew of no other person who did, &c., on which answer he was discharged.

Error from Lamar. Tried below before the Hon. Wm. J. ■ Todd. Petition for 'certiorari to Justice’s Court dismissed on motion, in which the following causes were assigned : because-, the petition does not disclose any error committed in the Court below ; the facts set forth does not entitle the petitioner to the relief prayed for, and for want of equity.

Error from Fannin. Tried below before the Hon. W. S. Todd. Suit for trespass for land. This cause was submitted to the Court upon the following agreed statement of facts : “ The plaintiffs hold title by patent issued to the heirs of Jonathan Clark, and it is admitted that they are his heirs.

Error from Cass. Tried below before the Hon. W. S. Todd. The only facts contained in the record are stated in the Opinion.

Error from Lamar. Tried below before Hon. W. S. Todd. Suit for damages for killing a mare.

Tried below before Hon. W. S. Todd. Suit for damages for an assault and battery. The Court struck out so much of the answer of the defendant as set up in reconvention a libellous publication made by plaintiff of and concerning the defendant, to which defendant excepted. There was a verdict and judgment for plaintiff, and motion for new trial refused.

Error from Titus. Tried below before Hon. W. S. Todd. Suit by Williams and wife, to recover nine head of cattle, commenced in Justice’s Court, where judgment was rendered in their favor for the value of the cattle, $63 and costs, amounting to $126 11. Removed to District Court by certiorari, where a like judgment was rendered.

Error from Fannin. Tried below before Hon. W. S. Todd-The judgment of the Court, after reciting the verdict of the jury, which was in the following words, viz : “We, the jury, find a verdict for the defendant Garrett Fitzgerald/ was expressed in these words: “ It is therefore ordered, adjudged and decreed that the defendant have and recover of the plaintiff in this suit all costs of this suit herein expended, for which execution may issue.

Tried below before the Hon. W. S. Todd. ' Indictment for cutting and carrying away lumber from lands belonging to the State. Upon motion the indictment was quashed and the State appealed.

<p>Error from Titus. Tried below before Hon. W. S. Todd. The Material facts are contained in the Opinion.</p>

Error from Titus. Tried below before the Hon. W. S. Todd. Suit on notes. On the trial the plaintiff in error offered to read in evidence the deposition of D. O. Kiger, the material part of which was that he, the witness, was present when the parties were about to draw up the writings for the sale of the steam mill and tract of land.

Error from Lamar. Tried below before the Hon. W. S. Todd. Suit on bill of exchange accepted by S. M. Fulton.

Tried below before the Hon. W. S. Todd. Petition for certiorari dismissed upon motion by the District Court, to which appellant excepted. -

Tried below before the Hon. W. S. * Todd. Suit commenced before a Justice of the Peace, and the judgment there rendered brought by certiorari to the District Court, where, upon motion, the petition for certiorari was dismissed, which is assigned as error. The material averments of the petition are stated in the Opinion.

Error from Red River. Tried below before the Hon. W. g. Todd. Berthlett, Jones & Co. sued David G-. Bell and Jane H. Bell, his wife, to foreclose a mortgage upon a negro woman named Malinda. The defendant in error, Albert Folsom, by his next friend, intervened, claiming said negro woman as his property in his own right. The only contest in the case was in regard to the title of the intervener to the negro.

Error from Red River. Tried below before the Hon. W. S. Todd. Suit to obtain a decree for title to a tract of land based upon a bond sworn to be lost, and for which unsuccessful search had been made.

<p>Error from Titus. Tried below before Hon. W. S. Todd.</p> <p>The defendant in error sought a decree, requiring the plaintiff in error, as administrator of Thomas Trent, to make him a title to a tract of land described in the petition, which he alleged he purchased of said Trent in his life time, paid the purchase money, entered into possession, and made valuable improvements thereon ; that Trent died without making him a title. Defendant below pleaded the general issue and setup the Statute of Frauds and Limitations, which latter was stricken out upon motion.</p> <p>On the trial, the sale by Trent, the payment of the purchase money or the principal part of it, the taking possession, and the improvements were proven by several witnesses. The possession of the defendant in error continued for about two years.</p> <p>The Court charged the jury as follows : “ If the jury believe from the evidence, that Ripley purchased the land of Trent in his life time, paid the money for it, and took possession, and made such improvements as were valuable to him, they must find a verdict for him. The fact that Ripley moved off the land and remained off pendente lite, or during the time the land was in litigation, does not prejudice his legal rights. 1 believe that if there were no valuable improvements made, that the jury should still find for the plaintiff, if the other averments in the petition were proved, because the pleadings show that nothing short of a decree for specific performance would place' the parties in statu quo, or in the condition that they occupied before the purchase.”</p> <p>There was a verdict and judgment for the defendant in error. Motion for new trial overruled.</p>

Error from Lamar. Tried below before Hon. W. S. Todd. Suit by scire facial to revive-a judgment rendered upon an award by arbitrators. The plaintiff in error answered, that “ said judgment is rendered upon an agreement made and entered into as between the said plaintiff and this defendant, upon which said agreement the arbitrators made their award, which award was made the judgment of the Court.

Error from Upshur. Tried below before Hon. C. A. Frazer. To the judgment below both parties prosecuted writs of error. The facts are contained in the Opinion.

Tried below before Hon. John Gregg. The appellee recovered a judgment against appellant before a, Justice of the Peace ; the latter filed his petition for a certiorari, setting up the contract and understanding between Mmself and appellee, going to show that the money was not duo at the institution of the suit.

Error from Wood. Tried below before Hon. John Gregg. Suit by defendant in error as administrator de bonis non of the estate of V. Hobbs against George W. Vickery, a former administrator of said estate, and his sureties upon his administration bond. The plaintiffs in error excepted to the sufficiency of the petition, for the reasons stated in the Opinion, which exception was overruled, and upon this ruling assigned as error the case comes up.

<p>A horse, being the only one owned by defendant, is exempt from execution</p> <p>An answer to a petition for an injunction not sworn to, does not entitle the party making it to a dissolution of the injunction.</p> <p>A plaintiff, in his petition for inj unction having prayed for damages, and stated a case for at least nominal relief, the case on the dissolution of the injunction should not be dismissed, but be continued over for a hearing on the merits.</p> <p>See this case for circumstances under which costs were improperly adjudged against a party.</p>

Appeal' from -Harrison; • Tried below before Hon. John Gregg. . . _ • Suit upon an account against Thomas 0. Bentley and Mildred Bentley, his wife.

Error from Wood. Tried below before Hon. C. A. Frazer.. Suit by defendant in error to cancel a deed made to the-plaintiff in error by the Sheriff, under an execution, the recital of which is as follows : “ Whereas, at our Hon. District Court, Fall Term, A. D. 1853, it was ordered by said Court that Charles F. Stanley, Isaac Wilkins, and Cary F. Rice, have a new trial, on payment of all costs for this Term of the Court, therefore you are hereby commanded, of the goods,…

<p>Where there is a verdict and judgment for a greater amount than is claimed in the petition, such judgment will be reversed unless the excess is released,</p>

Error from Rusk. Tried below before Hon. 0. A. Frazer. Plaintiff in error brought suit before a magistrate for a horse found in the possession of the defendant, and judgment being there rendered against Mm, he filed his petition for a certiorari to bring the case before the District Court. The material allegations in the petition are stated in the Opinion. Upon motion of the defendant the Judge dismissed the petition.

<p>Error from Busk. Tried below before Hon. O. A Frazer.</p> <p>The facts are stated in the Opinion.</p>

Tried below before Hon. C. A. Frazer. This was a petition for a certiorari, from the judgment of the District Court dismissing which, an appeal is taken. The proper construction of the note set out in the Opinion, being the only question in the case,' it is not deemed necessary to give the facts of the case.

<p>Appeal from Rusk. Tried below before Hon. John Gregg. The facts upon which the Opinion proceeds are stated in it.</p>

Tried below before Hon. W. S. Todd. Indictment for unlawful use of an estray. Defendant excepted upon the ground that the indictment charged no offence. Exception sustained.

Tried below before Hon. C. A. Frazer. Appellee brought this case by certiorari to the District Court. On the trial there, he was offered as a witness, and at the request of appellant's counsel was sworn on his voir dire.

■ Error from Cass. Tried below before Hon. W. S. Todd. Suit for the hire of a slave. Plea, that before the expiration of the time for which he was hired, he was drowned, without the fault of the defendant. To this plea plaintiff demurred, and the demurrer was sustained.

Tried below before Hon. R. A. Reeves. Suit upon a note, under the signature of which was a memorandum in the following words: “ If not punctually paid when due to draw ten per cent, interest,” which is alleged to be an agreement made at the time of the execution of the note. The appellant failing to answer a judgment by default was rendered for the amount of the note, with ten per cent, interest. Motion for new trial overruled.

Error from Smith. Tried below before Hon. R. A. Reeves. Judgment by default upon a note clearly excessive. After plaintiff in error had filed his petition and bond to remove the cause to the Supreme Court, the plaintiff below, by his attorneys, filed a remittitur of the excess.

Error from Rusk. Tried below before Hon. C. A. Frazer. Suit upon an account for merchandize. Judgment for defendant in error, and a motion for a new trial, based upon affidavit, which was refused, and this refusal is argued as error. There is no statement of facts or bill of exceptions in the record.

<p>Where the full names of the plaintiffs were set out in the petition and judgment was rendered in favor of the plaintiffs, A. & B., omitting their given names, held a valid judgment.</p>

Error from Lamar. Tried below before Hon. W. S. Todd. Suit brought by plaintiff in error against the District Surveyor of Lamar county to compel him to make a survey of 640 acres of land, which had been filed upon by Fowler, and against Hilburn to cancel a file made by him upon a portion of the same land of 320 acres, and to annul the survey made upon said last file.

<p>A person entitled to an annuity out of an estate may assign the same, and the County Court has jurisdiction to order payment to such assignee.</p>

<p>Appeal from Rusk. Tried below before Hon. C. A. Frazer.</p> <p>The material facts arc found in the Opinion.</p>

Tried below before Hon. John Gregg. Suit upon a note given for the balance of a consideration of a tract of land, sold by appellant to appellee. On the trial the plaintiff read in evidence the note and closed. The defendant then read in evidence his deed from the plaintiff to the land for the purchase money of which the note was given, also a patent from the State to John S. Thorn for the same land, and a deed therefor from said Thorn to Elisha E. Lott.

Tried below before Hon.-. George Steen indicted for an assault with intent to kill and murder, upon conviction appealed to the Supreme Court, and executed his recognizance in compliance with Art. 471, (Hart. Big.) with Thomas C. Steen, as his surety. The Supreme Court dismissed the appeal, and certified the cause below for execution and observance.

<p>Error from Anderson. Tried below before Hon. J. H. Reagan.</p> <p>The defendant in error, Moore, who had previously obtained a judgment against one Samuel M. Dalton, garnisheed the plaintiff in error, Iglehart, upon the usual affidavit. Iglehart answered, stating that Sam. Mills was at the time of the service of the garnishment the holder of a certain note given by Mm, and the amount of which the defendant in error was seeking to subject to his judgment, and prayed that Mills be made a party, in order that the rights of both the claimants might be adjudicated. It further stated, that the note was made payable to Mrs. Sarah Washington, or bearer. He prayed that said Mills be made a party to the suit, &c. The Court refused to make Mills a party, and upon the answer of Iglcliart gave judgment in favor of Moore against him.</p>

<p>The defendant in error received cotton on storage as a warehouseman, and the cotton was burnt, except one bale, which was sent off and sold by him before the institution of the suit, held to be a conversion which rendered him liable without a demand.</p>

<p>Where suit was instituted on a promissory note with a mortgage to secure its payment, both embraced in one instrument, the defendant failing to answer, his default admits the execution of the mortgage, and the Court rightly proceeded to render judgment by default for the amount of the note and for the sale of the mortgaged property.</p>

<p>Appeal from Smith. Tried below before Hon. John Gregg.</p>

Tried below before Hon. W. W. Morris. This was an application on the part of appellee to the District Court for a writ of habeas corpus to have produced the bodies of her minor children who were in the custody of the appellant, their father, who had been the husband of appellee, from whom she had been divorced.

<p>To the general rule, that heirs, devisees, &c., are not allowed to sue for the recovery of the debts or property of an estate, pending an administration, there are well established exceptions.</p> <p>Where an administrator, after the lapse of nearly six years from the death of the intestate, without effort during that time to protect the interest of the estate, refused to bring suit for property, held to be an exception, and to authorize suit by the heirs.</p> <p>It seems that such a neglect, without a refusal, would also constitute an exception to the general rule;</p> <p>Where the eviden ce as to the main issue is conflicting, it is for the jury to reconcile the conflict, or to find upon the evidence, which they regard as most entitled to belief; and their verdict, so found upon this state of facts, will not be disturbed.</p> <p>Where irrelevant testimony, or such as could have no sensible influence on a jury, is offered and rejected, or objected to and received, it is no ground for a reversal.</p> <p>It is not error to refuse charges, which, however, true as propositions, have no bearing on the case, and which are not calculated to enlighten the jury or assist them in drawing conclusions from the facts.</p> <p>In a verdict, the words, " We, the jury, believe,” dec., are equivalent to, We, the jury, find, although the latter is the better form.</p>

Error from Cherokee. Tried below before Hon. R. A. Reeves. J. J. Cypert left a will in which the defendant in error with two others, was left executors, exempted, by the terms of the will, from giving bond and security. The other two refused to qualify, and the County Court refused letters to the defendant in error, unless he would execute bond, &c., and upon his refusal to do so, granted letters with the will annexed to another.

<p>Where the defendant pleaded guilty, and a member of the jury which assessed the fine, upon meeting with the person upon whom the assault was committed, for which defendant was indicted, before the trial, said to him: "Tour name is Pelham, is it not ? I don’t know you but I am well acquainted with your case and I will be on the jury and will do all I can for you.” Held to be good cause for granting a new trial where the prejudice of the juror was unknown to the defendant until after the trial.</p> <p>A party is not precluded from making this objection because he did not examine the juror upon his voir dire as to his prejudice unless gross negligence is shown on his part.</p>

<p>Appeal from Harrison. Tried below before Hon. C. A. Frazer.</p> <p>The facts are stated in the Opinion. .</p>

Tried below before Hon. C. A. Frazer. At the Spring Term, 1857, there was rendered a final judgment in this case. There was notice of appeal, but nothing in the record showing that the appeal was prosecuted or the ■cause remanded. At the Spring Term, 1858, there was another trial and verdict, and a defective judgment.

Error from Panola. Tried below before Hon. C. A. Frazer. The ruling of the Court below to the consideration of which the Opinion is confined, is therein stated.

<p>Error from Kaufman. Tried below before Hon. H. J. Jewett.</p> <p>Trespass to try title by the intestate of plaintiff in error, who set up in his petition the following title in himself: “ That the land was heretofore surveyed for him by virtue of a portion of his own headright certificate,” duly issued, &c. “ That said survey was made on the 3rd day of February, 1846, by a lawful Deputy Surveyor, for the county of Nacogdoches, which county then embraced the land included in said above described survey.” Defendant in error pleaded “ Not Guilty,” and for special defence, that on-day of June, 1846, he settled on the land, or a portion of the same, described in plaintiff’s petition, as a settler and colonist, under the colonization contract made with Charles F. Mercer, in 1844; that said land is situated within the limits of Mercer’s Colony, in the new county of Kaufman; that at the time of Ms introduction into the colony, and entry upon said land, he was, and still is, the head of a family ; that in the said year 1846, he built houses on said land, and before 1848 cultivated and put under fence at least fifteen acres of land ; that on 9th May, 1850, John M. Crocket, Commissioner of Mercer’s Colony, issued to him a headright certificate for six hundred and. forty, acres of land, which he caused to be located and surveyed upon and around his improvements; that the plaintiff in contravention of the colony contract, made with said Mercer, caused his survey to be made within the limits of said colony, while said contract was in full force, &c.; prays decree for title and general relief.</p> <p>On the trial, the plaintiff established, by proof, his certificate and survey, as set out in his petition. The defendant introduced and read in evidence the colonization contract made with Charles F. Mercer, January 29th, 1844, and his certificate as a colonist in Mercer’s Colony, and a survey which had been made by virtue thereof. Defendant proved that he settled on the land in controversy in June, 1846, and that the land was in the limits of Mercer’s Colony. Defendant also proved by a witness that he had seen a notice from the Commissioner of the General Land Office to the Surveyor of the Land District including this land, not to survey any more land in Mercer’s colony, and that this notice was given before the survey was made for plaintiff. (This evidence, in relation to-the notice, was objected to by plaintiff, and objection overruled.) A jury was waived, and the cause submitted to the Judge, who rendered a decree in favor of the defendant.</p> <p>The plaintiff assigns the following errors :</p> <p>1st. The Court erred in admitting the evidence objected to.</p> <p>2nd. That the judgment was contrary to law and the evidence.</p>

Error from Anderson. Tried below before Hon. R. A. Reeves. Suit upon a note given by the plaintiff in error to Dalton, being the same which was the subject of controversy in the ■case of Iglehart v. Moore. Plaintiff in error set up as defence the judgment in that case to which defendant in error -excepted, exceptions sustained, and judgment rendered against the plaintiff in error.

Error from Rusk. Tried below before Hon. C. A.Frazer. The intestate sold to the plaintiff in error two slaves for $1100, and took his two notes $550 each. These notes were placed in the hands of one Win.

Error from Cass. Tried below before Hon. W. S. Todd. Suit against an endorser of a note. Petition alleged that--a certain note made by one Hays Jolly in the course of trade, and for aValuable consideration, was transferred and assigned to the petitioner. That subsequently, upon the maturity of said note, it was presented at the place where it was made payable and demand of payment made which was refused, and the same was protested, of which the endorser had notice.

<p>Appeal from Upshur. Tried below before Hon. O. A. Frazer.</p> <p>The material facts are stated in the Opinion.</p>

Tried below before Hon. W. W. Morris. Suit by appellee to set aside the will of Voctary Hobbs, Ms son. The petition alleged that Albert Vickery, one of the defendants, and a beneficiary under the will, was the writer of it. That it was prepared while the said Voctary Hobbs was in bed sick, and was read to him as containing a clause that it should be void if he survived that spell of sickness, when in fact he had not so written it, although he had been directed so to do.

Tried below before J. C. Robertson, Esq., Special Judge. Action for trespass on land. This cause was submitted, to the Judge upon an agreed statement in substance as follows : The plaintiffs are the children and heirs of W. P. King, to whom the land in controversy was originally granted and through whom both parties claim.

Tried below before Hon. A. 0. W. Hicks. This was an application to the County Court to enforce the vendor's lien against the land sold, the vendee being deceased, and his estate administered upon. The County Court refused the application. Appellant brought the cause by certiorari to the District Court, which, upon motion, was there dismissed, upon the ground that the County Court had no jurisdiction of the case to enforce the vendor’s lien.

Tried below before Hon. B. A. Beeves. Suit on a note, made in the name of Wilkins & Burleigh. Burleigh alleges that it was executed by Wilkins fór a debt, owing by Wilkins & Boyd, without his knowledge or consent. These facts were proved on the trial. The evidence in relation to the ratification by Burleigh is given in the Opinion. There was a verdict and judgment for the appellee. Motion for new trial made and overruled.

<p>In an indictment against an overseer of the road for failing to do his duty, &c., the omission to state the precinct by number or otherwise, for which he was appointed, is fatal on objection.</p>

Tried below before Hon. B. H. Martin. Suit upon the official bond of a tax collector, charging that he had failed to pay over money, collected as taxes, for the year 1844, On the trial, the appellee read in evidence the bond of the appellant and his sureties, and also a statement of the account of the appellant, as tax collector for Houston county, for direct taxes, collected by him for the year 1848, in which he was charged with a balance actually due of $775 22, signed Jas.

Tried below before Hon. C. A. Frazer. The appellee was indicted for betting at a certain gaming table, called rondo, and at the June Term, 1855, was convicted and fined ten dollars and costs ; he prayed for an appeal, and gave a recognizance to prosecute his appeal, &c. At the Spring Term, 1857, the appellee and his sureties, on recognizance, were called and failed to answer.

Tried below before Hon. A. O. W. Hicks. Action commenced before a Justice of the Peace by the appellee against the appellant as administrator of the estate of James Le Grand, for a colt valued by the plaintiff, in the account at the institution of the suit, at sixty dollars. Judgment in that Court was rendered in her favor for the colt, or forty dollars, its value. Suit brought 12th day of January, 1856. Judgment rendered 29th day of January, 1856.

<p>Error from Rusk. Tried below before Hon. 0. A. Frazer. Facts stated in Opinion.</p>

Tried below before Hon. C. A. Frazer. Suit by appellees, who are the children and heirs-at-law of Richard J. Ball, to recover from .the appellants, who are his administrators, certain property of which they were in possession, and to which they set up title in themselves, and for hire, &c. The appellants filed a general demurrer and special exceptions going to°the jurisdiction of the Court, which were overruled.

Tried below before Hon. A. O. W. Hicks. Tempe Price, the appellant, who was a judgment creditor of one 0. W. Brady, garnisheed the appellee, Greer, requiring him to answer, &c. Greer answered, that before the service of the writ of garnishment in this case he executed a promis sory note to said Brady, payable to him or bearer one day after date, for $287 50 ; that said note is unpaid; but that he did not know who was the owner of said note.

Error from San Augustine. Tried below before Hon. A. O. W. Hicks. Thompson, the appellant in error, and one White appear to have had some connection with each other in carrying on a mail contract. At the instance of Thompson, J. M. Ardrey consented to cash a draft on the Post Office Department, which he said he and White could draw for mail service.

<p>Appeal from Smith. Tried below before Hon. John Gregg. The facts of this ease, upon which the Opinion proceeds, are stated therein.</p>

Tried below before Hon. A. O. W. Hicks. Suit upon two notes, executed by George W. Prince, secured by a mortgage, executed by said George W. and Sarah, Ms wife, upon separate property of said wife. On the trial, the appellants read in evidence to the jury the notes declared on, the mortgage with its authentication certificate of privy examination of the wife by the Notary Public, and the certificate of record, and closed.

Tried below before Hon. W. W„ Morris. Action, of trespass to try title. On the trial the appellant gave in evidence the conditional and unconditional certificate of Wm. R. Powell issued by the Board of Land Commissioners for the county of San Augustine, the first dated June, 1838, the latter in September, 1841, to the introduction of which defendant objected ; the Court overruled the objection and allowed them to be read.

Error from Smith. Tried below before Hon. J. H. Reagan. This suit was brought by appellant to recover the amount of a judgment rendered in his favor against the appellees in the Circuit Court of Alabama. The suit in Alabama was trover to recover a negro slave, ■or his value ; two trials were had there.

<p>Voluntary, and negligent, escapes are made by the Statute distinct offences;</p> <p>they are created by different sections, and different p unishments are annexed. An indictment charging that the defendant did “ wilfully and negligently” permit the escape, is obnoxious to the objection of duplicity.</p>

Tried below before Hon. A. W. 0. Hicks. Action for forcible entry and detainer, before a Justice of the Peace, where judgment was rendered for defendant, who sued out a writ of certíorari to the District Court, without executing a bond. In the District Court there was judgment for plaintiff. The other material facts are given in the Opinion.

Tried below before Hon. A. W. 0. Hicks. Suit by appellants, who describe themselves as the “ surviving widow and heirs of Charles R. Sossaman,” to remove a cloud upon their title to certain lots of land upon which was the homestead of said Charles R. Sossaman.

Error from Sabine. Tried below before Hon. A. W. 0. Hicks. Proceedings were instituted in the District Court of Sabine comity against plaintiff in error, an Attorney at Law, upon a motion made by J. M. Ardrey, also an Attorney of the Court, (and by Mm alone) setting forth several charges, all of which were abandoned by the prosecution but two, which were : 1st. That John Jackson a practicing attorney, &c., in the county, &c., in the month of July, A. D. 1856, did say, “ that…

Error from Nacogdoches. Tried below before Hon. A. W. 0. Hicks. The grounds relied on for a new trial are stated in the Opinion; the other facts are not material.

Tried below before Hon. J. H. Reagan. Suit by the indorsee of a bill against the drawer and indorsers. The appellant Payne drew a bill in favor of W. 0. Gillian & Co. on R. & D. G. Mills at Galveston, which was indorsed by said W. 0. G. & Co. to the appellee. At its maturity said bill was in the hands of R. & D. G. Mills, and was by their order presented and protested for non-payment, and notice addressed to the drawer and indorsers at Palestine, Anderson county.

Error from Harrison. Tried below before Hon. John Gregg. Suit by defendant in error to recover a debt due him by plaintiff in error, secured by mortgages. The petition was sworn to, and an attachment sued out. Subsequently defendant in error amended his petition without swearing to the amendment. This the plaintiff in error moved to strike out, which the Court refused to do.

Tried below before Hon. A. W. 0. Hicks. Indictment for keeping a gaming table for the purpose of gaming. The facts are in the Opinion.

<p>An indictment which charges the defendant with having kept a " gambling device for the purpose of gaming," is not a sufficient description of an of-fence under Article 412, Penal Code.</p>

Tried below before Hon. L. D. Evans. The appellant instituted suit on the 20th day of April, A. D. 1848, against the appellees, to recover a tract of land described in the petition and accompanying documents, together with damages for her dispossession. She claims the-land by virtue of her locating it on the 11th day of September.

Tried below before Hon. R. A. 'Reeves. The facts of this case present the single question, whether a will is governed by a Statute in force at its date, or by one. in force at the death of the testator.

* Appeal from Harrison. Tried below before Hon. W. W„ Morris. Action of trespass to try title. It was admitted on the trial that the appellant had a regular chain of title to the land in controversy from the grantee; that he purchased in good faith and for a valuable consideration in the year 1840 ; that he was then a citizen of Texas and has so continued ; that defendants were in possession oí a part of the land sued for.

<p>A plaintiff made a witness, at the instance of defendant, who was sued on a note, as to certain accounts pleaded by the latter in set-off, on admitting the justness of the account of defendant, has a right to state such matters as are essential to his defence, to prove that though the account was just, yet that it had been paid or otherwise compensated-</p> <p>The execution of a note raises the presumption that there was a settlement of the antecedent liabilities of the parties.</p>

<p>Although the law does not favor repeals by implication, yet a subsequent Statute revising the subject matter of a former one, and intended as a substitute for it, though it contains no express words to that effect, will operate a repeal of the former, to the extent to which its provisions are supplied or repealed.</p> <p>The Act of January, 1840, (Hart. Dig., Art. 2348,) applies as well to implied as to express repeals.</p>

Tried below before Hon. A. W. 0. Hicks. Appellee recovered a judgment against appellant in the District Court of Rusk county at the Spring Term, 1851, in trespass to try title for the possession of a tract of land, in which suit appellant (defendant) had regularly filed his answer, setting up, among other things, title under the headright of Arthur Willis. The cause had been continued one Term before the trial.

Tried below before Hon. C. A. Frazer. This is an indictment against the appellants, Samuel Parry, Jr., and one Samuel Parry, Senr., for an assault and battery upon the person of Reuben Thompson. The indictment was filed December 16th, 1854. At the Spring Term, 1855, the cause was continued by the State.

Tried below before Hon. John Gregg. Indictment for malicious mischief quashed, upon motion of defendant, because it did not aver the name of the owner of the animal, or that the owner’s name was unknown, and because it did not aver that the animal was not the property of defendant.

Tried below before Hon. J. H. Reagan. Indictment for an assault with intent to kill, &c. The portion of the charge relied on as error by the appellant is in the following words : “If Vaughan fought willingly he is a violator of the law, whether he made the first assault or not; that is, if his conduct and language were of an insulting and provoking character, such as is usually employed to excite the passions, or provoke a fight, he is guilty either of an assault with intent…

<p>The Statute of Limitations of four years will not run against a suit by the State upon a Tax Oollector’s bond.</p> <p>The lapse of ten years after the accrual of the cause of action will bar it against the State.</p>

Tried below before Hon. W. S. Todd. The defendants below pleaded in abatement that the plain tiff at, and before the institution, was a lunatic, and that he had been so decreed and declared. With their plea they filed a transcript from the Court of Pleas and Quarter Sessions of Granville county, North Carolina, establishing the truth of said plea. The Court sustained the plea.

<p>An indictment for swindling, under the 15th Section of the Act of 1854, after sufficiently alleging the fraudulent intent, alleged that "the Cherokee Baptist Association did then and there execute and deliver to the said G. G. Baggerly their certain promissory note in writing for a much greater sum of money than was justly due to said B. from the said C. B. A., to-wit: the sum of two hundred and three dollars and fifty cents, over and above the amount justly due to the said B." insufficient, because it did describe the note given, with sufficient certainty to identify it.</p> <p>See this case also as to what an indictment must contain in alleging the false pretences, by which the note was obtained.</p>

Error from Houston. Tried below before Hon. J. H. Reagan. This was a suit against certain of the sureties of one Elon A. Campbell, oh his bond as guardian of Geo. W. Campbell. The appellant set up among other defences specially, that said Elon A. Campbell was never properly appointed guardian of said Geo. W., that the County Court of Houston county had no jurisdiction over the person or property of said Geo.

<p>Error from Collin. Tried below before Hon. N. M. Bur-ford.</p> <p>Trespass to try title.</p> <p>David E. W. Babb, by virtue of whose emigration a certificate for a league and labor of land was issued to his heirs, was married to Elizabeth Babb, one of the plaintiffs, in 1807, in the State of Tennessee ; the other plaintiffs are the legitimate children of said David and Elizabeth. In 1829 David Babb abandoned his wife Elizabeth, and after living adnlterously for several years with one Eda Collier, alias Hardy, in 1835 he came with her to Texas bringing also her son by a former adulterous connexion, a youth about fourteen years old, and settled in the present limits of Red River county. Said David Babb and Eda lived together as man and wife until the death of the former, which occurred in 1837. It appeared in evidence that Eda well knew that Babb had a wife and family at the time she lived with him, both before and after coming to Texas, and that she was never married to him. The certificate was issued in 1838 to the heirs of Babb and recommended subsequently as genuine, by virtue of which the land in controversy was patented in 1845.</p> <p>The defendants claimed one-half of the land through R. M. Hopkins, for which Babb in his life-time had executed to said Hopkins a bond for title, and the other half by purchase from the said Eda Babb, or Collier, and her son.</p> <p>There was a verdict and judgment for defendants.</p>

Error from Red River. Tried below before Hon. W. S. Todd. Suit instituted by plaintiffs in error against C. C. Welborn and E. Rainey for ten 847-100,165-100 labors of land patented to the heirs of John Morton, deceased, as assignee of E. Bruton. The defendant, C. C. Welborn, claimed 320 acres by deed from Charles Welborn, and the heirs of Charles Welborn (who were made defendants) claimed 320 acres by bond from Wm.

<p>Appeal from Cherokee. Tried below before Hon. R. A. Reeves.</p> <p>Indictment for embezzlement.</p>

<p>Where the statement of facts does not contain evidence to support the jiccij • .ment it must be reversed.</p>

Tried below before S. H. Pirkey, Esq., Special Judge. The plaintiff, in his original petition, claimed the land in controversy, by virtue of a location and survey, made under a certificate issued to Thomas Gillespie, without alleging the date of the survey. In his amended petition he alleges that the location was made in 1840, and appends to his petition a copy of the survey, dated November, 1841, made by Allen Urquhart, a Deputy Surveyor under Levi Jordan.

Tried below before, S. H. Morgan, Esq., Special Judge. Trespass to try title. The defendant set up ólaim as a preemptor in his answer, which plaintiff moved to strike out, because it did not allege that the defendant made application to, and filed an affidavit with the proper Surveyor to secure said land in the mode prescribed by law, &c., which motion was sustained, to which defendant excepted. Verdict and judgment for plaintiff.

<p>Error from Red River. Tried below before Hon. W. S. Todd.</p>

Tried below before Hon. W. S. Todd. The appellants commenced suit against C. 0. Jones on a promissory note, and sued out an attachment against his property, which was duly levied on. Wright, one of the appellees, intervened, claiming to hold the property by deed front Jones, as trustee, to pay his debts generally. Appellants moved to strike out this plea, which the Court overruled.

Tried below before Hon. A. W. 0. Hicks. This is a second appeal in this case. The Opinion of the Court upon the former appeal is to be found in 17 Tex. R. 80. Upon the return of the case of the District Court, the sole point submitted to the jury was “ whether or not the transfers to appellants were valid,” i. e., whether they were to take effect in the life-time of the donor or at his death ; or whether they were deeds in effect or wills in disguise.

Error from Red River. Tried below before Hon. W. S. Todd. The record shows that the defendants below demurred to the petition, and that it was overruled. This ruling is assigned as error. There is no statement of facts.

<p>Appeal from Smith. Tried below before Hon. J. H. Reagan.</p> <p>The facts are to be found in the Opinion.</p>