Volume 22 — Texas Reports

Error from Ellis. Tried before the Hon. Nat. M. Burford. The petition for certiorari in tbis case was sworn to by H. D. Marchbanks, the defendant in error, on the 20th day of February, 1856, before Benjamin F. Hawkins, deputy clerk of the District Court of Ellis county, and the petition filed March 25th, 1856. On the 20th day of June, 1857, the plaintiff moved to dismiss the petition for certiorari: “ 1.

Error from Guadalupe. Tried before the Hon. Alexander W. Terrell. Suit was commenced before a justice of the peace by the defendant in error against the plaintiffs in error, on the 21st day of August, 1857 ; and on the 31st day of August, 1857, judgment was rendered in favor of the plaintiff against the defendants, for the amount of the note sued on, with interest, and all costs of suit.

Error from Caldwell. Tried before the Hon. Alexander W. Terrell. The facts of the caso are stated in the opinion of the court.

Error from Ellis. Tried before the Hon. Nat. M. Burforcl. This case has heretofore been before this conrt on appeal. (Benjamin Garvin’s Adm’rs v. John Stover, 17 Tex. Rep. 292.) Suit for land in Peters’ colony; and the controversy was on the priority of settlement; in which the main question was, whether the plaintiff in error, who was plaintiff in the court below, had or had not abandoned his first settlement, on which he claimed the right of preference.

Error from Travis. Tried before tbe Honorable Alexander W. Terrell. Tbe facts of tbe case are stated in tbe opinion of tbe court.

Tried before tbe Hon. Alexander W. Terrell. This was a suit, brought by tbe appellee against the appellant, in the District Court, commenced on May 29th, 1858. The petition alleged, that the plaintiff resided in the county of Travis, where the suit was instituted.

<p>Error, from Guadalupe. Tried before tbe Hon. Alexander W. Terrell. Tbe opinion states fully the facts.</p>

Error from Travis. Tided below before the Hon. A. W. Terrell. Suit by defendants in error against plaintiff in error.

<p>An amendment, setting up an additional cause of action, should be served upon the party to be affected by it, unless he be actually in court, in person, or by attorney.</p> <p>Judgment having been rendered by default, on two notes, one of which was set out in the original petition, and the other in an amended petition, which was erroneous for want of service of the amendment; this court will, at the option of the defendant in error, either reform the judgment, and render such an one as should have been rendered on the original petition, or reverse and remand the cause.</p>

<p>Appeal from Travis. Tried below before the Hon. Thomas H. Duval.</p>

Tried below before the Hon. A. W. Terrell. Action brought by the appellee against the appellant, and Samuel M. Wright, the payee of the following instrument, on which the suit was based: “Twelve months after date, I promise to pay Samuel M. “Wright, or bearer, the sum of one hundred and twenty dollars, “for the hire of negro boy Jo, aged about fourteen years; and “in case the said boy Jo should run away during the year “eighteen hundred and fifty-seven, the said Wright is to…

<p>There being neither a motion to strike out the defendant’s answer, an exception to the answer, nor order of court upon such motion or exception, and the record containing neither bill of exceptions nor a statement of facts, the errors assigned, to the striking out the defendant’s answer—that the plaintiff was a foreign administrator—and that interest was allowed according to the laws of the State of Kentucky, without proper allegation and proof—cannot be considered.</p>

Tried below before tbe Hon. Alexander W. Terrell. Suit by appellee, against Frederick W. Chandler, William Vandever and Josiah Brantley, administrators of the estate of Logan Yandever, deceased, appellants, brought on the following account: Logan Yandever to W. T. Meclding, Dr. Nov. 25th, 1854.

Tried below before the Hon. A. W. Terrell. This action was brought in the court below, by appellants, creditors of Case, against appellees, to annul and render void, on the ground of fraud, a sale and transfer made by Case to Freeman, of certain articles, to wit, one Coleman’s patent mill and two copper stills and fixtures. Judgment by default was taken against Case, for want of an answer.

<p>The mere possession of a non-negotiable note, by a plaintiff, who sues as assignee, without proof of any assignment, or that he gave a consideration for it, is not sufficient to entitle him to judgment.</p>

<p>This court can only revise the judgments of the District Court, for errors apparent upon the record.</p> <p>It cannot, therefore, act upon a question of fact, such as the death of one of the parties previous to the judgment in the court below, presented for decision, for the first time, in this court, by affidavits.</p> <p>If the fact be as alleged, the remedy is in the District Court that rendered the judgment, and not by writ of error to this court.</p>

Tried below before the Hon. A. W. Terrell. Suit by appellee, for damages sustained from loss of horses in consequence of a contagious disease taken by appellee’s horses, from those of appellant; and which were brought by appellant into the range where appellee’s had previously been kept. Each of the parties had stock-pens upon their own lands, which were in the same stock-range. Appellee’s horses were in the range, at the time appellant brought his stock home.

Error from Guadalupe. Tried below before the Hon. Alexander W. Terrell. Suit brought by plaintiff in error, by bill of injunction, against the defendants in error, C. L. Cox and T. II. & G. B. Hollamon, in which it was alleged that Cox, on the 27th day of June, A. D. 1857, obtained a judgment before a justice of the peace, against one Frederick Moffield, for the sum of one hundred dollars, principal and costs.

Tried below before tbe Hon. Ed. H. Yon-tress. Appellee, as the administrator of Thomas O. Rucker, deceased, brought suit, on the 24th of Sept. 1866, against appellant, upon an open account, for the recovery of the sum of $430; the bill of particulars of which, attached to the petition, was as follows, to wit: “¥m. L. Mitchell, Dr. to Thomas O. Rucker. In the fall of 1853, to fifty dollars, loaned money, $ 50 00 April, 1854.

Tried below before the Hon. E. W. Yontress. Suit by appellee against the appellant, on a promissory note, payable to Howeth and Twitty, or bearer. Suit filed April 4th, 1856. Defence set up, failure of consideration, as stated in the opinion.

<p>A location or file, made on the 1st of May, 1856, by virtno of a genuine certificate issued to a colonist in Peters’ colony, upon land reserved from location by the Act of the 21st of December, 1853, “ to provide for the construction of the Mississippi and Pacific Railroad,” is illegal and void.</p> <p>The party holding such certificate, and seeking to locate it within the said reservation, at that time, (May 1st, 1856,) was not protected by the 19th section of the Act of December 21st, 1853.</p> <p>The provisions of the said Act of December 21st, 1853, reserving a part of Peters’ colony from location, by virtue of such certificates, were constitutional, and did not violate any contract between the State and the holder of the certificates.</p> <p>The holder of such a certificate had no vested right in any part of the public domain. His was a “ kind of floating equity,” which entitled him to appropriate vacant land, if he could find it, which it would be idle to seek to maintain against an individual grant from the State, much more against its reservation of the land for purposes of State policy.</p> <p>The land outside of the reserve, as the record showed, was ample to satisfy the claim; if the claimant’s right of election was narrowed by the reservation, so was that of every holder of an unlocated certificate.</p> <p>The reservation of territory, created by the Act of the 10th of February, 1852, for the benefit of the plaintiff, and others having like claims, expired on the 10th of August, 1854 ; after that time, he had no priority of right over any other person entitled to appropriate vacant public land.</p> <p>It is not, therefore, necessary, in this ease, to decide whether the reservation of the land for colony purposes, by the Act of the 10th of February, 1852, gave the holders of colony certificates a right, until that reservation expired, to select their land in that part of the colony within the railroad reserve.</p> <p>If they had the right, until after the 10th of August, 1854, the plaintiff failed to exercise his privilege, until the period had elapsed.</p>

<p>If it appear from the face of a note, and from the allegations of the petition, that the makers iutended to bind themselves in a representative capacity, as trustees, and the plaintiff intended to recover against them as such, a judgment that would render them personally or individually liable therefor, is erroneous.</p> <p>Where the defendant withdraws his answer, and judgment nihil dicit is rendered against him, such judgment must conform to the legal effect of the facts and admissions stated in the plaintiff’s petition; and if it exceed that amount, it is such an error as may be assigned and reviewed in this court.</p> <p>The proceeding to ascertain the amount, is the same on judgments by nihil dicit, as by default.</p> <p>In other respects, a judgment by nihil dicit, is held by this court, to possess a stronger implication in favor of the plaintiff’s claim, than an ordinary judgment by default; it is regarded as partaking of the nature of a judgment by confession, as well as by default.</p> <p>It has been held by this court, that a withdrawal of pleas, is a virtual waiver of errors; but this consequence is subject to such limitations and restrictions, as are incident to the nature and extent of such implied confession. The rule, in reference even to an express confession of judgment, is subject to limitations and qualifications.</p> <p>The legal consequence of the withdrawal, by the defendant, of his pleas, is, that it is an implied confession of judgment, having reference to the cause of action stated in the petition; it is tantamount only to such an express confession of judgment, as does not state the amount and terms of the judgment, and is liable to be partially curtailed and qualified, by facts in the record, which raise a rebutting presumption.</p> <p>See this case, as to the legal effect of judgments by default, nihit dicit, and by confession ; and the distinctions between them respectively.</p>

Tried below before the'Hon. T. J. Devine. This action was brought by the appellee to compel the appellant to desist from the use and occupation of a small triangular piece of ground in the city of San Antonio, and remove therefrom a building placed thereon by appellant; which ground was claimed by the appellee to have been, by the original proprietor of that part of the town, dedicated to the .public. The appellant denied the dedication, and claimed the ground by purchase.

Error from Comal. Tried below before the Hon. Tbomas J. Devine. Suit by defendant in error, against plaintiff in error, and Frederick Behrens, who was cited by publication as a non-resident of the State, and for whom there was no appearance. There was a judgment for the defendant in error against Behrens, for $400, and against the plaintiff in error for $200.

Tried below before the Hon. Thomas J. Devine. Suit by the appellant and James Kellogg, mercantile partners, under the firm and style of John W. Whitlock & Co., against the appellee, on three several promissory notes of the following tenor: $1,770 97. New York, April 5th, 1851. Eight months after date, I promise to pay to the order of Jno.

Error from Travis. Tried below before the Hon. A. W. Terrell. Suit by H. Samuels and H. Mosson against plaintiff in error, to recover the value of eleven hundred and twenty pounds of beef hides. At the time of commencing their suit, the defendants also sued out an attachment, which was levied upon the property <of the plaintiff in error. The point upon which the case was disposed of by the court, is apparent from the opinion.

The plaintiffs in error filed as an exhibit, in support of the motion, together with the affidavit of B. H. Davis, their attorney, a certificate by J. C. Buchanan, deputy clerk for H. S. Morgan, clerk of the District Court of Bastrop eounty, under his official seal, which stated that in this ease a transcript was made of all the papers and records in the case; and that on the 16th day of September, 1858, the same was demanded by and delivered to E. P. Petty, Esq., a partner…

Tried below before the lion. Thomas J. Devine. Suit by appellant against Charles Gr. Napier and Lewis S. Owings, to recover rent alleged to be due upon the following contract, to wit: State of Texas, 1 Know all men by these presents, that County of Bexar. J I, Asa Mitchell, of the aforesaid State and county, have this day leased to L. S. Owings and Charles Gr.

<p>- Error from Washington. Tried below before the Hon. Robert E. B. Baylor. The facts appear from the opinion.</p>

Error from Guadalupe. Tried below before the Hon. Alexander W. Terrell. Suit brought by Virginia Dalton, joined by lier husband, Robert H. Dalton, plaintiffs in error-. against Edwin Rust and Phoebe Rust, and Caroline Stuart, defendants in error, for a certain tract of land, alleged to be tlie ■ separate property of said Virginia.

Tried below before the Hon. Hat. M. Burford. Suit by appellees, Mary Hicks and others, as heirs of Milton Hicks, deceased, for one league of land, located and surveyed on the 15th of April, 1849, by virtue of the head-right certificate of the said Milton Hicks, deceased; and also to remove a cloud from their title, occasioned by the wrongful claim which the appellants set up to the said land, under a title issued by William H. Steele, commissioner, to Elisha D. Harmon, as a…

Error from Dallas. Tried below before the Hon. Nat. M. Burford. There were three several suits, between the same parties, involving the same questions, to all of which the opinion in this case applies, and in all of which the same judgment was rendered by the Supreme Court. The facts of each case were the same, varied only by the different dates, amounts, &c., referred to in-each; those stated in one case sufficiently serve to illustrate the others.

<p>Error from Washington. Tried below before tbe Hon. R. E. B. Baylor.</p>

Tried below before the Hon. Hat. M. Burford. The record showed that W. A. Eerris, one of the appellees, in May, 1841, obtained a judgment upon an attachment against one James Taylor, for services in locating and surveying ' 1920 acres of land, in Dallas county, for said Taylor, upon a land certificate issued to one David A. Murdock. Service upon Taylor was by publication, and judgment before a justice of the peace of Hacogdoches county, in favor of Eerris, for $89 25.

Error from Dallas. Tried below before the Hon. Nat. M. Burford. Suit by defendants in error, against plaintiffs in error, upon a note, and to foreclose a mortgage given to secure the payment of the same. Plaintiffs in error waived service, and filed no answer.

Error from Washington. Tried below before the Hon. R. E. B. Baylor. Suit by defendants in error, against the plaintiffs in error, on a joint and several promissory note.' Return of service of citation, as to two of the defendants, James Willie and A. H. Willie, as follows: “ Came to hand July 31st, 1857, and exe- “ cuted the same day, by serving James Willie with a true copy “of this writ, together with a certified copy of the accompanying petition. “A. G-.

Error front Bexar. Tried below before S. Gf. Newton, Esq., selected as special judge by the parties. This cause was before the Supreme Court, at a former term, and will be found reported in 7 Tex. Rep. 60; subsequently to-which time, the defendant, Garza, died, and James L. Trueheart, his executor, was made a party, by an amended petition.

Tried below before the Hon. E. H. Yontress. Suit by appellant, as administrator of tbe estate of R, McNutt, deceased, against Alexander S. Walker, administrator of the estate of A. J. Strickland, deceased, and against said Walker, in his own right, Evan Williams, and William Patter-on, on a joint and several promissory note, signed by said Strickland, Walker, Williams and Patterson; and on a mortgage on 640 acres of land, executed by Strickland, to secure the payment, to the…

Tried below before tbe Hon. A. W. Terrell. Verdict and judgment for defendants. One of the grounds stated in plaintiff’s motion for new trial, was, “the “court erred in instructing the jury as follows: the running of “the statute of limitations, would not be interrupted by the “bringing of a suit, which was dismissed for want of prosecution.” The appellant assigned as error, the giving of such instruction.

Error from Guadalupe. Tried below before the Hon. A. W. Terrell. This action was brought in the court below, by the defendants in error, upon a promissory note, and judgment was rendered, by a mistake in the computation of interest, for twenty-one dollars and eighty-seven cents less than the record showed the plaintiffs below were entitled to. Morrison, the defendant below, sued out his writ of error, to remove the cause to this court.

<p>This court will not review the decision of the court below, on a question of practice addressed to its discretion, except in a clear case of oppression or wrong.</p>

Tried below before the Hon. H. W. Battle. Suit by appellant, as administrator of the estate of William Horne, deceased, against the appellee, for the recovery of a certain slave, named Jean or Jim, alleged, in the petition, to be claimed and held by the defendant, under an instrument of writing, or bill of sale, purporting to have been made by the said William Horne, in his lifetime, to the defendant.

Tried below before tbe Hon. A. W. Terrell. The agreed statement of the case made by the parties, and approved of by the judge, under the Act of '7th leg. p. 112, showed that an attachment issued from the court below, in favor of Hopkins, the appellant, against Nichols, the appellee ; and the only question involved in the case, for the consideration of this court, was, as to the sufficiency of the plaintiff’s affidavit, in setting out the causes for suing out the attachment,…

Tried below before A. J. Evans* Esq., agreed upon by the parties, the presiding judge having been of counsel. The defendant was indicted for an aggravated assault upon George W. Taylor. The body of the charge in the indictment, is set out in the opinion. A motion to quash the indictment was sustained, and the case dismissed; to which ruling and judgment, the district attorney excepted, and prayed an appeal to this court.

<p>An indictment, found before the taking effect of the Code of Criminal Procedure, and subject then to the objection, that one of the grand jurors who found it, was not a freeholder, nor a householder in the county, is liable to the same consequences, on plea in abatement, setting forth such cause of invalidity, filed after the going into effect of the Code, as it would have been before; and the court below erred, in holding the plea insufficient.</p> <p>The provisions of the Code, in derogation of the right of the defendant in an indictment, to question the qualifications of a grand juror on the panel that found the bill, by plea in abatement, at a time subsequent to the organization of the grand jury, was not intended to cut off so valuable a right, by changing the mode of procedure; especially when, by a literal compliance with their requirements, a defendant would be wholly deprived of such right, under either the old or the new law.</p> <p>To enforce the provisions of the Code of Criminal Procedure, that no such plea to an indictment shall be entertained, (Code Crim. Proc. Art. 401,) but that such objection must be made by challenge to the juror, while the grand jury is being empanneled, (Code Crim. Proc. Art. 401, 364, 369,) so as to deprive the defendant of such objection, by reason of the indictment being found before the Code went into effect, would be to give them a retroactive effect, which is contrary to the spirit of the constitution.</p> <p>Qumre? Whether the enforcement of such provisions, operating to defeat this right of the defendant, might not, as to such right, have the effect of an expost facto law, which is prohibited by our constitution ?</p>

Tried below before tbe Hon. N. W. Battle. This suit was instituted in the court below, by Stokes, against the appellant, Hubby, for a fraud in the sale of a negro girl. The petition alleged the purchase, at the price of $400; that the defendant knowingly and falsely represented the negro girl to be sound and healthy, in body and mind, when in truth she was diseased, and unsound, in both of these particulars, and totally valueless.

Tried below before S. Gr. Newton, Esq., selected as special judge, by the parties, the presiding judge being disqualified to try the case. Suit by appellant, against Newton A. Mitcbell, executor, and Adelia Vanderlip, executrix of David C. Vanderlip, deceased, and James Paul, to enjoin the sale of the press, type, &c., belonging to the office of the San Antonio Ledger.

Error from Bell. Tried below before tbe Hon. R. E. B. Baylor. The entry of tbe judgment, in tbis case, was as follows: “ Tbis “day came the plaintiff, by bis attorney, and acknowledges to “have received tbe full amount sued for; it is therefore considered by tbe court, that tbe plaintiff have and recover of and “from said defendants, all costs in this behalf expended, for “which execution may issue.”

Tried below before tbe Hon. R. A. Reeves. Suit by appellee, to recover damages for an assault and battery, committed upon bim by the appellant.

Error from Washington. Tried below before the Hon. R. E. B. Baylor. Suit brought by the defendant in error, against the plaintiff in error, upon three promissory notes, payable to the plaintiff, as administrator of the estate of James Turner, deceased.

<p>Appeal from Falls. Tried below before the Hon. John Gresa-.,</p>

Tried below before tbe Hon. R. E. B. Baylor. Affidavit for garnishment, filed January 1st, 1857, on which day the note became due, and the writ of garnishment issued. The note was payable to Bassett & Bassett, or bearer; and a petition, or bill of intervenor, was filed by Benjamin H. and Jefferson Bassett. The testimony showed that they prosecuted the claim on the note, for the benefit of Hart & Oo. The facts are stated in the opinion.

<p>Appeal from Dallas. Tried below before the Hon. Nat. M. Burford.</p> <p>Suit by appellant for a divorce. Appellee answered by a general denial, and claim for alimony, &c. The jury found a verdict, that “the material allegations set forth in the petition are true,” whereupon the court gave judgment as follows: “Being satisfied that the allegations of the petition, and the “proof, are not sufficient to authorize a dissolution of the bonds “ of matrimony, it is therefore ordered, adjudged, and decreed, “ that the verdict of the jury be set aside; that the plaintiff “ take nothing by his plaint; and that the defendant go hence, “and have and recover of the plaintiff, all the costs in this “behalf expended.”</p>

Error from Gonzales. Tried below before the Hon. Fielding Jones. This action was brought in the court below, by a petition for an injunction,'to enjoin several judgments, obtained by defendant in error against plaintiff in error, before a justice of the peace, upon several promissory notes.

Error from Gonzales, Tried below before the Hen. Fielding Jones. Suit by defendant in error, against plaintiffs in error, upon a promissory note. One of the plaintiffs in error filed a motion, verified by oath, to quash the citation and service, because the citation served upon him required him to answer the petition of John L. McKellar. The copy of the citation alleged to have been served upon him, was filed with and asked to .he taken as a part of the motion.

Tried below before the Hon. Charles A. Frazer. Action by appellant against the appellee. The petition, filed May 5th, 1857, sought to obtain a new trial, in a case determined between the appellee and the plaintiff’s testator, in the District Court of Freestone county, which was instituted on the eighth day of November, 1854, by Bichard Bankhead, against William Gr.

Tried below before the Hon. A. W. Terrell. Suit was commenced by E. P. Flack, on a promissory note for $416 50, executed to him by the appellee, dated tbe 12tb of February, 1858, and payable on tbe 1st of January, 1854. Tbe plaintiff died, and tbe suit was subsequently prosecuted by tbe appellant, as bis administrator.

Error from G-onzales. Tried below before the Hon. Fielding Jones. Suit by plaintiff in error, to recover a slave, alleged to have been hired from him, by the defendants in error, jointly; and also to recover a balance due for the hire of the said slave, after allowing credit for an amount paid to the plaintiff’s agent, and for which a credit had been given to them by the plaintiff, on account of the said hire.

Tried below before the Hon. Fielding Jones. Suit by appellees, against appellant, upon a promissory note for $150, given, as alleged in the petition, in part payment for the west half of John Pratt’s survey of 640 acres of land, for which they had executed to him a bond for title.

Error from Travis. Tried below before the Hon. Alexander W. Terrell.

Tried below before the Hon. John Gregg. This action was originally commenced before a justice of the peace, to recover the amount of money given by the appellee, in exchange for a fifty dollar counterfeit bill on the Union Bank of Louisiana, upon an account in these words : “1857.

<p>The affidavit for a writ of garnishment, (authorized by Art. 1337, Hart. Dig.) [ must be made by the plaintiff, his agent, or attorney. Although the petition for the writ be signed by “ Fly and Fly, attorneys for the plaintiffs,” an affidavit, made by B. F. Fly, who is not described in the affidavit as either the agent or attorney of the plaintiff, is not a compliance with the statute.</p> <p>The court cannot judicially know that the person, who makes the affidavit, is one of the persons who signed the petition; nor will it look to the record, in the original suit, for information that should be in the affidavit.</p> <p>Where a judgment has been obtained against several defendants, the affidavit, to authorize the garnishment, must state that none of the defendants has property, of which the debt can be made, &c.</p> <p>The affidavit must state, that the defendant has no property, within the knowledge of the affiant, within the jurisdiction of the court, of which the debt can be made; it is not sufficient to say, that he has no property within the county, &e.</p> <p>The same strictness should be required in respect to garnishments, as in cases [ of attachment; for garnishments are but a species of attachment, and they should not be sustained, unless in strict conformity with the requirements of the law.</p>

Tried below before the Hon. Fielding Jones. Suit by appellee, upon a promissory note for Upon the trial, the court instructed the jury, “In this case “you should find for the plaintiff, the amount of the note, un“less you believe that the consideration of the note was certain “tobacco, which was entirely worthless.

Error from Gonzales. Tried below before tbe Hon. Fielding Jones. Suit by defendant in error, against plaintiff in error, and her husband, L. E. Laird, upon the following promissory note: “ $406 53. Gonzales, January 1st, 1857. “ One day after date, we, or either of us, promise to pay “William Thomas, or order, four hundred and six and dol- “ lars, for value received, with interest at the fate of ten per “cent, per annum.

Tried below before the E[on. Fielding Jones. Suit brought on a promissory note, by the appellee. Defence, failure of consideration. Exceptions by the plaintiff, to the sufficiency of the plea; exceptions sustained. Judgment for the plaintiff against the defendant, Samuel Luckie, as maker of said note, and John C. McKean and John T. Tinsley, the endorsers.

Tried below before tbe Hon. Fielding Jones. Suit by appellant, against appellee, of trespass to try title for about thirty acres of land, being a narrow strip of land, of one hundred varas in width, running from the Guadalupe river, back to the line of the inner town tract of the town of Gonzales, and between labors Nos. 1 and 2.

Tried below before the Hon. Fielding Jones. This was a suit brought by the appellee, against R. H.Bass, one of the appellants, for a buggy, claimed, in the petition, to have been won by Peevey from him, on the result of a horse race, which had been made and run between one O. E. De Witt, on the one part, and one Irvine, on the other part, and against A. T. Bass, for combining with the said R. H. Bass, fraudulently to deprive him of the buggy.

Tried below before the Hon. Nat. M. Burford. Indictment against the appellee, charging him with taking into his possession, on the first day of August, 1856, a certain bay mule, the property of a person to the grand jurors unknown, which said mule was then and there (in the county of Lampasas) an estray on the premises of the defendant; and that the said defendant did then and there use, and work the said mule, without advertising said mule as an estray, as required by law.

Tried below before the Hon. Charles A. Frazer. This case originated in the Connty Court. The record showed that at the February Term, 1857, the appellants, as administrators of the estate of David R. Mitchell, deceased, filed their petition in the said court, praying for an order to sell lands of the estate, to make up the amount required for the payment of the demands against it.

Tried below before the Hon. R. A. Reeves. This action was brought in the court below by Hiram Sharp, the appellant, against Silas Baker, the appellee, on a promissory note for the sum of f>400.

<p>A party cannot complain of the ruling of the court, upon his plea in abatement, if he has afterwards confessed judgment.</p>

Error from Gonzales. Tried below before the Hon. Eielding Jones. Suit by defendants in error, against plaintiffs in error, upon a note for $1,000, executed by Charles Y. Hutchinson to Joseph Guichard, in part payment of a lot of land, the title for which was made to Virginia A. Hutchinson, the wife of said Charles Y., and upon which it was alleged, a lien was retained, to secure the payment of the purchase money.

Error from Gonzales. Tried below before tbe Hon. Fielding Jones. This action was brought by tbe appellees, against appellant, upon a promissory note for $609 22, dated 24th October, 1853, on which there was a credit, as acknowledged in the petition, of $200, dated April, 1855. The defendant pleaded a general denial; general payment of the whole note; and specially, in three several amended pleas, one payment of $20, one of $40, and another of $60.

Tried below before tbe Hon. Fielding Jones. Motion by tbe appellant against tbe appellees, as attorneys at law, alleging tbat sbe was tbe administratrix of tbe estate of Nicholas Trammell, deceased; tbat tbe intestate, ber deceased bnsband, employed tbe appellees, attorneys at law, to prosecute two suits in said court, (Gonzales District Court,) for certain slaves and tbeir bire, one of wbicb was styled No. 463, Nicholas Trammell, et al. v. Henry Trammell; and tbe other was…

Error from Gonzales. Tried below before the Hon. Eielding Jones. The facts are sufficiently stated in the opinion of the court.

Tried below before the Hon. Fielding Jones. Suit by appellant, for divorce. The petition was filed August 26th, 1857. Appellee pleaded to the jurisdiction of the court, that he was not a resident of said county, at the time of the filing of plaintiff’s petition, &c. The evidence, upon the trial, was as follows: McGill, witness for defendant, was asked if defendant was a resident of Gonzales county, on the 26th of August, 1857, to which witness answered, I think not.

Tried below before Charles Stew-» art, Esq., appointed’by the parties as special judge. On tbe 9th. of October, 1856, appellee brought a suit against appellant, Thomas Price, her husband, for a divorce and division of property.

Tried below before the Hon. Fielding Jones. This was a proceeding by the appellee, for the trial of the right of property in two negroes, levied upon by virtue of an execution in favor of the appellant, against William Means. The execution was levied on the 6th of March, 1858; and the sheriff’s return showed that the negroes were found by him upon the plantation of the defendant in execution.

Tried below before the Hon. Fielding Jones. Suit by. the appellees, Hiram Eerrill, Sr., Hiram Eerrill, Jr., and Stephen Eerrill, co-partners, under the name and style of H. Ferrill & Sons, against the appellant, George W. May, on a promissory note for seven hundred and twenty dollars and two cents, payable to plaintiffs; and a deed of trust on four wagons, twenty yoke of oxen, with yokes and chains for the same; praying judgment, and enforcement of the lien, and writ of…

Erbob from Guadalupe. Tried below before the Hon. Alexander W. Terrell. Suit by appellant, against appellee.

Tried below before the Hon. Fielding Jones. This action was brought in the court below, by the appellee, against the appellant, upon a promissory note, given by appellant for a tract of land, purchased by him at an administrator’s sale. The note was secured by mortgage upon the land sold. The petition, besides claiming a judgment upon the note, alleged the fact that it was secured by mortgage, which was set out and made a part of the petition, with a prayer of foreclosure.

Error from Bell. Tried below before the Hon. Ed. H. Yontress.

. Appeal from Bexar. Tried below before the Hon. Thomas J. Devine.

<p>Appeal from Ellis. Tried below before the Hon. Ed. H. Yontress.</p> <p>The facts are stated in the opinion of the court.</p>

Tried below before the Hon. Fielding Jones. This suit was originally brought by the appellee against the appellant, in the Justice’s Court, on the following account: Board and tuition of William B. Jones, a son of the appellant, from May 30th, 1857, to July 11th, 1857, at §20 per month, ------ §30 00 July 11th, 1857. To cash furnished son to bear expenses home, - - - - --- 20 00 Total, - - - - - §50 00 Cr.

Tried below before tbe Hon. Fielding Jones. Petition for injunction, bj appellees, John T. Tinsley and Hugh W. Branch, against tbe appellants, Orson Carey and William H. Reese, filed January 30th, 1858, alleging that, on tbe 30th day of October, 1855, in tbe District Court of Gonzales county, a judgment was rendered in favor of said Carey and Reese, against John W. Pennell and Evan Lovett, for tbe sum of f>595 76, and costs; that Pennell filed bis petition for writ of error;…

Tried below before the Hon. John Gregg. This was an action of trespass to try title, brought in the court below by the appellants, heirs of Thomas McKey, deceased, against John Welch, to recover two labors of land, being a part of the colony headright of said Thomas McKey, deceased.

<p>Error from Dallas. Tried below before tbe Hon. Hat. M. Burford.</p> <p>Tbe facts are stated in tbe opinion.</p>

Tried below before B. P. Nicholson, Esq., selected by the parties, the presiding judge being disqualified to try the cause. Suit by appellee, against appellant, for the specific performance of a contract for the sale of land.

Tried below before the Hon. Thomas J. Devine. The appellant and James Beardall were indicted, on the 16th of September, 1858, for the murder of Louis Yare.

Tried below before tbe Hon. Thomas J. Devine. The amount of tbe bond given by McFarland, as principal, and McClellan and Martin, as bis sureties for tbe appearance of McFarland before tbe District Court, was one hundred and fifty dollars. Yerdict and judgment against tbe appellant, McClellan, for tbat amount, and cause dismissed as to tbe defendant Martin. Tbe bond was conditioned as follows: “ The condition of the above obligation is such, tbat, if tbe said “ff.

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

Tried below before the Hon. Hat. M. Burford. Suit was brought by appellant, against appellee, John Casey, alleging that said Casey had represented to plaintiff, that he was the only heir of John Casey, deceased, who was entitled to a certificate for six hundred and forty acres of land in Peters’s Colony, and agreed, if plaintiff would procure said certificate, and have the same located and patented, that he would give him one-third of the land thus located and patented.

Tried below before the Hon. Nat. M. Burford. This action was brought by Younger, the appellant, against Welch, in the District Court of Navarro county, in January, 1851, to enforce the specific performance of a contract contained in Welch’s bond to the appellant, bearing date the 2d day of November, 1849, whereby he bound himself, in the penal sum of three thousand dollars, to convey to Younger, within six months, three thousand four hundred acres of land, described in the…

<p>Appeal from Navarro. Tried below before' the Hon. Charles A. Frazer. The facts are stated in the opinion.</p>

Tried below before tbe Hon. Tbomas J. Devine. This was a suit instituted by Edward Dwyer, now deceased, and prosecuted after bis death by tbe appellee, executrix of bis will. Tbe suit was brought against tbe appellant, in Hays county, and removed to Guadalupe county, on account of tbe disqualification of tbe district judge, presiding in Hays county.

Tried below before the Hon. Fielding Jones. The note for ten thousand dollars, deposited with the appellants, was payable to William Means, or order. The other facts are stated in the opinion.

Tried below before the Hon. Thomas J. Devine. These suits were brought by lilies against Henry Castro and his wife, Amalie Mathias Castro, and Angelo Causici, for the recovery of a number of lots and tracts of land, described in the petition, and claimed by the plaintiff, lilies, under purchases made at sheriff’s sales, by virtue of executions on a judgment rendered on the 25th of June, 1852, by the District Court of Bexar county, in favor of lilies against the defendant,…

<p>In the organization of the Mexican system of government, under the constitutive Act and the Constitution, while the exclusive power to legislate, upon all subjects pertaining to the Federal Union, or the foreign policy of the nation, was conferred upon the General Congress, in all that belonged to their internal government and administration, the States retained their liberty, independence and sovereignty.</p> <p>The General Government, in recognizing the States, as organized under their constitutions, conceded to them the right of internal administration, as effectually as though the States had first been free and independent sovereignties, and had by joint concession and agreement, formed the federal government.</p> <p>While the courts, under their system, had no authority to judge of the constitutionality of the laws, but were bound to execute them without questioning their validity, ample precautions were devised to detect any violations of their constitutions.</p> <p>The President had power to make regulations, decrees and orders, for the better observance of the constitution, constitutive Act, and general laws. He was given a supervision over the courts. A permanent council of government was formed, a material part of whose business it was to watch over the constitution, constitutive Act, and general laws ; and to congress was given the right to interpret the constitution, in doubtful cases, and to punish those violating it. Tribunals were established to punish the higher officers for infractions of the constitution; and even the governors of the States, were subject to be tried for infractions of the constitution, the laws of the Union, or orders of the President, not obviously contrary to the constitution and general laws of the Union.</p> <p>The same features are found in the constitution of Coahuila and Texas. It was made the duty of two bodies in the State, to wit, the Permanent Deputation and the Executive Council, to watch over the observance of the constitutive Act, the constitution and general laws of the Union, and the private laws of the State, in order to give notice to congress of the violations they might have observed.</p> <p>It was not their policy to permit unconstitutional measures to be adopted, and stand as of force, to be executed, and to be complicated by apparent rights growing up under them. That this was not only the theory, but the practice of the government, is shown by the decrees of the general congress, interpreting the federal constitution, restricting the operation of parts of the constitution of a State, and annulling laws enacted by the States.</p> <p>That a law, subject to these ordeals of supervision and abrogation, was suffered to remain in force long enough for rights to be acquired under it, is a strong circumstance in favor of its validity.</p> <p>The right to the vacant domain in the State, with the full power to dispose of it, was openly and expressly claimed in the constitution and laws of Coahuila and Texas, and was never sought to be controlled or prevented by the general government, except upon reasons of federal policy, in reference to the introduction of colonists from the United States of the north ; and then only in 1835, when the General Government, with usurped power, was on its march to the annihilation of the States; and this was protested against by the congress of the State.</p> <p>The General Colonization Law (Decree No. 72) was enacted on the 18th of August, 1824, by the constituent congress, before the State governments were organized; and emanating from the then supreme power, it was in force in all the Provinces or States; and the 12th article fixed a limit to the amount of land to be united in the same hands, with right of property. This implies some discretionary regulations, to be adopted as to the time, and means, to accomplish the general object of the restriction.</p> <p>In 1825, the State of Coahuila and Texas enacted a colonization law “to aug“ment the settlement of its territory, to advance the raising and increase of “ stock, and the progress of arts and commerce, in conformity to the consti“tutive Act, the constitution of the Republic, and the basis established by “decree No. 72, of the general congress.”</p> <p>And under this general basis, and treating it merely as a general basis, the State established the details of a system, adapted to its local condition ; for, while the restriction contained in the general colonization law, was not to the specific amount of eleven leagues of land, whatever might be its quality ; but to one league, if it was irrigable land; to four, if arable; and to six, if pasture, making eleven in all of difierent sorts ; under the law of the State, the land was granted without reference to quality, further than in relation to the price to be paid for it; and it permitted more than eleven leagues to be acquired by empresarios, subject to the conditions contained in the law.</p> <p>The restriction, as to the quantity of land to be granted, contained in the 12th article of the General Colonization Law, after the full organization of the State governments, was recommendatory, and as it pertained to the internal administration of the State, was subject to be controlled, to suit the local condition of the respective States.</p> <p>If it pertained to the Federation to determine how much land the State should give or sell to a colonist, that would not control this case; for the act under which the appellant claimed, was not part of a colonial system, but an appropriation of the means of the State to pay one of its officers.</p> <p>The 12th article of the General Colonization Law, constituted no barrier to the acquisition of more than eleven leagues of land, under articles 17 and 239, of decree No. 277.</p> <p>The decree No. 277, establishing a system of judicature, adapted to the wants, principles and intelligence of her Texan citizens, by the congress of Coahuila and Texas, was not unconstitutional, because not made applicable to other parts of the State where the inhabitants were unacquainted with, and could not have appreciated its advantages.</p> <p>The Governor of Coahuila and Texas was, under the provisions of the constitution and laws, authorized to appoint the superior judge of the district of Texas.</p> <p>Congress having decreed “that during the approaching recess of congress, the executive may appoint provisionally the superior judge of Texas,” the official tenure of the person appointed by the executive, did not terminate with the next meeting of congress; and it not beiug shown, that the party appointed did not continue in office for a year or more, the court cannot say that the commission did not determine correctly, in awarding him his salary for one year.</p> <p>The law fixing the salary of the superior judge of Texas, and providing for its payment, in land, at the price of one hundred dollars per league, was not void, on account of its generality. In this respect, it was not peculiar, but conformed to other laws of more importance. It was in accordance with the custom, to leave the particular details of the object of the law, to be determined and carried out by the executive.</p> <p>Neither was the commission to the officer, who issued the grant, void, because it left it to be determined by the commissioner, under the law and facts, how rnuGh land the applicant should receive.</p> <p>The commissioner who issued the title, might supply a part of the original title which was lost, by adopting the testimonio.</p> <p>An objection, that an original title was not filed in the General Land Office, within the time prescribed by the joint resolution, passed December 14, 1837, cannot be sustained by one whose rights did not accrue, until after such original title was filed in the General Land Office.</p> <p>That a title was not written upon stamped paper, is an objection, going merely to the authenticity of the instrument, and may be supplied by proof, aliunde.</p> <p>The receipt of the plaintiff, to the commissioner who issued his titles, though accompanied by the certificate of the Commissioner of the General Land Office, that he had received the titles described in such receipt, is not, of itself, evidence of the facts stated in the receipt.</p> <p>The certificate of the Commissioner of the General Land Office, is not competent evidence to show the time when the said office was first opened, when closed, and when again opened.</p> <p>See this case for an historical account of the organization of the Mexican government, and a review of the powers and functions of the State and Federal governments.</p> <p>If title papers, and documents which were unnecessary, in order properly to determine the merits of the question to be decided in this court, have been offered and introduced in the record, the appellant should be taxed with the costs thereby occasioned.</p>

Tried below before the Hon. Fielding Jones. This suit was brought in the court below, by Hugh W. Monroe and John Monroe, trading under the firm of Monroe & Brother, against Sarah Wyatt, widow of Wm. H. Wyatt, deceased, and Wm. L. Buchanan, administrator of the said W. H. Wyatt. In the original petition, filed at the Eall Term, 1857, in the form of an action of trespass to try title, the plaintiffs deraigned title through a sale under a mortgage given by Wm.

Tried below before the Hon. Thomas J. Deyine. Suit by appellees against the apjjellant.

Error from Gonzales. Tried below before tbe Hon. Fielding Jones. This was a suit brought by tbe defendant in error, against the plaintiff in error, for damages.

, Error from Gonzales. Tried below before the Hon. Eielding Jones. Morrison, the plaintiff in error, gave to J. R. Wintz a note for $3,025 50, which he secured by mortgage on lands and negroes. Wintz transferred the note to Bean, the defendant in error, after its maturity.

Tried below before the Hon. Thomas J. Devine. This was a suit brought by Thomas Whitehead, in the District Court, against Mariano Roderiguez, as guardian of the minors, Manuel Iturri and Vicenta Iturri, for the one third life interest which he claimed to certain real estate, consisting of certain parcels of land, and a house and lot in the city of San Antonio ; and for one third of the rents and profits of said house and lot, alleged to have been received by said guardian;…

Tried below before the Hon. Alexander W. Terrell. This suit was instituted by the appellant, against the Commissioner of the General Land Office, to compel him, by mandamus, to issue a patent on a survey made by the plaintiff, after the Act of the sixth legislature, entitled “An Act to authorize the location, sale, and settlement of the Mississippi and Pacific Railroad Reserve,” went into effect.

<p>The decisions in Crosby v. Huston, 1 Tex. Rep. 203, construing the 40th section of the “Act organizing inferior courts, and defining the powers and jurisdiction of the same,” approved 20th December, 1836, (Hart. Dig. Art. 2757,) which provides that “no deed, conveyance, lien, or other instrument “ of writing, shall take effect, as regards the rights of third parties, until the “ same shall have been duly proven and presented to the court, as required “ by the Act for the recording of land titles, &e. and in Fowler v. Stoneum, 11 Id. 478, construing the first clause of the second section of the Act to prevent frauds and fraudulent conveyances, of the 18th January, 1840, are reviewed and considered in this case: neither the authority of those cases, nor the correctness of their determination, is impaired by the construction given in this case to the latter clause of the second section of the Act of the 18th of January, 1840.</p> <p>The cases of Crosby v. Huston, and Fowler v. Stoneum, approved.</p> <p>The several sections and clauses of the second section of our Statute of Frauds, considered with respect to their analogy to the statute of 29 Charles II. ch. 3, and the statutes of 13 and 27 Elizabeth, and the respective objects of each.</p> <p>The clause in the second section of our statute of Frauds of January 18th, 1840, providing that any loan of goods, chattels, or slaves, remaining for the space of three years in the possession of him, or them, or those claiming under the person to whom they are loaned, shall be taken to be fraudulent, as to creditors and purchasers of such possessors, unless, &c., is in the nature of an act of limitation, as well as an act having for its object the prevention of frauds and perjuries ; and was intended to compel persons, who make loans of goods and chattels, and slaves, to have the loan declared in such manner, that all the world may know what title the possessor has.</p> <p>In contemplation of that law, a purchaser from one who has been in possession of goods, chattels, or slaves, for move than three years, cannot commit a fraud against one, who asserts that he had loaned the property to the party in possession, without exhibiting any written contract of loan.</p> <p>This statute intended to cut off proof, so far as creditors and purchasers are concerned, of such loans, by any other means than those pointed out by the statute itself; or, to say the least, mere verbal declarations of a loan, should not be held to affect a creditor, or purchaser from the party, who has held the possession for the time pointed out by the law.</p>

Error from Medina. Tried below before the Hon. E. F. Buckner. There was no statement of facts in this case. The facts, as collected from the record, showed that Joseph Meyer obtained an injunction restraining Kreissler, the defendant in error, from selling certain property claimed by Meyer ; and that Arnold, the plaintiff in error, became one of the sureties upon the injunction bond. On defendant’s answer to the bill, the injunction was dissolved.

Tried below before the Hon. H. W. Battle. The appellees, Camplin and wife, brought this suit upon a note drawn by Hubby & Co. to Mrs. Camplin, dated September 15th, 1855, for money lent by her to appellants, the defendants in the court below.

<p>On a motion to quash an indictment, an entry, that, “ It is ordered by the court, that the said motion be sustained,” is not a final judgment.</p> <p>In cases of misdemeanor, the defendant is required to enter into a recognizance, whether the appeal be taken by him, or the State; and if he fail to do so, he should be committed to jail: and that this has been done, should be shown by the record, in order to perfect the appeal.</p>

Tried below before tbe Hon. John Gregg. The appellee sued John H. Pierson and W. M. Wright on a note, and claimed a lien on certain negroes specified. Dismissal as to Wright.

Tried below before tbe Hon. John Gregg. Appellant was indicted on tbe 4th of September, 1856, for permitting, on tbe 1st day of January, 1856, a slave, owned by bim and under bis control, to carry fire arms, at other places than on bis premises. Tbe facts are stated in tbe opinion.

Tried below before tbe Hon. Nat. M. Burford. It was charged in tbe indictment, that tbe defendant “ willfully “ and maliciously did kill a certain steer, then and there tbe “property,” &c. On motion of defendant, tbe indictment was quashed.

Tried below before the Hon. John Gregg. There being no points of law submitted or decided in this case, the disposal of it will be seen from the opinion.

<p>Appeal from Williamson. Tried below before the Hon. E. H. Yon tress.</p>

Tried below before the Hon. Thomas J. Devine. Indictment charging Francis X. Henderson with burglary and larceny in one count; and with theft from a honse, of three bracelets, and other articles named, belonging to Margaret F, McLane, in the second count; found March 16th, 1858. Continued by the defendant, at the same term of court, on 29th day of March, 1858.

Tried below before the Hon. A. W. Terrell. In a suit by the appellee, against James H. Oalliban and George B. Hollamon, for tbe value of a negro man, and bis hire for tbe year 1855, it Ayas alleged, in tbe amended petition, that tbe said negro came to bis death by tbe wrongful act of tbe defendant, Callihan, upon tbe 13th of April, 1855. After tbe commencement of tbe suit, Callihan died, and bis executor, B. Pettus, was made a party.

Tried below before the Hon. Ed. H. Yontress. The appellant, and William Shelly, S. S. Taylor, J. W. Lynn, M. Shelton and Thomas Hightower, were indicted for the false imprisonment of J. Simons. Upon the trial, O. J. Jaco, a witness for the State, testified, “ That on the 18th of March, 1857, “he went to S. S. Taylor’s, and there saw Simons lying down “in the corner of the fence, and Wm.

<p>There is no such offence known to the law, as “an attempt to commit an assault, with intent to murder.”</p>

Error from Washington. Tried below before the Hon. It. E. B. Baylor. Suits by the defendants in error against the plaintiffs in error.

Tried below before the Hon. Ed. H. Yontress. This was a suit by the appellant, against the appellees, praying for an injunction to restrain the appellees and the justice of the peace, from proceeding in a case instituted by the appellees against him, before the said justice, for an alleged unlawful detainer in respect of certain lands, which he alleged had been leased by him from the appellees.

Error from Williamson. Tried below before the Hon. Edward H. Vontress. Suit by the defendant in error, a married woman, brought by authority of the district judge, (her husband refusing to join therein,) against the plaintiff in error, for the recovery of a negro woman, Lydia, and her children, as her separate property.

<p>"Error from Travis. Tried below before tbe Hon. A. W. 'Terrell. Tbe facts are sufficiently apparent from tbe opinion.</p>

<p>Appeal from Travis. Tried below before tbe Hon. John Hancock. The facts are sufficiently apparent from tbe opinion.</p>

<p>Error from De Witt. Tried below before tbe Hon. Field-' ing Jones. The facts appear from the opinion of the court.</p>

Tried below before the Hon. Fielding Jones. The petition contained a general charge of fraud by appellee’s intestate, in the sale of the land to Cox, with specific allegations, showing the failure of his title; but there was no allegation that the facts which occasioned his title to fail, were known to the obligor. The facts are stated in the opinion.

<p>Where a suit is upon a liquidated demand, the court may give judgment, on the withdrawal of an answer.</p>

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

Error from Lavaca. Tried below before the Hon. Fielding Jones. Suit by the defendant in error against the plaintiffs in error, David and Henly Wallace.

Error from Lavaca. Tried below before the Hon. Fielding Jones. Suit by the defendant in error, against the plaintiff in error, upon a promissory note for $>200, with interest at ten per cent., and to foreclose a mortgage given, as alleged, to secure its payment.

<p>Appeal from Lavaca. Tried below before the Hon. Yielding Jones. The facts are stated in the opinion.</p>

Tried below before tbe Hon. Eielding Jones. Tbis action bad its foundation in a suit before a justice of tbe peace, in favor of tbe appellant, Criswell, against tbe appellee, in wbicb appellant recovered judgment for $72 50.

Tried below before the Hon. Eielding Jones. Suit by the appellee, against the appellant, upon an accouut for $253 38 for wharfage dues, exhibiting a bill of particulars, and alleging that the rates charged were reasonable and customary; by amendment of his petition, he set out a copy of the published rates of charges on his wharf, of which it was averred, the defendants had notice, before contracting the account sued on, and also that the charges in the account sued on,…

Eekob from Lavaca. Tried below before tbe Hon. Fielding Jones. A bill of exceptions was taken by the plaintiff, upon the trial, as follows, to wit: “ This day came on this cause for trial, and “the plaintiff read his petition and note sued, and closed his “ case.

Tried below before tbe Hon. Yielding Jones. Tbis suit was brought by tbe appellant, as administrator of tbe estate of Rebecca Gilkey, deceased, against tbe appellee, as the administratrix of the estate of James Peeler, deceased, for the recovery of a negro man, named Helson. The defendant answered by a general demurrer; a general denial; by a plea, setting up property in her intestate, by gift from Rebecca Gilkey; and a plea of the statute of limitations.

Error from De Witt. Tried below before the Hon. Eielding Jones. Suit brought on the 80th of January, 1858, by plaintiff in error, against Bradford and Thornton Chisholm, defendants in error, for possession of a tract of land described in the petition; and to set aside, as fraudulent and void, a deed for the said land made by the defendant, Thornton Chisholm, to his brother Bradford Chisholm, on the 29th day of January, 1857.

Tried below before tbe Hon. Fielding Jones.’ Suit by appellant, for tbe nse of A. H. Lowery, against appellee, as the surviving partner of the firm of White & Southern. The facts are stated in the opinion.

<p>Appeal from Lavaca. Tried below before the Hon. Fielding Jones. The facts are sufficiently apparent from the opinion.</p>

<p>Appeal from De Witt. Tried below before the Hon. Fielding Jones. The facts are stated in the opinion.</p>

Tried below before tbe Hon. Fielding Jones. This action was instituted by the appellants, to recover the amount of a promissory note given to them by Daniel C. Bellows and Mary his wife, which had been duly presented to the administrator of the said Mary Bellows, after her death, acknowledged by him, and approved by the chief justice.

Error from Calhoun. Tried below before the Hon. Fielding Jones. An assignment was executed by Chambers Etter, an insolvent, to a former trustee, for the benefit of his creditors. The creditors applied to the District Court to enforce the assignment, and obtain payment of their claims.

Tried below before the Hon. Joseph O. Megginson. This suit was for the trial of the right of property in a wagon and stock of cattle, levied upon by virtue of an alias execution, issued from the District Court of Austin county, on the 28th of January, 1851.

<p>Appeal from Calhoun. Tried below before the Hon. Fielding Jones. The facts are stated in the opinion of the court.</p>

Tried below before tbe Hon. Eielding Jones. Appellee claimed tbe goods levied upon, by virtue of an assignment to him, from the defendant in execution, in trust for the benefit of the creditors of said defendant.