Volume 23 — Texas Reports

Error from Galveston.- Tried below before the Hon. Nelson H. Hunger. This suit was brought on the 22d day of October, 1853, by the defendant in error against John S. Holt, Sen., D. D. Atchison, E. P. Hunt, plaintiffs in error, and John Robertson, for an alleged libel, claiming $5000 damages.

Tried below before the Hon. Fielding Jones. This was a suit by the appellee, on an account for f>82.40, for repairs done upon a house.

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

Tried below before the Hon. O. W. Buckley. This was an action for the trial of the right of property in ten bales of cotton, levied upon on the 30th of April, 1849. The record did not show at what time the claimant and the defendant in the execution were married. The facts are stated in the opinion.

Tried below before the Hon. Fielding Jones. This suit was commenced on the 3d of October, 1849, in the county of Refugio, by the appellant’s intestate against the appellee’s testator, to try title and recover possession of twelve hundred and eighty acres of land, situate in said county, for which a patent was issued to the plaintiff on the 8th of April, 1841. On the 12th of March, 1850, on motion of the plaintiff, the venue was changed to the county of Calhoun.

Tried below before the Hon. Fielding Jones. This was a suit by the appellee to recover from the appellants 3321 acres of land, described in his petition, and in the judgment, as follows: “ Beginning at the southwest corner of survey No. 18, class No. 2, of one league of land granted to B. H. Chisholm; thence, west, with the north line of a third of a league survey, 135 varas, to a stake, the northwest corner of said survey, from which a Post Oak bears south 40° west, 15…

Tried below before the Hon. E. J. Davis. The appellant brought this action of trespass, to try the title to a tract of land lying in Carnes county, on the north side of the San Antonio river.

Tried below before the Hon. Fielding Jones. This was a suit by the appellee against the appellant for damages sustained by reason of the sale of a negro woman and child, alleged to be his property, which were levied upon and sold by the appellant, as sheriff, in virtue of an execution in favor of Burnside & Co., against John Hudnall, on a judgment recovered by them in the District Court of Calhoun county, on the 26th of September, 1855.

<p>Appeal from Tyler. Tried below before the Hon. James M. Maxcy. The facts sufficiently appear from the opinion.</p>

Tried below before the Hon. P. W. Gray. This action was brought by the appellants, as heirs and distributees of the estate of Martha A. Marble, who died intestate in the state of Louisiana, leaving a husband, Reynolds D. Marble, but no children. The said Martha, at the time of her marriage, in Yazoo county, Mississippi, in 1851, was the owner, in her own right, of a number of slaves.

Tried below before the Hon. Fielding Jones. Henry Gibson, the appellant, recovered a judgment in the District Court of Matagorda, county, against Claiborne Hill and William M. Varnell, on the 20th October, 1856. On the 29th October, 1856, execution issued, directed to the sheriff of Calhoun county; and on the 21st November, 1856, it was levied on certain slaves, as the property of, and found in the possession of, Claiborne Hill, one of the defendants.

Tried below before the Hon. Peter W. Gray. This was a suit by the appellee, against the appellants, Samuel L. Fowler, E. S. Bell, and A. A. Tucker, on a promissory note for $¡600. On the trial of the case, there appeared among the papers, an answer of the defendants, containing a general demurrer, and a general denial. The defendant, Tucker, applied for a continuance.

Tried below by agreement of parties, before F. Faunt Le Roy, Esq., special judge, the presiding district judge being disqualified to try the case. This was a suit commenced on the 17th April, 1855, by Jacob Ziegler, the appellee, against Conrad Meuley, the appellant, to enjoin the sale of a lot of ground which the appellant was endeavoring to subject to the payment of a judgment obtained by him, on the 20th March, 1855, against one Greorge Hoenig, for the sum of $190.

Tried below before the Hon. M. P. Norton. Change of venue from Victoria. This was an action of trespass to try title, brought by the appellant against James A. Moody, Felix B. Webb and Adam Stafford, the appellees. The petition was filed on the 28th May, 1857.

Error from Walker. Tried below before the Hon. P. W. Gray. This was a suit brought by J. P. Henderson, and Samuel M. Coley, the appellants, against David Ayres, administrator of the estate of William K. English, deceased, Isaac Stewart and Willis Stewart, the appellees, on the 7th of June, 1854, for the purpose of cancelling the approval and allowance by the defendant Ayres, of the claims of the said Isaac and Willis Stewart against the estate of the said William IC.

Error from Liberty. Tried below, before the Hon. O. W. Buckley. This suit was instituted on the 29th of January, 1851, by the appellant, against Henry Hodges, the appellees’ intestate, to enjoin and vacate a judgment, obtained by the said Henry Hodges against the said Chambers, on the 15th November, 1842, for $300, and costs of suit. The original case was carried to the Supreme Court, by writ of error, prosecuted by Chambers, about the 3d of May, 1843.

Tried below before the Hon. Fielding Jones. This was an action of trespass to try title, brought by the appellees, Rosalia Sisneros, widow of Juan Hepomicino Agaton Sisneros, Estavan Sisneros, son of said Juan, Eulalia Garza, and her husband Thomas Garza, Maria Guadaloupe Solis, and her husband Louis Solis, (the said Maria and Eulalia being the daughters of the said Juan,) against the appellants, Eleazer Kilpatrick, William O. Blair and Samuel A. White, for the recovery of a…

Tried below before the Hon. Fielding Jones. The facts of this case are fully stated in the opinion of the court.

Error from Austin. Tried below before the Hon. James H. Bell. This was a suit by the defendant in error, against ¡Nathan W. Bush, the plaintiff in error, Ezra Cleveland, Miller Francis, J. H. Gatlin, J. W. McDade and J. R. Wier, as trustees of the “Texas Orphan Asylum,” on the following instrument of writing : “Texas Orphan Asylum, January 12th, 1855.- “ $220.

Error from Fayette. Tried below before the Hon. James H. Bell. This was a suit by the defendant in error against the plaintiffs in error, on a promissory note for $200, payable to the plaintiff.

Error from Fayette. Tried below before the Hon. James H. Bell. This suit-was commenced before a justice of the peace, on the 18th day of August, 1856, by the defendant in error against the plaintiff in error, as the indorser of two promissory notes, made by James Davidson. The account filed with the justice, as the basis of the action, claimed the amount of a judgment which had been rendered on the notes against Davidson, with interest.

<p>Where the record contains neither statement of facts, nor bill of exceptions, nor does it show that any action was had by the court below, upon the exceptions to the petition, and the defendant here relies upon such exceptions, as if they had been overruled by the court below, this court cannot consider the merits of the defence; especially, where the exceptions do not go to the whole action, but only to items of the plaintiff's account.</p>

<p>Where a question of fact, has been fairly submitted to a jury, on conflicting evidence, this court will not disturb a judgment rendered in accordance with the verdict, although the evidence would, perhaps, have warranted a verdict on either side.</p> <p>In such case, this court cannot say, that the credibility and weight of the testimony have not been properly determined by the jury.</p>

Error from Colorado. Tried below before the Hon. James H. Bell. This suit was brought by the defendants in error, to recover of the plaintiffs in error, the balance of an account against the estate of B. F. Stockton, deceased, for the sum of $1691.41, with interest thereon, from the 12th day of August, 1853, on which day, the same had been allowed by Henry Terrell, executor of the will, &c., and the allowance had been approved by the chief justice.

Error from Austin. 'Tried below before the Hon. James H. Bell.

Error from Galveston. Tried below before the Hon. N. H. Hunger. This suit was commenced on the 25th day of August, 1847, by the plaintiff in error, against the defendants in error, for a league of land.

Tried below before the Hon. Peter W. Gray. This was an indictment against the appellant, for selling spirituous liquors, in. quantities less than a quart, without having a license therefor, filed December 15th, 1856. Plea, “Not guilty.” It was proved that the defendant, at the time and place alleged in the indictment, did sell spirituous liquors, in quantities less than a quart, without license.

Tried below before the Hon. James M. Maxcey. The main facts of the case are stated in the opinion.

Tried below before the Hon. James M. Maxcey. This was an indictment for gaming with cards, at a public house. Plea, “Hot guilty;” there was a trial, verdict of guilty, and judgment for the amount of the fine and costs. A motion for new trial was overruled, and the defendant entered into a recognisance for an appeal, conditioned as prescribed by the Code of Criminal Procedure..

Error from -Galveston. Tried below before the Hon. Peter W. Gray.

Error from Harris. Tried below before the Hon. Peter W. Gray.

<p>Appeal from Grimes. Tried below before the Hon. Peter W. Gray. The facts are stated in the opinion.</p>

Tried below before the Hon. Peter W. Gray. This was an indictment against the appellant, for the murder of Robert McIntyre. The indictment charged the killing to have occurred on the 6th day of March, 1858, in the county of Grimes. The indictment was found on the 22d day of April, of the same year, and a trial had at the same term.

Tried below before the Hon. J. M. Maxcey. This was an indictment against Benjamin B. Fatheree, the appellee, charging him with having feloniously, wilfully, maliciously, and seriously, threatened to kill and take the life of one Cornelius Nolan. The indictment was quashed, and the defendant ordered to be discharged; whereupon, the state entered a notice of appeal, but there was no recognisance given or entered into by the accused.

Tried below before the Hon. Peter W. Gray. The appellant was indicted for the murder of Jack McQuillan.

<p>If the exculpatory testimony, relied on by a defendant, to rebut a prima, facie case of guilt, established by the state, from its intrinsic weight, consistency, or probability, be such as to make it incredible; if it conflict with facts clearly established, implicating the defendant in the crime charged; and other circumstances, subject it properly to suspicion; and the jury, in determining upon the credibility of the witnesses, disregard it, and find the defendant guilty, it is not error to refuse a new trial.</p> <p>Where the court had properly instructed the jury, as to the character of the doubt, that should acquit the defendant altogether; and also, as to what would reduce the homicide from murder in the first, to murder in the second degree, and as to the elements of each; and then charged them, that, “ if, then, they were satisfied, from the proof, that the accused was guilty of murder in the first degree, they should simply say so; but if they believed otherwise, or were not satisfied, beyond a reasonable doubt, that she was guilty of murder, in the first degree, then they should find her guilty of murder in the second degree, and proceed to assess the penalty,” &c.: Held, That the charge was not calculated to mislead the jury, by inducing the belief, that they were bound to find the defendant guilty of murder in the second degree; or that the doubts, to the benefits of which the defendant was entitled, should, by them, be applied with less force to the one grade of the offence, than to the other.</p> <p>A juror, on his voir dire, stated that, from hearing a part of the evidence before the examining court, he had formed a partial opinion as to the guilt or innocence of the accused, which, though it might, to some extent, he did not think would, influence his verdict; and further stated, that he had no fixed opinion in the case, that would influence his verdict.; on a challenge for cause, the court adjudged the juror competent: Held, That there was no error: the juror had not formed such an opinion, as that the court could adjudge him disqualified. (Code Crim. Proc., Art. 579.)</p> <p>That a juror entertained a bad opinion, in general, of the defendant, which he expressed, is not, necessarily, a ground of disqualification: tuch less, will such an expression, made jocularly, before the trial, and not in reference to the case on which the defendant is to be tried, disqualify him.</p>

Tried below before the Hon. Peter W. Gray. This was an indictment for publishing an indecent and obscene newspaper, designed to corrupt the morals of youth. The defendant filed an exception to the indictment, that it did not appear from, the face of the same, that any offence against the law had been committed by the defendant, and for other grounds. So much of the indictment as is material to a proper understanding of the case, is set forth in the opinion.

Tried below before the Hon. Edmond J. Davis. This was an action of trespass to try title, brought by Elisha Maxey, the appellant, on the 12th of November, 1855, against Thomas O’Connor, the appellee. On the trial, the plaintiff proved the location, and re-locations made by him on- the land in controversy, by virtue of a certificate for land, as alleged in his petition; which was in the ordinary form, simply claiming title, alleging trespass, &c., by the defendant.

Tried below before the Hon. Edmond J. Davis. This was an action of trespass to try title, brought by the appellees, Manuel Sabariego and Pilar his wife, against the appellant, for the recovery of a tract of land, containing one league and a half, in the county of Goliad.

Tried below before the Hon. Edmond J. Davis. This was an action of trespass to try title, brought by Joseph F. Smith, the appellant, against James Hughes, the appellee. The plaintiff claimed title by virtue of locations of land scrip, made upon the land in controversy, in the occupation of the defendant, and so far as the titles of the respective parties need be stated, it will suffice, to say, that the facts of the case of Maxey v. O’Connor, supra, p. 234, apply to this.

Tried below before the Hon. James H. Bell. This was a suit brought by William C. Butterworth, the appellee, to recover of the appellant, $250, for his wages, as the defendant’s overseer, under a contract of hiring, commencing in the month of October, 1855, and to continue during the year 1856, at the rate of $300 per annum.

Error from Austin. Tried below before the Hon. James H. Bell. This was a suit by Micah P. Wilson, the defendant in error, against William O. Campbell, the plaintiff in error, on a promissory note for $100. The defendant set up the defence of infancy, alleging, in his answer, that he was under the age of twenty-one years, at the time of the making and delivery of the note sued on.

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

Tried below before the Hon. James H. Bell. This suit was brought by William Bradbury and another, the appellants, as administrators, against Nathaniel Reed, the appellee, for the sum of $431.25, alleging as a cause of action, that the defendant, on the first Tuesday of September, 1857, at a sale of property belonging to the estate of their intestate, made by order of the county court, bid off certain town lots, (described in the petition,) for the price of $925; that he…

Error from. Fayette. Tried below before the Hon. James H. Bell. This was an action of trespass to try title to a tract of land, brought by Walker K. Baylor and another, the defendants in error, against the plaintiff in error and others. The petition alleged, that the plaintiff in error was a non-resident of the state; it was filed on the 21st day of October, 1856.

Tried below before the Hon. Peter W. Gray. This suit was brought in March, 1853, to recover certain penalties claimed from the defendants, for issuing certain promissory notes, to circulate as money, in violation of the “ Act to suppress illegal banking,” passed the 20th of March, 1848.

Tried below before the Hon. James M. Maxcey. This was a suit by the appellant against the appellees, John Turner, road overseer, Alexander Davis, chief justice of Orange county, Hugh Ochiltree and others, county commissioners, to enjoin and restrain the road overseer from proceeding to open a road, which the plaintiff alleged would pass through his homestead tract of land, to his great damage.

<p>Appeal from Galveston. Tried below before the Hon. Peter W. Gray. The facts are sufficiently stated in the opinion of the court.</p>

Tried below before the Hon. Peter W. Gray. Held: that there was no usury in the account of Mills, McDowell & Co., before the same was entered on the account of R. & D. G. Mills, and that the amount of the said account, was a valid item of principal, on which no interest should be allowed, after its entry on the account of R. & D. G. Mills.

Tried below before the Hon. Reuben A. Reeves. This was an indictment for the murder of Benjamin J. Fortson, alleged to have been committed on the 17th day of September, 1855, by shooting with a double barrelled shot gun, loaded with leaden bullets. This case was previously before the court, (see 19 Texas Rep. 449,) and the judgment was then reversed and the cause remanded.

Error from Walker. Tried below before the Hon. Peter W. Gray. This suit was brought, in 1854, by the plaintiff in error, against the defendant in error, for a divorce. In March, 1855, the defendant below filed a petition against the plaintiff, for an injunction to restrain him from disposing of the community property, owned by the parties.

Error from Galveston. Tried below before the Hon. Nelson , H. Hunger. A jury was waived, and the causes submitted to the court. The other facts are sufficiently apparent from the opinion.

Tried below before the Hon. M. P. Norton. Held: that he was competent to testify. . The affidavit proposed to prove, that, on the 26th day of May, 1857, the plaintiffs received by the hands of Mr. Robuck, a letter dated May 20th, 1857, together with the money therein mentioned, and the order to Biscoe & Simms.

Error from Harris. Tried below before the Hon. Peter W. Gray.

Error from Fayette. Tried below before the Hon. James H. Bell. This was a suit by the defendants in error, against the plaintiff in error, and Micajah Clark, on a promissory note, executed to them, by the said Clark & Punchard, as partners. Citations were issued to both defendants, on the 14th of March, 1856, returnable to the next term of the District Court of Fayette county.

<p>Any positive affirmation, or representation, made by the vendor, at the time of the sale, with respect to the subject of sale, which operates, or may operate, as inducement; unless it be the expression of mere matter of opinion, in a case where the vendee had no right to rely upon it; or be purely matter of description, or identification, without fraud, and not intended as a warranty; constitutes a warranty.</p> <p>Under this rule, it was held, that a bill of sale, in the ordinary form of a deed for land, granting and conveying to the vendee, his heirs and assigns, forever, “ a negro man, slave for life, by the name of Sam, about twenty-eight or thirty years old, sane and healthy (except one finger stiff,) in mind and body,’1 constituted, on its face, a warranty of soundness; although it concluded by a warranty, in terms, not extending beyond a general warranty of title, and no otherwise imported a warranty of soundness.</p> <p>Extraneous facts might establish a different conclusion.</p> <p>Although it has been held, on the maxim, “expressio unius est exclusio alterius," that where this description of one quality of the thing sold, is coupled with an express warranty of another quality, it will be presumed, that the description was not intended as a warranty, but merely as a description of the thing; yet such a rule necessarily implies, that the thing is expressed; that the thing expressed was intended by the parties, as a material part of the contract, having that matter particularly in their minds.</p> <p>A representation by the vendor, that the property sold, is sound, which is not only false, but known tobe so, when made, and at the time of sale; and is made for the purpose of deceiving; is a positive fraud, that will vitiate the sale, and render the vendor liable: but the representation must be of some material matter; it must have operated actually to mislead, to his injury, the party trusting to it; and it must be of such a nature, that the party deceived had a right to rely upon it, as an actual, undisputed fact.</p> <p>In an action for damages, for the breach of warranty of soundness of a slave, the plaintiff set forth the general fact of unsoundness, and described the symptoms and effects of the disease, and his ignorance of its name: Held, to be sufficient on demurrer.</p> <p>A party defrauded in a contract, has his choice of remedies. He may stand to the bargain, and recover damages for the fraud; or he may rescind the contract. return the thing bought, and recover back what he has paid.</p>

Tried below before the Hon. William S. Todd. This suit was brought by the appellant, John T. Kelly, in his own right, and by W. G. Greenhaw and Joseph T. M. Duke, in right of their wives, Sarah Greenhaw and Elizabeth Duke, against Jesse H. Kelly, and Joseph Hambrick, administrator of the estate of Jesse Kelly, deceased, and the other heirs of the said Jesse Kelly, deceased, to set aside and annul a certain instrument purporting to be a deed of gift, conveying to the said…

<p>Where judgment is rendered for the gross amount of two notes, on which suit was brought, a decree subjecting a tract of land to be sold under the vendor’s lien, to satisfy the- entire judgment, when, in fact, but one of the notes was given for the purchase money of the land, is erroneous.</p>

Error from Cass. Tried below before the Hon. W. S. Todd. This was an action brought by the defendant in error, against the plaintiffs in error, for the value of a slave. The defendants, having asked certain instructions to be given to the jury, which were refused, excepted to the ruling of the court; and assigned for error, the ruling of the court, and the alleged errors in the judge’s charge. The record contained no statement of the facts proved on the trial.

Error from Cass. Tried below before the Hon. William S. Todd. This was a suit, by the defendants in error, against D. W. Royd, as the maker of a promissory note for $1250, and R. W. Nesmith, the plaintiff in error, as the endorser.

<p>To postpone a prior unregistered conveyance, in favor of a subsequent vendee, it must appear, that he had bond fide paid the purchase-money, and had neither actual, nor constructive notice, of the title of the prior vendee.</p> <p>The recital of the payment of the purchase-money, in the deed of the subsequeut vendee, is not evidence against the prior purchaser.</p> <p>It is no objection to the validity of a deed, or conveyance, under the statute. that it is not recorded, except as to creditors, or subsequent purchasers.</p> <p>The notice of title, given by possession, is equivalent to the constructive notice afforded by the registration of the deed.</p> <p>The possession, by tenants of the prior purchaser, of parts of a tract of land, is sufficient to put a second purchaser upon inquiry, as to the prior title.</p>

Error from Bowie. Tried below before the Hon. William S. Todd. This was a proceeding by the defendant in error to revive a judgment recovered by him, as the administrator of Charles Carson, deceased, in the District Court of Bowie county, on the 4th of September, 1852, against S. H. Rhodes, and the plaintiff in error, for $1994.94, upon which it appeared execution had never issued.

Tried below before the Hon. William S. Todd. This was a suit by the appellant, against P. W., and his wife Mary A. Birmingham, for a negro girl. The defendants pleaded that the negro was the property of the defendant, Mary A. Birmingham, having been received by her as an advancement from her father, John A. Bagly, to whom they alleged, she originally belonged; and also the statute of limitations.

Tried below before the Hon. William 8. Todd. This suit was commenced in the District Court of Kaufman county, on the 19th of September, 1853, by the appellee, against John D. Andrews, of Harris county, Andrew J. Fowler, of Anderson county, and James Eagan, of Kaufman county, for the recovery of a negro woman, Silva, and her children, Lewis and Jim, alleged to have been wrongfully taken from his possession.

Error from Red River. Tried below before the Hon. William S. Todd. This was a suit brought on the 7th of April, 1853, by the defendant in error, against William T. Montgomery, for one-sixth of the profits, for one year, of a certain steam mill, which were alleged to have been worth $2,000.

Error from Red River. Tried below before the Hon. William S. Todd. This was a suit brought by the Memphis, El Paso and Pacific Railroad Company, against the plaintiff in error, on the 18th day of December, 1858, to recover the sum of $110.

<p>It is a material alteration of the assignment of a hond, to insert the name of an assignee after its execntion, if the instrument, thus altered, has a different effect given it by the alteration; and if the alteration be apparent on its face, it should he excluded as evidence, if objected to, although intended to have been an assignment to the party whose name is thus inserted.</p> <p>Quere ? Does the 5th section of the Act of January 25th, 1840, regulating the assignments of written instruments, (O. & W. Dig., Art. 90,) apply to instruments, which appear on their face to have been altered; so as to permit them to be read in evidence, without explanation, unless their genuineness be denied under oath ?</p> <p>That statute applies to cases, where the suit is upon the instrument; and not where it is merely intended to be used in an action of trespass to try title, as a link in the chain of title.</p> <p>Where the petition describes the assignment of a bond, as genuine and complete, and when produced, it appears on its face, and by comparison with a certified copy offered with it, to have undergone a material alteration, it does not correspond with the allegation of the petition, and is rightly excluded as evidence.</p> <p>There can be no doubt, but that, upon proper pleadings and proof, the court may give effect to an imperfect assignment, according to the actual intention of the parties.</p>

Error from Hunt. Tried below before the Hon. William S. Todd. This was a suit, commenced by the plaintiff in error, against the defendant, before a justice of the peace, on an account under one hundred dollars, wherein there was a judgment in his favor for $44.50. The cause was removed to the District Court by certiorari, and upon a trial in that court, there was a verdict for the defendant in error. The judgment entered on this verdict, is given in the opinion of the court.

Tried below before the Hon. William S. Todd. This was an action of trespass to try title, commenced on the 18th of March, 1856, in Hopkins county, by Joseph Hemby and Elizabeth his wife, (formerly Elizabeth Robertson,) against Daniel Bohannan, for 640 acres of land. The venue was changed to Hunt county.

Tried below before the Hon. Charles A. Frazer. This was a suit by the appellant against the appellee.

Error from Anderson. Tried below before the Hon. Reuben A. Reeves. This was a suit by the plaintiffs in error against the defendant in error, as the executor of Lacy W. Dalton, deceased, commenced April 5th, 1858, on a draft, drawn in their favor by the said Dalton, on Fitzhugh Ward, on the 11th day of February, 1854; by which Ward was requested to pay to the plaintiffs $156.72, with interest from date, out of the proceeds of his (Dalton’s) cotton, when sold.

Error from Houston. Tried below before the Hon. Charles A. Frazer.

Tried below before James M. Anderson, Esq., selected as special judge by the parties. This was a suit by the appellee against the appellant, for 640 acres of land, located and patented, by virtue of a bounty warrant granted to Samuel Jones. The plaintiff in her petition alleged, that she was the surviving widow and sole heir of said Samuel Jones, who died in Nacogdoches, where he then resided, in 1837; and, as such, that she was the owner of the said land.

Tried below before Roger Q. Mills, Esq., special judge by the selection of the parties; the presiding judge having been of counsel. This suit was brought on the 31st of March, 1858, by Isham Mosely, administrator of the estate of John Blackwell, deceased, against William M. Gray, as the holder and owner of a promissory note for $215, dated July 1st, 1852, and payable December 25th, 1852, which had been executed by the plaintiff’s intestate, in favor of the defendant.

Tried below before the Hon. Reuben A. Reeves. This was an action of trespass to try title, brought on the 27th of August, 1858, by the appellant against the appellee, for a town lot.

Error from Titus. Tried below before the Hon. William S. Todd. This suit was instituted on the 14th day of May, 1857, by Charles N. Fearing and Pelig Hall, the defendants in error, against the plaintiff in error, on a note of $655.99, dated the 26th day of November, 1852, due at twelve months, payable to the order of the said Withee, the maker thereof, and alleged to have been indorsed and delivered to Mallard and Armstead.

Tried below before the Hon. John H. Reagan. This suit was commenced on the 12th of March, 1856, by John Shackleford against William C. Gillean, John E. Smith, Reuben A. Reeves, and William A. Van Alstyne, as to the latter of whom it was, by consent, dismissed at the ensuing term of the court.

Error from Anderson. Tried below before the Hon. Charles A. Frazer. This was a suit by the plaintiffs in error, Edward Barnett and Lafayette IST. Lane, against the unknown heirs of Spencer Gloyd, to establish their title, and have decreed to them the legal title for a league of land situate in the said county; and also to recover the possession of the same from the defendant, J. L. Pool.

Tried below before the Hon. Charles A. Frazer. , This was an action, brought by the appellee, against Samuel Calhoun and John Rodgers, to cancel and annul a sale, made under execution by the sheriff of Houston county, of 4285 acres of land in that county, purchased by Rodgers; and a part of which, the latter agreed, by his bond for title, to convey to the said Calhoun, in consideration of $650, acknowledged in the bond to have been paid by Calhoun.

Tried below before the Hon. Reuben A. Reeves. This was an action of trespass to try title to a league of land, brought by the appellee against the appellants, Andrew Beaty and William McSwain, in Freestone county; to which the other appellants, Giles N. Graves, James Ferguson, Simon Desoto and Forbes I. Houston, made themselves parties, as intervenors. The land in controversy was granted to Gertrudes Luna, under whom the plaintiffs and intervenors claimed title.

<p>That the defendant had entrusted his case to an attorney, who he expected would have given it proper attention; that he did not think it necessary to be present, in person; that his account, pleaded in set-off, was just, and plaintiff had promised to allow it; and that the cause was tried in the absence of himself and attorney; presents no sufficient ground for a new trial.</p>

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

Error from Jasper. Tried below before the Hon. A. W. O. Hicks. This was a suit, instituted by Eliza Carroll, then a citizen of Tyler county, in the State of Texas, against the plaintiffs in error. Before the trial, the plaintiff departed this life, and Samuel W. Mellen became the administrator of her estate, and made himself a party plaintiff to the suit; and judgment was rendered in his favor, as such administrator.

Error from Anderson. Tried below before the Hon. Charles A. Frazer. This was a suit by Rugely, Blair & Co., the defendants in error, against Mary A. Green, the widow, and Samuel H., Ella V., George W., and Mary L. Green, the minor children of Robert W.„ Green, deceased.

Tried below before Dudley S. Jennings, Esq., by the selection of the parties, the presiding judge being disqualified from trying the same. This suit was brought by the appellee against the appellant. Judgment was rendered in favor of the plaintiff, for the amount of the verdict of the jury, and costs of suit. The other facts appear from the opinion.

Tried below before the Hon. Reuben A. Reeves. This suit was brought on the 14th day of April, 1854, by the appellant, against the appellees, William Hood and Daniel Jones, for damages to the amount of $700, alleged to have been sustained in consequence of the failure of the defendants to finish and complete, according to their contract with the plaintiff, made in 1851, certain carpenter work, to be done upon the plaintiff’s house.

Error from San Augustine. Tried below before the Hon. A. W. O. Hicks. This was a suit commenced on the 25th day of January, 1855, by the plaintiffs in error, against the defendants in error. Final judgment was rendered in the District Court, on the 14th day of October, 1856, in favor of the defendants, for the costs of suit. The petition of the plaintiffs, for a writ of error, was filed on the 18th day of October, 1858.

<p>A mortgage is treated in equity, so completely as an incident to the debt, that the payment of it extinguishes the mortgage, without a release from the mortgagee.</p> <p>The assignment of the debt, even by parol, or the delivery of a note, payable to bearer, secured by mortgage, draws after it the mortgage, as appurtenant to the debt.</p> <p>But the assignment of the interest of the mortgagee in the land, without an assignment of the debt, is without meaning or use.</p> <p>The creditor has no remedy upon his mortgage, after his debt is barred by limitation.</p> <p>But a new promise, by which a debt, barred by the statute, is revived, will also operate as a revival of the mortgage, though there be no words to that effect in the new promise.</p> <p>A debtor may revive the debt, without reviving the mortgage, by declaring such to be his intention; for, a conditional promise to pay a debt that is barred, must be taken as it is made.</p>

<p>Appeal from Anderson. Tried below before the Hon. Reuben A. Reeves.</p> <p>This suit was begun in the County Court, by the appellant, as administrator of the estate of W. B. Langley, deceased, against the appellee, as administrator, with the will annexed, of John Duval, deceased, by a petition, filed by the former against the latter, praying that he might be cited to make an exhibit, under oath, to the said court, setting forth fully in connexion with his former exhibits, the condition of the estate which he represented.</p> <p>The petition alleged, that the complainant was interested in the estate of the said Duval, deceased, and that, as he was informed and believed, the administrator thereof had funds in hand sufficient to pay the claim of the petitioner. The claim was not otherwise described, nor the complainant’s interest in the estate otherwise shown, than as stated in the opinion.</p> <p>Harris, the administrator, filed in the County Court, his answer, which consisted of a formal demurrer to the petition, and set forth, as grounds thereof, “ that the petition did not show how the plaintiff was interested in the estate of said Duval, nor how he became a creditor of the same; that the petition assumed that there was no difference between an ordinary administration without a will, and an administration with the will annexed, containing the provisions of the 110th section of an act entitled ‘An Act to regulate proceedings in the County Court, pertaining to estates of deceased persons,’ passed March 20, 1848. (Hart. Dig., Art. 1219.) That the petition invoked the jurisdiction of the courtj over a subject-matter of which it had no jurisdiction.” Andfurther answering, he alleged, that John Duval, deceased, departed this life in the month of November, 1855, leaving a will, by the provisions of which his sons, Benjamin T., William J. W., and John R. Duval, were appointed executors thereof; that one of its provisions was, that no other action should be had in the County Court of Anderson, or any other county of Texas, in relation to the settlement of his estate, than the probate and registration of his will, and a return of an inventory of his estate. That the executors failed to have the same probated within the time prescribed by law, and the defendant was appointed and qualified administrator, with the will annexed; arid, as such, had been administering the estate in accordance with the provisions of the said will; settling and discharging debts against the estate, as fast as assets came to hand; superintending, generally, the estate, in the same manner, and to the same extent as the original executors were authorised under the will, to do, without obtaining any orders from the County Court to that effect, or without holding himself in any way accountable to the County Court, for his acts as administrator with the will annexed.</p> <p>The will, containing the clause before referred to, and the appointment of the three sons named as executors, with the authentication and record thereof, was set out in the transcript.</p> <p>At the August Term of the County Court, 1858, on hearing of the petition, and the exceptions and answer, the exceptions were overruled, and the defendant, Harris, was required, by the order of the court, to make a full and complete exhibit of the condition of the estate of John Duval, deceased, and to show cause, if any he could, why the claim of the petitioner should not be paid.</p> <p>The defendant, Harris, appealed to the District Court, from this order; and, the cause coming on to be heard in that court, upon the same exceptions and demurrer of the defendant to the petition of Langley, the complainant, they were sustained, and the judgment of the County Court was reversed and set aside. The plaintiff declining to amend his petition, the same was thereupon dismissed, and he appealed to the Supreme Court.</p>

Tried below before the Hon. Reuben A. Reeves. This was a suit by the appellee, against James Ferguson, William C. Daniel and John Mosely, for a decree of title to 820 acres of land, described in a bond executed by Ferguson to the plaintiff; and also to cancel a deed for the same land, subsequently executed by Ferguson to Daniel; and also a deed by the sheriff of Cherokee county, to John Mosely, for the same land, by virtue of a levy and sale of it by the said sheriff, as the…

Tried below before the Hon. Reuben A. Reeves. This was a suit by the appellee against the appellants, for a league of land. The appellee claimed the land under a deed from the original grantee; the appellants claimed it as purchasers from the heirs of the original grantee, without notice of the appellee’s title.

<p>In examining an objection, that the facts do not warrant a conviction, the charge, though not excepted to at the trial, may be considered, to determine if the verdict can be sustained.</p> <p>The act of taking a gun from the rack, with the intention of making an immediate battery with it, if such intention could have been carried into immediate effect, (had not others prevented,) is an assault.</p> <p>The law has not established any stage in the series of acts, that may be performed in attempting to commit a battery,'as constituting the offence pun- . ished by Article 475 of the Penal Codd.</p>

Tried below before the Hon. Charles A. Frazer. This was an indictment for murder.. There was a verdict of guilty, and on appeal by the defendant, no final judgment was rendered upon the verdict, but the entry, after recording the verdict and appeal by defendant, directed that the sentence of the court be suspended, to await the decision of the Supreme Court.

Tried below before the Hon. Charles A. Frazer. The indictment in this case was found on the 7th day of August, 1858, and the offence was charged to have been committed on the first day of the said month and year; but was proved to have taken place a few weeks before.

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

Error from Shelby. Tried below before the Hon. A. W. O. Hicks. This suit was brought by William Todd, against the defendant in error, administrator of William Todd, deceased, who was the father of the plaintiff, for the recovery of two negro slaves, named Frank and Sarah, which the plaintiff claimed in his own right. The defendant, as administrator, claimed them as belonging to the estate.

Tried below before D. S. Jennings, Esq., as special judge, selected by agreement of the parties.

Tried below before the Hon. Charles A. Frazer. ' This was a suit by the appellant against the appellees, John K. Williams, T. A. Patillo, Mitchell Smith, Jesse Snider, and A. B. Speir, for a mandamus, to- compel the said Williams, as surveyor of Panola county, to survey for him, certain land which he alleged he was entitled to, by virtue of a file made for him by his agent, on the 13th March, 1844, of the head-right certificate of Mary Fury, for 1280 acres of land, and of G.…

Error from Harrison. Tried below before the Hon. W. W. Morris. Motion by the plaintiffs in error to continue the case; and that citations issue to those defendants in error, not served with the process issued from the District Court.

Tried below before the Hon. Charles A. Frazer. This suit was commenced by the appellee, as the administrator de bonis non of Jacob H. Coats, deceased, against the appellant, Elizabeth Coats, the wife of his intestate.

Tried below before the Hon. Charles A. Erazer. This was an action brought by the appellee against the appellant, on the covenants of warranty in a deed, for a certain tract of land sold to him by the defendant, from which he had been evicted by another claimant, under a superior title; and also upon a special verbal contract, to pay the expenses incurred by the plaintiff, in defending the suit brought by the claimant, for the recovery of the land.

Tried below before the Hon. Charles A. Frazer. This was a suit by John Siter, Richard Price, and Joseph Price, by the firm name of Siter, Price & Co., against the appellant. In the copy of the petition served on the defendant, the plaintiffs were said to be John Siter, Richard Gross, and Joseph Price, partners under the firm name of Siter, Price & Co., and in the copy of the citation, they were described as John Siter, Richard Price, and Joseph.

Tried below before the Hon. Charles A. Frazer. This was a' motion by the appellee, before a justice of the peace, against J. R. Legrand, a constable, and the appellants, as his securities, for failing to pay over money collected on execution by the constable; and alleging further, that the constable failed to return the said execution to the Justice’s Court within sixty days, as required by law.

Tried below before the Hon. Charles A. Frazer. This was a suit by the appellant against the appellees, upon an account for $183.51, due for merchandise.

Tried below before the Hon. Charles A. Frazer. The appellee, in his petition for a certiorari, alleged, that the case had been continued from term to term, in the court of the justice of the peace, without his knowledge, and against his consent. Upon the trial, the justice before whom the suit was originally brought, testified, that the case was continued from term to term, on account of the loss of the papers in the cause, and the note sued on.

<p>Appeal from Panola. Tried below before the Hon. Reuben A. Reeves. The facts sufficiently appear from the opinion.</p>

Error from Rusk. Tried below before the Hon. Charles A. Frazer. The plaintiff in error brought this case to the District Court, by certiorari.

Error from Rusk. Tried below before the Hon. Charles A. Frazer. This suit was instituted in October, 1854, by Charles Keith, against the appellant, on two notes. The defendant pleaded the general issue at the Fall Term, 1854.

Tried below before the Hon. William S. Todd. This suit was brought by the appellants, who, together with Some of the appellees, were the heirs-at-law of Richard H. Moore, deceased, to have his will vacated and declared null, and his estate administered and distributed as if no such will had been made, on the ground, among other alleged defects, that the testator was, at the time of his decease, a minor.

Tried below before the Hon. Reuben A. Reeves. This suit was for the trial of the right of property to four slaves, which were levied upon by virtue of an execution, issued on the 12th day of May, 1856, in favor of the appellants, William G. Anderson and Samuel T. Burnes, against Bourbon B. Anderson. The property was claimed by the appellee, Mrs. Sina Anderson, who filed the oath and bond prescribed by law, for the trial of the right of property levied on by execution.

Error from Harrison. Tried below before William B. Ochiltree, Esq., special judge selected by the parties. The facts are stated in the opinion.

Tried below before the Hon. A. W. O. Hicks. This was-an indictment for unlawful marriage. The facts are stated in the opinion.

• Tried below before the Hon. Charles A. Frazer. This was a suit by the appellants, to enforce the vendor’s lien, upon a house and lot in the town of Marshall.

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

Tried below before the Hon. Charles A. Frazier. This was a suit by the appellee, as the administrator de bonis non of the estate of Gabriel Moore, deceased, against Oliver F. Boulware, a former administrator de bonis non of the same estate, and Henry Martin and Roden T. Crain, the sureties on his bond. The facts are sufficiently apparent from the opinion of the court, as to the only questions discussed in it; it is deemed, therefore, unnecessary to state them.

Tried below before the Hon. Charles A. Frazer. This was an action of trespass to try title, brought by the appellee, against H. W. Blackwell and Jedediah Blackwell, for the south-east fourth of a league of land, granted to James Jordan. His petition was filed, February 10th, 1855. The defendant, Jedediah Blackwell, answered by a plea of “ not guilty,” and a disclaimer.

. Error from Shelby. Tried below before the. Hon. A. W. O, Hicks.' The only question involved in this case, was, as to the proper mode of impeaching a witness; it is therefore unnecessary to state the facts.