Volume 25 — Texas Reports

Error from Rusk. Tried below before Hon. O. A. Frazer, one of the district judges. This suit was brought by Sarah A. Devereux, in her own right, as well as in her capacity of guardian of the persons and estates of her minor children, Albert Devereux, Julian Devereux, William Devereux, and Charles Devereux, against Lorenzo L. Sanders, for $403 16, the price of certain cotton purchased by defendant.

Tried below before the Hon. Edmund J. Davis. Suit by T. E. Delmas and brother against Robert Margo, for $443 32, on an account for goods, wares and merchandize. Defendant answered by a general denial.

Tried below before the Hon. James H. Bell. This suit was brought by the appellant, Samuel M. Williams, against the appellees, F. W. Chandler, C. L. Moore, Lucinda Harper and her husband, T. W. Harper, and J. B. McFarland, administrator of John W. Chandler, for the recovery of the lower half of a league of land granted to John Cook, Sen., and to quiet his title thereto.

Error from Nueces. Tried below before the Hon. James Webb. This was a suit brought by Antonio Salinas against Charles Stillman, Elisha Basse, Robert H. Herd, and several others, in the county of Cameron, on the 10th day of March, 1851, for a labor of land in said county, embracing a portion of the city of Brownsville, the county seat of said county.

Tried below before Hon. K. A. Reeves, one of the district judges. This was an action of trespass to try title, brought by David R. Garrett against R. and M. Johnson, to recover the tract of land described by a deed from R. D. Wood to one T. E. Garrett, an extract from which is quoted in the opinion.

Error from Cameron. Tried below before the Hon. M. P. Norton. • Catherine Peabody, the plaintiff in error, was appointed administratrix of the estate of her deceased husband, David Peabody, on the 15th day of February, 1856; and the County Court set apart to the use of said widow and the minor children of the deceased, the homestead, and certain other property exempt by law from forced sale, on the 1st day of March, 1856.

Tried below before Hon. B. A. Beeves, one of the district judges. íhis action was brought by James J. Weir against John McGee and James A. McGee for $103 50, the unpaid residue of a promissory note, given by the defendants to the plaintiff, for the sum of $600, as part of the consideration for the purchase by them, from the plaintiff, of 200 acres of land, at the price of $1,200.

Tried below before the Hon. Fielding Jones. This was a suit for the trial of the right of property, wherein E. M. Forbes was the plaintiff and M. T. Dunham defendant in execution; to satisfy which, amounting to $762 96-100, a negro boy named Lewis was levied on, in the possession of and as the property of said Dunham. Hezekiah Dunham made claim to the negro according to the terms of the statute regulating the trials of the right of property.

Tried below before the Hon. George W. Smith. This was a suit brought, by John C. Cunningham, as the assignee of Sanford C. Blanton, against Warren J. Hill, on the 1st day of January, 1859, for-the recovery of thirteen hundred dollars, which the plaintiff alleged to be due to him as the holder and owner of two several contracts in writing, executed by the defendant to said Blanton in consideration of the services of the latter as an attorney-at-law in two certain suits…

Fielding Jones, and tried before him'on the application of the prisoner for bail, after indictment found. Indictment for the murder of David Baltzell, in the County of Gonzales, A. D. 1859. The facts disclosed by the record showed that the prisoner, in the evening, about three-quarters of an hour previous to the killing, had been playing billiards in a house adjoining the hotel, known as the ICeyser House.

Tried below before Hon. A. W. Terrell, one of the district judges. Suit brought by the appellees against the appellants.

Tried below before Hon. A. W.' Terrell, one of the district judges. This suit was brought by David Taylor, against William Earnest, upon a bill of exchange made at Hew Orleans, Louisiana, dated February the 16th, 1854, drawn on Benjamin F. Shields & Co., of said city, by the defendant, in favor of the plaintiff, payable at ten months, for the sum of $487 87.

Tried below before Hon. A. W. Terrell, one of the district judges. This was a suit brought by Burleson against the appellant for $2,000 and interest on a note made by the defendant to the plaintiff, it being a part of the consideration of a sale made by plaintiff to defendant of Ms interest in a saw-mill, fixtures, and the pinery connected with the mill.

Tried below before Hon. A. W. Terrell, one of the district judges. This was a suit brought by Glasscock against Burditt for $251 67, the balance claimed by him to be due for 788 bushels of corn, sold and delivered to the defendant.

George Wi Smith, in vacation. Application for bail after indictment found against the applicant, George D. Drury, for the murder of Ambrose R. Pitts, on the 2d day of January, 1860. Drury and Pitts were in partnership in the blacksmith business, the former living at the house of the deceased. They commenced making a settlement of their partnership business on the day previous to the killing, apparently with the view of a dissolution of partnership.

Tried below before. Hon. A. W„ Terrell, one of the district judges.

Error from Brazoria. Tried below before the Hon. George W. Smith. Suit by Thomas Cotton against R. P. Harrison, on a note for $233 11. The defendant answered by general demurrer and general denial; and at the first term of the court made an application for a continuance, for the want of the testimony of a witness residing in Blanco county. The affidavit set forth facts to account for his failure to cause the witness to be subpenaed, or to take his depositions.

<p>Appeal from Lavaca. Tried below before the Hon. Fielding Jones.</p> <p>This was an action of trespass to try title brought by J. 0. Wilson against Benjamin Williams, for the recovery of a third of a league of land. The defendant pleaded the general issue.</p> <p>The plaintiff introduced a patent to the land sued for, issued on the 16th day of November, 1848, to John James, assignee of John M. Sowell, and the mesne conveyances from the patentee to himself.</p> <p>The defendant introduced a title issued by the commissioner of DeLeon’s colony on the 27th day of March, 1835, to Archibald Smothers, to one-fourth of a league of land, with the mesne conveyances from the heirs of the grantee, to the defendant. The conveyance from William Smothers (who claimed in right of heir in his own right, and as purchaser of the interests of the other heirs,) was made of the said one-fourth of a league, and was executed on the 29th day of January, 1857. The defendant read in evidence the field notes of the survey made for John James on the 1st day of November, 1847, on which the patent was issued; the field notes recited that “ said survey is a resurvey of one-third of a league of land surveyed for Archibald Smothers, A. D. 1838.”</p> <p>A witness in behalf of the defendant, who has lived within six or eight miles of the land, and at the trial, Fall Term, 1858, was about twenty-eight years of age, stated that from his earliest recollection he has known the land called the “cane patch,” and has heard that it belonged to A. Smothers; and, so far as he has heard, it was called A. Smothers’ headright, and it was generally 'known in the community that it included the cane patch. It was proved that the “ cane patch ” was a place of notoriety, it being the only one in that part of the country. Another witness testified that he had known the land since 1841. ■ Until 1848 there were but few persons resident near the land—none nearer than seven or eight miles. Had seen one of the marked lines; that it was called Smothers’ headright, but did not know whether it was reputed to be granted to, or only surveyed for him. He also stated that it was notorious from the time he came to the country that it was the headright of A. Smothers. He had advised one Thread-gill, in the year 1847, not to locate upon it for that reason. Threadgill exhibited a knowledge of the general repute on that subject, but said that the title had not been perfected, and the land was, therefore, subject to location.</p> <p>Another witness testified that, from the time that he had come to the country, he had heard that the “cane patch” was A. Smothers’ headright. That the land was generally called A. Smothers’ headlight. The witness stated that he was here in 1838 on a visit, and several times since, until he moved here in 1842.</p> <p>Alexander Hilliard, surveyor for the Gonzales land district, testified in.behalf of the plaintiff that at the time of the location and survey of the Sowell one-third of a league certificate, the records of his office show no other evidence of claim by A. Smothers than the field notes of a survey made for him of the land claimed by the plaintiff by virtue of certificate No. 20, issued by the board of commissioners for Gonzales county, on the 8th day of June, 1838.</p> <p>The plaintiff proved by F. Chenault, clerk of the County Court of Gonzales county, that the only evidence of claim by A. Smothers to the land in controversy, which he is able to find, from an examination of the records of his office, is the name of A. Smothers upon the old county map. And also proved by the commissioner and chief clerk of the General Land Office, that prior to the 16th of November, 1848, there was on file in the General Land Office the title for one-fourth of a league heretofore referred to. They suppose that the title was not delineated on the map because it gives no connection with any others, and gives no locality known to that office. The commissioner states that the date of the deposit of the title is not shown by any archive in his office, but must have been there before the 10th of November, 1848. The field notes of the patent and of the title to Smothers embrace certain calls which are common to both. A sketch made by him and attached to the depositions, he states, is much the same as the field notes of the John N. Sowell survey; the one being a square one-third, and the other an oblong one-fourth of a league. '</p> <p>The chief clerk stated, that on the old maps of the office, viz., a a map of Gonzales county, constructed from the records of the county surveyor’s office, August 1, 1838, and on a map without a date, but apparently a still older one, the name of Archibald Smothers appears on the survey patented to James as assignee of Sowell. That the name also appeared at the time the patent issues on a map drawn in the General Land Office in 1842: the survey represented in the title does not agree either in shape or quantity with that represented on the map above stated.'; the former shows an oblong survey of one-fourth league,, while the maps all show a square one-third league survey. Also, that it is not marked on any of the maps as a titled claim, but as 1st or 2d class headright. That at the time of patenting, the title to Smothers was not regarded in the land office as being on any of the maps. That the patent issued, as he supposed, under the impression of the officers, that the survey represented on the map was made under the head-right certificate of said- Smothers, issued in Gonzales county, which, not being recommended, the survey was disregarded.</p> <p>The plaintiff offered to read the depositions of A. H. Phillips, with the report of the committee of the Senate of the State legislature referred to by said Phillips, who was the chairman of the committee, in his said depositions; which report purported to be the result of an examination by that committee, of the archives of. Martin de Leon’s colony, then deposited in the office of the Secretary of State, but subsequently, and at the time of taking the depositions, removed to and among archives of the General Land Office. The report set forth a list of the documents, contracts, decrees, laws, &c., relative to de Leon’s colony contract, with the titles granted to colonists, as contained in the several packages thus examined, among which is included that .of Archibald Smothers for one-fourth of a league of land, which, with some few others, they reported as not being on the map. The committee recommended that the documents be deposited in the General Land Office.</p> <p>The depositions of Phillips proved that the documents aforesaid, or the archives of Martin de Leon’s colony, after the death of the empresario, had been deposited in the office of the Secretary of State; that the Commissioner of the land office had declined to receive them, and were not deposited in the latter office until after the passage of the law of the 8th of February, 1850, .requiring them to be placed there.</p> <p>The witness farther deposed, that there was no evidence in the General Land Office in Feb., 1850, of a headright grant of one-fourth of a league to Archibald Smothers that he could find; that as a member of the committee, he had examined that office in 1850, in order to discover what could be found there that corresponded to the titles and papers among the archives aforesaid; that he was never an officer of the General Land Office.</p> <p>To the reading of the report or the depositions the defendant objected; that the testimony of the officers of the General Land Office was better evidence, and should be first produced; and that the witness had not been an officer of that office. The objections were sustained, and the evidence excluded. '</p> <p>The plaintiff offered in evidence, a certified copy of the order made by the board of land commissioners of Gonzales county on the 3d day of February, 1838, as follows:</p> <p>“No. 20. Archibald Smothers applied to the board of land commissioners, and took the oath prescribed by the 12th section of the act granting land to colonists, and, also, proved by two good and lawful witnesses, to wit, Henry Bridges and Richard Hath, that he emigrated to this republic in the year 1829, and that he is a single man; therefore, said board granted to him a certificate for one-third of a league of land as his headright.” Also, the- certificate of the clerk of the County Court of Gonzales county, that the above described certificate was not recommended as a genuine claim against the government by the traveling board of commissioners, appointed under an act of congress of the republic, passed January 29th, 1840, as appears from the records of the report of said commissioners in his office. Also, the field-notes of a survey made for said Smothers for one-third of a league, by virtue of said certificate. The calls indicated that the survey was made of the same tract described in the plaintiff ’s petition. To the reading of all which the defendant objected, because the testimony offered was not pertinent to the issue; which objection was sustained, and the evidence was excluded.</p> <p>The plaintiff offered to prove by Greenwood, that William Smothers, in 1849, and before that time, had stated that Archibald Smothers had not perfected his claim to the land in suit; and that neither William Smothers, nor any of the heirs of Archibald Smothers, knew, until 1851, that a grant had been issued in 1835; which was objected to by the defendant. The objection was sustained, and the evidence was excluded.</p> <p>The court charged the jury, that if they believed, from the testimony, that the plaintiff, and those under whom he claims, had notice of the claim of the defendant; or that the claim of the defendant was notorious in the neighborhood where the land' was situated, they should find for the defendant, his being the older and superior title. But if they believed the defendant’s-claim was not any where placed upon 4he records, either in the county where the land lies or in the General Land Office, or that it was not delineated upon any map either in the county or the General Land Office; and that the plaintiff, and those under whom he claims, had no notice of defendant’s claim, then they should find for the plaintiff.</p> <p>Verdict and judgment for the defendant. The plaintiff filed -a motion for a new trial, which was overruled.</p>

Tried below before Hon. A. W. Terrell, one of the district judges. This was an injunction suit, brought by Tinnin to enjoin sales under levies made by virtue of executions upon certain partnership property of petitioner and his partner, E. Irvine, to satisfy judgments against said Irvine, which were the separate debts of the latter.

Tried below before Hon. A. W. Terrell, one of the district judges.

<p>Appeal from G-uadaloupe. Tried below before Hon. A. W. Terrell, one of the district judges.</p>

Tried below before Hon. A. W. Terrell. Indictment for violation of the Act of February 8, 1856, regulating estrays, alleging the offense to have been committed on the 1st day of January, A. D. 1856. Indictment filed December 4, A. D. 1857. Defendant filed general and special exceptions to the indictment, which were sustained.

The case was tried before the Hon. A. W. Terrell, one of the district judges. Albert Q-. Compton sued B. A. Bisher and several other defendants as partners, running stages and carrying mails under the name of “The Western Stage Company.” The plaintiff declared upon a contract in the following words: “ Memorandum of agreement made between R M. Saunders, agent of the Western Stage Company, and A. G-.

Tried below before the Hon. M. P. Norton. James McGloin died in the year 1856, possessed of a homestead and other lands and personal property, leaving a will, by which he devised to his widow “the use and right to occupy the room” in the dwelling house which he then occupied, until a house should be built for her on a tract of land designated in the will, containing one hundred acres.

Error from Brazoria. Tried below before the Hon. George W. Smith. This suit was brought on the 10th day of September, 1858.

Error from Walker. Tried below before the Hon. Peter W. Gray. On the 19th day of November, 1856, a capias was issued by the clerk of the District Court of Walker county, directed to the sheriff of Trinity county, for the arrest of Henry A. Gindrat, to answer a charge of perjury, upon an indictment then pending against him.

Error from G-uadaloupe. The case was tried before Hon. A. W. Terrell, one of the district judges. The appellees brought suit in the court below against the appellant upon a promissory note, which note is as follows: “$1,124 50.

Tried below before the Hon. James M. Maxcy. This was a motion filed by H. C. Hicks, administrator of the estate of John H. Ford, deceased, against W. B. Gray, sheriff of Tyler county, and his securities, for failing to levy and to return an execution which had issued on a judgment in favor of Martin Doyle against A. J. Sapp and others for $328 71, with interest, claiming to be the assignee of the judgment in right of his intestate, to whom he alleged Doyle had transferred or…

1 Appeal from Q-uadaloupe. The ease was tried before the Honorable A. W. Teeeell, one of the district judges.

Error from Tyler. Tried below before the Hon. James M. Maxcy. This was a suit brought by John 0. Callison on the 2d day of January, 1858, against William B. Gray for the recovery of $400, with interest thereon at the rate of ten per cent, per annum from the 25th day of December, 1857. The plaintiff relied on the terms of a bond executed by himself to the defendant in the sum of $800, as the foundation of his action, which was set forth as a part of his petition.

Tried below before the Hon. Peter W. Gray. This suit was brought by James C. Ray against William H. Howard on the 4th day of September, 1858, for the recovery of a certain horse worth $125, and ten dollars in cash, which horse the plaintiff had on the 30th day of August, 1858, exchanged with the defendant for a mule, and as the supposed difference in value between the animals, had paid the sum of ten dollars. The defendant warranted the soundness of the mule.

Tried below before the Hon. James M. Maxcy. This was a suit brought by Eobert Hooker, as administrator of the estate of William Laneheart, against Seth Hardison, commenced by distress warrant, for $300 with interest, for rent, alleged to he due by virtue of an agreement in writing, made between the deceased and the defendant on the 5th day of December, 1857.

The case was tried before the Hon. A. W. Terrell, one of the district judges.

■ Error from G-uadaloupe. The case was tried before Hon. A. W. Terrell, one of the district judges. The suit was brought upon the 1st of October, 1858, upon a note in these words: “$1,000. Seguin, Nov. 1, 1857. “Eleven months after date, we or either of us, the subscribers, of Seguin, State of Texas, promise to pay to the order of Wm.

Tried below before the Hon. James M. Maxcy. Suit by Gilbert Lacour against W. C. Lacey on a note of $500, given for two tracts of land, and against G. W. Chapman as the purchaser of the land from Lacey, praying for judgment against the former for the money, and a decree subjecting the land to the vendor’s lien, and a sale thereof. Suit filed January 20th, 1859.

Error from Brazoria. Tried below before the Hon. George W. Smith. This was a suit brought on the 12th day of March, 1859, by Francis M. Jackson against William H. Byne, on a note for $800, due on the 1st day of January, 1859.

The case was tried before William B. Leigh, Esq., chosen as special judge, under the cónstitution, because of the interest of Hon. A. W. Terrell, one of the district judges. The plaintiffs below sued Ussery and others, who were purchasers under him, to recover a league of land, which had been granted to their ancestor, Samuel Highsmith.

<p>It is error to render a judgment in favor of an intervenor against a defendant, who has neither filed an answer to the plaintiff’s petition, nor been served with process to answer the complaint of the intervenor. An answer to the plaintiff’s suit binds the defendant to take notice of the petition of an intervenor.</p>

Error from Trinity. Tried below before the Hon. James M. Maxcy. This suit was brought on the 7th day of October, 1859, by Oswin Teagarden against James L. Cottrell, for the specific performance of a contract to convey to him 11 7-8 acres of land, -made by Teagarden on the one part, and Cottrell and Lucius Loring on the other, on the 29th day of April, 1858.

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

<p>Where a tract of land is purchased with the separate property of the husband, and the conveyance is taken in the name of the wife, the acts and declarations of the husband before the taking of the conveyance having reference to it, and corresponding with his after acts, evidencing his intention and purpose respecting it, and the subsequent statements of the wife in so far as they conduced to countervail the prima facie inference deducible from the fact of taking the deed in her name, are admissible and proper to be submitted to the jury for their consideration upon the question whether the real intention and purpose of taking the deed in the name of the wife was to make a. donation or gift of the property to her sole and separate use.</p>

The case was tried before the Hon. A. W. Terrell, one of the district judges. Gordon, administrator of Grinage, sued George W. Nichols and his wife, Bachael S. Nichols, upon a covenant of warranty of a tract of land, averring an eviction of one-fourth of the land, and praying for a foreclosure of mortgage upon certain slaves.

Tried below before the Hon. James H. -Bell. This was a suit brought by Benjamin Shropshire against Isaac W. Cox, of trespass to try title, on the 18th day of October, 1856, for the recovery of a tract of land containing sixty-nine acres.

Error from Guadaloupe. The case was tried before Hon. A. W. Terrell, one of the district judges. Young & Thompson sued Read on an account. The petition charged that Thompson had acknowledged the payment and receipt of the account, in consideration of the receipt of Read for Thompson’s individual debt to him, which settlement the petition repudiated, and Young alleged the insolvency of Thompson.

Ebbob from Guadaloupe. The case was tried before Hon. A. W. Tebbebb, one of the district judges. Three final judgments had been rendered in the District Court of Guadaloupe county upon the bail-bond of Robinson and sureties. Robinson and sureties prosecuted error. On the 29th October, 1860, the Attorney General moved to dismiss the eases for want of writ-of-error bond in' each case, as required by arts. 788a and 738h of the Code of Criminal Procedure.

Error from Caldwell. The case was tried before Hon. A. W. Terrell, one of the district judges. Brown, as administrator of Joseph L. Washam, sued Albert and Alfred Johnson. There are many facts in the record not material to state, as the case really turned upon the merits of the defense as a set-off or plea in reconvention.

Tided below before the Hon. George W. Smith. This was a suit brought by J. S. Shropshire against S. H, Boxey for $500, as the value of his services as an attorney, rendered the defendant in the prosecution of a certain .cause for murder. Four witnesses, attorneys-at-law, proved the services rendered as alleged, and that they were reasonably worth $500. One of the witnesses testified that it was worth to prosecute the case $1000 or $1500.

The case was tried before Hon. A. W. Terrell, one of the district judges. Frost & Co. sued John Persons, upon a note executed by C. C. Bond & Co., and in their petition alleged that C. C. Bond and John Persons were a mercantile firm at Bastrop, doing business under the firm name of C. C. Bond & Co.; that they made, executed, and delivered the note sued upon in their firm name; and that C. 0. Bond was dead, and prayed for process and judgment against John Persons.

Error from Tyler. Tried below before the Hon. James M, Maxcy. This suit was brought by H. V. Scarborough against Reddrick Arrant and John H. McKinney to compel the specific performance by Arrant of the conditions of a bond, and to cancel a certain conveyance from the latter to McKinney. The defendants answered jointly by a general demurrer and other answers. The demurrer was sustained, and judgment rendered thereon for the defendants. The other facts appear from the opinion.

The case was tried before William M. Walton, Esq., a special judge, chosen under the constitution, because of the interest of Hon. A. W. Ter'rell, one^of the district judges. Martha Mitchell sued William Runlde and others. She declared as the widow and only heir of Robert Mitchell, deceased. The suit was for an interest in the Gideon Pace half league of land. The defendants plead the general issue. The case seems to have turned upon the bill of exceptions.

The case was tried before Hon. A. W. Terrell, one of the district judges. This suit was brought in the name of “ the 'State of Texas,” for the use and benefit of the State, against M. B. Highsmith, assessor and collector óf taxes, and B. H. Grimes, H. Cocheron, and Phil. Claiborne, sureties on his official bond, executed on the 18th day of August, 1856, alleging that said Highsmith had been duly elected and qualified as assessor and collector of taxes for Bastrop ’ county.

Tried below before the Hon. Peter W. Gray. This was an action of trespass to try title, brought by Charles Kesler against Benjamin 0. Franklin for the recovery of a lot on Galveston island, known on the map of the island as lot Ho. 530, in section number one, of the government surveys, consisting of twelve acres more or less. The case was submitted to the decision of the presiding judge on the facts as agreed to.

The case was tried before Hon. A. W. Terrell, one of the district judges. The facts necessary to the decision are fully stated in^ the brief of counsel and opinion of the court.

Error from Galveston. Tried below before the Hon. Petel* W. Gray. On the 21st day of January, 1847, John, William C., John A. and Ogden Haggerty filed their petition in the District Court of Galveston against Alexander Casselli, praying for a judgment against him for $16,000 on their claim against him for money loaned; showing also that they and the defendant were non-residents.

Error from Walker. Tried below before the Hon. Peter W. Gray. Held: so that Green was deceived and induced to buy the land, then you will inquire whether any defect of a material character has been shown in his title; but if you believe otherwise, or there is not satisfactory proof of such representations, or if Chandler made known to Green what title he held under, then it is immaterial to inquire…

The case was tried before Hon. A. W. Terrell, one of the district judges.

Error from Gonzales. The case was tried before Hon. Fielding Jones, one of the district judges. Van Bibber sued Morrison and declared on a note and mortgage, and prayed for a foreclosure. The defendant made default, and there was a writ of inquiry and verdict and judgment. In the petition for a writ of error there is reference to the assignment of errors, marked “A,” but there was none in the record. The defendant in error suggested delay, which opened the whole record.

Error from Gonzales. The case was tried before Hon. Fielding Jones, one of the district judges. Keese & Son sued Morrison for $1,030 20. The petition declared for interest. The note was exhibited, and made no mention of interest, but was for $1,030 20. The defendant filed a demurrer, which was overruled, and the court rendered judgment for principal and interest.

Error from Comal. The case was tried before Hon. Thomas J. Devine, one of the district judges. This Suit was brought by Henry Sheldon against J. S. Anderson and E. M. Anderson, his wife, on several promissory notes, amounting to over the sum of $5,000and, on a plea to the jurisdiction of the court, judgment was rendered in favor of the defendants, from which the plaintiff, Sheldon, gave notice of appeal; but before the appeal was perfected, he died.

Error from Bexar District Court. The case was tried before Hon. Thomas J. Devine. Grinder sued Pyron, Mitchell, and Temple, charging • that they executed to him thirty-six promissory notes, on the 16th April, 1858, thirty-five of which were for $100 each, and one for $63 50. In an amended petition, the plaintiff made the notes a part of his petition, and filed them. The plaintiff dismissed as to Temple, who was not served.

The case was tried before Hon. Thomas J. Devine, one of the district judges. Amanda A. Dignowitty, acting as the agent of her husband, A. M. Dignowitty, on 28th February, 1859, prayed for an injunction against D. 0.

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

The case was tried before Hon. Fielding Jones, one of.the district judges. As the statutes upon which this case was decided have perished with slavery, the history of the case is sufficiently given in the opinion of the judge.

<p>Under the provision of the Code, that “ when by the provisions of the second law the punishment of the offence is ameliorated, the defendant shall be punished under such last enactment, unless he elect to receive the penalty prescribed by law in force when the offence was committedthe “election” of the defendant can apply only to the case where the new law ameliorates the penalty, and he chooses to receive the penalty prescribed by the law in force when the offence was committed.- Unless he make such election, his trial under the law inflicting the milder penalty follows as a legal consequence.</p> <p>The penalty, therefore, may be less, but can never be greater than that imposed by the law in force when the offence was committed.</p> <p>Where there are several offences embraced in the same indictment, they must be treated as distinct by the court, in its instructions to the jury in respect to the penalty attached to each by the law. And it is only when the punishment of some one or all of them is ameliorated by the new law, that a defendant has a right “ to elect to receive the penalty prescribed by the law in force when the offence is committed. ” If any one of them thus included, is ameliorated, he may elect as to that one.</p> <p>Where the defendant indicted for an assault with intent to murder, elected to be tried under the new law ameliorating the penalty, was convicted of an aggravated assault, the penalty whereof was increased by the law then in force beyond that which existed at the commission of the offence : held, that the conviction was illegal notwithstanding his election in respect tp the charge of an assault with intent to murder.</p>

<p>Ait. 423e of the Penal Code reads as follows:</p> <p>“ If any person or firm shall sell, or be in any way concerned in selling, spirituous, vinous, or other intoxicating liquors, in quantities of a quart or more, and shall permit the same to be drank at the place or establishment where sold, or any other place provided by said person or firm for that purpose, he shall be punished as provided in the preceding article; that is, by a fine of not less than $50 nor more than $200.” (Paschal’s Dig., Arts. 2075, 2076.)</p> <p>If the vendor and vendee, in good faith, intended that the bottles sold contained a quart, the fact that they really contained a little less is immaterial, provided the defendant permitted it to be drank at the same establishment.</p> <p>The gist of the offense does not consist so much in the quantity sold, as the place where it was drank. An hotel-keeper is not allowed to sell liquor to his guests by the quart, and then permit them to drink it in their lodging-rooms. „</p> <p>An affirmative permission is not necessary. It may be presumed from the selling and drinking it in the establishment. And the presumption is one of fact for the jury, not of law.</p> <p>If the parties agreed that the bottles contained a quart, the jury may so find the truth to be, unless there was an intention to evade the statute, and retail without license: then he would be indictable, under the preceding article, for retailing without license. (Paschal’s Dig., Arts. 2075, 4423a.) This article of the Code was not intended as a prohibition of a sale of liquor by the quart, but most obviously to prevent those who retail liquors from evading the law requiring them to obtain a license before selling in less quantities than a quart. (Penal Code, art. 423c; Paschal’s Dig., Art. 2075, Notes 654, 655.) ,</p> <p>The Code of Criminal Procedure, as to the charge in criminal cases, reads as follows:</p> <p>“After the argument of any criminal cause has been concluded, the judge shall deliver to the jury a written charge in which he shall distinctly set forth the law applicable to the case; but he shall not express any opinion as to the weight of evidence, nor shall ho sum up the testimony. This charge shall be given in all cases of felony, whether asked or not.”</p> <p>“It is beyond the province of a judge, sitting in criminal causes, to discuss the facts, or use any argument in his charge calculated to rouse the sympathy or excite the passion of a jury. It is his duty to state plainly the law of the case.” (Paschal’s Dig., Arts. 3059, 3060.)</p> <p>If the defendant think the charge objectionable, he should save the point at the trial, not by asking a counter-charge, but by a bill of exceptions to the charge, pointing out that objection. (Paschal’s Dig., Art. 3067 [602.]) [For notes upon the charge, see Paschal’s Annot. Dig., Notes 744, 745, 747, 562, 604, 640.]</p>

Error from Walker. Tried below before the Hon. Peter W. Gray. John P. Wilson was indicted for an assault with intent to kill and murder one Andrew J. Edwards. On the 2d day of May, 1857, he entered into recognizance in the District Court for his appearance to answer the indictment, with the plaintiff in error, and others, as his sureties, in which the offence was described as an assault with intent to kill.

Tried below before the Hon. Peter W. Gray. This suit was brought by Thomas M. League, John H. lilies, Catherine E. McLelland, and George C. Rains, for the abatement of a nuisance. The facts alleged by them are sufficiently stated in the opinion. The defendant filed a general demurrer, a general denial, and an answer which need not be set forth here. Verdict for the defendant, and judgment thereon accordingly.

Tried below before the Hon. Peter W. Gray. Indictment against Abraham Isaacs for the murder of Samuel F Spillar, charged to have been committed on the 18th day of June, 1859, with a dagger.' The defendant had been occupying a room of the office of the deceased, using it in carrying on his business as a shoemaker.

The case was tried before Hon. A. W. Terrell, one of the district judges. The service of the scire facias was in these words: “And ■ executed this the 21st March, A. D. 1859, by serving the original scire facias on the within-named person, Edward Winans.”

Error from Gonzales. The case was tried before Hon. Fielding Jones, one of the district judges. Hodges, who was the guardian of the minor children of Virginia and Calpurnia Jones, heirs of A. Jones, deceased, sued Wesley Morrison, James G. Wilson, and Asa C. Hill. • The citation described “Hodges, administrator” of A. Jones, deceased.

The case was tried before Hon. Edmund J. Davis, one of the district judges. On the 6th September, 1859, Sheldon sued the city of San Antonio, before a justice of the peace, upon two coupons, each for $35. The summons was issued to “The Mayor of the City of San Antonio,” and served on the 21st January, 1859. The defendant, “without appearing,” moved to quash the citation, because the city was not made 'a party. The defendant plead the want of-authority to issue the bonds.

Tried below before the Hon. Geo. W. Smith. Indictment against a road overseer.

The case was tried before Hon. Fielding Jones, one of the district judges.

Tried below before the Hon. Peter W. Gray.- This was an indictment against Joseph L. Wyler for the murder of his wife, Elizabeth Wyler.

The case was tried before Hon. Thomas J. Devine, one of tlié district judges. Korn sued De la Zerda and Maverick for damages.

Tried below before the Hon. Peter W. Gray. . This was a suit brought in the District Court in> September, 1857, by E. Kauffman, J. P. Lee and U. B. Brewster, against Thomas G. Birdwell, administrator of the estate of Isaac Tousey, deceased. The plaintiffs were creditors of the estate, holding claims of the fourth class. • Tousey died in the year 1853, and the defendant appointed administrator in 1854.

Tried below before the Hon. Fielding Jones. This suit was brought in the county of Refugio by James W. Byrne, against the corporation of the town of Refugio and several other defendants, for the recovery in an action of trespass to try title of three several tracts of lands. The petition alleged that the defendants claimed the same under a prétended title supposed to be vested in the said town of Refugio.

Error from Bexar. The case was tried before Hon. Edmund J. Davis, one of the district judges. Devine sued Brackett upon a promissory note, executed by her deceased husband, payable to his own order, $1,085 05, with 10 per cent, interest, which was averred to be indorsed to Devine. He charged, that O. B. Brackett, the husband, left considerable property, and that the defendant filed an inventory, and took possession, as survivor of the community property.

Error , from Bexar. The case was tried before Hon. Edmund J. Davis, one of the district judges. This is a suit by the plaintiff in error to enjoin a judgment and decree of sale in favor of defendant in error. Plaintiff in error brought suit against M. L. Menck, Geo. M. Martin, and M. J. Martin; service was accepted, and judgment obtained, with a decree of foreclosure of mortgage on a house and lot.

<p>Appeal from Bexar. The case was tried before Hon. Edmund J. Davis, one of the district judges.</p> <p>. Frederick W. Muller, in his lifetime, brought suit in the United States District Court, at Galveston, against O. B. Brackett and Philip Tucker, the administrator of Muller, and on the 9th January, 1857, recovered a judgment by default against Brackett for $1,040 08. Tucker sued Mrs. Brackett, in her character of administratrix of O. B. Brackett, in the Bexar District Court," upon this judgment, and recovered judgment against her for $1,256 78, upon which execution issued. Mrs. Brackett now prayed an injunction against Tucker, on the ground, that before the original suit O. B. Brackett had paid $420, which ought to have been credited on the note on which the first judgment was founded. The excuse for not pleading the payment in the federal court was, that O. B. Brackett had mislaid the receipt, and she had just discovered it. The judge granted an injunction ad interim.</p> <p>Tucker answered, by special exceptions, averring that the petitioner did not show any diligence in discovering the evidence upon the trial; and, also, that the receipt set up was not applicable to the note on which the judgment had been obtained in the federal court, but was imputed to the payment of an account. The exceptions were overruled, and the equities tried by the judge without a jury, and the injunction was perpetuated.</p> <p>The facts proven in the case were: 1. The judgment of Tucker, administrator of Muller, of 9th October, 1858, for $1,256 78. 2. The judgment of the federal court at Galveston, in favor of Tucker, administrator of Muller, against Brackett, dated 9th of January, 1857, for $1,040 48. On this judgment the judgment in Bexar District Court was rendered. This federal court judgment was founded on a note, dated 31st October, 1845, due by Brackett to Muller, at ninety days, for $554 62. The receipt sought to be plead against this judgment, rendered upon a judgment between the parties, was as follows:</p> <p>“Received, Dew Orleans, 22d October, 1846, from Mr. O. B. Brackett, four hundred and twenty-four dollars, on account.</p> <p>“Bor $420. B. Wm. Muller.”</p> <p>The defendant, Tucker, proved by experts the custom ' of merchants to specify notes where the receipts for money were applicable to them; but that the present receipt was on an account. Tucker, having been perpetually enjoined from collecting the entire judgment, appealed.</p>

Tried below before the Hon. Peter W. Gray. Suit by T. L. Martin against Isaac W. Brashear, on a promissory note for $400, signed “Isaac W. Brashear, by G. I. Tilton, agent.” On the trial the plaintiff offered the note in evidence, to which the defendant objected, because no sufficient authority to make it had been shown, and there was no proof of Tilton’s handwriting; which objections were overruled. The note was read, and the defendant excepted.

The case was tried before Hon. Thomas J. Devine, one of the district judges. The appellant was indicted under the 250th article of the Penal Code. (Paschal’s Dig., Art. 1869.) Indictment charged, “ that A. J. Collins, late of the county aforesaid, on the 12th day of September, A. D. 1860, at said county of Bexar, one M. Gr.

<p>This court concurs in the views expressed by the present chief justice in the dissenting opinion in this case, (16 Tex. R., 272,) as to the application of the rule then laid down by the majority of the court. The question in the case was deemed by him to be, as to the sufficiency of the evidence, to establish the alleged fraud by the defendant in a settlement with one of the plaintiffs, and not as to the sufficiency of oral testimony to establish a trust in lands.</p> <p>On the question as to the existence of the fraud, it is for the jury to say whether or not the evidence is sufficient to establish the charge ; and to charge them that it could not be established by the testimony of a single witness was erroneous.</p> <p>It can hardly be called a legal presumption, that one member of a firm is aware of the correspondence of the firm, and acquainted with its business affairs and transactions.</p>

The case was tried before Hon. Thomas J. Devine, one of the district judges. Pablo Huizar and others sued Thomas A. Smith and others for trespass, with force and arms, upon land, and prayed for damages. The defendants plead the general denial, and the limitation of five and ten years.

—The case was tried before Hon. Edmund J. Davis, one of the district judges. Bosshard was indicted for permitting the playing of a game of cards called “euchre” at his tippling-shop, called a public place, as stated in the opinion.

The case was tried before Hon. . Fielding Jones, one of the district judges. The record of the original case of Trammell v. Trammell et al., was filed in the Supreme Court on the 1st of •December, 1855. The judgment was affirmed on the 21st December, 1857, and the case is reported, Campbell v. Campbell, 15 Tex., 291, and see the same case, post.

Tried below before the Hon. Peter W. Gray. This was a suit brought on the 15th day of April, 1857, by Cornelius O’Connor against Francis Bacon and the administrator of John O’Connor’s estate, for the purpose of subjecting to sale certain lots in the city of Galveston purchased by the defendant Bacon from Gormley and wife, and by them conveyed to him,, said Bacon, by deed, on the 8th day of October, 1856.

Error from Gonzales. The case was tried before Hon. Fielding Jones, one of the district judges. The proceeding was, under the act of the 18th March, 1848, to establish the mode of trying the right of property levied on under writs of execution. (Paschal’s Dig., Art. 5310 to 5319, Hotes 1155 to 1161.) The issue was made up, and the judgment against the husband, execution, and lefy were proven.

Error from Gonzales. The case was tried before Hon. Fielding Jones, one of the district judges. Thomas-sued Brantley and Nations for a note of §323 31, dated 25th March, 1857, and due at eight months from date.

The case was tried before Hon. M. P. Horton, one of the district judges. The suit was an account for the value of merchandise. The defendant plead the general denial and payment and set-off, without any specifications; and also a plea in reconvention, subject to the same objection. An amended answer set out an account in the nature of a set-off. The accounts were referred to an auditor, who, after stating the accounts, struck a balance of $558 47.

Tried below before the Hon. Peter W. Gray. This was a suit commenced by W. R. Smith,' W. Alexander and Henry Austin, executors of the will of Henry Austin, deceased, on the 19th day of March, 1856, against D. D. Atchison and 0. A. Bulkley on three promissory notes executed on the 7th day of March, 1854, to the plaintiffs as executors, amounting to $7685 40, payable twelve months after date, given for property purchased at a sale by said executors.

Ebbob from San Saba. The case was tried before Hon. Edwabd H. Vontbess, one of the district judges. Jackson was indicted for an aggravated assault and battery upon the body of Thomas Montgomeiy. It was proved that Jackson made a fierce assault upon Montgomery, in the wheat-field of the latter, and struck him a severe blow with a stick, drew his pistol upon him, and threw rocks at him.

Tried below.before the Hon. James H. Bell. 'This suit arose in the County Court in the final distribution of the estate of David Cameron, deceased. Agnes Cameron and her sister, Jean Kennedy, representing themselves to be the sole heirs of David Cameron, applied at the August Term, 1855, for a final settlement and partition of the estate.

The case was tried before Hon. Thomas J. Devine, one of the district judges. This case was brought by Klein before the District Court by certiorari. G-ehrung sued Klein before a justice of the peace, to compel him to remove his fence, built on his own land, in the city of Hew Braunfels, because it obstructed her windows; and for damages for the obstruction the case was tried.

The case was tried before Hon. Edward H. Vontress, one of the district judges. Baines sued Arnold in a justice’s court for $15 on an open account. At the trial an offset of $6 50 was allowed, and judgment rendered against Arnold. The case was carried to the District Court on writ of certiorari, and there Arnold plead that payment had been made by the tender of “ a certain young beef steer,” which the appellee refused to accept.

Tried below before the Hon. James H. Bell. This was a suit brought on the 28th .day of March, 1857, by John J. Magette against John Duncan, for the sum of §786, with interest thereon from the 1st day of March, 1856, the date of the alleged promise.

<p>Repeated decisions of this court have settled that, although the general denial pleaded to an action on a promissory note does not put the plaintiff on proof of the execution of the note, it requires its production in evidence; and hence, that it is a defense to the action which will preclude the plaintiff from taking judgment by default. (See Paschal’s Dig., Art. 1443, Note 549, for the authorities on this point.—Reporter.)</p> <p>A contemporaneous parol agreement cannot be set up to vary the terms of a written contract.</p>

Error from McLennan.—The case was tried before Hon. H. W. Battle, one of the district judges. Bedwell sued Thompson, alleging that he purchased of Thompson six hundred and forty acres of land for $6,000, for which he paid $1,250 cash, and gave his notes for the balance in installments, to “B. J. Thompson or bearer;” that Thompson gave his warranty deed; and that there was an understanding that the cash payment of $1,250 was in consideration of the improvements.

Error from McLennan. The case was tried before Hon. U. W. Battle, one of the district judges. It is a fact case, and the precedent can be of no great value. Collier sued Rowe for the sum of thirteen hundred and ten dollars, ($1,310,) upon various items of account, ranging, in point of time, from 1857 to the 1st of Eebuary, 1858.

The case was tried before Hon. U. W. Battle, one of the district judges. Herrington sued Holman “ for ten good mules, of the value of $500,” upon a contract of the plaintiff, agreeing to give the defendant a jack for ten mules. He averred that he delivered the jack, but the defendant refused to deliver the mules.

<p>Appeal from Goliad. Tried below before the Hon. Edmond J. Davis.</p> <p>Suit instituted by Maria Jesus de Leon de Manchóla, the widow of Rafael Manchóla, on the 17th of May, 1850, against C. G. Word and others; action, trespass to try title for two leagues of land. •</p> <p>The plaintiff died before the trial, and John F. McKinney was appointed administrator of her estate, and prosecuted the suit. The title relied on by the plaintiff was a grant to Rafael Manchóla of four leagues of land, which was incomplete at the time of his death; the title of possession whereof was issued to the said Maria Jesus de Leon de Manchóla as his widow, and said possessory title was ratified subsequently by the Governor on April 25th, 1835.</p> <p>The plaintiff introduced as evidence the testimonio to the said Maria Jesus de Leon de Manchóla, with the accompanying documents, as follows: The petition of Rafael Manchóla, February 12th, 1829, for four leagues of land, which he solicited on the terms prescribed by the colonization law of the State.</p> <p>Its reference to the ayuntamiento of Goliad to report according to article 17th of the colonization law, dated Leona Vicario, February 14th, 1829.</p> <p>Report as to the locality, and the qualifications of the applicant.</p> <p>The concession made at Leona Vicario, on the 5th February^ 1830, of four leagues, as an augmentation headright; and commissioner general directed to give possession.</p> <p>Petition of Rafael Manchóla 8th October, 1830, that the alcalde of Goliad may give possession.</p> <p>Corresponding direction to the alcalde. Petition by Maria Jesus de Leon de Manchóla, as the widow of the original applicant to the alcalde, that ■ possession be given to her according to the concession to her husband. Dated October 2d, 1833.</p> <p>The order of survey, dated October 3d, 1833, by the alcalde, on the petition of the widow. Report of the surveyor.</p> <p>Title of possession for four leagues to the widow from Miguel Aldrete, sole constitutional alcalde for the town of Goliad, and commissioner to distribute and give possession of vacant land within that jurisdiction. Dated October 7, 1833.</p> <p>Before producing the foregoing testimonio, the plaintiff proved the handwriting of Aldrete, the alcalde acting as commissioner, and of the witness, Yasquez, subscribed thereto. And the plaintiff offered in evidence, appended to the testimonio, the following ratification of the title as to two leagues, to-wit:</p> <p>: l. s.": *....#</p> <p>“ Executive Department of the Free State of Coahuila and Texas, Book A, Ho. 161, Fol. 147, frt., Monclova, April 25th, 1835. ■</p> <p>“ The possession of- two leagues of land, given by the- alcalde commissioned of the town of Goliad, citizen Jose Miguel Aldrete, according to the foregoing document, is ratified by the government, provided they do not affect the rights of other parties-. Let this be returned to the party interested for the suitable purposes.’7</p> <p>(Signed,) “ Yiesca.</p> <p>(Signed,) “-J. Mariano Yrala,</p> <p>“ Secretary.”</p> <p>Ho proof was offered as to the genuineness of the above1 recited document, for which reason, and “ that there was no authority for making such ratification in any case, and if made, was void because of the nullity of the testimonio,” the defendants objected to its introduction; which was overruled, and the instrument was admitted.</p> <p>In the year 1837 Madam Manchóla left the Republic of Texas -and went to the State of Louisiana, .where she remained three or four years; returned and went to Mexico; again returned to Texas, and again returned to Mexico, and still again returned to Texas, where she died. It was contended, under the evidence on the subject by the plaintiff that she had not voluntarily abandoned her residence in Texas, and by the defendants, that she had done so, and acquired one in Mexico.</p> <p>The defendants asked • the court to instruct the jury that if they believed from the evidence, that she at any time before the institution of this suit, voluntarily fixed her permanent residence in Mexico, after it became a country foreign to Texas, by her revolution, that she lost what right she may have acquired under the testimonio, and the plaintiff cannot recover. Which the court refused.</p> <p>They also asked an instruction, that the testimonio of the plaintiff’s intestate is void for want of authority in the alcalde to issue it under the concession to Rafael Manchóla; and is not validated by the document annexed thereto, purporting to be a ratification by the Governor of Coahuila. Which was also refused.</p> <p>Verdict and judgment for the plaintiff for the land sued for.</p>

Tlie original case was tried before Hon. Fielding Jones, one of the district judges. The judgment in favor of Henry Trammell v. Nicholas Trammell et al., for the recovery of certain Slaves and their hire, was affirmed, on the 21st December, 1857, at Austin; and it is reported in the case of Trammell v. Trammell et al., 15 Tex., 291.

Error from Colorado. Tried below before the Hon. N. H. Hunger. Suit for divorce by Elizabeth Bateman against Thomas Bate-man, and for partition of their respective interests in the property owned by them. The divorce was decreed; the plaintiff proved that at the time of the marriage she owned certain cattle and a mare; that they had increased during the marriage, and were still possessed by them.

Tried below before William Gr. Hale, Esq., special judge agreed upon by the parties. This was an action of trespass to try title, brought by Esther S. Mann, executrix of the last will of William Mann, deceased, and others, against Blas M. Falcon, for the recovery of five and one-half leagues of land; petition filed August 7th, 1856.

The case was tried before Hon. A. W. Terrell, one of the district judges.

The case was tried before Hon. 2ÑT. W. Battle, one of the district judges.

Tried below before the Hon James M. Maxcy. Indictment for obstructing a public road. The offence is alleged to have been committed in the year 1857. In the year 1848 the County Court appointed five persons to review a certain road specified in the order by the termini thereof.

Tried below before the Hon. Peter W. Gray. Ellen E. Jenkins, the widow of Henry Jenkins, deceased, made application to the County Court, in behalf of herself and her two minor children, to set apart to them the homestead and other property exempt from forced sale by the constitution and laws of the State. The homestead consisted of three lots in the city of Galveston, which cost in the aggregate $1500, and were purchased with a view to their constituting a homestead.

<p>Appeal from G-onzales. The case was tried before Hon. Fielding Jones, one of the district judges..</p> <p>Dikes sued Miller and Heill in an action of trespass to try title. The case is reported in 24 Tex., 424, 425, and 11 Tex., 209. It was reversed on various grounds. As intimated in 24 Tex., the case finally turned upon the effect of a voluntary relinquishment by a grantee of land to the State, and the delivery of the deed to, and filing it with, the commissioner of the general land office.</p> <p>On the 1st of May, 1831, Byrum Wickson, "a colonist of Green De Witt, received a grant to the land in controversy. On the 3d of June, 1843, Wickson relinquished the land to the republic of Texas, by deed of that date, for the recited consideration that the grantee had subsequently obtained a grant for a league of land on file. He doubtless relinquished the first grant with a view to make good the second. The relinquishment was proven, as a sworn copy, by the deposition of the commissioner of the general land office, and by certificate of the keeper of the archives, under the statutes. (Paschal’s Dig., Arts. 3713, 3806, Dotes 840, 889.)</p> <p>Wickson, on the 15th September, 1844, conveyed the land to William W. Arrington. Arrington conveyed to Dikes on the 6th of May, 1848.</p> <p>The defendants relied on the anterior conveyance by Wickson to the State, and a junior patent by the State to himself, dated 28th July, 1848, and issued upon the hypothesis that Wickson’s relinquishment to the State restored the land to the vacant domain.</p> <p>The plaintiff excepted to the proof‘of the Wickson release to the republic,, both as to the mode of proof and the legal effect. The strength of the case is presented in the following instructions given by the court:</p> <p>.“In this ease, gentlemen, I charge you, that the deed of relinquishment introduced by defendant, by which B. Wickson, the person under whom plaintiff claims, does in law divest the said Wickson, and those claiming under him, of any title, and you should find for the defendant; and I charge you that his title, as shown', is good and valid.”</p> <p>And in the following special charge, asked by the defendants:</p> <p>1. “The plaintiff can only recover upon the strength of his own title.</p> <p>2. “ The deed of Byrum Wiekson, dated the 3d day of June, 1843, operated as a release of his interest to the State, and divested his title, after which he had nothing to convey to Arrington.</p> <p>3. “This deed to Arrington, being a quit-claim, put him and Dikes upon inquiry, and they are estopped by the release of the 3d June, 1843.</p> <p>4. “The defendant’s patent and possession are a good defense, and, title being proved out of the plaintiff he cannot recover against said possession.”</p> <p>The arguments of the counsel are reported at greater length because of the novelty of the principle.</p> <p>Under the charge, the jury returned a verdict for the defendants; from which the plaintiff appealed.</p>

The case was tried before Hon. Thomas J. Devine, one of the district judges. Bunge & Co; sued Wyatt for a debt. The defendant plead to the jurisdiction, that he did not reside in Bexar, but Wilson county. The plea in abatement was sustained and the case dismissed, from which the plaintiffs appealed.

■ Appeal from Bexar. The ease was tried before Hon. Thomas J. Devine, one of the district judges.

Appeal, from McLennan. The case was tried before Hon. iST. W. Battle, one of the district judges. The defendant, Evans, was indicted for a violent assault, for that with force of arms, &e., upon the body of Grisham Lee, &c., he did make an aggravated assault, with premeditated design, and with a stick, &c., did inflict upon the said Lee great bodily injury. Evans moved to quash the. indictment, because it did not state any offense.

Error from Bosque. The case was tried before Hon. NT. W. Battle, one of the district judges. On the 4th of April, 1865, Thomas Bagby, “ as administrator of Willis H. Hughes,” recovered a judgment in the Superior Court of Eulton county, Georgia, against ¡Nelson for $1,110 25. This record was certified in accordance with the act of Congress of the 26th May, 1790. (Paschal’s Dig., Art. 3709, ¡Note 835; Paschal’s Annot.

Tried below before the Hon. George W. Smith. Indictment for playing at a game with cards at a certain house for retailing spirituous liquors, on the 1st day of November, 1859. It was proved by defendant’s admissions that he played at the game with cards at the time and place charged in the indictment.' There was no proof that anything Was bet on the game.

Error from Collin. The case was tried before Hon. Hat.,M. Bureord, one of the district judges. The errors were assigned in the petition for the writ. The facts are sufficiently set forth in the opinion of the court.

Error from Falls. The case was tried before Hon. John Gregg, one of the district judges. Kerr sued Fortune on a note, and averred as follows: “John A. Fortune is justly indebted unto your petitioner for the sum of $345 as principal, and interest on the same from the 15th day of June, A. D. 1854, by virtue of a promissory note, for value received, of which the following is a true copy, to wit: “ ‘$344.

The case was tried before Hon. H. M. Burford, one of the district judges. The case turned upon the facts and the charge of the court. Foote, the appellee, sued appellant, Fisher, to quiet title to a half section of land, and obtained judgment-, from which Fisher appealed. On the 22d July, 1855, Fisher sold the land in question to one Moses Brown for $1,000; $500 cash, and note for $500.

Appeals from Cameron. Tried below before the Hon. E. J. Davis. These suits were brought by the appellees, to recover from the appellants, the balance which they respectively claimed was due them by the appellants, for the purchase money of certain parcels or labors of land, forming a part of the “exidos” of the city of Matamoros, and now within the city of Brownsville.

Error from Trinity. Tried below before the Hon. James M. Maxcy. This was a suit by 0. Teagarden against J. L. Cottrell, on an account for $477 49 cents. The defendant pleaded a former judgment in his favor on the merits, in a suit brought against him by one Theodore Frois, on the same cause of action, as the assignee and owner of the account.

The case was tried before Hon. John Gregg, one of the district judges. Beaton sued William J. Kirkpatrick and others in an action of trespass to try title. The appellee instituted suit in the District Court of Havarro county, against Kirkpatrick-and Hogan and wife, to récover a tract of land described in his petition; the defendants filed no answer.

Tried below before the Hon. James M, Maxcy. Suit for $>328 71; defendant pleaded an account against the plaintiff's intestate in set-off; trial upon the merits. The other . facts appear in the opinion.

Error from Polk. Tried below before the Hon. James M. Maxcy. Suit by Elvira Snow against K. B. DeWalt on two promissory notes amounting to $1913 50; petition filed September 15, 1858; process served on the 20th of the same month. Amended petition filed on the 8th of October, 1858, setting up a mortgage upon certain negroes, executed by the defendant to secure the payment of the notes, and praying for a decree to sell the property.

Tried below before the Hon. John Gregg. Suit by Adaline Graves against F. L. Barziza, administrator of the estate of Ralph Graves, deceased, for the recovery of' a negro woman and her child, which she claimed by virtue of a gift of the woman from the deceased, her husband, in the year 1847.- The plaintiff proved that during the year last aforesaid, the woman being very sick, her husband proposed to give to her the paid negro as her separate property, if she would nurse her…

Error from ¡Navarro. The ease was tried before Hon. John GHtEGU, one of the district judges. Eliot & Love sued Pillow and others on promissory notes. The defense was, that the same plaintiffs had sued the same defendants before a justice of the peace, and the judgment had been rendered in favor of the defendants. The court disregarded the plea, and rendered judgment for the plaintiff.

The case was tried before Hon. John Gregg, one of the district judges. Van Hook sued Simmons in an action of trespass to try title. The defendant plead the general issue, not guilty. The statement of facts shows that Kercheffer recovered a judgment before a justice against Simmons, upon which the land, in controversy was sold by a constable, and the plaintiff became the purchaser. There was proof that a deed, signed by S. C. Simmons and J. P. Simmons, had been seen.

Tried below before the Hon. William g. Todd. .guitby appellee as assignee, of a promissory note for the unpaid balance, executed by H. J. Harris, Y. L. McLemore, Abraham Low, and T. M. Harwell, payable to W. B. gtout.

The case was tried before Hon. A. W. Terrell, one of the district judges.

Error from Cass. Tried below before the Hon. W. S. Todd. • This was a suit brought by the plaintiffs in error against the defendant in error, for the sum of three thousand dollars, the same being claimed therein as the purchase money paid by them for a negro woman bought by them of the defendant, and as damages resulting from the alleged- fraudulent representations of the defendant made to' them in the contract of sale, and the breach of warranty contained in the bill of…

Tried below before the Honorable W. S. Todd. This was a suit brought by the appellee against Gr. B. Clifton and another, on a promissory note made by the defendants on the 17th day of April, 1857, payable to the plaintiff on the 1st day of January, 1858, for the sum of twelve hundred and thirty-nine dollars and eighty-three cents.

Ebbob from Titus. Tried below before the Hon. W. S. Todd. This was a suit brought by the defendants in error against the plaintiffs in error for the sum of. one hundred and eighty-five dollars and interest, the balance alleged to be due from the defendants on a note or contract executed by them to the plaintiffs, which, with the credits endorsed thereon and admitted in' the petition, is as follows: “ On or before the first day of January one thousand eight hundred and…

Tried below before the Honorable W. -S. Todd. The appellant was indicted for playing at a game with cards in -a public house. The defendant proved that the game was played for amusement, and that nothing was bet thereon. Verdict of guilty; fine and judgment accordingly.

Error from Lamar. Tried below before the Hon. W. S. Todd. Suit by the defendant in error against J. W. Wells, on a note for $550 34 cents. Defendant pleaded by a general demurrer or exceptions, general denial, and certain special defences. Tha exceptions were overruled, and on the trial objections made by him to the introduction of the note, overruled, and bill of exceptions taken by him.

<p>EbBob from Hunt. Tried below before the Hon. W. S. Todd.</p>

Error from Cass. Tried below 'before the Hon. W. S. Todd. This was a suit brought -by the commercial firm of John R. Marshall & Co., against the defendant in error on a promissory note for $2951 83, payable nine months after date, with interest at the rate of eight per cent, per annum from maturity until paid, dated June 17, 1856.

The case was tried before Hon. Hat. M. Bureord, one of the district judges. Reed sued the European-American Colonization Society in an action to recover land and for damages. The controversy turned upon the facts of the case and the peculiar facts growing out of the laws in relation to Peters’ colony. These laws are collected in Paschal’s Digest-, from Articles 810 to 885, and are modified by the ordinance of 1845.

Tried below before the Hon. W. S. Todd. The petition of Elizabeth Hoggland, the plaintiff, alleges that the defendant, with force and arms made an assault upon her and the members of her family; entered her dwelling house and attempted to set it on fire; that she and her said family were alarmed and abused by the violence aforesaid; prays for citation to the defendants and for judgment as recited in the opinion.

Error from Dallas. Tried below before the Hon. W. S. Todd. . Suit brought by the defendant in error against J. J. Record and others as makers of an instrument, in the petition called a promissory note of the following tenor: “ Four months after date we, or either of us, promise to pay W. T. Gibbons or Wm. Bell the sum of twelve hundred dollars, with twelve per cent interest per annum till paid, this the tenth day of May, 1857.” Signed by the defendants.

<p>Error from. Cass. Tried below before the Hon. W. S. Todd.</p>

Error from Lamar. Tried below before the Hon. W. S.. Todd. Suit by Caldwell against Powers and Hathaway on a note for three hundred and eighty dollars and twenty-one cents, as the purchase money of a tract of land sold by the plaintiff as administrator, at auction, and bid off by the defendants.

Error from Titus. Tried below before the Hon. W. S. Todd, The plaintiff in- error instituted suit in a justice’s court against the defendant in error, on an account for fifty dollars, and a note for twenty-three dollars and seventy-five cents-. The defendant pleaded in set-off, payment of the note and account by the sale and delivery to the plaintiff of a horse at the price of one hundred and twenty-five dollars, and prays judgment for the balance due him.

The ease was tried before Hon. John Gregg, one of the district judges.

The, case was tried before Hon. Hat. M. Bureord, one of the district judges. The facts and arguments are sufficiently stated in the' case of the European and American Colonization Society v. Reed, (ante p. 343.)

Tried below before tbe Hon. W. S. Todd. This was an action of trespass to try title, brought by David Lane against Reece Hughes, for a tract of land; it being tbe second suit brought by the plaintiff against the defendant for the same land. The first suit was filed in August, 1847, and at the March term of tbe District Court, on demurrer and special exceptions to the petition, judgment was rendered for the defendant.

Error from Titus. Tried below before the Honorable W. S. Todd.

Error from Panola. Tried below before the Hon. C. A. Frazer. Judgment was rendered for the plaintiff for the amount sued for on the note. There was no assignment of errors filed by the plaintiff in error. The other facts are stated in the opinion with sufficient fullness.

Error from Rusk. Tried below before the Hon. 0. A. Frazer. Suit on two several promissory notes, each payable to “Yates & Flanagan, or bearer,” brought by Abram A. Yates against Isaac Edmundson, the maker; plaintiff .alleging ownership of said notes, and that he became the owner and holder of them in due course of trade.

<p>Error from Lamar. Tried below before the Hon. W. S. Todd.</p>

Error from Guadeloupe. The case was tried before Hon. A. W. Terrell, one of the district judges. Adams sued George on a note, which purports to have been made by one Harrison to George, and, indorsed by George, passed into Harrison’s hands, and then put into market by the maker. After the lapse of nearly four years George was sued as assignor. There was no allegation that Harrison was insolvent when suit should have been brought.

Error from Dallas. In this case no record or brief were furnished to the Reporter, nor does it appear from what county the case came, except by the indorsement of Judge Roberts. From the opinion, it would seem that it 'must have been a fact case, and that the statement of facts was not approved and signed by the judge, as required by the 135th section of the act to regulate proceedings in the district court. (Paschal’s Dig., Art. 1490, Rote 582.)

The case was tried before Hon. John G-regg, one of the district judges. This was a proceeding by garnishment against W. L. Moody. The question was, whether Moody was indebted to Singletary at the time of serving the garnishment. It was entirely a question of fact.

Tried below before the Hon. 0. A. Frazer. The alleged contempt of the appellant consisted in remarks made to the court in the conduct of a cause then being tried, in which he was acting as counsel for one of the parties, and which were construed as disrespectful to the presiding judge. The proceedings against him involved no question of mal-practice, or fraudulent or dishonorable conduct.

The ease was tried before Hon. Hat. M. Bureord, one of the district judges. It is almost strictly a fact case. Lewis sued Fowler for the price of a horse, ($150,) sold and delivered to defendant.

Error from Collin. The case was tried before Hon. Hat. M. Burford, one of the district judges. This was a suit upon a promissory note executed by Samuel Whitaker, and indorsed hy David Stiff* John W. Haynes, and William Wilson. The petition of Record in the court below did not allege that the note was due, or that payment had been demanded. The returns of the sheriff were irregular. At the trial judgment was taken hy default.

Error from Dallas.—The case was tried before Hon. Hat. M. Burford, one of the district judges.

Error from Dallas. The case was tried before Hon. Hat. M. Burford, one of the district judges.

Tried below before the Hon. C. A. Frazer. This was a suit brought by the appellant as administrator of the estate of Wiley W. Pridgen, deceased, against the appellee for the recovery of a tract of land purchased at sheriffs sale to satisfy an execution against said Wiley W. The petition was in the nature of a bill in equity, setting forth the facts, and praying that defendant be decreed to reconvey said land to the plaintiff as administrator aforesaid.

The case was tried before Hon. R. S. Waddell, one of the district judges. Levi Underwood was indicted for the murder of Thomas Spain. The case turned upon the facts, and they were substantially as follows: Routh, a witness for the State, had met the accused in the morning at the spring, near the house of the witness. The accused rode on the road leading to Pilot Point, in Denton county.

The case was tried before Hon. Hat. M. Bureord, one of the district judges. Crow sued Reed to recover a fraction of a section of land, where there was a conflict of title by the lapping over of surveys, in the surveyed district of Peters’ colony. Appellant selected his land upon two sections, Ho. 11, and Ho. 14, which lies immediately south of it. He alleged in his petition that .both sections were vacant and unappropriated at the time of his settlement.

<p>Appeal from Williamson. The case was tried before Hon. Edward H. Vontress, one of the district judges.</p> <p>Thomas P. Thompson was indicted for murder in the first degree, in the District Court of Bell county. The venue was changed to Williamson county. The accused sued out a' writ of habeas corpus, in which he prayed to be allowed to give bail. The sheriff returned the order of commitment which accompanied the prisoner from Bell county. In the order changing the venue, it appeared that there had been a mis-trial before Charles S. West, Esq., special judge, and that the judge of Bell county was disqualified from trying the case.</p> <p>The accused came to the field of the deceased, where Elias P. Dyches, the son of deceased, was “ tying up fodder.” Thompson complained that his hogs had been dogged in Dyches’ field. The deceased was at the house with his sick wife. He walked out to the field' where Thompson was talking very loud to his son. When Dyches came’ near, Thompson said his feelings were much hurt at his hogs having been dogged. Dyches remarked, that he had notified Thompson to keep his hogs -up. Thompson then swore that he would shoot all the dogs on the place, (three witnesses said “ dogs and people,”) and in his passion he cocked his gun. E. P. Dyches, the son, from the other side of the fence, made a pass or push at the infuriated man with a fence rail, grazed his head and ear, and knocked off his hat; whereat he turned upon the father and fired. One shot entered the arm of the deceased, (he had thrown up his hand to turn off the gun,) and several entered his side. The deceased walked to the house, where he told his wife how it occurred. He afterwards told several other persons, always giving the same version of the affair. He lay there three or four days, and then died. E. P. Dyches admitted, that in “jobbing” the pole at the accused, which was a fence pole, eight feet long, he knocked off Thompson’s hat, and grazed his head. But he said that Thompson had come with his gun half-cocked across his lap, and was raising it to Ms shoulder when the witness struck at him. Bingham, the son-in-law of the deceased, was coming to the muss with a gun, at the distance of one hundred and fifty yards, (the witness did not see him until after the shooting.) As soon as Thompson fired he galloped away, and left the country for several years. The deceased had said to his wife, that Thompson bursted a cap at his son, E. P. Dyches; but the son had no recollection of this. Brngham said that Dyches first covered the son with Ms gun, and that the horse of the accused moved when E. P. Dyches “jobbed” at him. The dogs had been worrying Thompson’s hogs in the field; the parties had been friends up to that time; the deceased was unarmed; his son was angry because Thompson had his gun. .The language of Thompson was certainly passionate and provoking, and his threat, “Damn you, I will shoot every dog on the place, and you too,” Was loud, and immediately preceded the firing at Dyches. The threat was heard by the sick wife two hundred and five yards distant, and by Bingham one hundred and fifty-one yards distant. «Bingham was one hundred and fifty-one yards distant when the firing occurred. He heard Thompson’s loud language and threats. Dyches, the deceased, stated repeatedly that Thompson had leveled his gun at the son; and that the deceased only went out to prevent a difficulty between Thompson and his son. The deceased had had “ a spell of sickness” at the time, and was very unwell. The founda- ■ tion having been' laid, and E. P. Dyches having denied it, a woman swore that, immediately after the occurrence, E. P. Dyches told her that he had “jobbed” at Thompson, and that his father had pulled up a stake. But this last statement was unsupported as a fact. Thompson had ridden a few miles to a doctor, who was not a surgeon, and sent him to the wounded man; two surgeons were afterwards obtained. It seems to have been in the line of the defense to prove that,the man might have died of the sickness, and not of the wound. The evidence was voluminous, but the foregoing is the substance. Judge Von.tress having refused bail, Thompson appealed, under the 74th article of the Code, (Paschal’s Dig., Art. 3220.) The facts are given. As a precedent, it is only valuable to establish, that the court might, believe that the homicide was only ?• murder in the second degree, or else manslaughter.</p>

<p>The District Oo-urt has exclusive original jurisdiction for the enforcement of liens.</p> <p>In a suit upon a note originally for a sum exceeding one hundred dollars, and to enforce the vendor’s lien, where the petition showed that the note was reduced by payment to an amount below that sum, and it only appeared inferentially that the land liable to the vendor’s lien was worth more than one hundred dollars, it was held that the District Court had jurisdiction to entertain the suit, and to afford all the necessary remedies, based upon its own equity jurisdiction and the restricted powers of the other courts.</p>

Tried below before the Hon. C. A. Frazer. It was proved on the trial of this case, the main facts of which appear in the opinion, that the defendant objected to purchasing the horse on account of his supposed diseased condition; that the plaintiff assured him “ there was nothing the matter with the horse, except that he had eaten too much, and was a little foundered; that he would soon get well;” and he represented the horse “to be sound except the founder—and sold him as a…

The case ivas tried before Hon. Hat. M. Burford, one of the district judges. James W. Lively sued Tarrant county for $264, the amount contracted to be paid for a transcript of the record of the land office for Tarrant county. Ho answer being filed until the fifth day of the term, judgment was taken by default. But, on the fifth day of the term, an answer and plea in reconvention were filed, before the judgment had been entered on the record.

Tried below before the Hon. O. A. Frazer. This was a suit brought by the appellee against the appellant, for the purpose expressed in the opinion of the court, to wit: to establish that the legal title vested in the defendant by a certain conveyance to him was held by him in trust for the plaintiff, and to compel the execution of the trust.

<p>Appeal from Bexar. The case was tried before Hon. Thomas J. Devine, one of the district judges.</p> <p>Austin sued Ewell for specific performance of a title bond to convey land, and made Robert C. Edmondson, a subsequent purchaser of the legal title, a party. The bond hears the date of the 13th December, 1852, is in the penal sum of §4,000, conditioned for the conveyance of the tract of land therein described, and concludes: “How, if the said George E. Austin and Joseph Weatherby shall well and truly pay, or cause to be paid, unto the said J. B. Ewell, two certain promissory notes, bearing even date with this obligation, one for $1,000, payable at sixty days’ sight, in the city of Baltimore, Maryland, and the other for $1,000, payable on the 1st day of January, A. D. 1854; and, if the said J. B. Ewell shall execute and deliver unto the said Austin and Weatherby a good and sufficient deed, with the customary covenants of warranty, then this obligation to be void; otherwise, to remain in full force and virtue.”</p> <p>The notes which thus became part of the contract are well described in the consideration clause.</p> <p>The statement of facts shows, that at the -time of the execution of the bond the legal title to the land was in William Reynolds; that the first note was paid to him upon his giving a guaranty to make title when the. other should be paid.</p> <p>Before the maturity, of the second note, Austin and Weatherby learned that the house which they supposed they had bought was not upon the land described in the bond, and hence they refused to pay, unless allowance was made for the mistake. This Ewell refused, and commenced suit in Maryland for the recovery of the note. Several months after this time, at the request of Ewell, Reynolds conveyed to him the legal title which he held as security for $500. On the 20th January, A. D. 1855, Ewell commenced suit on the same note in Bexar. The defendants, Austin and Weatherby, answered, by setting up the mistake as to the boundaries and about the house not being upon the land, as represented. They laid their damages at $800, and prayed that defalcation from the note. But, on 29th August, 1855, Ewell sold to Edmond-son, who had full notice of the bond and suit, actual and constructive; and afterwards, on 7th September, 1857, Ewell dismissed his suit upon the note. Before and preceding the suit in Bexar, Ewell offered a defalcation of $100, which was declined. It was proved that the house was worth that. But, although the lines differed, there was no deficiency in the quantity of the land, and the record is silent as to any difference of value.</p> <p>Austin commenced his suit for specific performance 10th September, 1856.</p> <p>• Ho other notice of the pleadings is necessary, except to say, that the plaintiff" claiméd a defalcation for the mistake about the house and lines, and states, as an additional reason for not paying the note, that he discovered the legal title was not in Ewell, but in Reynolds; that Ewell never acquired the title until 3d March, 1855, and then Austin was kept in ignorance of the facts.</p> <p>Hotice upon Edmondson is charged; a specific performance was prayed, both against Edmondson and Ewell, upon the payment of the note, less the reasonable deduction; damages of $1,000 were prayed; also general relief.</p> <p>The answer of Ewell admits the main facts, and sets up that, before the payment of the first note, “But he refused to do so until the said William Reynolds executed and delivered to them a bond to make title when the second note was paid.” He also sets up, that Ewell ordered the suit in Maryland to be dismissed; but whether it was ever done neither appears in the pleadings nor statement of facts. They brought in the bond and second note, and prayed for defalcation, without offering to refund the $1,000 paid.</p> <p>A jury was waived, and the court simply gave judgment for the dismissal of the plaintiff’s cause. Thus, in fact, holding that he had forfeited the $1,000 already paid, and was not entitled to specific performance of the contract upon the payment of the $1,000, less the $100 defalcation.</p>

Tried below before the Hon. C. A. Frazer. Wm. E. Cox, one of the appellees, was indicted in the District Court of Panola county on the 21st day of October, 1857.

The case was tried before Hon. Edward H. Vontress, one of the district judges. The appellee, J. W. Fleming, who was plaintiff in the court below, brought an action of trespass - to try title in the District Court of San Saba county, against the appellant, John T. Davis, to recover a tract of three hundred and twenty acres of land, described by metes and bounds. The original petition was filed on the 19th day of March, 1860.

Tried below before the Hon. W. S. Todd. The jury found a verdict, for the defendants, upon which the court decreed the tract of land in controversy to the defendants, and also decreed to the plaintiff the house and lot known as the “ Goshen House.” All the other facts are sufficiently stated in the opinion.

.Appeal from Rusk. Tried below before the Hon. C. A. Frazer. Wingfield filed his petition in the District Court, alleging that he had borrowed five hundred and sixty dollars from Crawford, payable in five months and seventeen days, for which he executed seven notes for one hundred dollars each, amounting to seven hundred dollars.

Tried below before the Hon. C. A. Frazer. This suit was brought by the appellant against the appellee on a due bill for thirty dollars, and an account for eleven dollars and eleven cents. Judgment in the Justice’s Court for the amount of the due bill against the defendant, who brought the case to the District Court by certiorari.

<p>An indictment under the 418th article of the penal code, which charges that the defendant ‘ ‘ did bet at a gaming bank commonly called a faro bank,” is sufficient without the allegation that said bank was kept or exhibited for the purpose of gaming.</p> <p>“ Baro ” being one of the games enumerated by the statute, and by its terms comprehended in the list of examples of prohibited banks or games, the court judicially knows that it is a bank kept for the purpose of gaming. Otherwise of an indictment for betting at a bank, the name of which is not mentioned in the statute as included in the class of games which in common language are said to be dealt, kept or exhibited for the purpose of gaming; there, it would be necessary to allege that it was a game,.or gaming table, or bank, (as the case might be,) dealt, kept or exhibited for the purpose aforesaid.</p> <p>Am indictment under article 418 need not charge that the defendant bet any money, property or anything of value on any game played at the gaming table or bank named in the indictment.</p>

Error from Rusk. Tried below before the Hon. 0. A. Frazer. On the 9th day of March, 1858, a writ of scire facias was issued by the clerk of the District Court of Rusk county, the recitals of which were substantially as follows: That at the Fall Term of said District Court, on the 16th day of November, 1857, an indictment was therein pending against Oliver Branch, charging him with an assault with intent to kill and murder.

Tried below before the Hon. R. A. Reeves. Joseph M. Pelham, on the 16th of June, 1854, recovered a judgment in the District Court of Panola county against Sherrod Hines for the sum of one hundred and fifty-six dollars and fifty cents.

The case was tried before Hon. Hat. M. Burford, one of the district judges.

The case was. tried before Hon. Thomas J. Devine, one of the district judges. This was purely a fact case; and, there being no question of law discussed in the opinion, a further report is unnecessary than to say, that the facts clearly sustained the charge of the court and the verdict of the jury.

Error from Collin. The case was tried before Hon. Hat. M. Burford, one of the district judges. Lovejoy sued William Davis, alleging that the defendant executed to Edward Roberts his certain title bond for land; that Roberts assigned the bond to the plaintiff; that a patent had long since been issued for the land; and that the defendant had refused to convey, as he had covenanted to do; wherefore he prayed a specific performance.

Error from Gonzales. The ease was tried before Hon. Fielding Jones, one of the district judges. Bean sued Morrison and wife and Wintz, upon a note executed by Morrison to Wintz, for $3,025 50, and indorsed by Wintz to Bean, On the 18th August, 1854. Bean also prayed to foreclose a mortgage executed by Morrison and wife upon certain land and slaves to secure said note.

Tried below before the Hon. 0. A. Frazer. ■ Mary A. Hines, as guardian of the persons and estates of her minor children, Sarah L. Hines, James Hanes, Robert Hines, Andrew Hines, Jesse Hines and Mary Hines, brought suit against the appellee for a negro man, a slave named Allen; alleging the ownership of said children to have been derived by a deed of conveyance, made in the State of Mississippi on the 11th day of October, 1849, from James Hines to Sherrod Hines, conveying…

Error from Dallas. The case was tried before Hon. Hat. M. Bureord, one of the district judges. Goodman sued Sayre and Thomas as a firm on two promissory notes, hut at the trial he dismissed as to Sayre, and took judgment by default against Thomas. The sheriff served the summons or writ upon Thomas, and made a proper return of such service, but neglected to sign his return. The fact of his not signing his return was overlooked, and judgment taken against defendant, Thomas.

Error from Dallas. This is the same case which was reversed, because Judge Bureord, who was a party to the note sued on, tried it, although he had not been served with a process, and the plaintiff discontinued as to him. (Hawpe v. Smith, 22 Tex., 411; Paschal’s Dig., Note 531, p. 345.) It was again tried before John C. McCoy, a special judge.

Error from Leon. The case was tried before Hon. John Gregg, one of the district judges. Mattison sued Robinson and three other joint makers of a promissory note. Conner, one of the defendants, acknowledged service; Z. Robinson was served by the sheriff. The “ defendants ” plead the general issue. The plaintiff discontinued as to the defendants not served.

Thé case was tried before Hon. John Gregg, one of the district judges. This case was reversed at a former term, because the representatives of Edward H. Tarrant had not been made parties.

Error from Henderson. Tried below before the Hon. R. A. Reeves. Suit by defendant in error against plaintiff in error, on a promissory note, and judgment rendered in his favor in the District Court of Henderson county, on the 14th day of November, 1857, for the sum of one hundred and fifty-three dollars and fifty cents. On the 8th day of November, 1859, the plaintiff in error filed his petition for writ of error, and bond. The caption of the bond was as follows: ¡ “Wm.

Tried below before the Hon. R. A. Reeves. The facts of the case are stated in the opinion. The appellants, Tirrell & Co., assign the following grounds of error: . 1. That the decision of the court was against and contrary to the law and evidence. 2. That the court erred in not giving judgment for plaintiffs-for the full amount of money acknowledged by defendant Canada to be in his possession belonging to S. Gr. Parsons. 3. The court erred in giving judgment in favor of Wm.

The case was tried before Hon. 3ST. W. Battle, one of the district judges. Lavinia A. Edwards was born on the 14th day of March, A. D. 1837.

Error from Harrison. Tried below before the Hon. C. A. Frazer.

The case was tried before Hon. Edward H. Vontress, one of the district judges. The suit was on a note for $1,310 95, due at one day. The defendant plead, 1. A special plea, impeaching the consideration, on the ground that the plaintiff had charged $25 of interest on an open account, which he had added to the account, and thus made up the amount of the note. 2. The general denial.

This was an original cause in equity, tried upon bills, answers, and proofs, as a case of original jurisdiction.

Tried below before the Hon. 0. A. Frazer. This was a suit brought by John J. R. Legrand against James H. Trammell, Mark Stroud, William Moore and Jesse Walling, on a promissory note payable to the plaintiff, “administrator of the estate of John S. Caruthers deceased, or bearer,” for the sum of eighteen thousand seven hundred and twenty-four dollars and forty-five cents, dated the 1st day of September, 1852, and payable twelve months after date.

Tried below before the Honorable B. A. Beeves. This was an action of trespass to try title brought by L. P. Butler, against A. F. Dunnegan, for the recovery of thirty-one hundred and eight acres of land.

<p>A conviction on an indictment for maliciously disturbing a congregation assembled for religious worship, was held to have been made upon sufficient evidence, where two witnesses testified that the defendant entered the church with a large stick, remaining within but a short time, and after-wards was heard by them talking out of doors, occasionally using profane language in a tone of voice loud enough to be heard over the church; that they were disturbed, but did not notice that it particularly disturbed the remainder of the congregation.</p> <p>The evidence clearly makes out a primó facie case against the defendant, and if the congregation were not in fact disturbed, or he did not act maliciously, it devolved on him to rebut by proof the presumptions that arise from the evidence against him.</p>

Tried below before the Hon. R. A. Reeves. The appellants brought this- action, trespass to try title, against the appellees for three hundred and twenty acres of land, and on the trial, in support of their title the plaintiffs offered a transcript from the general land office under the hand and official seal of the commissioner thereof, containing copies of the original land certificate, the field notes of survey thereof, and copies of the chain of transfers, duly…

Tried below before the Hon. R. A. Reeves.. This was an action of trespass to try title brought by the appellee against several defendants. The appellant, Jesse Duren, Intervened in the suit, claiming 287 8-10 acres. The plaintiff claimed under a grant made to Maria Josefa Bersoley of a league of land, and on the trial showed a regular chain of title to himself from the government.

Tried below before the Hon. R. A. Reeves. This was á suit brought by the appellant against the appellees on a promissory note executed by the defendant Champ to the plaintiff, reciting on its face that it was given 11 in consideration of part of the purchase money for one-half lot Ho. 3, (three,) and all of lot Ho. 4, (four,) in block Ho. 17, (seventeen,) in the town of Tyler.” Chilton was sued as a subsequent purchaser in the lots from Champ..

Appeal on habeas corpus. Tried in vacation before the Hon. 0. A. Frazer. Joseph Zembrod killed George Dellard-t at the market house of the latter, about daylight on the morning of the 13th day of Febraury, 1860. He was immediately arrested, and was admitted to bail by the justice of the peace in the sum of twenty thousand dollars; and failing to give the bond, was committed to jail.

Tried below before the Hon. R. A. Reeves. This was a suit commenced in a Justice’s Court by Isaac Adair and Clinton Allen against L. W. Cooper, for one hundred dollars, the amount subscribed by the defendant to an instrument whereby the subscribers “agreed to pay the several amounts annexed to their names, for the arrest and delivery of James M. Hall to the sheriff of Houston county, for the murder of Isaac Peacock—the money to be paid when said Hall is delivered to said…

Tried below before the Hon. C. A. Frazer. This was a suit begun in the justice’s court by White, by proceedings in garnishment, to satisfy a judgment in favor of Wyatt against Little. Casey was cited as garnishee, and judgment rendered against him as such. The cause was brought to the District Court by certiorari on petition of Casey.

Error from Cherokee. Tried below before the Hon. C. A. Frazer. This was a suit brought by James M. Anderson against Sewell Howeth, William M. Sloan, and Cicero Broom, for three thousand five hundred dollars, as damages, for the destruction by fire of a steam saw mill, a quantity of lumber, a lot of tools, and injury to certain machinery belonging to the mill which was not wholly destroyed, all of which was specially set out in a bill of particulars attached to the petition.

Tried below before Hon. C. A. Frazer, This was an indictment against George W. Bell, charging him with an assault and battery upon Mrs. George W. Bell, a female. The defendant filed exceptions to the indictment, which were overruled; and pleaded “ not guilty.” The defendant and Mrs. George W. Bell were husband and wife. Mrs. Bell's proper Christian name was “ Sallie,” and by that name was she commonly called about the house and family of the defendant.

Tried below before the Hon. A. W. 0. Hicks. This suit was brought by the appellant, who assigns as error the rendition of judgment for the defendant, notwithstanding the verdict in her favor. The other facts of the case are sufficiently stated in the opinion.

Error from Anderson. Tried below before Hon. C. A. Frazer, The facts, so far as they need he stated, appear from the opinion,

Tried below before the Hon. 0. A. Erar■zer. Suit by certiorari from the justice’s court, commenced by A. & W. W. Gunter, and in the petition for certiorari alleged to be partners, under the name and style of A. & W. W. Gunter. On the trial in the District Court, judgment was rendered in favor of the defendant, J. M. Willis, on his motion to dismiss the plaintiffs’ petition. The judgment recites that the plaintiffs asked leave to amend their pleading, which was refused.

Error from Jasper. Tried below before the Hon. A. W. 0. Hicks. Suit by Garthwaite, Giffen & Co., against Lipscomb Norvell, Jr., and Lipscomb Norvell, Sr., as a firm doing business under the name and style of “L. Norvell,.

Tried below before the Hon. R. A. Reeves. Hannah Prestige brought suit in the District Court against Obadiah Prestige. Defendant filed a motion to require the plaintiff to give security for the costs, and the plaintiff making the affidavit prescribed by the statute, that she was too poor to pay the fees of office, and on account of her poverty was unable to give security for the costs, was permitted to prosecute her cause without security.

<p>The courts will not enforce the collection of money won at a game of ten pins.</p> <p>English and American common law decisions on the maintenance of actions founded on wagers reviewed and considered.</p> <p>It is true, that by the Common Law of England an action could be maintained on a wager, although the parties had no previous interest in the question on which it was laid. But this proposition was always subject to the qualifications, that an action could not be maintained on a wager, if it was contrary to public policy, or immoral, or in any other respect tended to the detriment of the public; or if it affected the interests, feelings or character of a third person.</p> <p>In the United States, the course of decisions on the subject of wagers has been very much the samo as in England, with a stronger tendency in the later adjudications to treat all idle wagers as utterly void.</p> <p>The uniform tendency of the later American decisions is to treat all gaming contracts, and all wagers, as utterly void.</p> <p>In the true spirit and meaning of the exceptions to the old rule, all idle wagers, and all gaming contracts, may be properly held to be void.</p> <p>This court has sustained wagers upon horse races, upon the idea that they rested upon somewhat different grounds, as respected their policy, from those of other wagers. It may be too late to question the wisdom and soundness of those decisions. But it is not disposed to go any further than it has already gone in sustaining actions upon wagers, or for the recovery of money, or property, won upon any game or wager.</p>

<p>Where in an action of trespass to try title, the verdict of the jury found for the plaintiff “ the land described in the petition, less seven hundred and sixty-seven and a half acres, as described in the deed read in evidence from B. F-Hooper to O. M. Adams,” and the pleadings contained no description of' the land conveyed by that deed; held, that the court conld render no judgment upon such finding of the jury, because it could only do so by looking out of the record to the evidence given on the trial.</p> <p>It has been determined in Mays v. Lewis, (4 Tex. B., 38,) and there e.an be nothing clearer or better settled than that a verdict, which is not so certain that the court can give judgment upon it without looking out of the record to t! e evidence given upon the trial, will not support a judgment.</p> <p>Where the statement of facts has not the approval of" the presiding judger as the statute requires, this court will not revise the charge given by the judge, or other questions raised upon the record with which the facts would be connected, or material to be considered.</p> <p>The grantee of a certificate for land cannot, after selling and conveying portions of the land which he has .procured to be surveyed upon public domain, by virtue of it, abandon his location, and sell or otherwise dispose of the certificate in prejudice of the rights of his former yendees.</p> <p>And where, after making such location and survey, and the sale of certain portions of the land, he sells to a third person the certificate, and it, but not the land, is in she contemplation of the contracting parties, the certificate will not carry with it the right to the land; such sale would, at most, confer on the purchaser of the certificate the right to appropriate-so much of the survey as had not already been disp sed of by his vendor to-other persons.</p> <p>If it was competent for the vendor of the certificate thus to transfer the right to it as between himself and his vendee, a subsequent purchaser of tho land, without notice, would be unaffected by it.</p>

Tried below before the Hon. A. W. 0. Hicks. Indictment against the appellant filed January 11th, 1859, charging him with an assault and battery upon Elliot R. Mims, committed on the first day of June, 1858.

Tried below before the Hon. W. S. Todd. This suit was brought by Perry against the appellants Freeman and Heald, Massie & Co., for the recovery of one hundred bales of cotton, or its value, and damages for its detention.

The case was tried before Hon. Salmon P. Chase, Chief Justice of the Supreme Court of the United States, in the fourth Circuit Court of the United States for the district of Virginia. The facts are sufficiently set forth in the opinion. ■ ■

Tried below before the Hon. A. W. 0. Hicks. Rhodes instituted a suit before a justice of the peace, against Norris; judgment was rendered against the plaintiff with costs of suit.

Tried below before the Hon. C. A. Frazer. Action of trespass to try title brought by appellee for twelve labors and a part of a labor of land against Thomas C. Loyd and wife; to which the appellant made himself a party defendant as the defendant’s warrantor.

Error from Houston. Tried below before Hon. R. A. Reeves. Paul Bremond and W. A. Van Alstyne, partners under the style and firm of Bremond & Van Alstyne, brought this suit against Adam 0. King on the 20th day of July, 1854, for damages for defendant’s failure to comply with and perform a certain written contract set out in the petition, claiming ten thousand dollars as damages for the defendant’s aforesaid failure.

Appear from Fannin. Tried below before Hon. W. S. Todd. The charge contained in the indictment is, that the defendant “in a certain public house did play at a game with cards upon which money was bet.”

<p>Appeal from Nacogdoches. Tried below before the Hon. A. W. 0. Hicks.</p> <p>The petition of the plaintiff, Davis King, administrator of the estate of James P. Haynes, deceased, alleged that on the sixth day of June, 1841, the defendant, Albert A. Nelson, then being the county surveyor of Nacogdoches county, as such county surveyor did receive at his office from said Haynes, in his lifetime, two certain pieces of land scrip, numbered 211 and 218 respectively, for 64Q acres of land each ; he, the said Nelson, then and there receiving the same in his then official capacity of county surveyor, and which said Haynes then filed in said office on certain lands lying within the jurisdiction of said office for the purpose of filing. That the said scrip was worth one thousand dollars. Plaintiff alleged that on the -——- day of July, 1854, when said Nelson was the district surveyor for Nacogdoches county, he, as administrator aforesaid, demanded of said Nelson said scrip, and the papers pertaining thereto; that said scrip ought then to have been in his said office; that the defendant failed to deliver to him said scrip.</p> <p>Plaintiff further alleged that since the said file and delivery aforesaid, said defendant, without the knowledge or consent of said Haynes, or of petitioner, delivered said scrip to one Mrs. King, who refuses to deliver the same to him. Plaintiff alleged further, that Haynes, at the time of filing of said scrip, possessed the same and was the legal and equitable owner of one half of the same, which is still held and owned by the estate of said Haynes.</p> <p>The defendant demurred to the petition; the demurrer was Overruled; he filed also a general denial, and a special answer alleging a want of ownership by Haynes in his lifetime in said scrip, by reason of the same having been placed in his hands for the purpose of having the same located, under a contract which he failed to comply with, by which he was to have a portion thereof for his Services; alleging that the sole and entire property in said scrip is in the heirs of Wm. P. King, and of Frances A. Johnson, deceased, his wife, and that the same are in the possession of William Johnson, the surviving husband and administrator of said Frances. He further alleged, that he had delivered up said scrip upon the order of the Probate Court of San Augustine county, to said Frances A. Johnson. To which answer the plaintiff demurred, and the demurrer was overruled. The defendant pleaded the statute of limitations, of four and of two years.</p> <p>The plaintiff offered and read in evidence the following rece’pl:</p> <p>“Nacogdoches, June 6, 1845.</p> <p>“Mr. Jas. P. Haynes has this day filed with me in my office two pieces of land scrip, each severally numbered 211 and 218, for 640 acres of land each, and were issued to Thos. Toby, of the city of New Orleans, on the 20th December, A. D. 1836, by Sam. Houston, President of the Republic of Texas.”</p> <p>“A. A. Nelson, Co. S. N. C.”</p> <p>The plaintiff also proved the demand made by him as administrator of Haynes, of defendant on the-day of July, 1854, to deliver to him the land scrip described in the above receipt. The petition was filed on the 11th of October, 1854.</p> <p>The defendant, in answer to interrogatories propounded by the plaintiff to him, stated that there were several assignments or transfers endorsed on the scrip in question; that there was a regular chain of assignments from the original grantee of said scrip certificates, endorsed on the same in due form of law, to Wm. P. King, of the entire interest thereto; also, an assignment written on a slip of paper, and attached to each piece of scrip, from King to J. P. Haynes and W. Y. Lacey, for an interest of two-thirds in the same, dated April. 6, 184-; and also in like manner there were attached certain other slips of paper, upon which were written assignments from W. Y. Lacey to J. P. Haynes, of two-thirds of his, Lacey’s, interest in the same scrip, dated November 12, 1845. Which facts, defendant further answered, he had stated to the plaintiff before the institution of this suit.</p> <p>The defendant proved by Wm. Johnson that he, witness, then had the two pieces of land scrip described by plaintiff’s petition, and held them for the estate of Frances A. Johnson, deceased, formerly Frances King. That they had been transferred to James R. Creecy, from him to King & Nelson, from them to Darnell, and lastly from Darnell to William P. King.</p> <p>The opinion contains a sufficient synopsis of all the other facte and matters which need be stated.</p> <p>The appellant assigned as error, that the court overruled his demurrer to the petition; that the charge of the court was contrary to the law of the' case; that the verdict of the jury was contrary to the law and evidence; that the court overruled' his motion for a new trial; and that the judgment was rendered for plaintiff, whereas, upon the facts and law, it should have been for himself.</p>

Tried below before Hon. W. S. Todd. Indictment for playing at a game with cards. The indictment charged that the defendant “on the fourteenth day of February, in the year eighteen hundred and fifty-five, in the county aforesaid, in a certain house, the same being a public place, did play at a game with cards, upon which said game money was bet.” Filed September 12, 1856.

Error from San Augustine. Tried below before Hon. A. W. 0. Hicks.

Tried below before the Hon. C. A. Frazer. W. H. Dial brought suit against the Southern Pacific Railroad Company for the value of a negro man named Abraham, for which he claimed that the defendant was liable upon a contract of hiring entered into between them on the 1st day of January, 1857, whereby the company hired the slave at twenty-five dollars per month, and agreed, in case of sickness, to inform the hirer, or send the negro to him.

Tried Below before the Hon. R. A, Reeves. This suit was Brought in the name of “ The Governor of the State of Texas,” for the use and benefit of the State, against Jacob Allbright, assessor and collector of taxes, and George Click and William Allbright, sureties on his official bond, executed on the 31st day of August, 1848, alleging that said Jacob was on the day and year last aforesaid elected and qualified as- assessor anJ collector of taxes' for Houston county.

Tried, below before the Hon. R. A. Reeves. This was a suit brought by Leroy T. Waller against Hunley V. Fowler for damages,' laid* at one thousand dollars, for the alleged violation by the defendant of his contract with the plaintiff, employing him as his overseer from the 16th day of April, 1857, during the balance of said year; the plaintiff’s petition averring •that, for his services, the defendant agreed to fay him the one-twentieth part of the wheat, corn and cotton…

Tried below before the Hon. John Gregg. The character of the suit, the nature of the defences, as well as such of the facts as are important to be shown, with a view to a proper comprehension of the points decided, are perhaps sufficiently shown in the opinion itself; yet, in addition thereto it may be further stated, that this suit was instituted, as may be inferred from the record, in the month of September, 1856.

<p>The legislature cannot by law authorize the courts to dispense with the allegation in indictments for penal offences of a material fact, which, under the law alleged to have been violated, forms the main ingredient, or is the gist of the offence.</p> <p>Thus in articles 1757 and 1759,0.& W. Dig., the provision of the latter, warranting the conviction of a person indicted for a violation of the former, (against selling spirituous liquors, &c., “ without first having obtained a license therefor f is unconstitutional in so far as it dispenses with the allegation that the selling complained of was without license.</p> <p>The legislature cannot condemn a particular act as an indictable offence, and then empower the courts in the prosecution of a party for the commission; of that act thus' condemned, to substitute in the indictment and proof of it a different act, which is not the same, and is not itself prohibited by law.</p> <p>The spirit of the Bill of Rights, which provides that “ no citizen of this State shall be deprived of life, liberty, property, or privileges, outlawed, exiled, or in any manner disfranchised, except by due course of the law of the land,’’ seems to require the foregoing principles of construction to be applied in establishing a correct rule as to what ought to be alleged and proven in penal causes.</p>

<p>This suit was instituted by Felix G. and Noel G. Roberts, executors of the will of Elisha Roberts, deceased, against the administrator and heirs of Frost Thorn, deceased. The petition of the plaintiffs alleged that on or about the 24th day of September, 1834, one Adolphus Sterne claimed to own the Cordova grant of land, in Nacogdoches county, containing about three and a half leagues of land, on which day he sold and conveyed to Frost Thorn, in his life-time, one undivided half of said grant; that about the 7th day of January, 1835, said Sterne sold and conveyed the remaining undivided one-half thereof to Philip A. Sublett; that on or about the 17th day of January, 1838, said Sublett sold and conveyed to Elisha Roberts, plaintiffs’ testator, two thirds of his aforesaid interest of one-half; and that the said Elisha Roberts retained his aforesaid interest during his life, and which, plaintiffs claim, yet belongs to his estate.</p> <p>The petition further alleges that on or about the-day of-, the title under which said Frost Thorn and petitioners, as executors, held said land, became exceedingly questionable ; a great portion of the land having been located upon by others ; that said Thorn had sold some portion of it, not leaving more than one league worth filing a certificate upon, which lay in two parcels, one-half of a league, or thereabouts, lying in the south-east corner of said tract, and the other half league, or thereabouts, lying for northern boundary on the north line of said tract, between the north-east and north-west corners of said surveys. That the title to said Cordova grant, as derived through said Sterne, has never yet been adjudicated, but is still considered questionable and doubtful. That these two tracts or parcels of land were, on or about the - day of-, by said Frost Thorn located upon in his own name, by virtue whereof patents have issued therefor to him in his individual name, from the general land office.</p> <p>The petition asserts that the. file, location and patents enure to the benefit of petitioners as executors, as well as to said Thorn, in proportion to their respective interests derived through said Sterne. Plaintiffs aver that they would gladly have joined said Thorn in re-locating said tracts, and have paid their proportion in carrying such location into a patent, but had no notice or intimation of the intention of said Thorn to make said re-location. They aver that the value of the land certificate located as aforesaid by said Thom, did not exceed $500, and that the other expenses incident to said location of patents did not exceed $-, two-thirds of one-half whereof they offer to pay to the legal representatives of said Frost Thorn, deceased. By amended petition they allege further, that before the location and patenting aforesaid, one Bailey, being a tenant on said land, was sued by said Thom, of the pendency whereof he gave to plaintiffs’ testator notice, and requested him to furnish counsel to assist in the prosecution of it, and that said testator, and after his death the plaintiffs as executors, complied with the aforesaid request. Thereupon, they further say said Thorn abandoned and'dismissed said suit, and immediately located and filed the certificates upon the land, without notifying plaintiffs or their testator of any such intention as before stated.</p> <p>The petition prayed that two-thirds of the undivided half of said two parcels of land so located by and' patented to the said Frost Thorn, deceased, be decreed to the heirs and legal representatives of said Elisha Roberts on payment by them of their pro-, portionate rate of cost and expense aforesaid incurred by said Thorn to obtain said patents ; the amount thereof to be ascertained ®n the trial of the cause. The plaintiffs prayed also for partition of the respective interests in said land.</p> <p>The defendants filed a general exception to the petition, which was by the court sustained, and judgment rendered accordingly against the plaintiffs. The plaintiffs assign for error, the court’s ruling above stated.</p>

Tried below before the Hon. A, W. O. Hicks. 9 The indictment was filed May 1, 1858, and charged that “Felix Wilburn, on the first day of March, in the year of our Lord eighteen hundred and fifty-eight, in the county of Shelby, did retail intoxicating liquors in quantities less than one quart, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.” The defendant was put on trial, plead not guilty, and a jury…

Tried below before Hon. C. A. Frazer. This suit of trespass to try title to a certain tract of land in Rusk county, was begun by Jesse Forrest v. Thomas G. Aiken. During its progress Thomas Pitner and Martin Casey intervened and asked to be substituted as plaintiffs in the stead of Forrest, alleging that the plaintiff since the institution of this suit had conveyed the land in controversy to them.

<p>The loss of the indictment does not operate as a discharge of the defendant and his sureties upon his recognizance; and the suggestion of its loss upon the record does not" release the defendant from his undertaking to appear before the court, in compliance with the terms of the recognizance., until he shall be discharged by law.</p>

Tried below before the Hon. C. A. Frazer. The indictment charged that the defendant, the appellant, “ on the fifteenth day of December, in the year of our Lord one thousand eight hundred and fifty-nine, in said county of Harrison, and in a court of justice then and there being in session, unlawfully and willfully did commit an aggravated assault in and upon Gilchrist McKay, and then and there did strike,” &c. The defendant filed a motion to set aside the indictment, because…

Error from Upshur. Tried below before the Hon. 0. A. Frazer. This was a suit brought by John P. Cunliff and his wife, Susan Cunliff, as guardians of the persons and estates of five certain minor heirs of John H. McNairy, deceased, against A. J. Brinson and his wife, Laura Brinson.

<p>Appeal from Harrison. Tried below before the Hon. C. A. Frazer.</p>

Tried below before, the Hon. A. W. 0. Hicks. McIver brought suit in the County Court, October 12th, 1855, against Benj. F. Price, executor, and Tempe Price, executrix, of the estate of Elijah Price, deceased, on a note or due bill payable to himself for $110, signed by “ B. F. Price, executor,” and reciting in its face the consideration for which it was given to have been “ for services rendered on the plantation of Tempe Price,” dated December 31st, 1853.

Tried below before the Hon. R. A. Reeves. Indictment for an assault with intent to murder Nathaniel C. Black. It was proved that there was a quarrel or difficulty between the defendant and one Love in the town of Jacksonville; occasionally loud talking and quarreling.

<p>The plaintiff suing to enforce a vendor’s lien claimed hy him upon a tract of two hundred and eighty acres of land, two hundred of which embraced the homestead tract of the husband and wife, defendants in the suit, his evidence of indebtedness consisting of a promissory note reciting on its face that it was given for the purchase money of the eighty acres not within the homestead portion of the tract; and a bond to make title to the whole of the tract executed by the husband and wife to a third party, and which was consistent with the contract evidenced by the note, also being in evidence; held, that parol testimony offered by the plaintiff to prove that by the agreement of the husband (the wife not being a party to it,) the plaintiff should have a lien on the whole of the land, was inadmissible ; first, because its effect was to vary the terms of the contract as shown by the note and title bond taken together; secondly, because it proposed to establish a lien upon land, not by showing such facts as would give rise to the vendor’s lien, but by showing that the parties had agreed that other facts should give the plaintiff the same rights as if he were indeed the vendor of the whole of the land; and lastly, the testimony was inadmissible to affect the homestead rights of the wife, unless she had been a party to the agreement.</p> <p>A vendor's lien upon land is not established by proof that'parties agreed that one of them should have a vendor’s lien upon certain land. Such a lien ■arises by operation of law where certain íácts exist. If the facts do not exist, the vendor’s lien does not arise.</p> <p>Any other kind of lien upon land than the vendor’s, such as a mortgage lien, must he evidenced by writing.</p> <p>It seems that where the vendor of land causes a note given by the purchaser for the purchase money, to be made payable to another person, that it . will carry .with it the vendor’s lien, the same as if it had been made payable to the vendor.</p>

Tried below before Hon. R. A. Reeves, This suit was instituted on the 18th day of October, 1858. Cooper B. Nash was appointed and qualified as guardian of the persons and estates of the minors, Mary E., Margaret L, and Martha H. Nash, then his minor children, on the 26th day of January, 1857.

Tried below before the Hon. 0. A. Frazer. Indictment against Calvin, a slave, charging him with the murder of a woman named Vina, a slave. Indictment filed November 4th, 1858; the offence was alleged to have been committed on the fourth day of May, 1858.

<p>A suit by a creditor to enforce the payment of a debt against the estate of a deceased person, upon which there has been no administration, cannot be maintained against the heirs unless it be averred, and proved that estate has descended to the heir against whom the suit was instituted. If the petition does not make such averment, it is insufficient, and a demurrer to it will be sustained. 0</p> <p>See the opinion in this case for the rule at common law, and as modified by statute of 3d -and 4th Mary as to the measure of the liability of heirs, and the forms of procedure to determine the same.</p>