Volume 26 — Texas Reports

Tried below before the Hon. A. W. Terrell. The appellant was indicted for the murder of his wife, a negro woman named Mcey. The opinion of the court sufficiently states the other facts upon which it is based.

Tried below before the Hon. Eieldmg Jones. This was a proceeding instituted under the statute by the appellee to contest the right of the appellant to the office of District Judge of the 14th Judicial District, composed of Nueces and other counties, for which office an election was held at the general election in August, 1860.

<p>The Joint Resolution of June 5th, 1837, and the Act of the Congress of the Republic of December 12th, 1840, conferred the privilege of residing within the State, only upon such free persons of color as resided in Texas on the day of the Declaration of Independence, and upon their issue, born of parents who lived together as man and wife, in the manner usual amongst persons of their claá.</p> <p>A free person of color, who is the issue of a mere casual sexual intercourse between persons privileged as aforesaid by the laws referred to, is not entitled to the benefits conferred by those laws</p>

Tried below before the Hon. John Hancock. This was an action of trespass to try title, and also for damages, instituted by the appellants as heirs of Nestor Clay against the appellee, for the recovery of one-fourth of a league of land in Washington county. The suit was originally brought in Washington county, at the Fall Term, 1851, of the District Court. At the Spring Term, 1853, a trial was had, but resulted in a mis-trial on account of disagreement of the jury.

Tried below before the Hon. Thomas J. Devino. This was an action of trespass to try title, instituted by the appellant on the 29th of April, 1853, for the recovery from the appellees of a certain tract of land in Bexar county, described by metes and bounds.

Tried below before the Hon. Thomas J. Devine. This was an action of trespass to try title brought by Andrew Cunningham against Erasmus Frandtzen and the other defendants, on the 21st of October, 1853, for the recovery of two-thirds of a league and one labor of land, lying in Gillespie county, and known as Survey No. 19, in Sec. No. 1.

Tried below before the Hon. Fielding. Jones. This suit was instituted by appellant against appellees on the 12th March, 1855, for the purpose of trying the title to 2560-acres of land in Gonzales county. The plaintiff claimed under four pieces of land scrip for 640 acres each, issued to John Withers by Sam Houston, President of the Republic of Texas, on the 12th day of December, 1836.

Tried below before the Hon. Thomas H. Duval. This action was brought by the appellant against the appellees for the recovery of an undivided one half interest in a tract of three hundred and twenty acres of land in Travis county, and for partition of the same,—the title to the other half interest being acknowledged by plaintiff to be in defendants.

Tried below before the Hon. Fielding Jones. This suit was brought by Augustus Jones against William Martin, on the 17th of October, 1855. The petition alleged that an execution issued on August 8th, 1855, from the District Court of Lavaca county, against the plaintiff, on a judgment rendered on 17th day of April, 1854, in favor of Charles H. Jordan, for $567 and interest, besides cost.

Ebbob from Travis. Tried below before Robert J. Townes, Esq., special Judge. This suit was instituted by the appellant, Walter M. Booth, in the District Court of Travis county, for a mandamus to compel the defendant Upshur, District Surveyor of Travis Land District, to survey several tracts of land in Travis county, which the plaintiff alleged were vacant lands upon which he had located sundry land warrants and certificates.

' Tried below before the Hon. Thomas J. Devine. This action was brought by Oushman & Co., to subject the excess of the homestead of Paschal and wife, in the city of San Antonio, over and above the constitutional exemption of $2,000, to the payment of a judgment against F. L. Paschal and his partner hi trade, rendered by the Bexar District Court, on December Sth, 1852. The petition alleged the insolvency of Paschal and his co-defendant in the judgment.

Tried below before the Hon. Thomas J. Devine. This suit was brought by the appellee, Wofford, against the appellant, Gillies, for the recovery of a wagon and team belonging to the plaintiff, and purchased by the defendant from the teamster who had had the property in possession, but no authority to sell it.

Tried below before the Hon. Thomas J. Devine, This action was brought by Barrera an'd wife as administrators Of Jose Maria Salmas, deceased, against John 0.

Tried below before the Hon. 1ST. M. Burford. The indictment in this case charged the appellee with unlawfully aiding, assisting, inducing and bringing within the limits of the State a free person of color named Jerry Hardy. The indictment was found on',the 1st day of January, 1857, and charged the ■offence to have been committed on the 1st day of January, 1855. The court below quashed the indictment on motion of the defendant.

Aepeal from Bexar. Tried below before the Hon. Thomas J. Devine.' Manuel and Vicenta Yturri, minor heirs of Manuel Yturri Y. Castillo, by their next friend, Warrick Tunstall, instituted this suit on the 24th of February, 1855, in the District Court of Bexar county, for the purpose of bringing before that court and revising, by certiorari, a decree of the County Court for the settlement of estates, rendered April 26, 1854, in favor of Francois Eadaz against Mariano Rodriguez,…

Tried below before the Hon. Nat. M. Burford. William Norris and Bebecca, his wife, on the 24th of February, 1854, donated by their deed forty acres of land to the county of Tarrant for the county seat, “ or for what other use the county may see proper to convert the same.” In November, 1856, the county seat was removed from Birdville (the location on the land so donated) to Fort Worth.

Error from Dallas. . Tried below before the Hon. If. M. Burford. This was an action of trespass to try title, brought by Loving against Corcoran, for a tract of land in Dallas county. On 22nd of January, 1855, James Loving, as assignee of Oliver Loving, filed for location on the land in controversy a certificate for an unlocated balance of -a Peters’ Colony certificate, and his survey was made January 18th, 1856.

Error from Dallas. Tried below before the Hon. Nat. M. Burford. Trespass to try title, brought by plaintiffs in error against defendants in error. There is no Statement of facts in the record. At the July term, 1857, the cause was continued “as on affidavit of plaintiffs.” At the ensuing term of the court, the plaintiffs filed an affidavit for a second continuance, for “want of the testimony of H. 0.

<p>Appeal from Dallas. Tried below before the Hon. Nat. M. Burford. .</p> <p>For the facts of this case, see 20th Texas R., p. 487.</p>

Error from Guadalupe. Tried below before the Hon. A. W. Terrell. This suit was commenced by Turner, defendant in error, on the 11th of October, 1855, against the plaintiffs in error.

Tried below before the Hon. Thomas J. Devine. .Breckenridge filed his petition in the District Court of Bexar county for a mandamus to the district surveyor to survey for him certain lands which he alleged had been previously surveyed for Neill, who was therefore made a party defendant,, and whose claim to the land was sought to be annulled.

Tried below before the Hon. E. F. Buckner. The indictment charged that “ Thomas Sherlock, late of said county, on the 7th day of October, 1860, in the county aforesaid, did unlawfully and feloniously steal, take, and carry away one blue woolen coat of the value of six dollars, and one pair of pantaloons of the value of four dollars, both of said articles being the property of Samuel Davis, contrary to the statute,” &c. The defendant moved to quash the indictment and assigned…

Tried below before the Hon. Thomas. J. Devine. The appellant was indicted for the murder of one.Marcella Perez,, and was convicted of murder in the first degree- The difficulty between the defendant and the deceased occurred at the door of the house of the latter in the city of San Antonio. There was a conflict of testimony as to the circumstances immediately preceding-the homicide.

Tried below before the Hon. H. M. Rattle. The appellant was indicted for selling liquor in quantities of a quart or more and unlawfully permitting the same to he drank at the place where sold. Being convicted and fined in the sum of fifty dollars, he moved for a new trial, which was refused; whereupon he appealed and entered into recognizance conditioned as set forth in the opinion.

Tried below before the Hon. E. H. Yontress. The appellee was indicted for unlawfully killing an “ animal coining within the meaning of an estray.” The indictment charged that the defendant, “on the 10th day of March, A. D., 1860, in. the aforesaid county of Lampasas, unlawfully, feloniously, take Up and kill a certain beef steer,” &e., alleging it to be an animal “coming within the meaning of an estray,” but' omitting to charge that the act was done “ without complying with…

<p>Appeal from Denton. Tried below before the Hon. it. L. Waddill.</p>

<p>Appeal from Johnson. Tried below before the Hon. Hat. M. Burford.</p>

Tried below fiefore the Hon. R-. LWaddill. The indictment charged that the defendant “did harbor and conceal ” a certain negro woman, “ being then and there* a runaway slave;” but there was no averment that the defendant knew the slave to be a runaway. For this and other reasons, the defendant moved to' quash the indictment, which motion was-overruled.

Tried below before the Hon. R. L. Waddill. The defendant, being indicted for an assault on one “ James L. Read, then and there being an officer in the lawful discharge of his-duty,” moved in the court below that the words of aggravation be struck out; upon which motion it does not appear that any judgment was rendered. Hor does it appear that the defendant entered into- a recognizance upon the appeal.

Tried below before the Hon. B. L. Waddill. The appellant was indicted for the theft of a pistol; and the indictment, as presented by the grand jury, omitted to state the time at which the offence was alleged to have been committed. The District Attorney was allowed to amend the indictment by the insertion of the time, and the defendant excepted.

Tried below before the Hon. E. EL Yontress. The appellant, Harrell, being in March, 1856, the owner of two certificates of the public debt of Texas, upon which there was due from the United States for principal and interest about $1,500, procured De Normandie as his agent to negotiate a sale of them to Swenson.

Tried below before the Hon. H. M. Battle. For the main facts of this case, see the reported case of Austin v. Talk, 20 Tex. R., 164.

Tried below before the Hon. Fielding Jones. The appellant, Rose, brought this suit against W. R. Newman, H. Grigg as administrator of Susan Ann Stephenson, and F. Ghinault, for the purpose of obtaining a partition of a league and labor of land, the headlight of Newman, situated in Gonzales county. The plaintiff claimed a one-sixth undivided interest in the tract by virtue of title deraigned from Newman.

Error from Gonzales. Tried below before the Hon. Fielding Jones. This suit was brought by Harris, the appellee, against Willis, the appellant, to recover the value of a slave hired by the former to the latter, which slave lost his life in cleaning out a well for the defendant.

Error from McLennan. Tried below before the Hon. R. E. B. Baylor. This suit was brought by Lucy Renfro against Sarah A. Walker and others, for the partition of a league and labor of land in McLennan county, in which tract the plaintiff claimed an undivided interest of four hundred acres.

Tried below before the Hon. Fielding Jones. The appellee, Welch, brought this suit against Uarroll, the appellant, to recover compensation for work done by the plaintiff in the erection of a dwelling house for the defendant. The petition set forth a special contract by which the defendant agreed to pay the plaintiff $1,800 to do the wood work of the building, and also sought a recovery upon a quantum meruit for extra work.

Appeal 'from Limestone. Tried below before the Hon. John Gregg.

<p>Where an indictment charged that the defendant “ in a certain jail-house, the said jail-house then and there being a public house, did play at a game with cards, &e.,” and exception «as taken, on the ground that it did not appear from the face of the indictment that any offence against the law had been committed by the defendant, it was error to sustain the exception and quash the indictment.</p> <p>The statute ou gaming has declared certain houses to be public houses, and the courts will judicially recognize such houses to bo public houses v. itliout averment to that effect; but as to the character of houses or places other than those specified in the act, the courts cannot take judicial cognizance whether they are public or private, and the question is one of fact for the decision of the jury.</p> <p>The term “ public house,” as used in the statute on gaming, signifies a house which is commonly open to the public, for business, pleasure, worship, and the like; and not a house which belongs to the public as a body politic, in which sense a jail-house is a “ public house.”</p> <p>But whether a particular jail-house is or is not a public house, as alleged in the indictment, is a question of fact to be-decided by the jury under proper instructions'from the court, and cannot be determined by the court upon exception to the indictment.</p>

H, Vontress, This case wag formerly before this court under the Stylo of Burditt v. Silsbee, and is reported in the 15th volume of Texas Reports, to which reference is made for a statement of the fects had on the first trial in the court below.

Tried below before the Hon. S. Powers. Indictment against appellant, Sheriff of Cataeton county, for permitting a prisoner in bis custody to escape. The indictment charged that the defendant did “ unlawfully, voluntarily and injuriously ” permit and allow the prisoner to escape.

Tried before the Supreme Court sitting at Galveston. On the 5th day of March, 1862, John Velasquez, the applicant, was tried before a Justice of the Peace of Harris county for selling spirituous liquors without having obtained license therefor ; fined fifty dollars and adjudged to be committed to the jail of said county until the fine was paid. Writ issued to the Sheriff of Harris county by the Justice of the Peace in accordance with his judgment.

<p>Repeated decisions have settled beyond further question that the consent of the Federal Executive of Mexico -vas essential to a grant of land within1 the littoral leagues, whether such grant was to a native Mexican or to a foreigner; and further, that such consult can not be presumed in favor of other than colonial titles, either from tho consent of the Federal Execu" tive to the colonization contract within the limits of which, with thcassent of the empresarios, the grant is located, or from the legislation of the General Government of Mexico or of Coahuila and Texas, or from correspondence betw een the public functionaries of those governments, or from the fact that tho official who extended the title was tho Commissioner General of Colonization, or from the ratification of the title so extended made by the Governor of Coahuila and Texas subsequent to the decree of the 2d of May', 1834-.</p> <p>The cases of Goode v. McQueen’s heirs, (3 Texas Rep., 241,) Edwards v Davis, (Id., 321,) The Republic v. Thorn, (Id., 409,) and Smith v. Power, (14 Texas Rep., 146,) referred to and their authority recognized.</p> <p>It was error to allow the jury to infer lawful authority for the location of a concession within the littoral leagues from the consent given by the Federal Executive to the empresarios, Vehlien and Zavala, to colonize the border and littoral leagues.</p> <p>On the contrary, the court should have instructed the jury, as matter of law,that the consent to colonize did not have the etiéct of dispensing with the consent of the Federal Government to the location of a concession, other than to a colonist, within the littoral leagues.</p> <p>By its decree of March 26th, 1834, the State of Coahuila and Texas did not assert the right to dispose by sale'of all the public domain of the State,irrespective of the restraints with regard to the border and littoral leagues. The 32d article of that decree—in which alone mention is made of the border and littoral leagues—has reference only to that class of persons in whose favor the General Government had previously communicated to the State Government the resolutions of April and August, 1828. By that article the Congress of Ooahuila and Texas did not intend to violate the 4th article of the general colonization law of August 18th, 1824, nor to assume that the last mentioned article had, with the consent of the General Government, become inoperative in Texas.</p> <p>The decree of the 2d of May, 1834, abolished any power to dispose of public lands which may have been conferred upon the Governor of Ooahuila and Texas by the provisions of the law of March 26th, 1834; consequently, the ratification by the Governor, subsequent to May 2d, 1834, of a title extended to a person other than a colonist within the littoral leagues, imparted to such title no additional validity.</p>

Tried below before the Hon. Fielding Jones. Trespass to try title to two leagues of land in Victoria county, brought by Thomas Holliday, the appellant, against Alexander H. Cromwell and others, the appellees. On the trial, the plaintiff read in evidence a certified translation from the General Land Office' of the original grant of the two leagues to Santiago »nd,.Lazaro Serna and a chain of title from Santiago.

Tried below before the Hon Peter W. Gray. The appellees, plaintiffs in a judgment against Edward J. Gil-lard, by their attorney, sued out their writ of garnishment against E. P. White, one of the appellants, alleging in their affidavit for the writ that Gillard, the defendant in the judgment, had no property within their knowledge, and that White, the garnishee, “ is indebted to said defendant, Edward J. Gillard, or has in his hands effects of said defendant.” White excepted…

Tried below before the Hon. John F. McKinney. The appellee was indicted for horse stealing at the fall term of the Nueces District Court. He filed the following plea:—“ And comes the defendant in -proper person and says that J. B. Murphy, who wrote out this indictment and whose name is officially signed thereto, after his appointment, election or commission as District Attorney of this judicial district, was appointed and did accept and qualify himself for the office of !

Tried below before the Hon. Charles; A. Frazer. At the Fall Term, 18G0, of the District Court of Harrison county, the grand jury returned the following indictment against the appellee: “In the name and by the authority of the State of Texas, the grand jurors for the State of Texas, duly selected, empanneled, sworn and charged to inquire of alt. offences against the laws indictable within the body of the county of Harrison, in the State of Texas, upon their oath, present that…

Error from Shelby. Tried below before the Hon. A. W. 0. Hicks. Indictment for betting at a gaming table, under article 414 of the Penal Code. The indictment charged that the defendant “ did bet at and upon a gaming table.” Defendant excepted to the indictment on the ground of insufficiency in the description of the offence charged. Exception overruled. Verdict and judgment against defendant. Case brought up by writ of error.

Tried below before the Hon. 0. A. Frazer. The indictment charged that 1ST. H. Wilson, John H. Harris and Ashley Parker, “did play at a certain game with cards in a certain public law office, commonly used for gaming, the same being a public place;” and in another count, that said persons “ did play,” &c., “ at a certain room connected with, and part of a certain public law office,” &c. Defendant Wilson, pleaded guilty.

Tried below before the Hon. Thomas H. Stribling. The appellant and one Achilles Deal were indicted for the theft ■of two mules, the property of Alfred M. Rowlett. A verdict of guilty being found, the defendant moved for a new trial, which was refused.

Tried below before the Hon. It. E. B. Baylor. This suit was originally instituted on the 30th. of December, 1852, by H. B. Andrews and Charles .D. Sayre against some twenty several defendants, to try the title to and recover possession of eleven leagues of land in Bell county, originally conceded by the State of Coahuila and Texas to Maximo Moreno, under whom Andrews and Sayre derived title to an undivided half interest..

Tried below before the Hon. Hat. M. Burford. This was an action of trespass to try title and for damages, brought by D. Hardeman, William P. Hardeman and William B. Coffee, against David C. Cowan, Gideon Cowan and James Alexander. The land in controversy was a tract of six hundred and forty acres, to which the plaintiffs derived title by purchase from Peter Pauly, a colonist of Fisher’s and Miller’s colony.

<p>•Appeal from McLennan. Tried below before the Hon. John Gregg.</p>

Tried below before the* Hon. John Gregg. In 1849, William Christy and Charles A. Jacobs employed Hughes, the appellant, as an attorney and counselor at law, to institute suits for the recovery of an extensive tract of land in Limestone county, known as'the eleven league grant of Andres Varela, of which numerous parties had taken possession and claimed adversely to Christy and Jacobs.

Error from Gonzales. Tried below before the Hon. Fielding Jones. This is the same suit as Jones v. Garza, reported in 11th Texas. R., 186, being re-instituted against the present defendants within' twelve months after the determination of that cause, and the present defendant holding under the defendants in that action. The facts will be found fully stated in the former report and in the opinion.

AppbaI from Gillespie. Tried below before the Hon. Thomas J. Devine. This was an action of trespass to try title, instituted by the appellees against the appellant on the 10th day'of January, 1856, for the recovery of six hundred and forty acres of land in Gillespie county, to which the plaintiffs had received a patent from the State on the 24th of October, 1854.

Tried below before Charles L. Robards, Esq., Special Judge. This suit was originally in the form of an action of trespass to try title and for damages, instituted by the appellees, Elias Mos-son, Herman Mosson, and Hart Samuels, against Joseph Warren, on the 6th day of May, 1858. On June 11th, 1858, the appellant Robertson intervened, claiming a portion of the land sued for by the plaintiffs.

Tried below before the Hon. R. E. B. Baylor. This was an action of trespass to try title, instituted by Martin against the several defendants, on the 21st of April, 1854, for the recovery of one league of land in Bell county. The land in controversy was part of a tract of three leagues which were a portion of an eleven league grant made by way of sale to Antonio Manchaca by the State of Ooahuila and Texas, on the 2nd day of November, 1838.

Tried below before the Hon. N. W. Battle. The facts of this case, so far as they have relevancy to the opinion, are fully stated therein. Many questions were raised in the assignment of errors and in argument, of which the court takes no cognizance.

Tried below before the Hon. A. W. Terrell. . This suit was instituted by the appellees on the 26th of August, 1854, to compel the district surveyor of Travis land district to Survey for them a. tract of land which they claimed by virtue of a file made by them upon it. The appellant, Johns, was made a party defendant, and claimed the land in controversy by virtue of certificates filed by him.

xIppsal from Guadalupe. Tried below before the Hon. A. W. Terrell. This suit was instituted by B. D. Flack in his lifetime against the appellee, upon the promissory note of the latter for the sum Of $416 52, dated February 12th, 1853, and due the 1st of January, 1854. B. D. Flack having died, the suit proceeded in the name of his administrator.

<p>A., being owner of certain certificates of stock, entered into an agreement with B., by which he assigned and transferred such stock to B., who engaged to dispose of it in such manner as would in his judgment be most profitable and productive, and on settlement A. was to be allowed the original cost of the stock and one half of the profits to be realized in its disposition by B., and B. was to be entitled to the other half of the profits; and no time was limited in the contract for the performance by B. of Ms obligations to dispose of the sjnck, or to account to A. therefor: Held, that the contract did not create in B. that kind of technical and eontinu- •' ing trust which is unaffected by the.statute of limitations.</p> <p>Such a contract implied that it should be performed within a reasonable time, and devolved upon B., after the lapse of a reasonable time, the obligation to account to A.</p> <p>The time when the statute of limitations would begin to run upon such a contract, would perhaps be when A. would be entitled to call for and enforce an account from B., either because a reasonable time had elapsed for the disposal of the stock by B., or because he had in fact made a disposition of it, which had come to the knowledge of A.</p> <p>In this case, the evidence seemed to establish that B. parted with the certificates of stock in 1S38, and in lieu thereof became possessed of certain Galveston city lots, which lots were sold in 1840, and a portion of their proceeds was paid over to A; hid, that this was such notice to A. as entitled him to call for a full account from B., and that the statute of limitations began to run from the time of such notice.</p> <p>It is settled that the clause of our statute of limitations which excludes from the period limited by the Act the time of the debtor’s absence from the State, applies to each departure of the debtor from the State and includes the whole time of his absence.</p> <p>When the defendant has shown facts which set the statute of limitations in motion in his favor, the burden devolves upon the plaintiff to show that the defendant had been absent from the State for such periods as would, if taken from the whole time from the accrual of the cause of action to the institution of the suit, reduce the time to less than four years. In plainer terms, it devolved on the plaintiff to show that the defendant had not been in Texas, four years in all, between the time when the cause of action accrued and the institution of the suit.</p> <p>The plaintiff, however, is not required, in such a case, to prove the precise periods of the defendant’s absence; but it will suffice for him to establish facts from which the jury may reasonably conclude that the defendant had not been w ithin the limits of the State four years in the aggregate, between the accrual of the cause of action and the institution of the suit. Such facts being shown by the plaintiff, it then devolves upon the defendant to rebut by evidence the conclusion to which such facts conduce.</p> <p>See this case for an application to evidence of the foregoing principles with regard to the statute of limitations.</p>

Tried below before the Hon. A. W. Terrell. On the 19th of November, 1855, the appellant, Ellison, instituted suit by attachment against W. D. Larremore, and thereon took out writs of garnishment against the appellee, and other parties. In October, 1856, the appellant recovered-judgment on the attachment against Larremore for $517 30.

Tried Below before the Hon. A. W, Terrell. This action was Brought by the appellee, Catherine Cody, as the heir at law of Michael Cody, deceased, against the defendants, Neill and several others, for the recovery of two tracts of land in Guadalupe county. The defendants in- their answers pleaded a general denial and the limitations of three and five years, and suggested valuable improvements in good faith under possession for more than twelve months.

<p>A. sold to B. a certain number of cattle in the range, guaranteeing that B. could find the greater portion of the cattle at certain localities by a brief search. In payment for the cattle, B. delivered to A. a carriage and his promissory note for $50, on which note 0. was security for B. Failing to find the cattle, B. sued A. in the District Court on his guarantee, and introduced C. as a witness to prove the contract,—the note for $50 being still unpaid and outstanding against B. as principal and C. as his security. Held, that C. was not disqualified to testify in behalf of B. by reason of interest, but was a competent witness.</p>

<p>A specific performance of a parol contract for the conveyance of lands will be enforced, when the plaintiff proves performance of the contract on his part.</p> <p>And when it is shown in such action that the defendants have not the ability to make title according to their agreement, the plaintiff is entitled to compensation in damages for the injury occasioned Mm by the failure of the defendants to fulfill their undertaking.</p> <p>The statute of limitations did not begin to run against the cause of action until the refusal of the defendants to make title, up to wMch time the plaintiff was ignorant of the inability of the defendants to convey title; and two years not having elapsed after the refusal of the defendants up to the institution of the suit, held, that the action was not barred.</p> <p>Where it appears on the face of the petition that one of the defendants was a minor, and his guardian (if any he had) was not made a defendant, nor was there a guardian ad litem appointed for him, it was error to render judgment against such minor defendant; and this court w ill reverse the judgment for such error, notwithstanding no exception on this ground was taken in the court below or in the assignment of errors.</p> <p>To charge heirs in damages for a breach of contract by their ancestor, the plaintiff should aver and prove that the estate of the ancestor is not in process of administration, and that assets had come into the hands of the heirs.</p>

Tried below before the Hon. N. M. Burford. This was an action of trespass to try title brought by the appellant against the appellee. The title of the plaintiff consisted in a tax deed from the Assessor and Collector of taxes of Dallas county, by whom the land in controversy was sold for the taxes of 1855, at a tax sale held on the 31st day of May, 1856.

Error from. Dallas. Tried below before the Hon. N. M. Burford. This was an action of trespass to try title brought by the plaintiff in error against the defendant in error, for the recovery of a half section of land in Dallas county. The land in controversy was part of one of the even sections of Peters’ colony, and as such was reserved to the State by the colony contract.

Error from Ellis. Tried below before the Hon. N. M. Burford. This suit was instituted by Van Hook, the defendant in error, against Hamilton, the plaintiff in error, and one Thomas H. McCray, upon a jmomissory note for six hundred and thirty dollars. No service of process being obtained on McCray, the suit was dismissed as to him.

Tried below before the Hon. Thomas J. Devine. On the 6th of March, 1857, one Otto Bombach instituted suit in the District Court of Bexar county against Potshuisky, the appellant, for the enforcement of a mechanic’s lien; and in his petition made the appellee, Krempkan, and several other persons, also, defendants, in virtue of rights and interests claimed by them in the property upon which the lien was sought to be enforced.

Tried below before the Hon. Thomas J. Devine. The corporation of Bastrop instituted this suit against the appellant for the recovery of damages incurred by the cutting and carrying away of pine timber from the town tract. Upon the trial, the case resolved itself into a question of boundaries, the defendant claiming that the land from which he obtained the timber was within his own tract.

Tried below before the Hon. A. W. Terrell. This was a suit brought by the appellant against the appellee to try title to a lot or parcel of land in the city of San Antonio, and also to review the judgment of the Supreme Court in the case of San Antonio v. Lewis, reported in 15th Tex. R., 388. Tor the facts of the case, reference is made to that report and to the opinion in this cause.

Tr-ied below before the Hon. Thomas J. Devine. The appellant, James, brought this Suit to the Fall Term, 1858, of the Bexar District Court, against Catharine L. Jacques and W, B. Jacques her husband, for the recovery of certain lots in the city of San Antonio; and also against Laura L. Sheahan, widow of John S. Sheahan, deceased, for the purpose of subjecting certain of her separate property to a deed of trust in exoneration of the lots sued for.

Error from Karnes. Tried below before the Hon. M. P. Norton. This suit was brought by the appellant against the appellee, for the recovery of thirteen and a half labors of land in the county of Karnes. The facts are not necessary to be stated further than they appear in the opinion. Verdict and judgment below for the defendants.

Tried below before the Hon. Thomas J. Devine. This was an action of trespass to try title to 1400 acres of land in Bexar county, originally instituted by the appellants against D. C. Davenport as defendant. The appellee, Patrick, intervened as lessor of the defendant Davenport, and asserted title in himself to the land in controversy. The other facts are sufficiently stated in the opinion of the court.

Tried below before the Hon. Thomas J„ Devine. The appellee, Marr, instituted this suit at the Spring Term, 1856, against the appellant, Mitchell, for the recovery of an undivided portion of a lot of ground in the city of San Antonio; and against two minor heirs of John S. Simpson, deceased, for a partition of the land sued for, in which they, also, had an undivided interest. It was admitted that in 1842 the land in controversy was the property of John W. Smith.

Tried below before the Hon. N. .W. Battle. The appellee, Linney, brought this suit against the appellant, Kohlhass, for the recovery of 320 acres of land in Bell county. The title of the plaintiff is sufficiently specified in the opinion.

Tided below before the Hon. Jobs Gregg. This suit was instituted by the appellee on the 8th of October, 1857, to recover from the .appellants, as common candors, damages for the loss of seven bales-of cotton, and for i-njury to other cotton of the plaintiff, while in charge of- defendants for transportation to Galveston. In the spring of 1856, the defendants constructed a keel-boat or barge at Waco, for the purpose of freighting on the Brazos river.

Error from Hill. Tried below before the Hon. H. W. Battle. Suit by defendant in error, L. W. Cato, on a promissory note, not under seal. Snead Harris, plaintiff in error, pleaded a partial failure of consideration of the note sued on. Cato excepted to the answer on the ground that it was not sworn to. The exception was sustained and there was a verdict and judgment for Cato. A writ of error was prosecuted by Harris.

Tried below before J. E. Davie, Esq., special judge. The facts of this case sufficiently appear in the opinion and in the former report of this cause in 17th Texas Reports, 211. Upon this trial, as on the former one, the jury found a verdict in favor of the freedom of the appellee. A new trial being refused to the appellant, he appealed again.

Error from Navarro. Tried below before the Hon. John Gregg. This was an action of trespass to try title brought by Emily B. Gillespie, surviving widow of Barry Gillespie, deceased, and Mary E. Sayles, only child of said deceased, who was joined in the suit by her husband, John Sayles, against Henry Jones and Samuel Bowman, to recover nine hundred and twenty acres of land. The petition was filed on the 19th day of March, 1857.

Tried below before the Hon. John Gregg. This was a suit by attachment brought by the appellees against James H. McLendon and his sureties upon his bond as a deputy sheriff, to recover the sum of one thousand five hundred and eighty-five dollars and twenty cents, being the amount with damages which two of the appellees, Charles Craig and Joseph Evans, had been compelled to pay on account of a defalcation by the defendant, McLendon.

Tried below before the Hon. Fielding Jones. The facts of this case will be found very fully stated in the report of the' former appeal, 22 Texas Reports, 383. When the case was remanded upon that appeal, the plaintiffs, Tinsley and Branch, amended their petition, and charged that the transfer made to Parker by Lovett of his judgment against Pennell and Tinsley was in fraud of Lovett’s creditors.

Tried below before the Hon. Fielding Jones. For the main facts of this case, reference is made to the opinion, and to the report upon a former appeal in 22 Texas Reports, 259. In his answer, the appellant, who was defendant below, alleged a payment by him of two hundred dollars upon the land, in part consideration of which the note sued on was given.

Tried below before the Hon. N. W. Battle. This was an action of trespass to try title, originally instituted in Milam county, wherein the land in dispute is situate, by the appellants against the appellees. The venue was changed to Bell, ■on application of the plaintiffs. The defendants set up title in themselves, and also pleaded the statutes of limitation.

Tried below before the Hon. J. M. Eerris. Indictment for issuing bills intended to circulate as money in violation of article 400 of the Penal Code.

Tried below before the Hon. R. S. Gould. The appellant was indicted in the District Court of Brazos county at the Spring Term, 1861, for the murder of William Avance. On application of the appellant, the venue was changed to Robertson county. The cause came to trial at the Fall Term, 1861, when the defendant was convicted of murder in the second degree, and the jury assessed his punishment at twenty-five years in the penitentiary.

Tried below before the Hon. R. L, Waddill. This Was a motion or information filed under the 1st section of the act of February 11th, 1854, (art. 52, O. & W. Dig., p. 43,) against the appellee, praying that he be stricken from the roll of attorneys.

<p>The Commissioner of the General Land Office is authorized by law (O. & W, Dig., 1274,) to issue a patent to an assignee upon his presenting a sufficient and properly authenticated chain of transfer from the original grantee, and is made the judge of the sufficiency of the transfers to enable him to pass the title from the State to the assignee of the certificate.</p> <p>As between the State and the patentee, the patent is evidence of title in the latter. The decision of the commissioner is not conclusive of the genuineness of the assignment, against the grantee or any assignor of the certificate ; but as between the patentee and strangers, the patent is at least prima facie evidence that the title is in the patentee and-relieves him from the necessity of proving the assignment in an action of trespass to try title against a party who does not claim the certificate upon which the patent issued.</p> <p>Applications for new trial on the ground of newly discovered evidence will be scrutinized with much strictness. They are addressed much to the discretion of the court, and where the court has refused such an application, the appellate court will not reverse, unless it shall appear that the court has not exercised its discretion according to the established rules of law and the principles of adjudged cases.</p> <p>A party bringing himself within the principles of the adjudged cases, governing applications for new trial, is entitled to a new trial as a matter of right; unless it be apparent that the justice of the case has been attained.</p> <p>If there be any doubt of the justice of the verdict, and new evidence conclusive in its character has been discovered, to refuse a new trial in such a case would be against justice and precedent,-^by new evidence is meant some new and material fact, which has come to light since the trial.</p> <p>The established doctrine of the common law is, that a conveyance of lands bounded on a public highway carries with it the fee to the centre of the road; such is the legal construction of a grant, unless the inference that it was so intended is rebutted by the terms of the grant. The owners of the land on each side go to the centre of the road, and they have the exclusive right in the soil subject to the right of passage in the public. Upon ■ a discontinuance of the highway the soil and freehold revert to the owners of the land.</p> <p>Quiere: Does the foregoing doctrine of the Common law apply to grants extended by the government of Ooahuila and Texas to colonists in 1831?</p> <p>Quiere: Is the rule of the civil law in like cases the same as that of the common law ? or, according to the former, does the soil of the public highway remain in the public ?</p>

Error from Gonzales. Tried below before the Hon. Fielding Jones. This suit was brought on July 30th, 1858, by the appellants against the appellee upon a covenant of general warranty to 371 acres of land, contained in a deed made by the defendant to the plaintiffs on the 29th of January, 1855.

<p>Error from Havarro. Tried below before the Hon. John Gregg.</p> <p>This was a motion by the appellee against the appellant as an attorney-at-law, to recover an unpaid balance of $5l2 95, collected by the appellant for the appellee upon a note against other parties for a much larger sum.</p> <p>The defendant excepted to the motion on the ground of uncertainty, and for various other reasons not noticed in the opinion.</p> <p>At the Spring Term, 1858, there was verdict and judgment for the defendant, which, on motion of the plaintiff, were set aside and a new trial granted.</p> <p>On the second trial, at the Fall Term, 1858, the plaintiff proved a demand upon the defendant for the unpaid balance of the collected money, and a refusal by the defendant, who insisted on the acceptance by the plaintiff of the order for $210, to which reference is made in the opinion. The other material facts are sufficiently stated in the opinion.</p> <p>A jury being waived, there Was judgment by the court in favor of the plaintiff for $388 24, A motion for a new trial was overruled.</p>

<p>Appeal from the judgment of Chief Justice Wheeler, sitting in chambers at Austin.</p>

Tried below before the Hon. James H. .Bell. The appellant, Booth, instituted this suit for a mandamus to the appellee, Strippleman, compelling him, as district surveyor of the Colorado land district, to survey certain land upon which the appellant had filed sundry land certificates, which land the appellant claimed to be vacant public domain and subject to his appropriation. C. C. Herbert, R. and D. Gr.

Tried below before the Hon. R. E. B. Baylor. Action of trespass to try title to a portion of a league of land in Washington county, brought by appellants, James Bohanan and Lea A. Bohanan, his wife, against the appellee, Henry Hans. Lea A. Bohanan claimed title to the land by virtue of a grant to her first husband, Samuel Hinch, since deceased, and by a deed of gift from Chas. Gr. Hinch.

Error from Washington. Tried below before the Hon. R. E. B. Baylor. This suit was instituted August 8th, 1855, by George P. Russell and Wm.

The record in this cause not having reached the hands of the Reporters, a statement of the facts cannot be given. . But as the opinion involves some questions of interest, and indicates the facts to some extent, it is thought advisable to insert the case, even with ■.an incomplete exposition of the facts.

Tried below before the Hon. E. J, Davis. This was an action of trespass to try title, brought by John Martin and his wife, Agnes Martin, and Andrew J. Porter and his wife, Mary Porter, the appellants, against Edward A. Weyman and Jane L. Weyman, his wife, for the recovery of a tract of land situated in Cameron county', known as the Banco de Santa Rita Rancho. The petition, in the usual form, was filed March 10th, 1855.

Tried below before the Hon. James H. Bell. This was an action of slander instituted by the appellant against the appellee before a justice of the peace of Austin county. The defendant excepted to the jurisdiction of the justice of the peace; but his exception was overruled by that official, who rendered judgment in favor of the plaintiff for one hundred dollars and costs of suit.

Tried below before the Hon. James H. Bell. The appellee instituted this suit at the Fall Term, 1854, of the District Oourt of Austin county, against Joseph Chambers, the appellant’s intestate, upon a bill of exchange for $160, drawn ¿>y said Chambers on W. J. Hutchins, and bearing date December 18th, 1851. The draft specified no time of payment. The defendant demurred and pleaded payment. His demurrer was overruled.

Appeals from Galveston. Tried below before the Hon. P. W. Gray. ^ ^ ^ These suits were brought to the Spring Term, 1854, of the District Court J>f Brazoria county, by appellee against the appellants, for the recovery of certain slaves. The venue was changed to Galveston. The plaintiffs claimed the slaves in controversy as the heirs of Charlotte McCoy, deceased.

Tried below before the Hon. P. W. Gray. Trespass to try title, instituted by the appellant against the appellees. The defendant, Pace, was a purchaser of part of the Hodges’ league) the other defendants were heirs of Hodges, the grantee. The litigation was with regard to the dividing line between the Hodges league, under which the defendants claimed, and the Ford league, belonging to the. plaintiff.

Error from Walker. Tried below before the Hon. P. W. Gray. Randolph, the appellee, instituted this suit against A. J. McGown and D. D. Davies upon their written instrument as follows: “We this day release W. H. Randolph from the Advocate and Presbyterian office in toto, without any charges ever after this to be brought against him. The office is now indebted to him two hundred and eighty dollars 42-100, to be paid in arrangements that he can make or collect. D. D. Davies.

Tried below before the Hon. E. J. Davis. Suit of trespass to try title, brought by appellees against appellants to recover damages and a league of land situated in Goliad county. Petition was filed in the District Court of Goliad county. Venue changed to Nueces. The appellees, Louisa Carabajal and others, claimed the league ad heirs at law of Nicholas Carabajal. The original defendant was Joseph D. Ryan, the tenant in possession.

Error from Washington. Tried below before the Hon. -R E. B. Baylor. This was a suit brought by the appellee A. B. James, as payee of a bill of exchange, against the appellants George W. Wilson and Bolivar E. Sheegog, as drawers. Petition filed Sept. 7th, 1855. Bill sued on was as follows, to wit; “2,375 13 New Orleans, March 8th, 1854.

Tried below before the Hon. R. E. B. Baylor. The appellant brought this suit upon the promissory note of the defendant for twenty-two_ hundred dollars.

Tried below before the Hon. Fielding Jones. Lowe, the appellant, instituted this suit against the appellee, Dowbarn, on the 24th day of August, 1858, upon an open account. In his petition the plaintiff set forth sundry items of mutual dealings by the parties with each other, at various dates from February 15th, 1854, to the 15th day of March, 1857, upon which he showed a balance in his favor of $366 85, for which amount he prayed judgment.

Error, from Lavaea. Tried below before the Hon. Eielding Jones. Trespass to try title, instituted by the plaintiff in error, Campbell, against Townsend, foi* the recovery of a tract of land in Lavaca county. The defendant set up title to the land under sheriff’s deed upon an execution sale of the land, made on the 3d of March, 1840.

Tried below before the Hon. M. P. Norton. This was an action of trespass to try title, instituted originally, in Victoria county by the appellees against the appellant, for the recovery of a league of land. The land in controversy was granted by the government of Coahuila and Texas to John B. Sideclc, by two different grants, one made in 1830 and the other in 1834.

<p>Pleadings in a justice’s court are not, in general, required to he conducted in writing. It is not a valid objection to a judgment against a sheriii and his sureties, rendered on motion before a justice of the peace, that the motion was not in w riting.</p> <p>The statute (O. & W. Dig., art. 1334) authorizes amotion to be made against a sheriff'and his sureties for failure to return an execution uithin the time prescribed by law, within five years from the day it »as returnable. Such motion may be made after the expiration of the term of office of the sheriff.</p>

Error from Colorado. Tried below before the Hon. James H. Bell, Robert W. Martin filed a petition in the District Court of Colorado county, alleging that, on the 6tb day of December, 1856, be obtained a judgment before a justice of the peace of Colorado county for the sum of eighty-nine dollars and thirty-three cents against W. H. Wallace; that the said Wallace has no property subject to execution except a small portion of the tract of land comprising his homestead, which…

Error from Colorado. Tried below before the Hon. James TL-Bell. William Oldham, plaintiff in error, for the use of E. B. and Caroline F. HoAvlks, administrator and administratrix of the estate of A. B. Wauldridge, instituted proceedings in the District Court of Colorado county against T. J. Henderson, as administrator of the estate of Alfred Smith, and D. A. Hubbard as administrator pro tern, of the same estate.

Tried below before the Hon. James H. Bell. ■ The appellee instituted this suit against Alfred Smith for damages laid at $3,000, alleged to be incurred by breach of the warranty of the defendant, contained in his bill of sale to the plaintiff of a Maltese Jack, called “Wonder.” The petition set out the bill of sale, which purported to be made in consideration of two thousand dollars in a tract of land in Denton county, for which land the plaintiff alleged he executed his…

Tried below before the Hon. James H. Bell. John Hunter and Samuel Benton, merchants in Marshall county, Mississippi, using the firm name of Hunter & Benton, on the 5th day of November, 1851, made to Green K. Hubbard an assignment of all debts due the firm, by notes, open accounts, .or otherwise, for the purpose of securing him against bis liabilities for them as endorser, or surety, on certain bills of exchange, .amounting to .some twelve thousand dollars, payable to several…

Tried below before the Hon. James H. Bell. This suit was originally instituted on the 19th of April, 1856, by Rudolph Brock and Rica Hernshein as administrators of Joseph Hernshein, deceased, for the use of Charlotte Somers, the appellee, against Henry Martel, James T. Patton, administrator, and Charles Martel, infant heir of Frederick Martel, deceased, William Gr. Webb, John T. Harcourt and A. R. Jones, defendants.

Tried below before the Hon. J. M. Maxey, This was an action of trespass to try title brought by the appellees as administrators of Frost Thorn, deceased, against Daniel Dailey and several other persons. The land in controversy was a portion of a five league tract granted in 1834 by the Mexican government to Gavino Aranjo. Both parties claimed under the grant, the validity of which was-consequently not questioned.

Error from Galveston. Tried below before the Hon. Peter W. Gray. This was a suit brought by defendants in error against plaintiff in error, for articles of merchandize sold and delivered to him. The facts are sufficiently indicated in the opinion of the court.

Tried below before the Hon. J. M. Maxey-.. Seaborn J. Bennett and N. H. Davis, as executors of Joseph L. Bennett, deceased, and Jas. E. Word, brought this suit to the Fall Term, 1854, of the District Court of Polk county, against Farris, the appellant, and William Cochran, defendants.

Error from Grimes. Tried below before the Hon. P. W. Gray. The plaintiffs in error, as the next of kin and heirs of Jesse Harris, instituted this suit against the defendant in error, for the purpose of removing clouds from their title to one-third of -a league of land, and to quiet them in. the possession thereof.

Tried below before the Hon. Peter W. Gray. This suit was brought by Adam Thomas, the appellee, against John C. Cain, the appellant, to require him to deliver up a deed to a lot of land, to have the same declared null and void and canceled. The plaintiff claimed under a sheriff’s deed, dated 15th day of June, 1854. The lot was sold to satisfy a judgment, rendered a justice’s court on a note executed on the 23d day of November, 1853, by W. Wood in favor of John Kennedy.

Tried below before the Hon. P. W-Gray. This was an action of trespass to try title, instituted originally in Polk county to the Fall Term, 1847, of the District Court, by James Davis and Charles S. Taylor against George Williams, theappellee, for a tract of land in the county of Polk.

Tried below before the Hon. Peter W. Gray. Appellee sued appellant in the District Court of Fort Bend county, alleging that he was the owner of certain premises constituting the homestead of the plaintiff and situated in the town of Richmond in said Fort Bend county; that the defendant, the Buffalo Bayou, Brazos and Colorado Railway Company was a body Corporate, established and created by the legislature of the ¡State of Texas, and was engaged in the construction of a…

Tried below before the Hon. P. W. Gray. The appellant, Bethje, instituted this suit before a justice of the peace, for the value of cattle and hogs, killed and injured by the appellee in running its trains. In the justice’s court the plaintiff recovered judgment for forty-nine dollars and costs. The appellee thereupon took the cause to the District Court by certiorari.

Error from Galveston. Tried below before the Hon. P. W,Gray. * This suit was instituted by Silver, the defendant in error, to the Spring term, 1857, of the Galveston District Court, against the plaintiff in error, and John S. Rhea.

Tried below before the Hon. James M., Maxey. This was a suit brought by F. M. Lea, the appellee, against A. Thouvenin, the appellant, to recover pay for improvements. • F. M. Lea claimed pay for improvements under a parol contract between Thouvenin and D. D. Lea.. By this contract, made in 1851, Thouvenin agreed to sell a tract of land containing some three hundred and twenty acres at one dollar and fifty cents per acre, on a credit of five years.

Tried below before the Hon. P. W„ Gray. The appellant, as administratrix of Thomas J. Allen, deceased, brought this suit to the Fall Term of the District Court of Galveston county, against James F. Waddell, J. J. Gosler, D. D., Atchison, John J. Holt, G. W. Perkins, G. W. Oapron, W. F-Crow and C. A. Bulkley.

Tried below before- the Hon. Peter W. Gray. This was a suit brought by appellant, Y. Baker, against appellee, Lem. G. Clepper, in the ordinary form of trespass to try title' and for damages, to recover six hundred and forty acres of land. Jonathan T. Pounds owned the six hundred and .forty acres in controversy; also, one hundred and sixty aeres adjoining, which he claimed as a pre-emption. He owned, also, a small steam-mill, situated upon the pre-emption.

Tried below before S. D. Eay, Esq., special judge. The appellants, John W. and W. E. Fowler, brought this action of trespass to try title against Jesse Evans, the intestate of the appellee, on the 5th day of April, 1852. The land in controversy was a portion of the headright league of John E. Cummings, deceased.

Error from Washington. Tried below befóte the Hon. R E, B. Baylor. On the 11th day of April, 1856, O, Yale, Jr., & Co., recovered a judgment in the District Court of Washington county, for §2042 72, against Daniel Trabue, George Trabue and James H. Heard. In August and September, 1856, payments to the amount of §1568 07, were made, upon the judgment.

Tried below before the-'Hon. R. E, B. Baylor. This suit was brought by James L. Dallas, guardian of Lucinda: Dallas, minor child and sole heir of Walter R. Dallas, deceased, against the heirs of William S. Newman, deceased, to perfect the title to three hundred and twenty acres of land, located by virtue of a certificate, which was alleged to have been sold to the ancestor of plaintiff by the ancestor of defendants.

Error from Washington. Tried below before the Hon. R. E. B. Baylor. Suit by the plaintiff in error, A. Gr. Compton, against John S. Young and Elijah T. Boren, late partners in trade, upon two promissory notes, dated January 1st, 1853, for $1322 33, each, subject to a credit of $673 20, of date March 29th, 1853. The defendant Young accepted service of the writ.

Error from Washington. Tried below before the Hon. R. E. B. Baylor. On the 6th day of June, 1848, Tacitus Clay petitioned the judge of the District Court of Washington county for a writ of injunction. The petition alleged that Robert W. McCreary was employed by petitioner as his agent to attend to his business in the State of Texas. His agent took charge of the business and possession of the property of .plaintiff in Texas.

R. E. B. Baylor. Suit by the appellants, instituted on the 22d of November, 1855, against Robert A. Lott, Susan C. Lott, John R. Bertrand, Samuel Mills, Robert Mills, and B. G: Mills.

<p>The tendency of modern decisions is to the relaxation of the old rule that a-party to the record is not a competent witness.</p> <p>A party to the record may be called by the opposite party to testify against, his o«n interest if he is willing to do so ; a merely nominal party, who is not interested, is not disqualified simply because he is a party to the record; a party to a negotiable instrument may bo called as a witness to impeach the instrument, where he is not interested, or where he is called by the opposite party to testify against his own interest.</p> <p>A party who may be collaterally affected by the .judgment to be-rendered may have bis competency restored by a release, by the substitution of another person in his stead, or by a deposit of money; but otherwise, if the party called to testify is interested directly in the contract upon which the cause of action arises.</p>

Error from De Witt. Tried below before the Hon. Fielding Jones. Suit by the defendant in error against J. A. Wimbish, I. R, North, A. G. Stevens and Robert Brodnax, upon two notes under 'seal for $>1595 96 each, and for the foreclosure of a mortgage Upon land in De Witt county, given by Wimbish and North as Security for the notes sued on.

Error from De Witt. Tried below before the Hon. Fielding Jones. This case was formerly before the Supreme Court, and reported in the 21st volume of Texas Reports, page 256, to which reference is made for a statement of the case. Plaintiff below again obtained a judgment,- and defendants prosecuted an appeal. The facts upon which the second appeal was determined, are sufficiently disclosed in the opinion of the court.

Tried below before the Hon. George W. Smith. E. S. Cochran, the appellant, was indicted for selling spirituous liquors in less quantities than a quart, without first having obtained a license therefor.

<p>Appeal from Fayette. Tried below before the Hon. G-. W, Smith.</p>

This wás añ action of trespass to try title, brought by the appellant, Patton, against the appellees, M. T. King and M. H. Haynés, for the recovery of a tract of lahd in the county of Ka= The plaintiff, as evidence of his title, offered a power of attorney from Antonio Perez aid his wife, Jacoha Buena y Perez, to James H. Starr and Nathaniel A,mory, and also a deed from said Starr and Amory, as such attorneys in fact, to the plaintiff.

Tried below before the Hon. C. A, Bhazer. This was a suit of trespass to try title, instituted by the apelleé against the appellant, on the 7th of December, 1855, for the recovery of one-third of a league of land in Harrison county. The defendant answered with a general denial, the limitations of three and five years, and other matters not necessary to detail, The facts are fully stated in the opinion.

Tried below before the Hon. C. A. Frazer. The appellee brought this suit in the District Court of Wood county, upon a promissory note for $142 50, against S. Christie, the maker, who resided in Rusk county, and James N. Brown, the endorser, who was a resident of the county of Wood.

<p>Error from Smith. Tried below before the Hon. EL A, Beeves.</p>

Tried before the Supreme Court sitting at Tyler. Applicant petitioned for the writ of Habeas Corpus on the 13th day of May, 1863, alleging that he was illegally restrained of his liberty by S. M. Warner, in Smith county. Writ issued May 14, 1863.

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

Error from Harrison. Tried below before the Hon. R. A. Reeves. This was a suit of trespass to try title brought December 1st, 1856, by John W. Withie, the defendant in error, against Mosely, the plaintiff in error, and one Smiley, for one labor of land on the Big Cypress, opposite the town of Jefferson.

Error from Houston. Tried below before the Hon. 0. A. Frazer. This was an action of trespass to try title to a league of land in Houston county, brought by the appellant against the appellees on the 23d of September, 1857. The land in controversy was the headright of Edward Tyler. The plaintiff derived his title under a sale of the land by executions against Edward Tyler, at which sale, Charles Chevalier, the plaintiff in execution, was the purchaser.

Error from Fannin. Tried below before the Hon. William S. Todd. The defendants in error, Montague and Brown, in March, 1855, brought an action of trespass to try title against Renne Aired, the plaintiff in error. The land was situated, a part in Fannin, and a part in Grayson county. Plaintiffs below claimed under a patent to Montague, one of the plaintiffs.

Error from Cherokee. Tried below, before Hon. Charles A. Frazer.