Volume 27 — Texas Reports

Tried below before the Hon. C. A. Frazer. This suit was instituted by the appellee for the use of Weaver Cotton against G. W. Jones, William Brown, and C. C. Hawkins. The plaintiff Hays, as deputy sheriff of Rusk county, levied an execution in favor of Cotton upon a wagon and ox team, the property of Jones, the defendant in the execution. Jones, with Brown and Hawkins as his sureties, executed bis bond for the -delivery of the property to the sheriff on the day of sale.

Error from Cherokee. Tried below before the Hon. R. A. Reeves. The appellants, A. B. Stacy and Osborn Wells, brought this suit against the appellee on a promissory note for $132 18, bearing eight per cent, interest until paid.

Error from Hunt. Tried below before the Hon. William S. Todd. Suit by defendant in error against the plaintiff in error, on a promissory note for five hundred dollars. Judgment by default at first term in favor of the plaintiff.

Tried below before the Hon. Wm. S. Todd. This suit was brought on the 26th day of August, 1856, by the. appellee as administrator of Jesse Have, deceased, against the appellant, for the recovery of twenty-nine town, lots in the city of Jefferson. Certain other parties, who had purchased some of the town lots from the appellant, were also made defendants. In his original petition, the plaintiff alleged the death of Have in 1849, and Ms appointment as administrator .in 1852.

Tried below before the Hon. William S. Todd. This Was a suit by the appellee, John. W. Withee, against appellant, Ambrose Ripley, for damages which he alleged to have-Sustained by reason of an assignment of a forged bounty warrant. Appellee pleaded the limitation of two years-. The petition was-filed the 18th day of September, 1857. The- following evidence- was introduced—“the certificate as follows, to wit: “ Republic of Texas, No. 177, L. 820.

Error from Lamar. Tried below before the Hon. W. S. Todd. The defendants in error, David Bowerman and others, the heirs of Joshua Bowerman, deceased, sued out their writ of certiorari from the District Court directed to the County Court of Lamar county, for the purpose of revising and settling the accounts and settlements of William M. Williams, administrator of the estate of said Joshua Bowerman, deceased, and in order to vacate and set aside an order of sale of lands of…

Error from Gilmer. Tried below before the Hon. 0. A. Frazer. This suit was brought by James M. Long, appellee, against Allen Johnson, the appellant, on a note given by Johnson to Long, in part payment of the purchase money for a tract of land, and to subject the land to the payment of the note.

Error from Jasper. Tried below before the Hon. A. W. 0. Hicks. Suit by Eliza Carroll against Fountain Holliman, sheriff of Jasper county, and Z. W, Eddy, J. E. Armstrong and R. C. Doom, his sureties on his official bond. Petition filed August 4, 1854.

Tried below before the Hon. A. W. 0. Hicks The appellant, as guardian of two minor heirs of Asa Hickman, deceased, instituted this suit against Abel Adams, R. A. Eeyland and Henry C. Hicks, .the appellees, for the recovery of a slave named Abe, who, in the distribution of Hickman’s estate, had been allotted to the said minors; and which slave, it was alleged, had been decoyed by some of the defendants to the county of Jasper, and there wrongfully seized by them by a writ of…

Error from Rusk. Tried below before the Hon. C. A. Frazer. Suit by Benjamin F. Thompson and Taylor Brown, defendants in error, against Maria J. Cornelius, guardian of Thomas J. Cornelius, alleging that plaintiff and the said Thomas J. Cornelius made and delivered to one James H. Griffis, executor of the estate of Daniel Rowe, deceased, their joint and several promissory note ; that plaintiffs were the sureties upon said note; that Thomas J. Cornelius was the principal; that…

<p>The statute of limitations of ten years will run against a suit by the State upon a tax collector’s bond.</p> <p>Where an amendment sets up a new cause of action, it is subject to all defences which might have been made if the suit had been instituted at the time the amendment was filed.</p> <p>In a suit upon an assessor’s bond, in which the cause of action is the failure to pay over the money, and where the original petition charged that the failure was to pay the money collected upon the assessment for one year, and the amendment averred the failure to pay upon the assessment of another year'—held, that the amendment set up a new cause of action.</p>

<p>Error from Red River. Tried below before the Hon. William S. Todd.</p> <p>This cause originated in the County Court of Red River county, being an application by the plaintiff in error for the probate of the last will and testament of Sally Holman, deceased. The testatrix was a resident of the county of Goochland, in the State of Virginia, where her will was executed on the 1st day of March, 1852. By this will the testatrix devised all of her property, real and personal, to several of her children, of whom the plaintiff in error was one; and to her daughter, Elizabeth Sarah Hopkins, one of the defendants in error, she bequeathed one dollar. The latter, with her husband, contested the probate of the will.</p> <p>The bulk of the property mentioned in the will consisted of land and negroes in Red River county, in this State. The will was subscribed by two witnesses; but it appeared by their evidence that they were not both present at the same time witnessing the execution of the will, nor did they sign as witnesses in the presence of each other. For which reason the will was invalid, according to the law of Virginia.</p> <p>' The County Court having refused to admit the will to probate, the plaintiff in error removed the cause by certiorari to the District Court, where, at the July term, 1859, a similar judgment was rendered, from which the cause is brought up by writ of error.</p>

<p>See the pleadings and facts in this case, in which it was held that the facts did not authorize the presumption of a grant, and that the facts proven and the allegations of the petition, taken together, repelled the presumption of a grant prior to the enactment of the State colonization law of 1825.</p> <p>A grant issued by the primero vocal or political chief of the department of Texas in 1824, passed no title to the grantee. Jones v. Garza, 11th Texas-R., 186, cited as decisive of .the point.</p> <p>A grant, made in 1825 or 1826, of land situated within the border leagues, would be ineffectual to pass title, unless the consent of the federal executive of Mexico were also shown.</p> <p>The consent of the federal executive will not be presumed in behalf of a grant resting upon a presumption; nor will the, consent of the executive in such a case be presumed unless his consent has been alleged.</p> <p>There must be proper allegations upon which to found presumptions as well as proof.</p> <p>The case of Taylor v. Watkins, 26 T. R., 688, referred to, in which the principles upon which presumptions of grants rest, are discussed.</p>

<p>Appeal from Fannin. Tried below before the Hon. W. S. Todd.</p> <p>In this suit, the original plaintiff, John B. Jamison, as trustee, alleged in substance, that on the 18th of November, 1850, one Marshall Jamison, in the State of Tennessee, for a good consideration, made to plaintiff a bill of sale for certain slaves, among them one named Jane, aged about 19 years at the institution of this suit, in trust for the sole and separate use of Mrs. Elizabeth M. Nicholson, wife of Malachi H. Nicholson, and the children of their bodies, free from the control of her said husband; that Jane had been delivered to Elizabeth M. Nicholson; that her husband in the year 1858, had sold the negro woman for the payment of his debts; the negro woman had one child; was held and claimed by defendant Ransom White. Suit for possession of Jane and her child, and for value of her hire.</p> <p>The original plaintiff having died, his death was suggested, and R. A. Burney appointed trustee by the court. t</p> <p>The defendant in his answer alleged, that Elizabeth M. Nicholson was the real party to the suit; that she had joined with her husband in a bill of sale of said negro woman, for a full consideration paid, to one E. R. Myrick; that Myrick had sold her to one Churchill Beale; that the latter had sold her to defendant, having, paid a full value for her.</p> <p>On the trial, the plaintiff offered the depositions of Marshall Jamison (which included a copy of the deed of trust as described in the petition,) in proof <3f the execution, delivery, contents and purport of the deed of trust from Marshall Jamison to John B. Jamison; to which testimony the defendant objected; whereupon the plaintiff proved that his attorney had inquired of the original plaintiff in this suit, now dead, and also of Elizabeth M. Nicholson, for the deed of trust, and that they both stated to said attorney of plaintiff that they did not know where the original deed of trust was, upon which proof the court admitted the deposition of Marshall Jamison, proving the execution and contents of the deed of trust. In the same depositions, Marshall Jamison stated that he had the'original deed recorded in Tennessee, and had delivered it to Mrs. Elizabeth M. Nicholson; did not know what had become of it; that the copy appended to his answer was a true and correct copy.</p> <p>The defendant offered in evidence the bill of sale, which, he alleged in his answer, had been made by Mrs. Nicholson and her husband to E. R. Myrick, for the negro woman Jane. Upon objection, it was excluded, upon the ground that it was executed by a married woman, but not duly and legally acknowledged by her.</p> <p>Verdict and judgment for plaintiff. Motion for new trial overruled. Appeal by Ransom White.</p> <p>Among other errors assigned, was the following, to wit:</p> <p>“The court erred in permitting a deed of trust purporting to be in writing and recorded in Williamson county, Tennessee, to be proven as to contents and execution, by parol evidence, without showing that-the same was lost, or destroyed, or accounting for its non-production, and that the record thereof in Tennessee had been destroyed.”</p>

<p>Appeal from Rusk. Tried below before the Hon. C. A. Frazer.</p> <p>This was an action of trespass to try title, brought, by Baker, the appellant, against Elizabeth Ramey, one of the appellees, for two lots in the town of Henderson, and the Mansion House hotel situated thereon.</p> <p>The property in controversy, with other lots, was sold by Baker on the 28th of December, 1858, to Joel B. Crain and George H. Ramey, as partners in the business of hotel-keeping, who executed their note to Baker for $2800 as the purchase money, payable on 1st of March, 1854, with the privilege of payment in cash notes at any time before maturity. On the same date, Baker executed his deed for the property sold, to Crain and Ramey, reciting therpin that it was made “for and in consideration of the note, conditions and stipulations hereinafter specifically set forth.” The deed then described the property conveyed and the note for the purchase money, and proceeded, “which said principal note, and the notes received thereon as purchase money, are hereby created as a lien upon the same, until the same and all costs arising from suit on the same are discharged;” and subsequently provided that the deed should be “ subject to this defeasance or condition only above stated, that the said notes received thereon, with all cost and interest, are discharged as the purchase money.”</p> <p>On the 18th of April, 1854, Baker instituted suit on the note against Crain & Ramey, admitting credits to the amount of $1044. This suit was continued from term to term until the spring of 1857, when Baker amended his petition, and alleged that the note was given for the purchase money of the property already described; and that Crain & Ramey, the defendants, were partners, and purchased the property as partnership property, and further suggested the death of Ramey, and discontinued the suit as to him. At the Spring Term, 1857, there was judgment rendered in this suit in favor of Baker against Crain, as surviving partner, and a decree for a sale of the property to satisfy the judgment. The property was accordingly sold by the sheriff, under execution, on the first Tuesday in July, 1857, when Baker became the purchaser upon his bid of the amount of the judgment and costs.</p> <p>The deed of the sheriff to Baker, made in pursuance of this sale, was the title asserted by the latter in his present action of trespass to try title against Elizabeth Ramey, the widow of George H. Ramey, in which he sued out a writ of sequestration, under which the sheriff dispossessed the defendant, Mrs. Ramey.</p> <p>The defendant excepted and answered, alleging the facts above stated, and that on the 28th of December, 1854, pending the suit of Baker against Crain and George H. Ramey, Crain, in consideration of the payment to him of $2000, sold to said Ramey, by warranty deed, all his interest in the property sued for; that since the sale of the property by Baker to Crain & Ramey, in Decernber, 1853, it had been occupied by Ramey, deceased, with the defendant, his widow, and their four children, as their homestead, up to the ejection of defendant and her children, by the sheriff, under the writ of sequestration issued in this cáse; that Crain & Ramey and this defendant had put improvements on the property to the value of about $3000; and that since the eviction of the defendant by the writ of sequestration, the rents and profits of the premises had been worth $1000 per annum; that Baker, the plaintiff, had never had a valid title to the property, but that the title to an undivided half thereof was in the heirs of Noveline Ochiltree, deceased. And in consideration of the premises, defendant demanded judgment against plaintiff for the possession of the property, for rents and profits since she was dispossessed, and for her damages incurred thereby.</p> <p>There were numerous 'exceptions and amendments upon both sides.</p> <p>Eventually, the plaintiff, protesting that his purchase of the property under the decree against Crain, as surviving partner, invested him with title to all the interest both of Crain and Ramey, amended his pleadings and claimed, in case he was held not to have acquired title to Ramey’s interest, that his lien as vendor be enforced against the same; that his bid at the sale, under the decree, was made in the belief that he was purchasing the whole interest of Ramey as well as Crain; that at the time of the decree in the suit upon the note, (referred to in the opinion as No. 1137,) Ramey was dead, and there was no administration on his estate; that subsequently thereto, his widow, the defendant, and James McBride had obtained letters of administration; that plaintiff had presented to them, within due time, the note for the purchase money, with his affidavit thereto, that it was a just demand against Ramey’s estate unless he, the plaintiff, had acquired Ramey’s interest by his purchase under the decree against Crain as surviving partner; and that the administrators rejected it as a claim against the estate. The administrators and heirs of Ramey, deceased) were made defendants.</p> <p>In answer to these amendments the defendants adopted all their former exceptions and answers, and further alleged the presentation to Ramey’s administrators of the note, as stated by the plaintiff, and their rejection of it; and that it was barred by limitation, because the plaintiff had not brought suit upon it within three months after its rejection; and, also, because more than four years had elapsed from the maturity of said note up to the filing of plaintiff’s amended petition, setting it up as a cause of action in this suit. The plaintiff excepted to this answer, and his exceptions were overruled.</p> <p>At the trial, the defendants abandoned their plea of outstanding title in the heirs of Noveline Ochiltree.</p> <p>The court instructed the jury, in substance, that the plaintiff, by his purchase under the decree, acquired one undivided half interest in the property; and directed the jury to find specially whether the writ of sequestration was wrongfully sued out by the plaintiff to oppress Mrs. Ramey, in which case, they could allow her exemplary damages; that in case they found for the plaintiff one-half the property, they should find for the -defendants half the rent of it for the time they had been dispossessed under the sequestration; that they would, also, find the amount of purchase money due on the judgment against Crain, as surviving partner at the date of the sale by the sheriff; and, also, the amount of damages done to the property since the eviction of Mrs. Ramey under the sequestration.</p> <p>The verdict returned .was as follows: “We, the jury, find for the defendants two hundred and fifty-seven dollars and sixty-four cents; when the above amount is liquidated by the plaintiff, then the property to belong to the plaintiff and the defendants as partners, each holding equal parts in said property.</p> <p>“We find the amount of the judgment at the date of sale by the sheriff,.....................................$1801 02</p> <p>“ Cost and interest to date,. „,................... 420 00</p> <p>$2221 02</p> <p>•“The amount of damage, rents, &c., in favor of Mrs.</p> <p>Ramey,.....................................$1358 14</p> <p>“Do., do., in favor of M. Baker,..................$1358 14</p> <p>“We find that Crain and Ramey were partners in the purchase <of said lots, &c.; .and we find that Mrs. Ramey was the wife of the said George H. Ramey, and that the said children are the children of the said George H. Ramey, deceased.” ,</p> <p>Upon this verdict a decree was rendered, and at a subsequent day of the term was set aside, and an amended decree entered, adjudging to the plaintiff title to one undivided half of the property, and to the defendants the other half, and directing a partition by commissioners; and that the defendants recover of the plaintiff $257 64, according to the verdict.</p> <p>The plaintiff moved for a new trial, which was refused. Errors-are assigned by both parties.</p>

Tried below before the Hon. R. A. Reeves. This was a suit of trespass to try title brought by Benjamin R. Wallace and William W. Wallace, appellants, against William Wilcox, one of the appellees, for a half league of land in Cherokee county. William Wilcox stated, that he was tenant in possession under William Scott and Edmund Scott, and disclaimed all title in himself.

Error from Cherokee. Tried below before the Hon. R. At Reeves. This action was brought by the appellants to recover damages from the appellee for removing part of the bridge of the plaintiffs across the Angelina river, so as to permit the boats of the defendant to pass down the stream.

Error from Rusk. Tried below before, the Hon, C. A. Frazer. Trespass to try title, brought by the plaintiff in error against the defendant in error, for three hundred and twenty-six acres of land in Rusk county. The land in controversy was part of the headright of Daniel Clark, deceased, and was sold by B. A. Vansickle as guardian of his minor heir, under an order of the probate court of the county of Rusk.

Tried below before the Hon. C. A. Frazer. This suit was commenced by writ of certiorari issued by the district judge, on the petition of the appellee, to the County Court of Rusk county, for the purpose of correcting an order of that court amending its previous judgment of confirmation of an administrator’s sale, at which sale the petitioner was a purchaser of lands belonging to the estate of George Pierce, deceased. The facts appear sufficiently in the opinion.

<p>Error from Henderson. Tried below before the Hon. R. A, Reeves.</p>

Tried below in the District Court of Smith county. At the June Term, 1857, an indictment was returned against James Steen, for assault with intent to kill. On service of capias, he, as principal, and fourteen sureties, executed a bond in the usual form for his appearance at the next term of the court. At that term judgment nisi was rendered against James T. Steen, and all the sureties except H. Chambers.

Error from Red River. Tried below before the Hon. Wm. S. Todd. This is a suit by John Land and Matilda A. Land against H.. F. Murray, on a promissory note, .and to enforce the vendor’s lien on certain land.

<p>Appeal from Titus. Tried below before the Hon. William S. Todd.</p> <p>This is an action of forcible entry and detainer by Margaret Porter against James Hays, Rezen Hays and Jesse Hays. The suit was removed to the District Court, and a final trial had in August, 1860.</p> <p>The testimony on the trial was as follows:</p>

<p>The last proviso to the statutory provision contained in art. 89, O. & W. Dig., prohibiting a joint suit against two or more assignors except upon a joint assignment, forbids the joinder as defendants of an immediate and a remote indorser of a bill of exchange or a promissory note, in an action against the maker.</p>

<p>Error from Hunt. Tried below before the Hon. Wm. S. Todd.</p> <p>This was a suit brought by M. H. Wright and H. Hart against Farr and his wife, Louisa F., on the promissory note of the husband given by him for the purchase money of a tract of land deeded to the wife. Ho other facts were alleged fixing the wife’s responsibility.</p> <p>Following the prayer of the petition, judgment by default was rendered against both defendants for the amount of the note, and ordering the sale of the land.</p> <p>Defendants prosecuted this writ of error, assigning among other things that the court erred in rendering a judgment against the wife, Louisa F. Farr, for more than the vendor’s lien and in rendering judgment against her for the amount of the note.</p>

<p>The obligor in a bond covenanted to obtain for the obligee, within three years, title to the land occupied by the latter as his pre-emption claim, provided the land was vacant; or, if the land was not vacant, that he would refund to the obligee the money paid him by the latter—he’d, that time was not of the essence of the contract.</p> <p>Though not stipulated in such bond that the obligee should appear before the proper authority, and make the proof required by law, in order to enable the obligor to perform his part of the contract, yet such an undertaking, on the part of the obliges, is to be necessarily implied; and if, in consequence of his faitee so to appear when requested by the obligor, the latter fails to comply with his contract within the time prescribed, the obligee is not thereby entitled to regard the contract at an end, orto proceed, in disregard of the contract, to obtain the title himself.</p> <p>If, under such circumstances, the obligee proceeds to obtain the title himself, thereby putting it out of the power of the obligor to perform his contract, the obligee is not entitled to recover from the obligor the money paid by him to the latter as the consideration of the contract.</p>

Tried below before the Hon. C. A. Frazer. This action was instituted by the appellant against the appellee to recover damages for injury sustained by a slave, the property of the appellant, while in the possession and under the control of the appellee.

<p>The respondent on an application for the writ of habeas corpus cannot appeal ' from a judgment of the District Court, or a judge sitting in chambers.. An appeal in such cases is restricted to the applicant.</p> <p>A proceeding upon a writ of habeas corpus, when not used to relieve against . illegal restraint under a criminal charge, cannot, in the proper sense of the term, be regarded as a civil suit; it should rather, it seems, be held the exercise of a special jurisdiction conferred by the constitution and laws, upon either the courts or judges, for the prompt relief of the citizen against any improper interference with his personal liberty.</p>

Tried below before the Hon.R S. Walker. Indictment against the appellee, quashed on his motion. The district attorney appealed on behalf of the State. Motion of appellee to dismiss for want of a sufficient recognizance, the character of which sufficiently appears in the opinion.

Tried below before the Hon. R. A. Reeves. This suit was originally brought in a justice’s court, by the appellee John Cooper, against John McCrimmin and others, appellants, on a subscription paper for building a bridge, to which appellants were subscribers. There were two jury trials before the justice, both resulting in favor of the defendants. The plaintiff then removed the cause by certiorari to the District Court and obtained judgment, from which the defendants appealed.

Tried below before the Hon. A. W. Terrell. This case was formerly reversed and remanded by this, court, see Erskine v. Wilson, 20 Tex. Hep., 77, to which reference is made for a statement of the case and the facts adduced on the .former trial. Three other trials were had, and judgments for plaintiff. On the last trial, the same facts were introduced in evidence as on the trial in which the judgment was rendered that was reversed as above stated.

Tried below before the Hon. E. H. Vontress. The appellants as heirs at law of Thomas Reese, deceased, brought this suit against the appellee for the recovery of a tract of land in Burnet county, and for the cancellation of a deed to said land executed to the appellee by John P. Powers, as the agent and attorney in fact of the said Thomas Reese, deceased.

Tried below before the Hon. Fielding Jones. This case was formerly before the Supreme Court, and was reversed and remanded. (See May v. Taylor, 22 Tex. Rep., 848.) On the 4th day of September, 1855, G. H. G. May executed a note, payable six months after date, to Pleasant Taylor, administrator of the estate of George H. Walworth, deceased, for $2303, being the amount of the purchase money of a tract of land purchased by G. H. G. May, at a public sale made by the administrator.

Tried below before the Hon. Fielding Jones. This was a suit of trespass to try title brought by the appellants, Darst and Jones, against the appellee, Henry Trammell, to recover a labor of land, and for damages.

Appear from Limestone. Tried below before the Hon. N. W.. Battle. Suit by the appellee against R. T. Mickie, M. W. Mickie and S. B. Hudson, on an arbitration bond, for breach of which the plaintiff alleged that the defendants had failed and refused to execute to him a release of a deed of trust upon certain slaves, as required and bound to do in accordance with the award of the arbitrators.

Tried below before the Hon. John Gregg. Trespass to try title, instituted by the appellee against John Chamblee, William M. Newton, and William Hinton, defendants, for the recovery of one-fourth of a league of land in Falls county. The plaintiff deraigned his title from the defendant Chamblee by virtue of sheriff's sale under execution, made on the 6th of February, 1844, the nature of which execution is explained in the opinion of the court.

Tried below before the Hon. 14. W. Battle. On the 17th day of July, 1858, W. N. Hall, the appellee, filed his petition in the District Court of said county, against Harrison W. Hall and Henderson H. Hall, merchants and partners, using the name of H. W. Hall & Bro.

Error from Gonzales. Tried below before the Hon. Fielding Jones. James A. Crawford, the defendant in error, filed his petition iq the District Court of Gonzales county against one James M. Williams and the plaintiff in error, E. H. Spaulding, on a bond.

Error from Robertson. Tried below before the Hon. N. W. Battle. This was an action of trespass to try title brought by Joseph W. Williams, Eliza E. Williams, his wife, William Purdy and David Purdy, plaintiffs in error, against William Talbot, Charles P. Talbot and James B. Talbot, defendants in error, to recover a league of land, and for damages.

Error from Ravarro. Tried belovf before the Hon. John tiregg. The plaintiff in error became an intervenor in the suit of D. R. Mifchell and another, against the defendant in error as administrator of R. H. Porter, deceased. The original suit was commenced by writ of sequestration, and involved certain negro slaves, who were claimed by the administrator to belong to Ms intestate.

<p>Error and AppSal from Bexar. Tried below before the Hon. Thomas J.- Devine.</p> <p>This suit was instituted to the Spring Term, 1857, of the Bexar District Court, by Adalicia Acklin, joined by her husband, Joseph A. S. AcMin, against F. L. Paschal and wife, Ira L. Hewitt and' others deriving title under Paschal and wife, and also against the trustees of the Methodist church of the city of San Antonio, who also claimed under Paschal, for the recovery of. a certain lot or parcel of ground in San Antonio.</p> <p>In their original petition the plaintiffs claimed the Whole of the property in controversy, but by an amendment reduced the claim to one undivided half of it.</p> <p>The defendants pleaded the general issue, -and the limitations of three and. five years, and suggested valuable improvements made in good faith. In an amended answer, filed on 23d of March, 1858, they further alleged that Isaac Franklin, deceased, under Whom the plaintiffs claimed by inheritance, departed this life in the year 1845, leaving his last will and testament, by the provisions of which all his property in all common-law States where trusts could be created was bequeathed to trustees, for the purpose of erecting and endowing ’a seminary of learning to be established in Sumner county, Tennessee, and to be called the “Isaac Franklin Institute.” That the State of Texas was, at the time of the death of said Franklin and at the date of said last will and testament, a common-law State; and that all the land owned by said Franklin within said State of Texas, by virtue of said will, passed to and became vested in said trustees, for the use and benefit of said institute so to be established. That said last will and testament was duly probated and ordered to be executed by the competent tribunals of the States of Louisiana and Tennessee; and that the trustees named in said will, and those substituted in their place, proceeded to execute the trust. That the State of Tennessee, in December 1841, incorporated the trustees of the Isaac Franklin Institute, which corporation still continues. That the plaintiff, Adalicia Aeklin, at various times and occasions, treated and contracted with said trustees, and acknowledged the rights of the said institute under said will, whereby the plaintiffs' are concluded.</p> <p>At the same term, Joseph H. Aeklin and William D. Aeklin, minors, intervened by their next friend, Joseph D. Wade, and claimed an interest in the property in suit, “by virtue of their heirship from Emma Franklin, deceased, 'half sister of these inter* venors, and the last surviving child of the marriage of Isaac Franklin and Adalicia Franklin, now Adalicia Acklin.” Wherefore the interveners prayed to be adjudged the owners of such portion of the property in controversy as they Avere entitled to under the laws of descent and distribution of this State.</p> <p>The cause came to trial at the Fall Term, 1858. The plaintiffs offered in evidence a deed or act of sale executed by Pleasant Branch Cocke, on the 5th day of July, 1837, before a notary public in the city of New Orleans. By this instrument, Cocke conveyed the one undivided half • of certain lands in Texas, including the property in controversy, “unto James H. Shepperd of the city of New Orleans, (the legally constituted attorney of Isaac Franklin of this city, by an act passed before me, notary, on the 15th of May in the present year,) here present, and accepting for the said Isaac Franklin, his heirs and assigns,” &c.</p> <p>The plaintiffs further proved that the plaintiff Adalicia was the widow of Isaac Franklin, formerly of Sumner county, Tennessee, who died at one of his plantations in Louisiana, on the 27th of April, 1846. That Isaac Franklin and his said Avife had, as issue of their marriage, three daughters, two of whom died in June, 1846, and the third, Emma, died in the year 1855. That in May, 1849, the widow of said Franklin, being the present plaintiff Adalicia, married Joseph A. S. Acklin, now associated with her in the prosecution of this suit.</p> <p>It was admitted that the intervenors, Joseph H. and William D. Acklin, Avere the half brothers of Emma Franklin, deceased, and as such were joint heirs with their mother, Adalicia Acklin, of any rights that Emma Franklin may have died possessed of in the State of Texas.</p> <p>It was admitted that the co-defendants of F. L Paschal claimed under warrantee deeds from him. The defendants put in evidence a quit-claim deed from R. R. Barrow to F. L. Paschal, made in the year 1851, for the property in controversy. They also read in evidence a transcript from the records of the probate court of the parish of West Feliciana, State of Louisiana, containing the petition for the probate of the last will and testament of Isaac Franklin, and that instrument itself together with its probate, &c. By this will, which was executed on the 24th of May, 1841, the testator, after making ample provision for his widow and children, with bequests to other relatives, made the following general disposition of his estate: “I give and bequeath all my property, real and personal, of whatever kind or nature, that is situated in the States of Tennessee and Mississippi, or any other common-law States, where trust estates can be created, together with my bank stocks, and effects and credits, and in case I should have no other children by my said marriage except my said daughter Victoria, then two-thirds of all my property, movable and immovable, •that is situated in the State of Louisiana,—but if there should be two children bom of said marriage, then only an undivided one half of all my said property, movable and immovable, slaves, &c., that is situated in said State of Louisiana; and if there should be three or more children born of said marriage, then I ■only give an undivided one-third part -of my said property, movable and immovable, slaves &c., that is situate, lying and being in said State of Louisiana,—and also the rest and residue of my estate, wherever situated, in trust to my two brothers, James and William Franklin, of Sumner county aforesaid, for the following purposes, to wit,” &c.</p> <p>The will then proceeded to declare the trusts upon which this •devise was made,’ the object of which was the erection, endowment and maintenance of an academy or seminary on the testator’s “Fairview plantation” in Sumner county, Tennessee, “for the -education, board and clothing of the children of my brothers and .sisters and their descendants, as well as my own children and their descendants, in the best and most suitable and proper manner for American youths, having a particular regard to a substantial and good English education, and such other higher and ornamental branches as the aforesaid revenues, fee., will enable my said trustees to accomplish; and if the revenues, &c., should be sufficient therefor, I also wish that the poor children in said county of Sum- ! ner, of unexceptionable character, and such as my trustees may select, should likewise be educated and supported during the time at the same seminary; and after the death of my aforesaid brothers, it is my will and desire that the aforesaid trust shall be' continued and pass over forever in the heirs of my said brothers, and that the magistrates of the County Court of said county of Sumner and State of Tennessee, and their successors in office, be thereafter the perpetual superintendants of the aforesaid seminary, to see that my intentions be fully carried into effect.”</p> <p>Upon, the transcript thus put in evidence by the defendants-, was an endorsement signed by the attorneys of the plaintiffs and the interveners, as follows : “We hereby waive the filing and recording of the within instrument, specially reserving all other rights and exceptions thereto.”</p> <p>The plaintiff objected to the introduction of the said transcript, “ on the ground that said copy did not emanate from the proper' authority having custody of the original of the will, nor did said copy emanate from the court before which said will was probated.” The court overruled the objection, and the plaintiffs excepted.</p> <p>The defendants, also, read in evidence a notarial copy of an instrument by which the plaintiff Adalicia, on the 12th day of December, 1846, accepted the provisions of the said will of Isaac Franklin, her deceased husband, and renounced all rights of community, dower, or otherwise, to which she might be entitled by the laws of Louisiana, Tennessee, or other States wherein the property of said Franklin might be situated; but specially reserving all rights to which she was entitled as mother and heir of her two daughters by said Franklin, who died in June, 1846.,</p> <p>Other documents pertaining to the estate of Isaac Franklin, comprising the inventory amounting to §448,886, and the act of Tennessee incorporating the Isaac Franklin Institute, were, also, put in evidence by the defendants, but are not necessary to be here noticed in detail.</p> <p>In rebuttal of the title set up by the defendants under the deed from Barrow to Paschal, the plaintiffs offered in evidence a deed or act of sale executed to Barrow by Pleasant Branch Cocke, before a notary public in the city of New Orleans, on the 22d day of March, 1839. By this instrument Cocke conveyed to Barrow certain interests in divers tracts of land in Texas, comprising the property in controversy, which, it was recited, he owned “ conjointly with Isaac Franklin.”</p> <p>The court below, after explaining to the jury the nature of the claims advanced by the plaintiffs, the intervenors, and the defendants, instructed them as follows : “ 4th. To entitle the plaintiffs? and intervenors to recover, they must show, to your satisfaction, a title in themselves, or those under whom they claim. 5th. It is not necessary for the plaintiffs to show a continuous chain of title in writing from the Barón De Bastrop down to Isaac Franklin. A verbal sale of the land in suit by one or more of those owning or having the power to dispose of it, if made before the year 1840, is as complete legal evidence of a sale of the land, as if such transfer was by deed or other instrument in writing. 6th. If you believe, from the evidence, that Adalicia Acklin is the surviving wife of Isaac Franklin, and that Franklin, at the time of his death in 1846, was the owner of one-half of the land described in plaintiffs’ petition, you will so state in your verdict, either in the affirmative or negative. 7th. If you find in the affirmative, you will next enquire and state, if you find in the affirmative, that the intervenors, Joseph H. and William D. Acklin, are the half-brothers of Emma Franklin, deceased. 8th. You will next enquire from the evidence, is the document marked A the last will and testament of Isaac Franklin, deceased; and you will state in the affirmative or negative, as the case may be. 9th. You will next enquire, from the evidence, did Mrs. Franklin, (now Mrs. Acklin,) voluntarily, and for a valuable consideration, accept and agree to the terms and provisions of her husband’s will ? If you find in the affirmative, you will say so; if in the negative, you will say so.”</p> <p>The verdict returned was as follows: “ We, the jury, believe from the evidence before us, that Adalicia Acklin is the surviving wife of Isaac Franklin, deceased; and that said Isaac Franklin, at the time of his death, in 1846, was the owner of one-half of the land described in the petition of plaintiffs. ' 2. We also believe, from the evidence before us, that the intervenors Joseph H. and William D. Acklin, are the half-brothers of Emma Franklin, deceased. 3. We further believe, from the evidence before us, that the will or document marked A is the will and testament of Isaac Franklin, deceased. 4. We do not find, from the evidence before us, that Adalicia Acklin, surviving wife of Isaac Franklin, deceased, did receive a valuable consideration for voluntarily agreeing to the terms and provisions of the will and testament of said Franklin, deceased.”</p> <p>Whereupon it was adjudged and decreed by the court that the plaintiffs and intervenors recover three-fourths of one-half of the land in controversy, of which three-fourths the plaintiffs have thirty-three forty-eighth parts, and the intervenors fifteen forty-eighth parts; for the partition of which, commissioners were appointed, with directions to report at the ensuing term. The plaintiffs gave notice of appeal.</p> <p>The co-defendants of Paschal and wife moved the court to instruct the commissioners, in their partition of the property, to first set apart the portion of the property held by Paschal to the plaintifls, to the extent of their recovery, inasmuch as it was in proof that these defendants held under said Paschal by warrantee deeds. This motion was overruled, and these defendants appealed.</p> <p>The defendants moved for a new trial, assigning for cause that the charge of the court was contrary to law, and the verdict of the jury contrary to the evidence. The motion was overruled, and the defendants gave notice of appeal.</p> <p>The defendants Paschal and wife bring the cause up by writ of error; their co-defendants by appeal.</p> <p>The co-defendants of Paschal and wife assigned errors : 1st. Tn the instructions of the court to the jury. 2d. That the verdict was contrary to the evidence. 3d. That the judgment of the court was contrary to the law and the evidence. 4. That the court erred in overruling the motion to instruct the commissioners as to the mode of partition. 5. In overruling the motion for a new trial.</p> <p>The plaintiffs assigned as error, that the court erred in permitting the defendants to read to the jury the document purporting to be the will of Isaac Franklin.</p> <p>The plaintiffs and intervenors jointly assigned as errors that the court construed the will of Isaac Franklin , so as to make it •refer to lands in Texas; and that the court sustained the clause in the will containing a devise to charity.</p> <p>The defendants Paschal and wife also assigned errors to the instructions of the court and the verdict of the jury in general; and to the refusal of a new trial, “ the case made and proved not warranting the verdict or any relief whatever, the will really passing the property to the Franklin Institute, and there being no evidence to entitle Emma Franklin to any property in the locus in quo as a forced heir.” And fiirther, that “ the judge’s charge and whole action proceeded upon the notion of forced heirship, when Emma Franklin was never domiciled in Texas, and when the property passed by Franklin’s will to the Franklin Institute, and, therefore, an outstanding title was shown.”</p>

Tried below before the Hon. John Gregg. This suit was brought by appellants, as administrators of the estate of David R. Mitchell, deceased, against James H. Abbey and others, to have one-third part of a league and labor of land set apart to them, as administrators aforesaid, or to recover the value thereof in money.

<p>Appeal from Travis. Tried below before the Hon. George W. Smith.</p> <p>The appellant .brought an action of trespass to try title, in the District Court of Burnet county, to recover the south half of his headlight league of land, situated in Burnet county, and described by metes and bounds. The original petition was filed on the 20th day of January, 1857, and is in the usual form. At the Spring Term of the court following, the defendant moved the court for a change of venue, because the presiding judge had been of counsel in a branch of this cause, which was, granted, and the cause was transferred to Travis county. The defendant’s original answer, filed before the venue was changed, does not appear in the transcript, but on the 20th day of August, 1858, he files an amended answer, and sets up special defences in the shape of attacks on the plaintiff’s title, in which he denies that the plaintiff has any title to the land; denies that it was surveyed for him as his headright in 1835, or at any other time; and averring that if plaintiff ever had claim to the land, that the same was only an equity under the constitution and laws of the late republic, and now State of Texas, which he failed to perfect into a legal right within the time allowed him, and that, therefore, his claim, at and before he took the necessary steps to obtain title, was barred by the statutes of limitations of 20,10 and 5 years. He, also, sets up a claim to 320 acres of the land, which he alleges is secured to him by virtue of a pre-emption claim commenced by affidavit of settlement made on the 23d day of February, 1854. He further sets up a claim to 200 acres of the land by purchase through a regular chain of title from the plaintiff down to himself, which 200 acres is included in and covered by his 320 acre pre-emption claim.</p> <p>On the 7th day of December, 1859, the plaintiff filed an amended petition, setting up his emigration to the State of Coahuila and Texas as a colonist, and the head of a family in 1834, and his "right under the laws then in force to a league of land; that he applied to the proper officer, and had the league of land mentioned in his original petition surveyed for him as his headright; that he did perform everything on his part necessary to procure a title to said land, previous to the 1st day of November, 1835; but from some cause to him unknown, the title issued to him was not dated until after the Consultation had closed the land office; that he has never received any other land or certificate of headright as a colonist; that he was a resident citizen of Texas before and at the date of the declaration of independence; that he did not leave the country during the campaign of 1836, to avoid a participation in the struggle; that he did not refuse to participate in the war, and that hé did not aid or assist the enemy; alleging his continued possession, cultivation and improvement of said land.; his payment of government dues and taxes on the same from the date of the issuance of the title; that the government of Texas has confirmed, and recognized his title hy acquiescing in the same, and not contesting his right for more than 20 years, and by demanding and receiving the government dues and taxes on the same from the plaintiff; that Ms claim was delineated on the maps of the country, with Ms name written in the diagram thereof; that by reason of all the promises, under and by virtue of the laws of the State of Coahuila and Texas, and the constitution and laws of the late republic and now" State of Texas, plaintiff acquired an equitable title to the land, which equity was afterwards completed into a perfect and legal title by a grant of the land from the State to the plaintiff on the 1st day of September, 1856, directly made by the legislature of the State of Texas. By further amendment he admits the right of defendant to the 200 acres of land claimed by him under purchase through Wilbarger from plaintiff, but avers that the trespasses complained of were committed on that portion of the land in controversy, situated outside of and beyond the limits of the said 200 acres. He prays for judgment for Ms damages, rents and profits, and for possession of the land.</p> <p>On the 8th day of December, 1859, the defendant, by a farther amendment, continued his attacks on plaintiff's claim by averring the nullity of his paper title, because the same was issued during the time the land office was closed in 1835, hy the Consultation; that his pre-emption claim of 320 acres of the land sued for is not affected by the legislative grant of the land to the plaintiff, because the legislature expressly saves and reserves the rights of third parties; that defendant’s rights were acquired anterior to said legislative grant; that the plaintiff’s claim for rents is barred by the statute of limitations of two years; that since the institution of the suit, the defendant has obtained a patent for his said pre-emption claim of 320 acres; suggesting adverse possession and improvements made in good faith, and praying for general relief.</p> <p>On the 8th day of December, the plaintiff, by way of replication or amended petition, alleges that the patent issued to defendant ©n his pre-emption claim, was fraudulently issued without any authority of and in contravention of law; that the same is a cloud on his title, and asks to have it cancelled.</p> <p>On the trial, it was admitted that the Spier league mentioned in the petition of plaintiff, was surveyed in July, 1835. It was in proof that A. B. Spier came to Bastrop county in the fall of 1884 ; that he was the head of a family; had his family with him; has remained in the country ever since, and was living at the time of the trial upon the headright league which he claimed to have been granted to him as a colonist. The plaintiff then read a receipt of the commissioner of the general land office for the government dues “ on the league of land granted to Abner B. Spier on the 28th December, 1835.” The receipt was dated April 10, 1841. He, also, read a certificate of redemption of the league from the comptroller, (it having been sold for taxes,) dated 27th day of May, 1852; also a certified plat from the land office, showing that the Spier league was delineated upon the maps of that office; also, tax receipts for several years; also, a special act of the legislature, entitled an act for the relief of David J. Owen and Abner B. Spier,” passed September 1, 1856; in which the State “relinquished, granted and conveyed” to A. B. Spier the league in controversy, with the proviso that the “ act should not interfere with the rights of third parties.” He also proved that the defendant was in possession of some fifteen acres outside of the two hundred acre tract purchased of Wilbarger, and within the league claimed by plaintiff.</p> <p>The defendant read in evidence his affidavit, made before the deputy surveyor of the Milam land district, on the 24th day of February, 1854, “that he believed that he had settled on vacant land, and therefore claimed the right of pre-emption on three hundred and twenty acres, as the law provides;” also, the field-notes of the survey for the three hundred and twenty acres claimed by him as his pre-emption, dated the 7th July, 1854; also, a patent for the same, issued 29th day of November, 1859; also, a deed from A. B. Spier to Mathias Wilbarger for two hundred acres of said league, dated October 28th, 1848; also, a deed from said Wilbarger to defendant, for the two hundred acres, dated in April, 1851.</p> <p>The bills of exceptions ' of plaintiff recite that “ after he had proved his emigration to the country, the payment of the government dues, taxes, and his settlement upon the land, he offered in evidence a translated copy of a title issued on the 28th day of December, 1885, to him, for the land set out in his petition: First, as evidence of an ancient title or grant of land,' the same being more than twenty years standing, and having been recognized and acquiesced in by the late government of Coahuila and Texas, the late Republic of Texas, and the present State of Texas, receiving the government dues and taxes thereon, and permitting the plaintiff to remain on said land. Second, as evidence of the locality and boundaries of said land of which he was in possession, and also proof of title, as long continued possession, ■sufficient to raise a presumption of grant, which was objected to.” The objections were sustained, and the plaintiff excepted.</p> <p>The plaintiff, also offered to read a certified copy of the field-notes of said league, taken from the general land office, to show that they had been returned in said office prior to 1850, and previous to the time of the settlement of defendant; which evidence was excluded, and the plaintiff excepted.</p> <p>The court charged the jury as follows :</p> <p>“ The plaintiff has sued for the league of land, less 200 acres, admitted to have been sold to Wilbarger, and by him to the defendant. The defendant claims 320 acres of the league, including the said 200 acres; the defendant claims the 320 aeres as a preemptionist, by settlement and improvement, made on the same, and residence since 1853, and disclaims all right to the residue of the land. You are charged that the defendant has shown the better title, and you should find in your -verdict that the 320 acres claimed by the defendant is his property.”</p> <p>Instructions were asked by the plaintiff, submitting to the jury the determination of the facts involved in the issues made by the pleadings, which were refused by the court. The jury found a verdict for the defendant, and judgment was rendered accordingly. Plaintiff’s motion for new trial was overruled by the court, and: he gave notice of appeal.</p>

Tried below before the Hon. A. W. Terrell. This was a contest between Phillip Claiborne, the appellee, and O. K. Hall, the appellant, for letters of administration upon the; estate of J. C. Badford. J. 0. Radford, a resident citizen of Bastrop county, died in September, 1854, in the city of Houston in this State, on a visit, leaving no known heirs. All, or the principal part of his property, was in Bastrop county.

Tried below before the Hon. A. W. Terrell. This was an action for malicious prosecution, brought by the appellee against the appellant. There was verdict and judgment in favor of Edwards, at the Fall Term, 1859, for $250 ; for which Taney, the defendant, appealed. The opinion states all other,necessary facts.

A. V-Terrell. This suit was instituted on the 29th of January, 1859, by Geo. H. Gray, Chief Justice of Travis county, against the appellant, Horan, and his sureties, upon his bond executed for license to retail spirituous liquors in the city of Austin.

Tried below before the Hon. George W. Smith. Suit by the appellee against the appellant, brought December 21st, 1858. In his original petition, the plaintiff alleged that he had hired to the defendant, for the years 1855 and 1856, a negro boy named Bob, at the rate of $180 per annum.

Error from Gonzales. Tried below before the Hon. Fielding Jones. The defendant, J. M. Foster, was indicted for an aggravated assault. The offence named in the bail bond was assault and battery. The bond was forfeited; scire facias issued; judgment final rendered againt the defendant and his sureties, who prosecuted their writ of error.

Tried below before the Hon. Fielding Jones. This case was formerly before the Supreme Court, reversed, and remanded, (24 Tex. R., 538,) to which reference is made for the facts introduced in evidence on the first trial.

Erbor from Gonzales. Tried below before the Hon. Fielding. Jones. This suit was instituted by the plaintiffs in error, Hugh W. and) John Monroe, on the 28th of March, 1859, against W. L. Buchanan, as the administrator, Sarah J. Wyatt, as the widow, and others, as the minor heirs of William H. Wyatt,- deceased.

Tried below before the Hon. Fielding Jones. This is the second suit brought by the appellants for the land in controversy. Their first suit was brought to this court by appeal, and is reported in 15 Texas R., p. 466, where a statement of the facts may be found.

Error from Gonzales. Tried below before the Hon. Fielding Jones. The heirs of Joseph P. Lawler, deceased, instituted this suit against T. J White and others, for the recovery of a quarter of a a league of land, the head-right of the said Lawler, deceased.

Error from Gonzales. Tried below before the Hon. Fielding: Jones. This suit was brought by A. Underwood, the defendant in error, against C. Y. Hutchinson and Virginia A. Hutchinson his* wife, the plaintiffs in error, on a note executed by them jointly. The petition alleged that the consideration of the note sued on, was necessaries furnished Virginia A..

<p>After a bond given for a trial of the right of property has served its purpose in securing to the claimant a trial of that right, and after judgment against him upon that issue, and a failure upon his part to surrender the property within the time prescribed by law, it is not competent for him to move the quashal of bis own bond, thereby to escape the consequences of his failure to surrender the property.</p> <p>If the obligor in such a bond have any equitable defence against the execution awarded against him on the forfeiture of the bond, he cannot assert it by motion ; but such equitable matter ought to be fully set forth by a bill for an injunction.</p>

Error from Gonzales. Tried below before the Hon. Fielding Jones. This was an action brought by B. F. Bachelor, assignee of Phillips & Willis, a mercantile firm, against Green Hastings, guardian of George A. White, a minor, on an account for articles sold to said minor by said firm.

Tried below before the Hon. G. W. Smith. This action was brought by Evans, the appellee, against Carroll, the appellant, on the 17th of March, 1857, in the District Court of Gonzales county. After two trials in that county, both resulting in judgments for the plaintiff, and both set aside on motions of the defendant for new trials, the venue was changed to the county of Lavaca.

<p>Appeal from Gonzales. Tried below before the Hon. Fielding Jones.</p> <p>Sarah Wyatt, for herself and B. L. Buchannan, administrator df the estate of W. H. Wyatt, deceased, the appellants, instituted proceedings before a justice of the peace against Hugh W. and John Munroe, under the statute of forcible entry and detainer, to recover possession of three lots in the town of GonzuDs. There was a judgment in the justice’s court in favor of the complainants. Hugh W. and John Munroe removed the case by certiorari to the District Court. It was in proof that Monroe and brother had been put in possession of the lots in controversy by the sheriff of Gonzales county, by virtue of a writ of possession issued from the District Court of said county in their favor; and that, at the time of the execution of the writ, Mrs. Wyatt acquiesced in the action of the sheriff. Many other facts were in evidence, but the view of the case taken by the court, render it unnecessary to state them further. There was a verdict in the District Court in this case for Monroe and brother, and judgment was rendered accordingly. NTew trial was refused, and the complainants appealed.</p>

Error from Bexar. Tried below before the' Hon. E. J. Davis-, Suit by defendant in error against C. L Pyron as the drawer,- and Asa Mitchell as the indorser, of a bill of exchange for $>839, on Messrs. Watt & Noble, New Orleans, La. The bill was drawn payable to Mitchell, and by him indorsed in blank. The other facts appear sufficiently in the opinion. Verdict and judgment for plaintiff. New trial refused.

Tried below before the Hon. Thomas J, Devine. The appellee, Jesse Geib, sued out a writ of attachment against Myers and Johnson, and garnisheed the appellants, William and James Vance. The petition was based on three notes executed by Myers and Johnson, and payable to the order of Jesse Geib; the first, for $108, due Oct. 26, 1859; the second, for $174 42, due Éov. 5, 1859; and the third, for $180 30, due Uov. 22, 1859.

Error from Comal. Tried below before the Hon. Thomas J. Devine. This suit was brought by the plaintiff in error, against the defendant in error in- the District Court of Comal county, on the 4th of February, 1858, to recover the amount of several promissory notes.

Tried below before the Hon. N. W. Battle. This suit was brought by the appellee against B. J. Thompson and B. J. Lewis, for -the purpose of removing clouds from the title to and obtaining possession of a tract of 738 acres of land in Bell county, claimed by the plaintiff.

Tried below before the Hon. Thomas J, Devine. This cause originated in an application to the County Court by Paschal, the appellee, as next friend of Sarah and James Biddle, minors, for the' probate of the last will and testament of John Biddle, deceased, which will was alleged to be lost or destroyed. The appellant, B. K. Tynan, as administrator of the estate of John Biddle, was cited to show cause why the will should not he probated.

Error from Bexar. Tried below before the Hon. Thomas J. Devine. This action was instituted in the District Court of Bexar county on the 30th day of August, 1858, by the plaintiff in error against Thomas Whitehead and others for damages caused by the erection of a dam across the San Antonio river, and to abate the same as-a nuisance.

Error and appeal from Gonzales. Tried below before the Hon. Fielding Jones. Amanda J. Trammell, the appellee, and Jarret Trammell, her husband, on the 8th day of April, 1858, instituted proceedings in the District Court of Gonzales county, against J. W. E. Wallace', for the recovery of a slave named Stephen, or his reasonable value, which they alleged was fifteen hundred dollars.

Tried below before Hon. James 0. Walker. At the Fall Term, 1863, of the District Court of Robertson county, an indictment was returned against Ned and the appellant, both slaves, for the murder of Daniel Threatt, male child of James Threatt. Ned was charged in the indictment with the actual commission of the offence, and the appellant as being present, aiding, abetting, and counseling him therein.

A ppeal from Limestone. Tried below before the Hon. James C. Walker. The appellee was indicted at the Fall Term, 1860, of the District Court of Limestone county, for the offence of marking, with his own mark, “one calf, said calf being neat cattle within the meaning of the statute, not the property of him, the said Wm. N. Hall, but of the property of John R. Henry, of said county,” &c., “ contrary to the form cf the statute,” &c. The defendant excepted to the indictment— “1.

Tried below before the Hon. R. L, Waddill. The appellant was indicted for selling liquor without license, and the offence was charged to have been committed on the 21st day of August, 1863. The State having proved the sale, the defendant introduced a license as follows: “ The State of Texas, 5 “To all to whom these presents “ County of Denton. $ shall come: “Know ye, that Alex.

Tried below before the Hon. J. W. Ferris. The appellant was convicted at the March Term, 1863, upon an indictment for taking up, using, and appropriating to his own use, three work oxen, being estrays, without first complying with the laws regulating estrays. The jury assessed his fine at $137. Judgment accordingly, motion for a new trial overruled, and notice of appeal in open court. The opinion of the court states the other facts.

Tried below before the Hon. R. E. B. Baylor. This suit was brought by Napoleon B. Ferguson, William Murray and his wife Elizabeth A. V. Murray, against Robert A. Ferguson for the recovery of certain slaves.

Tried below before the Hon. Fielding -Jones. Valente Perez and the other minor heirs of Francisco Leal, deceased, by Alexis Perez their father and guardian, brought this action of trespass to try title, to the Spring Term, 1857, of the District Court of Live Oak county, for the purpose of recovering from Samuel Mapes, Bridget Bowers and Frances B. Bowers, one league and labor of land.

Error from Victoria. Tried below before the Hon. Fielding Jones. This was an action of trespass to try title to recover a league of land situated in the county of San Patricio, instituted in the District Court of that county by Mary Hart, administratrix of the estate of Timothy Hart, deceased, and by the heirs of said' decedent against Robert Carlisle and Mary, his wife. The petition was filed on the 22d day of September, A. D. 1855.

Tried below before the Hon. Fielding Jones. This case was formerly before the Supreme Court on appeal, and was reversed and remanded. (See 22 Tex. B., 663.) On the second trial in the court below the pleadings were substantially the same as on the former trial. The evidence introduced by the plaintiff was the same as reported,with the additional testimony of Elizabeth Guilkey, which had been excluded on the first trial.

Tried below before the Hon. Fielding Jones. Trespass to try title, brought by the appellee, James Weir, in. the District Court of Refugio county, to recover from Walter Lambert and fourteen other defendants one-third of a league oland. The petition was filed on the 30th day of May, 1856. The presiding judge, being disqualified to sit in the case, the venue was changed by agreement to Victoria county.

Tried below before the Hon. M. P. Norton. The appellees, Vanderlip & Jones, brought this suit against John J. McGloin and James McGloin, to recover the sum of $1500, the fee of the plaintiffs, as attorneys, retained by the defendants to institute and conduct a certain suit in the District Court of Bexar county. James McGloin having died, his executors were made defendants. The facts of the case are sufficiently indicated in the opinion.

Tried below before the Hon. M. P. Norton. Suit by the appellant against the appellee upon the following instrument: “ On or before the first day of November next, I promise to pay W. G. Kelly five hundred bushels of corn, in the heap, in my field.

Tried Below Before the Hon. Fielding Jones. This was a petition in the nature of a bill in chancery for a new trial, filed by the appellant against the appellee, for the purpose of obtaining a néw trial of an action of trespass to try title, wherein the appellee had recovered judgment against the appellant for twelve hundred and eighty acres of land on Live Oak Point, in-the county of Refugio.

Tried below before the Hon. Geo. W.Smith. The appellees, on the 16th of January, 1857, instituted this suit against the appellant,, for the recovery of two negroes and their hires. The plaintiffs claimed the slaves sued for, under the provisions of the last will and testament of Lewis Bowdry, deceased, who died in Woodford county, State of Kentucky, in the year 1821.

Error from Austin. Tried below before the Hon. Robert J. Townes. On the 81st of January, 1849, Emeline Day, administratrix of James Cochrane, deceased, joined by Iter husband, W. S. Day, filed in the County Court of Austin county, a claim against Cochrane’s estate for the sum of fifteen thousand dollars, with interest at ten per centum per annum since 1885.

Tried below before the Hon. G. W. Smith. On the 2d of April, 1859, the appellant filed her petition against the defendant, her husband, charging his voluntary abandonment of the plaintiff for more than three years. Upon affidavit of the plaintiff that the defendant was a non-resident of the State, service of the citation was had by publication. Ho appearance was entered or defence made by the defendant.

<p>Appeal from Bexar. Tried below before the Hon. George W. Smith.</p> <p>This suit was brought on the 8th da.y of March, 1855, by John Henry Brown, Rufus E. Brown, Margaret A. and Russel Brown,, heirs of Henry S. Brown, against James Breeding, C. C. DeWitt, Green Penn, Michael Lomax, James Clemmons, Lewis Schulenberg, L. V. Criswell, James R. Burns, Eliza Gibson, John M. and George W. Short, John H. Meieke and William J. Ledyard, for an undivided half interest of a league of land, to have their title quieted, and for partition. On the 15th day of April, 1825, Green DeWitt entered into a colony contract with the Mexican government. By this contract the colony was to commence on the right bank of the Lavaca, contiguous to Austin’s colony, and ascend the Lavaca to the upper road going from Bexar to Nacogdoches. On the 25th day of February, 1831, Austin and Williams entered- into a colony contract with the same government, the boundaries of which were to commence on the left margin of the Lavaca river, at a point ten leagues from the coast, following said river up the most westerly head, and thence to run in a direct line north-west, to the road leading .from Bexar to Nacogdoches. On the 12th day of September, 1832, George W. Cottle received a graht of a league of land as a colonist of DeWitt. On the 10th day of October, 1835, Jesse Richards obtained a grant of a league of land as a colonist of Austin and Williams. These two leagues' conflicted, and out of this conflict the controversy in this suit arose.</p> <p>There were two sets of claimants; one set claimed under the Cottle grant, the other under the Richards grant. John Henry Brown, Margaret Anne and Russell Brown, the plaintiffs, and Eliza Gibson, John M. Short, James Breeding, John H. Meieke, Green Penn, Michael Lomax, James Clemmons, Lewis Schulenberg, Leroy V. Criswell and James R. Burns, eleven of the defendants, claimed under the Cottle grant. W. J. Ledyard, one of the defendants, derived his title to the land in controversy from the Richards’ grant. It does not appear under whom the remaining defendant, C. C. DeWitt, claimed, no evidence having been introduced in support of Ms claim. Eliza Gibson, John M. and George W. Short, claimed title to the whole of the Cottle league, as heirs-at-law of the grantee, George W. Cottle. The plaintiffs claimed an undivided half of the Cottle league, under and by wirtue of a contract entered into between their ancestor, Henry S. Brown, and the grantee, George W. Cottle. Breeding, Meicke, Penn, Lomax, Clemmons, Schulenberg, Criswell and Burns claimed portions of the Cottle league under R. J. Townes, who had purchased the interest of Brown at a sale made by his administrator.</p> <p>Ledyard asserted title to the entire interest in the Richards league, and exhibited a chain of transfer from the grantee, Richards, down to him. It appears from the statement of facts that Love, Dancy and McKinney had set up titles to an interest in the Richards grant; that a compromise had been effected between them and Ledyard, which resulted in a partition of the league between them, each executing to the other deeds of release for respective portions of the others. The portions deeded to Love, Dancy and McKinney did not come in conflict with the Cottle grant.</p> <p>The bond from Cottle to Brown was executed on the 10th day of July, 1832, and recited that Cottle was entitled to receive lands under the colonization law of the 24th of March, 1825, but was unable to realize said lands for want of money to pay the necessary fees of the surveyor and commissioner, and was in danger of losing his right to said lands, inasmuch as the colony was soon to be closed; that Henry S. Brown had furnished the funds necessary to secure said lands. The bond then continued as follows: “Now for and in consideration of the funds so furnished, I hereby bargain, sell and convey unto the said Henry S. Brown one-half of all lands which I may obtain through his intervention and assistance, and which may be due in virtue of said law; and I hereby bind myself, my heirs and successors unto the aforesaid Henry S. Brown in the penal sum of three thousand dollars, good and lawful money of the province of Mexico, to execute a good and valid title to the same. Said lands have been selected on the waters of Peach creek and Lavaca, better known and called by the name of Cedar Spring league, about ten leagues from Gonzales, and designated in the survey of the colony as No. 5. The conditions of the above obligation are as follows: the aforementioned Henry S. Brown shall pay all necessary expenses whatever in order to put me in full and complete possession of the land. The land shall then be divided in the most equitable manner, so that each one may have an equal quantity of wood, water and land of good and bad quality. .The said Henry S. Brown, having the right to choose first; and on his complying fully with the aforesaid stipulations, I hereby further obligate myself to convey unto the said Brown the one-half of the above named lands, so soon as I may. be authorized legally to do it in good faith, and without violation of the laws; and I specially take upon myself the charge of settling said lands and cultivating them within the six years prescribed by law.”</p> <p>Brown complied with the conditions contained in the bond on his part, and the grant was issued to Cottle on the 12th day of September, 1832.</p> <p>The petition of plaintiffs claiming as heirs of Henry S. Brown, set out this bond; asserted their right to one-half of the league under it; attacked the titles of the defendants who claimed under Townes and the Richards grant; prayed that John and George W. Short have a guardian ad litem appointed to represent their interest; that the Cottle league be equally divided between Eliza Gibson and plaintiffs; for judgment against the other defendants for damages, and for writ of possession.</p> <p>Criswell and Schulenberg filed a general demurrer; set up title in themselves to portions of the land in controversy, and pleaded the general denial. Eliza Gibson pleaded “not guilty,” and that the Cottle league was the property of herself and of the minor heirs of Melezina Short, deceased.</p> <p>Ledyard pleaded general demurrer and general denial, and specially answering, set up title in himself, and alleged that the Cottle grant was located within the limits of Austin’s Colony, when Cottle was a colonist of De Witt; that so far as the Cottle grant conflicted with the Richards grant, it was null and void.</p> <p>James Breeding demurred and pleaded “ not guilty,” and alleged that the heirs of John 0. Bar were interested, and prayed that they be made parties.</p> <p>The marriage of Eliza Gibson and James Byrd, and the death of the latter, were suggested. Her subsequent marriage with John Y. Headstream, was suggested, and the latter made a party. Meicke demurred and pleaded “not guilty.”</p> <p>On the 19th of May, 1858, Ledyard filed an “ amended answer and cross bill,” in which he asserted title to all the land in controversy; reiterated the allegations as to the conflict between the Cottle and Richards grants; and alleged a conflict between the Richards grant, claimed by him, -and the land claimed by Penn, Lomax, Clemmons, De Witt, Eliza Gibson, and the heirs of Melezina Short, but none as to the other parties to the suit. He further set up the limitations of three, five and ten years, and prayed for judgment against the plaintiffs, and against the defendants claiming adversely to him, and that his title be quieted. He further pleaded in bar “a judgment by default by him recovered in a suit now in said court ponding, wherein he is plaintiff and De Witt and others are defendants.” In a subsequent amendment, ho pleaded improvements made in good faith, and averred that the petition in the suit against De Witt and others, was filed on the 20th day of January, 1855, and claimed that no limitation could run against him from the filing of the same, nor from the filing of his cross bill.</p> <p>By amendments, Penn, Lomax, Clemmons, Meicke, Criswell and Schulenberg, set up improvements made in good faith. Lo-max, Clemmons, Meicke and De Witt, adopted their answers to the original petition as answers to the cross bill of Ledyard.</p> <p>B. Shropshire, the guardian ad litem of the minor heirs of Melezina Short, formerly Cottle, pleaded “not guilty,” denied the sale from their ancestor Cottle to Brown; alleged that the bond if executed, was null and void; claimed that the title to one-half of the Cottle league, descended to them as the only children and heirs of Melezina Short; also claimed one-half of the half of the league conveyed by Cottle to his wife, and prayed judgment accordingly.</p> <p>The plaintiffs read in evidence copies of the grant to G. W. Cottle, and of the bond from Cottle to Brown, the deed from George W. Cottle to Eliza Cottle his wife, for one-half of the Cottle league; proved their heirship, and that George W. Cottle had repeatedly recognized the sale to H. S. Brown; that he H. S. Brown, had “ cleared out the title to the Cottle league,” and paid the expenses therefor.</p> <p>Ledyard introduced in evidence copies of the colonial contracts of De Witt, and of Austin & Williams, and of the Richards grant; also, conveyances for one-half of the Richards league from the grantee down to him, to wit: from Richards to Davenport; from Davenport to Duncan; from the latter to Ledyard; also, deeds for the whole interest from the grantee down to him, to wit: from Richards to Walker, from Walker to Barns, and from the latter to Ledyard. In 1841, one-half interest in the Richards league was sold for taxes as the property of Davenport, and purchased by Merriwether. In 1847, the interest of Merriwether was sold at execution sale and purchased' by .0. J. Ward, who deeded Ms interest to Ledyard the 22d day of April, 1852. These conveyances were also read by Ledyard.</p> <p>C. J. Ward for Ledyard, testified, that he purchased the half of the Richards league at sheriff’s sale, sold as the property of Merriwether in March, 1848; that during the same year, he put tenants in possession, who made improvements, built houses, and put about forty acres in cultivation, and continued to live on and cultivate the land, until he sold to Ledyard on the 20th day of April, 1852, and continued after that time as Ledyard’s tenants; that he, witness, paid taxes on the -land from 1848 to 1852 inclusive. The tenants corroborated the testimony of Ward as to possession, and further proved that they continued in possession as tenants of Ledyard up to trial. Deeds of lease from Ward and Ledyard to these tenants were also read.</p> <p>Ledyard also proved that the land in controversy was located within the limits of the colony of Austin & Williams, and that about three-eighths of the Richards league lapped over on the Cottle league. The portions of the Cottle league claimed by his co-defendants, who were made defendants by Ms cross bill, were included within these three-eighths of the Richards league, thus conflicting with the Cottle league. It was also in proof that neither Ward nor Ledyard rendered any of the Richards league for taxation for the years 1852-’53-’54. It was also admitted that the land claimed by Ledyard only conflicted with the land claimed by Ms co-defendants Penn, C. C. De Witt and Eliza Headstream.</p> <p>Ledyard had brought suit against Penn, De Witt, Eliza Gibson, (afterwards Headstream) for the land in controversy, and obtained a judgment by default against Eliza Gibson (or Head-stream) and Be Witt, and also Lomax, but it being ascertained that the lands claimed by Ledyard and Lomax did not conflict, he claimed nothing as to Lomax. In order to shorten litigation, it was agreed that the case of Ledyard against Fenn, Be Witt and others, should stand continued and await the result of this suit; that Ledyard might read the judgment by default in evidence in this suit, and should have all the rights obtained thereby. In pursuance of this agreement, Ledyard read this judgment by default in evidence.</p> <p>Cottle, at his death, left his wife Eliza and his daughter Melezina surviving him. Melezina married A.. H. Mclver, from whom she was divorced, and then married M. H. Short, by whom she had two children, John M. and George W. Short. She died before the institution of this suit, and her children, being minors, were represented by Shropshire as guardian ad litem. Eliza, the widow, married James Gibson, and afterwards John G. Headstream. She read in evidence the deed from her husband G. W. Cottle, for one-half interest, and a deed of release from her daughter Melezina and husband for their interest in the same half interest of the Cottle league.</p> <p>The administrator of H. S. Brown, sold the half interest in the Cottle league, which he claimed under the bond from Cottle, and R. J. Townes became the purchaser. Townes sold to Benjamin, Edward and Gustavus Breeding. They divided the league with the widow of Cottle. Benjamin sold his interest to the defendant, Penn, Avho went into possession in January or February, 1853. Edward and Gus. Breeding conveyed a part of their tract to the defendant Criswell. The balance of the tract was sold by them to G. M. T. Webb; he to M. P. Webb; he to the defendant Schulenberg. All these deeds were read in evidence. Copies of the proceedings had in the administration of H. S. Brown, were also read.</p> <p>The following instructions were asked by Ledyard and refused by the court:</p> <p>“ None of the defendants to the cross-hill of Ledyard have pleaded the statute of limitations and therefore cannot avail themselves of any possession in their favor, even if they have shown any by the evidence.</p> <p>“The party DeWitt can set up no claim against Ledyard, because he allowed a judgment by default to go against him, which has been read in evidence and Ledyard having shown a regular chain of transfer to him, must recover as to DeWitt.</p> <p>“ The non-assessment of taxes is no evidence that taxes have not been paid and the jury will disregard the assessment rolls offered in evidence.”</p> <p>The court charged the jury as follows: “ 1. You are charged to find a verdict against the plaintiffs; for if they ever did have any claim by reason and in virtue of the bond given their father by Geo. W. Cottle to any part of the land sued for, the same was transferred and vested in R. J. Townes by the probate sale made in Brazoria county, and has passed down from him to those who may be holding under him, the said Townes.</p> <p>“2. You are charged, also, that the sale of the undivided half interest of said league made by Geo. W. Cottle to Henry S. Brown, the father of the plaintiffs, should be by you held binding on the minor children of Short and surviving widow of Cottle, and they as such in this suit will not be heard to assert that the said bond was void, because they have not offered to pay back the consideration paid by Henry S. Brown for this half of the league. In order that their demands of justice should be heard, they should first act the part of justice by placing Brown and those claiming under him in the condition that he (Brown) was in before the alleged void contract was made, such as paying back the purchase money paid by Brown, and as to this claim on their part, you should find a verdict against the minor children of Short, or rather the grandchildren of G. W. Cottle, and also against the widow of Cottle, so far as she claims as the survivor of G. W. Cottle; hut her rights derived by the deed of gift made by Cottle will occupy a different position, and so far as her rights derived From the deed of gift, that do riot conflict with the grant to Jesse Richards, you should find in her favor and those claiming under her, provided they have not been defeated by limitations as hereinafter defined.</p> <p>“ 3. It appears that there is a conflict between- the grant issued to Richards, dated the 10th day of October, 1835, and the one issued by the commissioner of the colony of DeWitt, dated 12th day of September, 1832. It is contended by Ledyard, who claims under the Richards grant, that the Cottle grant is void because it was situated without the limits of DeWitt’s colony, and this will be a matter for you to determine, and if you are satisfied that the eastern line of DeWitt’s colony, near this land, was well defined and known to the officers, who extended or issued the grant, and that the Cottle grant was situated without the colony, then you will find that this grant to Cottle was void, and find a verdict in favor of Ledyard for the land claimed by him.</p> <p>“4. But if you are satisfied from the evidence in the case that the colonial limits of the two colonies conflicted; that this league is within that conflict of colonies, or that the eastern line of DeWitt’s colony was not well defined or known to the commissioners, and that the location and survey of the Cottle grant without • the limits of DeWitt’s colony (if you believe it were so situated) was not caused by a wanton disregard and in violation of the law that controlled them, and that it was from an innocent mistake or want of knowledge of the said eastern line of said colony near this land, then you will find that the grant to Cottle is valid and is a superior title to the grant to Richards, because it is older, and you should find a verdict against Ledyard for what he claims under the Richards grant and conflicts with the Cottle grant, unless you are satisfied that he is protected by limitation.</p> <p>“ 5. Upon the question of limitation, you are charged that if Ledyard, in person or by tenant or tenants, had for three years before the 20th day of January, 1855, been in the continued and adverse possession of the land claimed by him under his title as before set forth, then you should find a verdict in his favor for so much as he may have thus been in possession of. This possession must be shown to have been continuous and unbroken for at least three years before the 20th day of January, 1855, and after he, Ledyard, became the purchaser of the land. That is, the adverse possession of Ledyard in person or by tenants must have been under the title he owns continuous and unbroken for at least three years.”</p> <p>An. instruction under the statute of limitations of five years-was also given, fixing the 20th day of January, 1855, as the time-when the limitation ceased to run in favor of Ledyard.</p> <p>Special issues having been submitted to the jury by the court,, the findings were substantially as follows: “ 1st, against the plaintiffs; 2d, against Eliza Headstream, alias Gibson, alias Cottle; 3rd, that the eastern boundary line of DeWitt’s colony on the 12th September, 1832, was uncertain and undefined, and conflicted with thé colony of Austin and Williams; 4th, to the question, ‘If you say that the lines of the colonies did most likely conflict, and that the Cottle grant was located outside-of DeWitt’s colony, state whether or not the eastern boundary line of DeWitt’s colony was so uncertain and unknown to the officers of the colony as to induce them to honestly believe that it was within the limits of DeWitt’s colony, and that they did not act from wanton disregard of the laws in locating the headright out of the limits of said colony? ’ they answered, ‘ They doubtless discharged their duties honestly and to the best of their ability ;’ 5th, Ledyard took and held possession of the land in controversy from the 20th August, 1852, to the 20th January, 1855, making two years and fiye months; 6th, neither Ward nor Ledyard paid taxes on the land.” Upon these findings, judgment was rendered that plaintiffs recover nothing; that John M. and George W. Short and Eliza Headstream recover nothing of plaintiffs or co-defendants; and that Ledyard recover nothing by his cross-bill. From which judgment Ledyard alone appealed. The heirs of Henry S. Brown, the original plaintiffs, having declined to prosecute the case further,. Ledyard appeared as appellant in the Supreme Court and' his co-defendants below as appellees.</p>

Tried below before the Hon. George W. Smith. Held: the negroes in her possession. “ 9 th Issue. In determining upon the 9 th issue, you will look to the evidence in the case, and will wholly disregard the recital in the bill of sale that plaintiff had paid for the negro, or the amount paid.

Tried below before the Hon. George W. Smith. Action of trespass to try title, brought by appellant against appellees to recover a league of land. The defendants pleaded the general denial, asserted title in themselves, and set up the statute of limitations of three years. Both parties claimed under a grant to 11 Patrick Allison” from the Mexican government, dated 20th day of April, 1831.

Tried below before the Hon. George W. Smith. The appellant, John Wallace Hill, on the 2d of March, 1859, filed his petition under oath to the District Court of Fayette county, alleging in substance that on May 9th, 1853, William B, Price obtained from said court an allowance of fifty dollars for services alleged to have been rendered by him as guardian ad' litem for one Wallace Hill, one of the defendants in a certain suit which had been finally decided at the Fall Term,…

Tried below before the Hon. George W. Smith. Suit by Davidson before a justice of the peace, to recover from Darby some $39, upon an account stated. Darby reconvened and obtained judgment against Davidson for $86, and costs. Davidson brought the case by certiorari to the District Court, where he recovered judgment for $31 25. The other facts appear in the opinion.

Error from Polk. Tried below before the Hon. J. M. Maxcy. Issue on garnishment between the defendants in error, who were judgment creditors of A. P. Bailey, and the plaintiff in error, garnishee. On the 4th day of May, 1855, Alphonso P. Bailey executed to Nathaniel Bailey, a deed of trust assigning to him a number of notes and accounts, and conveying his other assets-, consisting of a-stock of merchandise and other personal property.

Error from Tyler. Tried below before the Hon. J. M. Maxcy. Trespass to try title, brought by the defendants in error against the plaintiff in error, for the recovery of a league of land in Tyler county.

Tried .below before the Hon. Fielding Jones. This was an action of forcible entry and detainer brought by the appellee, before a justice of the peace of Lavaca county, on the 9th of March, 1857, to recover from the appellant the possession of three hundred acres of land.

Tried below before the Hon. Fielding Jones. William Alley, one of the appellees, instituted this suit on the 22d of January, 1859, against Rhode, the appellant, on his promissory note for two thousand five hundred dollars, dated August 21st, 1857, due January 1st, 1859, payable to James 0. Loe or order, and by him assigned without recourse, by an indorsement without date, to the plaintiff Alley.

Tried below before the Hon. Geo W. Smith. The appellees, Sarah A. Sawyer and her husband, G. W. Sawyer, who sued in their own right, and also as the next friends of several minors, brought this suit against the appellant to recover a negro girl named Elizabeth and her hires.

Tried below before the Hon. J. M, Maxcy. John C. Shilling, the appellee, brought this suit in the District Court of Tyler county, to compel the appellant, Joseph B.. Allison, to execute to the plaintiff a “ warrantee title ” to a tract of one hundred and sixty acres of land, described by metes and hounds.

<p>Where an affidavit for a continuance did not comply with the requirements of the statute, the application was addressed to the discretion of the court; and, in such cases, it must very clearly appear that the continuance was improperly refused, or the judgment will not be reversed in this court because of its refusal.</p> <p>When a party asks a continuance on account of testimony which he has used no diligence to procure, it is not sufficient for him to state that he had discovered its materiality too late to have procured it in time for the trial by any diligence in his power. He should state such facts as will enable the court to determine whether, by the exercise of proper diligence, he could not have discovered the materiality of the evidence in time to have procured it.</p> <p>See the opinion in this case for an illustration of the strictness required in an affidavit for a continuance made by an attorney in behalf of his client.</p>

Error from Harris. Tried below before the Hon. P. W. Gray. Suit by the plaintiffs in error, as heirs-at-law of Catherine N. Cooke, against the defendant in error for a cancellation of a deed to a block of lots in the city of Houston, made by Abner Cooke to the defendant on the 4th of September, 1846.

Error from Harris. Tried below before the Hon. P.W. Gray. The defendants in error brought this suit in the District Court of Harris county, against the plaintiff in error and George K. Otis, on a promissory note for $149. The petition was filed on the 5th of August, 1859.

Tried below before the Hon. J. M. Maxcy. This was an action of slander brought by Hareissa J. Fulgham, a minor, who sued by her next friend, against Sarah McQueen and her husband, Milton McQueen, the damages being laid at ten thousand dollars.

<p>Appeal from Tyler. Tried below before the Hon. J. M. Maxcy.</p> <p>This was a proceeding for the trial of the right of property to certain negroes, instituted under the statute.</p> <p>On the 12th day of October, 1847, Henry Raguet obtained a judgment of the District Court of Tyler county, against one Samuel T. Belt, for $1,248, together with interest and cost. This judgment became dormant by a failure to have an execution issued, and it remained dormant until the 28th of October, 1857, when it was revived. On the 29th of December, 1857, an execution was issued on this judgment which, on the 19tli of January, 1858, was levied on three certain negroes pointed out by Raguet, and found in the possession of Samuel T. Belt and Helen Belt, his wife. Helen Belt claimed the negroes so levied on, as her sepa-' rate property, and filed her oath and bond under the statute. The claim was made and the oath and bond filed on the 25 th of January, 1858.</p> <p>On the 23d of April, 1858, Bendy, McDaniel and Hyde filed an intervention, in which they allege that on the 14th of January, 1858, Belt and wife being indebted to them in the sum of $457, by note, to secure the payment of the same, executed and delivered their deed of trust upon the negroes levied on and in controversy in these proceedings. They pray that said amount of indebtedness be first satisfied out of said negroes, before the Raguet debt or any part of the same.</p> <p>On the same day Henry W. Bendy also filed his intervention, alleging that on the 28th of October, 1858, he recovered a judgment in the District Court of Tyler county against S. T. Belt and Helen Belt, his wife, for $751 66, and interest and cost, together with a decree of said court foreclosing a mortgage upon the negroes in controversy, and ordering them to be sold to satisfy said judgment.</p> <p>On the 29th of April, 1858, Helen Belt filed an answer, setting forth specifically the nature of her claim and title to the negroes in question.</p> <p>On the 10th of November, 1858, the intervener, H. W. Bendy, by leave of the court filed an amendment to his original intervention, and on the same day the other intervenors, Bendy, McDaniel and Hyde and Van Yleck also filed an amendment, in which they admit £he priority of the claim of H. W. Bendy, and deny that the negroes are subject to the claim of Raguet.</p> <p>On the 15th of November, 1858, Helen Belt by leave of the court filed an amendment to her original answer, in which she more fully states her claim and deraigns her title to the negroes, alleging that on the 22d day of March, 1847, one Owen Taylor, her father, made, executed and delivered to her a deed of gift to a certain tract of land; that said, land thereby became her separate property; that on the - day of-, 185—, she sold said tract of land to one Sims, and with the money received upon said sale she purchased from H. W. Bendy the negroes in question.</p> <p>On the 15th of November, 1858, Henry Raguet filed a general denial of all the allegations in the answers of Helen Belt, and' of the intervenors. On the same day Raguet filed a motion to quash the affidavit and bond filed in the cause: 1st. Because the affidavit does not swear that said claim is made in “ good faith.” 2d. Because the affidavit is signed by Helen Belt, by her husband, S. T. Belt, and the affidavit states that Samuel T. Belt made the oath. 3d. Because the bond is not signed by S. T. Belt, he purporting to be one of the principals. The same motion also prays to dismiss or refuse to entertain the pleas of intervention filed: 1st. Because no affidavits have been filed and no bonds given by saidintervenors. 2d. Because the intervention of said H. W. Bendy shows that the judgment mentioned has become dormant, no" execution having been issued within twelve months from its rendition.</p> <p>On the 2d of May, 1859, the claimant, Helen Belt, by leave of the court, amended her original affidavit by substituting another one.</p> <p>On the 1st of November, 1859, Raguet by leave of the court filed an amendment to his former pleadings, in which he alleges that the deed of gift of the land from Owen Taylor to Helen Belt, on the 22d of March, 1847, was fraudulent and made with the intent and purpose of delaying, hindering and defrauding Raguet and other creditors of Samuel T. Belt; which frauds Raguet alleges to have been concealed by said Owen Taylor, Helen Belt and Samuel T. Belt, until the levy of the execution. He alleges that S. T. Belt has been largely indebted to him since the 1st day of November, 1842, at which time said Belt executed to him his notes; that on the 25th of January, 1847, he sued Belt on the notes, and that service was had upon Belt on the 1st of March, 1847 ; that on the 22d of March, 1847, Belt made a transfer to Owen Taylor, his wife’s father, of property amounting in value to about $10,000, (naming the property;) that Owen Taylor paid no consideration for said property, and that it never went into his possession; that on the same day said Owen Taylor, by deed of gift, conveyed to said Helen Belt the same property so conveyed to him by said S. T. Belt; that on the 12th of October, 1847, he obtained judgment against S. T. Belt for the sum of $1323 88 ; that said judgment became dormant and was revived by scire facias on the 28th of October, 1857; that he had no notice of any claim by Helen Belt to the negroes until the 21st day of October, 1856, when she recorded her bill of sale to the negroes from H. W. Bendy.</p> <p>At the Fall Term, 1859, the cause came to trial, when the motion of Raguet, the plaintiff in execution, to dismiss the interventions was overruled by the court, and he excepted; whereupon the case went to the jury. The court ruled that the burden of proof was upon the claimant, but that plaintiff in execution had the opening and conclusion to the jury; and the claimant excepted.</p> <p>The plaintiff in execution put in evidence the record of his judgment against Samuel T. Belt, rendered by the Tyler District Court, at its Fall Term, 1847, and the judgment of revival upon scire facias at the Fall Term, 1857; the issuance of execution on December 29th, 1857, and its levy on the 17th of January, 1858, upon the three negroes in controversy, which were found in the possession of S. T. Belt, the defendant in execution, and his wife, the claimant, and which were valued by the sheriff at two thousand dollars. Here the plaintiff rested.</p> <p>The claimant introduced a deed of gift executed to her on the 22d of March, 1847, by her father, Owen Taylor, conveying 1369 acres of the headright league of Samuel T. Belt. This deed was not recorded until the 5th of May, 1858. The claimant then introduced a bill of sale for the slaves levied on, executed to her by H. W. Bendy, and recorded in the county clerk’s office on the 21st of October, 1856. By her son, John T. Belt, she proved that about seven years previous she sold land to one Sims for twelve hundred dollars; that the land was shown to Sims by S. T. Belt, who also counted the money and handed it to the claimant; that the land sold to Sims was part of the land given to the claimant by her father, Owen Taylor, and part of the same tract on which S. T. Belt and family still resided ; that the witness’ mother, the claimant,' always claimed the land; that S. T. Belt and his wife, the claimant, took the money to Woodville to buy negroes, and in a few days S. T. Belt brought home the negroes now in controversy, which, as witness understood from the family talk, were purchased from H. W. Bendy. Witness never knew of his father, S. T. Belt, having much money, and thinks he had but little.</p> <p>The claimant introduced the testimony of other witnesses, with regard to the sale to Sims, and the circumstances of S. T. Belt in 1847; but in view of the opinion it is not important to recapitulate it.</p> <p>“Henry W. Bendy, intervenor in his own right, proved by a decree of Tyler District Court, rendered at the Fall Term, 1856, his vendor’s lien upon said negroes, for the sum of $751 66, being the unpaid balance due for said negroes sold to said Helen.</p> <p>“ Bendy, McDaniel & Hyde, to sustain their claim, introduced a note executed by the said Helen and her husband, S. T. Belt, dated on the 14th day of January, 1858,- for $450, and secured by deed of trust on the negroes, executed by the said Belt and wife, G. W. VanVleck, trustee, dated on the 14th day of January, 1858, said note being due 1st day of February, 1858.”</p> <p>The plaintiff in execution then, in rebuttal, proved by Van Vleck, the trustee, that he had never had the negroes in possession, did not know them, and would not know them if he saw them. He also put in evidence the following conveyances and transfers: Deed of John Allen and wife to Helen Belt, the claimant, dated December 21, 1855, for half league of land in Tyler county; agreement between said Allen and wife and S. T. Belt, dated August 2d, 1841, by which Allen and wife bound themselves to convey to S. T. Belt one-half of Lurany Allen’s (formerly Lurany Lewis') headright league, together with S. T. Belt’s transfer of the same to Owen Taylor by deed dated March 22, 1847: deed of S. T. Belt to Owen Taylor, in consideration of $1200, dated March 22, 1847, for 1754 acres of Belt’s headright league, recorded April 12th, 1847; and bill of sale from S. V, Belt to Owen Taylor, in consideration of $500, dated March 22, 1847, for all his stock of cattle, being some fifty head, five horses, and twenty-five head of hogs, recorded April 13th, 1847.</p> <p>To the first two of the above conveyances the claimant objected for irrelevancy, and on her objection being overruled, she excepted.</p> <p>The plaintiff proved by a witness that in 1847 Owen Taylor was a man of but small means, and was insolvent. He also introduced certified extracts from the tax returns of Tyler county in the years 1846 and 1847 to the comptroller of public accounts, showing the property rendered by S. T. Belt and Owen Taylor; to which the claimant objected, but her objection was overruled, and she excepted. The plaintiff also proved the pecuniary condition-of S. T. Belt, in 1847, showing that the property conveyed and transferred by him to Taylor comprised nearly all of his effects, “it was admitted by claimant’s counsel that the land that Belt and wife are now living on was embraced by land conveyed by Belt to Owen Taylor on the 22d of March, 1847, and by Taylor conveyed to Helen Belt by deed of gift dated on the same day, the same being part of S. T. Belt’s headright.”</p> <p>There appears to have been no change of possession of any of the property conveyed by Belt to Taylor, except under the sale to Sims at the time he purchased.</p> <p>The jury “found the issue for plaintiff, subject to H. W. Bendy’s mortgage;” and the court decreed the negroes to he sold by the sheriff as upon execution, and the proceeds to be applied, first, to the liquidation of H. W. Bendy’s claim of $751, with interest, and next to the execution of the plaintiff, Raguet.</p> <p>The claimant, Helen Belt, moved for a new trial because of mis-finding by the jury; error in the charges; error in the ruling that claimant had the burden of proof but according to plaintiff the opening and conclusion; and error in the admission of the evidence excepted to by claimant.</p> <p>Bendy, McDaniel and Hyde, interveners, also moved for a new trial. Both motions were overruled, and the claimant and these interveners appealed, assigning as errors the refusal of a new trial and the matters set up in their motions therefor.</p> <p>The plaintiff in execution also assigned errors—1st, in the overruling his motion to dismiss the interventions for want of oath and bond; and 2d and 3d, for errors in giving and refusing charges.</p>

Tried below before the Hon. P. W. Gray. This suit was commenced by the appellant to recover from the appellee the sum of $418 71, with interest and exchange, due upon a joint and several promissory note executed by one I. Ephraim and the appellee, on the 21st of August, 1856, to Pierce, Howe & Co., of Boston, Massachusetts, or their order. Ephraim being dead, the suit was brought against Levinson alone. The note bore the indorsement of the payees to the plaintiff.

Tried below before the Hon. James M. Maxcy. This suit was instituted by William H. Garner, the appellant, against Alphonse P. Bailey, L. H. McGowen and William S. Vance, to recover the amount, paid by him on a judgment rendered against him and said Bailey. The action was based upon the following instrument or obligation, to-wit: “ Eor value received I release Wm.

Error from Colorado. Tried below before the Hon. Fielding Jones. Trespass to try title and for damages, brought by the plaintiffs in error against the defendant in error, on the 7th of August, 1858. The material facts are stated fully in the opinion of the court, There was verdict and judgment below for the defendant, and the plaintiffs prosecute their writ of error.

Tried below before the Hon. James M. Max.cy. The main facts of this case appear sufficiently in the opinion of the court. The witness referred to in the opinion subscribed the-deed by the signature of “ John S. Preston,” but signed his affidavit to its execution by the name of “John Preston.” Verdict and judgment below for the plaintiff, Morgan, and new trial refused.

Tried below before the Hpn. James M. Maxcy. Adelaide Boquet, the appellee, instituted proceedings in the District Court of Liberty county against her husband, Alphonse Boquet, and Elizabeth Waring, administratrix of F. G-. Waring.

Tried below before the Hon. Peter W. Gray. This suit was instituted in the District Court of Harris county by the appellant, the widow of Hiram G. Runnels, deceased, against the appellee the executor of said deceased, for the allowance provided as a substitute in lieu of the property which is exempt by law from forced sale.

Tried below before the Hon. James M. Maxcy. Suit by appellees against appellants on a note and to foreclose a mortgage given to secure the payment of the same.

Error from Liberty. Tried below before the Hon. James M. Maxcy. On the 18th day of October, A. D., 1857, James Robeson and John S. Beale recovered a judgment of William R. Johnson for a half league of land. On the 7th day of March, A. B., 1859, William R. Johnson filed in the office of the clerk of the District Court of Liberty county, a petition for a writ of error, reciting the judgment and praying for citations to be issued for James Robeson and John S. Beale.

Error from Harris. Tried below before the Hon. Peter W. Gray. This case originated in the County Court of Harris county, tinder art. 822 O. & W. Dig., to compel the legatees of Hiram G. Runnels, deceased, to execute a bond for the payment of the debts due by the estate.

Error from Tyler. Tried below before the Hon. James M. Maxcy. This case was formerly before the Supreme Court, under the style of Smith v. McGaughey. (13 Tex. R., 464.) In the present record, there is neither a statement of facts nor bill of exceptions. It is not necessary to make any further statement in addition to that contained in the case reported.

Tried below before the Hon. J. M. Maxcy. The facts are sufficiently stated in the opinion. Verdict and judgment below for the defendant.

Tried below before the Hon. James M. Maxcy. Suit by the appellee, brought May 3, 1854, for the recovery from the appellant of an undivided interest in a half league of land in Tyler county, and for partition and rents. The facts, so far as they are involved in the rulings of the court, are substantially stated in the opinion.

Tried below before the Hon. Peter W, Gray. Trespass to try title and for damages, instituted by the appellee, Lowery, against Moore, the appellant, on the 26th of July, 1859. The plaintiff claimed in his petition, to be the owner of one-half interest in a certain store house and lot in the town of Huntsville, which was the property in controversy.

Tried below before the Hon. Peter W, Gray. The appellant, Willson, brought this suit originally in the form of an action of trespass to try title, in order to recover of Phillips, one of the appellees, two town lots and their improvements in the town of Huntsville.

Tried below before the Hon. P. W. Gray. The appellee brought this suit against the appellant for some fifty dollars in money and for the value of a gold watch and a gold masonic emblem, which were stolen from the plaintiff on the night of December 1st, 1858, from his room in the Fannin House, at Houston, a hotel of which the defendant was the proprietor and keeper.

<p>The defendant being sued on a note under seal, pleaded a special non est factum, admitting that he executed to the plaintiff his promissory note corresponding in all respects with the note sued on, except that the note executed by him was not under seal: Held, that upon the plaintiff making proof of the signature of the defendant, the legal presumption arose that the seal and all other parts of the note were also genuine; and it was proper, after proof of the signature, to allow the note to go to the jury with that presumption in favor of all its parts.</p> <p>But it seems that upon a special plea of the character described, the burden of proof in the first instance rightfully devolved upon the defendant, and imposed upon him the onus of proving an alteration of the instrument.</p>

Tried below before the, Hon. Fielding Jones. > The appellant was surety on the bail bond of John Kesler, who, on the 7th of June, 1858, was, by a justice of the peace of Victoria county, “ held to bail in the sum of five hundred dollars, with good security, to appear at the next District Court to answer” a charge “ of having committed an assault and battery with a deadly weapon upon Joseph Arnst, on 5th day of June, 1858, with intent to kill.” The penal -clause of the bond…

Error from Calhoun. Tried below before the Hon. Fielding Jones. H. L. Stone and J. A. Roberts, composing the firm of H. L. Stone & Co., of New Orleans, instituted this suit against the appellee in the District Court of Calhoun county, on the 18th of January, 1855.

Ebbob from Calhoun. Tried below before the Hon. Fielding Jones. This was an action of trespass- to try title and for damages,, commenced in Cameron county on the 3d day of September, 1852', by Francis J. Parker and Miflin Kennedy, against Pierre Bien-court and Joseph Mante, as defendants. The property in controversy was a lot in Brownsville, and the buildings thereon.

Error from Matagorda. Tried below before the Hon., George W. Smith. This suit was instituted by the appellants, J. W. Baldridge, J. H. Baldridge and Daniel P. Sparks, against the appellee and the sheriff of said county, to enjoin the collection of a judgment rendered in the District Court of said county for the purchase money of an undivided fourth interest in a tract of land purchased by appellants of appellee.

Tried below before the Hon. Fielding Jones. This case was formerly before the Supreme Court on appeal, reversed and remanded, and reported in 22d Texas Reports, 724. The cause was again tried in the court below. There was a verdict and judgment in favor of the claimants, and the plaintiffs prosecuted their appeal. The letter referred to in the opinion delivered on the second appeal, is fully set out in the reported case.

Tried below before the Hon. George W. Smith. This was an action of debt brought by the appellee on a judgment rendered in his favor against the appellant in the District Court of Austin county, on the 28th day of April, 1849. The petition was filed May' 20th, 1857. The judgment was for §192 80, and interest at eight per cent, per annum.

Tried below before the Hon. George W. Smith. This case was formerly before the Supreme Court on appeal, reversed and remanded, and reported in 21 Tex. R., 251.

Tried below before the Hon. Fielding Jones. This case was formerly before the Supreme Court, reversed and remanded, and reported in 24 Tex. R., p. 639. The only additional evidence introduced on the second trial in the court below was the deposition of Ashworth taken the second time, the substance of which is stated in the opinion of the court on the appeal.

_ Tried below before the Hon. Peter W. Gray. Suit on a sight draft by the indorsees against the acceptors and drawer, Blackmore, the appellee, drew a draft on Powell & Ruthven, of Galveston, payable at sight to the order of Millner & Jefferson. It was dated “ Fairfield,, Texas, March 30, 1859accepted by drawees—date of acceptance does not appear—and protested for non-payment on the 17th of May, 1859.

Tried below before the Hon. Fielding Jones. The main facts of this case may be found in the former report of it, contained in 24th Texas Reports, page, 655.

Fielding Jones. Trespass to try title, brought by the appellant, Ayres, against Duprey, the appellee, to recover a half league and labor of land in Lavaca county.

Error from Fayette. Tried below before the Hon. (Merge W, Smith. On the 26th of May, 1858, one Isaac W. Cox as principal and the plaintiff in error as his surety entered into a recognizance before the District Court of Fayette county, in the sum of one thousand dollars and conditioned for the future appearance of the said Cox.

Tried below before the Hon. Fielding. Jones. The appellee instituted this suit on the 20th of May, 1859, to-obtain a decree for title to one-half of a tract of one thousand acres of land in Lavaca county. The defendants below Were the guardians of Mary Jane and Martha Brown, minor heirs of Anthony Brown, deceased. The facts are stated in the opinion.

Tried below before the Hon. Fielding Jones. Trespass to try title to a half of a league of land in Calhoun county, brought by Robson, the appellee, against Hugh Jordan, on the 22d of July, 1857. The cause was continued for service at the Fall Term, 1857, and the two next ensuing terms. At the Spring Term, 1859, George W. Garrett was, on motion, made a party defendant with leave to defend.

Tried below before the Hon. Fielding Jones. Trespass to try title, and for damages, brought by the appellees against the appellant, on the 27th of October, 1859. The property in controversy was a tract of three hundred acres, part of a quarter of a league, lying partly in Gonzales and partly in Lavaca counties. The defendant pleaded the limitations of three and five years.

Tried below before the Hon. Fielding Jones. This suit was brought by William J. Jones, the appellee, to recover the value of the running gear of a gin, alleged to be of the value of five hundred dollars, which was charged to have been wrongfully, willfully and maliciously taken by Calvin Gordon, the appellant, from the plantation of appellee and converted to his use; and for five hundred dollars for damages resulting from the willful and malicious trespass committed in the…

Tried below before the Hon. Fielding Jones. This case was formerly before the Supreme Court, reversed and remanded, and reported in the 22d vol. Texas Reports, • page 686.

<p>An illegal act cannot be justified by an order from superior authority, no matter how high the source from which such order emanates.</p> <p>Military officers are bound to obey all legal orders of their commanders; but there is nothing better settled, as well by the military as the civil law, than that neither officers nor soldiers are bound to obey any illegal order of their superior officers. On the contrary, it is their duty to disobey such orders.</p> <p>The orders of a military commander to his subordinate furnish to the latter no justification for his forcible interference with the jurisdiction and disregard of the lawful authority of a civil court.</p> <p>But, although a subordinate military officer must not obey an unlawful order of his superior in command, yet, as he acts at his peril in disobeying such an order, it should be held greatly to extenuate the offence committed by the subordinate in the execution of it.</p> <p>Under such circumstances, the superior officer who commands the unlawful act, becomes the principal offender, and when implicated in this manner, such officer, although not in the first instance brought before the court, will, it seems, be required to purge himself of the contempt.</p>

Tried below before the Hon. W. S. Todd. On the 21st of November, 1854, Hopkins, the appellee, filed his petition in the District Court of Red River county, alleging that he Was the owner of an undivided one-half of a third of a league of land, located and surveyed by virtue of the headright certificate of Abner H. McKenzie, and that the unknown heirs of Robert Hamilton, deceased, and the unknown heirs of William F. Hamilton, deceased, were the reputed owners of the other…

Tried below before the Hon. W. S. Todd. The appellee, John Oustott, brought this suit against the appellant, William S. Oustott, and Elizabeth Oustott.

Tried below before the Hon. W. S. Todd. Graham, the appellee, instituted this suit against the appellant on the 23d day of February, 1856.

Tried below before the Hon. W. S. Todd. The appellees as partners under the style of Campbell & Strong brought this suit against M. D. Bullion and C. D. Conally upon a written obligation executed to James A. Hendricks, by one B. M. Hampton, as principal, and the defendants as his sureties, dated July 6th, 1855.

Tried below before the Hon. W. S. Todd. On the 16th of March, 1860, the appellant, Sasser, brought this action of trespass for an assault and battery against the appellee, Davis, laying his damages at ten thousand dollars. The petition alleged the assault to have been made and the injuries inflicted on the — day of September, 1858.

<p>Where forced heirs sought, by suit in the District Court, to set aside the will made, and to recover property alienated by their ancestor in fraud of their rights, and charged the executors of the will with colluding and combining with the adverse claimants; held, in accordance with numerous former adjudications of this court, that the suit was well brought in the District Court, the County Court being powerless to grant full and adequate relief in such a case.</p> <p>An aménded petition which only supplied defective averments and amplified the facts constituting the cause of action, could not be treated as setting up a new cause of action so as to admit a defence of the statute of limitations which was not available against the original petition.</p> <p>In a suit of this character, it was not incumbent on the plaintiffs to specify the nature or evidence of the claim under which the defendants held the property in dispute ; and when the defendants set up such claim in their defence, the plaintiffs, by averring its invalidity and praying appropriate relief against it, can not be held to have departed from their original complaint.</p> <p>In this case deeds of gift, made before the repeal of the law of forced heir-ship, and for the purpose of avoiding that law, were held, in deference to precedents, to be valid to the extent of the interest which the donor might devise; but Mr. Justice Moore intimates that if it were an open question, such conveyances should be held void in toto.</p> <p>The fact that some of the plaintiffs were femes covert and others infants at the commencement of their suit, would not preclude the defendants from the benefit of the statute of limitati =n. Those disabilities of the plaintiffs, in order to have that effect, must have existed at the time the statute would otherwise have commenced to run.</p>

Tried below before the Hon. R. A. Reeves. This suit was instituted by the appellee, surviving wife of James C. Ryan, deceased, against Rachel L. C. Henderson and Addison Ryan, to cancel and set aside a certain paper probated by the defendants as the last will and testament of said James C. Ryan, deceased, and to recover of the defendants the property of which said James C. Ryan died possessed.

Tried below before the Hon. R. A. Reeves. The appellees, Edwin W. Bush and Jas. M. J ones, brought this suit of trespass to try title against the appellant, for the recovery of one hundred and eighteen acres of land. The respective titles of the parties are sufficiently'stated in the opinion. The sheriff’s sale at which the plaintiffs purchased was had on the first Tuesday in July, 1856, when the land was struck off to them at one cent per acre.

Error from Rusk. Tried below before the Hon. O. A. Frazer. Larkin C. Calloway, the defendant in error, instituted this suit against Raines, the plaintiff in error, by petition filed on the 14th of April, 1856. On the 27th of August, 1853, Raines sold and conveyed to Calloway several tracts of land comprising 1319 acres, and described as lying in Union parish, State of Louisiana. By the same deed Raines also conveyed to Calloway a number of slaves and mules.

Tried below before the Hon. C. A. Frazer. The city of Marshall brought this suit against J ames M. Bailey as principal, and A. G. Scogin, E. Greer and L. R. Ford as sureties, upon the official bond of said Bailey as city constable of Marshall. The bond was in the sum of one thousand dollars, and was conditioned for the faithful performance of the duties of said Bailey as constable.

Tried below before the Hon. C. A. Frazer. This case is an offshoot from the case of Little v. Birdwell, reported in 21st Texas Reports, 597, where may be found the will and concomitant facts which engendered the litigation.

Tried below before the Hon. Reuben A. Reeves. This suit was originally brought before a justice of the peace by the appellee, William A. Hagood, against the appellants, Geo. R. and Marshall Grimes. The justice of the peace rendered a judgment against Hagood, who removed the case, by certiorari, to the District Court of Cherokee county. The action was based upon the following paper, to-wit: “ $97 50-100.

<p>A verbal sale, exchange or gift of personal property by a husband to his wife, if made in good faith, with a well defined intention and purpose, and free from coercion, importunity, or other undue influence, is valid as against subsequent creditors of the husband; and no written acknowledgment of such a gift is necessary.</p> <p>But such transactions between a husband and wife will be subjected by the courts to the most rigid scrutiny; and they will not be sustained unless upon the clearest proof of their validity.</p> <p>In this case it is admitted that there was an exchange of negroes between a husband and wife by verbal sale and delivery, and that each received from the other the property given in exchange: Held, that this admission imports that the transaction was, in all respects,» valid exchange or sale of the property.</p> <p>The negro so received by the wife was not liable for debts of the husband contracted by him subsequent to the exchange; and the silence of the wife respecting her title to the negro could operate no forfeiture of her rights.</p> <p>The husband having survived the wife, such life estate as by her death he acquired in the negro was liable to execution for his debts; and his bill of sale, made after the lien attached, could not deprive the judgment creditor of Ms right to subject such interest to the payment of the judgment.</p>

Error from Houston. Tried below before the Hon. R. A. Reeves. This was an appeal to the District Court from the County-Court of Houston county for the settlement of estates, by whose decree the appellant Hall was removed from, and the appellee appointed to, the administration of the estate of James H. Gillespie,' deceased.

<p>Appeal from Smith. Tried below before the Hon. W. M. Taylor.</p> <p>The facts appear in the opinion of the court.</p>

Original attachment for contempt. Tried before the Supreme Court. The facts of this case are ' sufficiently collated in the opinions delivered by the court upon the first and at the present hearing. For a report of the first hearing reference is made to page 627 of this volume.

Tried below before the Hon. Richard S. Walker sitting in chambers. Applicant, previous to the 4th day of June, 1863, was enlisted as a soldier in the army of the Confederate States, for the term of three years. On that day, he offered a substitute, who was fifty years of age, and, on examination, being found capable, was received and-,applicant discharged.

<p>In an indictment under article 775 b. of the Penal Code, an averment that the defendant took up and used certain oxen “without estraying them in the manner prescribed by law,” is equivalent to charging, in the language of the statute, that he took them up and used them, “ without complying with the laws regulating estrays.”</p> <p>In framing an indictment, it is better to employ the words of the statute rather than equivalent phraseology, and thus preclude all doubt about the meaning of the averment.</p> <p>Unnecessary averments in an indictment may be rejected as surplusage ; and a mere defect in the manner of stating the matter charged will not vitiate.</p> <p>Oxen other than work oxen are included in the generic term “ cattle,” employed in article 855 of O. & W. Digest.</p> <p>See this case with respect to the estray laws as they affect oxen in contradistinction to work oxen.</p> <p>Stray work oxen are, in general, classified with horses, mares, &c., and may be estrayed forthwith ; while oxen other than work oxen are, as cattle, subject to different regulations, and cannot be estrayed unless they have been on the land of the taker-up at least twelve months before being estrayed.</p>

<p>An appeal may be taken by the applicant where the court or judge has decided against the application for a writ of habeas corpus, that is after a trial; but the statute makes no provision for an appeal, if the writ be denied.</p> <p>If the grounds disclosed, on an application for a writ of habeas corpus, are sufficient, the action of this court in dismissing the appeal, is not conclusive. It is only so after a hearing in the court below, upon the facts and' law arising upon the record, and not when the appeal is from the refusal to grant the writ.</p> <p>After indictment, as in Art. 125, Code of Criminal Procedure, application for the writ must be made to the judge of the district in which the indictment was found.</p> <p>The writ of habeas corpus is one of right; but it is not grantable of course : and cause must be shown¡ supported by oath, in accordance with the statute. If it be apparent that the applicant is not entitled to any relief, the judge may refuse to award the writ; and his action cannot be revised on appeal.</p> <p>Under our statute, the writ ought not to be refused, except in a clear case.</p>

James H. Bell, associate justice of the Supreme Court, sitting in chambers, at Austin. On habeas corpus. The applicant appealed from the order of the judge at chambers, remanding him to the custody of his commanding officer. The facts appear fully in the opinion of the court.

Tried below before the Hon. James A. Baker. The facts appear fully in the opinion. The appellant was convicted below, and sentenced to two years in the penitentiary.

Tried below before the Hon. W. Y. McFarland. The appellant was indicted at the Spring Term, 1862, of the District Court of McLennan county for the murder of Demetrius Hays. The offence was charged to have been committed on the 21st day of December, 1861. After various orders and continuances, the case came to trial at the Fall Term, 1864, when the defendant pleaded not guilty.