Volume 28 — Texas Reports

The case was tried before Hon. Fielding Jones, one of the district judges. This suit was brought by the appellants, George W. Whitehead and others, as the heirs of Ephraim Whitehead, deceased, against William Q-. L. Foley and Mason 13. Foley, the appellees, for a league of land in Lavaca county. Petition filed September 11, 1855.

The case was tried before Hon. A. W. Terrell, one of the district judges. On the 17th of November, 1856, the appellant brought this suit against the appellee, to recover from him damages and compensation for twenty-five trees, of the value of $300, alleged to have been cut and carried away by the defendant from the plaintiff’s land. The defendant plead not guilty, and a plea of justification, alleging a license and permission from the plaintiff so to do.

The ease was tried, before Hon. A. W. Terrell, one of the district judges. Held: and shall give notice of the time and object of such elections, by causing notice thereof to be posted up in each precinct of the county at least thirty days before the holding of such election; said election to be conducted in the manner regulating county elections, so far as the same may be applicable: Provided, also, That the said…

The case was tried before B. Warren Stone, Esq., a special judge chosen by the parties because of the interest of Hon. Nat. M. Burford, the presiding judge. William Coombs was the head of a large family, consisting of wife and children.

The case was tried by W. F. Daniel, Esq., a special judge, chosen by the parties because of the interest of Hon. Nat. M. Burford, the presiding judge. Trespass to try title to the “Enoch Friar league” of land, instituted by Charles Q. Haley against Henry W. Powell and several other defendants, on the 11th of November, 1854.

The ease was tried before Hon. A. W. Terrell, one of the district judges. Suit by the county of Guadaloupe against the appellant for $500, statutory forfeiture incurred by him on account of his failure and refusal to render to the assessor and collector of taxes a list of his taxable property for the year 1859, as required by the 6th section of the act of 11th. February, 1850.

The case was tried before Hon. John Gregg, one of the district judges. This was an action brought by the appellant, as trustee of J. H. Kirchhoffer, to recover of Walton, sheriff of Uavarro county, and sureties on his official bond, the value of certain goods, wares, and merchandise, which had been conveyed by Kirchhoffer to the plaintiff in trust for creditors, and which had been taken in execution by the said sheriff and sold.

The case was tried before Hon. Edward H. Vontress, one of the district judges. The facts necessary to the points decided are fully stated in the opinion of the court.

The case was tried before Hon. John Gregg, one of the district judges. The facts are fully stated in the opinion of the court. The appellee was plaintiff below, the action being trespass to try title.

Error from Collin. The case was tried before Hon. Hat. M. Burford, one of the district judges. On the 30th of August, 1858, Cummins, the defendant in error, filed his petition against Walter Yeary and several other defendants, as the heirs-at-law of John Yeary, deceased, to obtain a decree against them for title to three hundred and twenty acres of land in Eannin county.

<p>Appeal from Freestone. The case was tried before Hon. John Gregg, one of the district judges.</p>

The case was tried before Hon. H. W. Battle, one of the district judges. In October, 1858, John Dodd and B. V. Shackleford, keepers of a livery stable in Hempstead, under their partnership name of Dodd & Co., hired a buggy, mule, and harness to two strangers, who called themselves Merchant and brother, or Wilson and brother, for the purpose of conveying them to Belton.

The case was tried before Hon. John Gregg, one of the district judges. On the 28th of March, 1858, W. J. Philips, the appellee, instituted this suit against Cato, the appellant, on a promissory note for $600 91, executed by Cato, and payable to George Hooker or bearer.

The case was tried before Hon. Nat. M. Burford, one of the district judges. On the 10th of'June, 1852, the appellant brought this suit to the District Court of Havarro county, against David R. Mitchell and numerous other defendants, for the recovery of two leagues of land, cancellation of deeds, and damages. The plaintiff derived his title to one of the leagues from Rachel Leach, made to her as a colonist of Burnet’s colony, in October, 1835.

The case was tried before Hon. John G-regg, one of the district judges. This case was a trial of the right of property, between the appellants, as plaintiifs in execution, and thé appellee, as claimant under the statute. (Paschal’s Dig., Art. 5310, Note 1155.) On the 18th of April, 1857, the appellants recovered a judgment against John Booth, who is the husband of the appellee, for nearly $1,900.

Error from Hill. The case was tried before Hon. John Gregg, one of the district judges. It appears by the record that the citation was served upon Ingram, the partner and co-defendant of the plaintiff in error, on the 8th day of October, 1859. All other facts • appear in the opinion of the court.

The case was tried before Hon. H. W. Battle, one of the district judges. Motion by the appellant against Warnell, as sheriff of McLennan county, and the sureties on his official bond, under the 23d section of the execution law. (PaschaFs Dig., Art. 3796, Note 884.) The cause of the motion was the failure of the sheriff to make return of an execution in favor of the appellant, against Moses Quest and R. T. Frazier.

The case was tried before Hon. Hat. M. Bureord, one of the district judges. The appellant, on the 6th of June, 1860, filed his petition for a certiorari, to bring before the District Court an action of forcible entry and detainer, in which the appellee, on the 1st day of the same month, had obtained judgment against him for the possession of one hundred and sixty acres of land.

The case was tried before Hon. John Gregg, one of the district judges. The facts are shown in the opinion of the court. The proceeding was a motion of the appellee, in the Supreme Court, to affirm, without reference to the merits, under the 7th section, of the act of 1850, further regulating proceedings in the Supreme Court. (Paschal’s Dig., Art. 1589, Note 616.) The question was upon the sufficiency of the certificate.

Error from Johnson. The case was tried before Hon. Hat. M. Burford, one of the district judges. The essential facts are clearly stated in the opinion of the court. The petition was filed by defendant in error on the 81st of May, 1860, and service of process was acknowledged a few days thereafter.

The ease was tried before Hon. John Gregg, one of the district judges. The facts are fully shown in the opinion, but it seems desirable that the pleadings should be more fully set forth. The appellee, Colquhoun, filed his petition on the 28th of March, 1855, against James and Isaac Jackson, then in possession of the league of land in controversy, for the recovery of the league.

Error from Ellis. The case was tried before Hon. Hat. M. Bureord, one of the district judges. Suit for specific performance and for partition, commenced in the District Court of Hill county, on the 31st day of May, 1856, by William L. Mitchell, against the plaintiffs in error. Subsequently the venue was changed to the county of Ellis, and Mitchell was joined by Stubblefield, as a co-plaintiff.

The case was tried before Hon. Hat. M. Bureord, one of the district judges. The appellee, Lemmon, brought suit against J. A. Hanley on a promissory note for $920. ' The petition was filed on the 1st of May, 1858. Service was had upon the defendant, who answered at the December term following. On the 21st of June, 1859, a writ of scire facias was issued by the clerk of the court to J. S. Hanley, as the legal representative of J. A. Hanley.

The case was tried before Hon. A. W. Terrell, one of the district judges. The appellant, on the 12th of January, 1861, presented his petition and obtained the order of the district judge for an ad interim injunction.

Error from Grayson. The case was tried before Hon. Hat. M. Burford, one of the district judges. This was a bill for an injunction filed by Hunter against Clark. The complainant alleged, in substance, that Clark had recovered a judgment against one Shannon and the complainant, upon a promissory note for some $266, on which complainant, as Clark well knew, was but a surety for Shannon.

Error from Limestone. The case was tried before Hon. John Gregg, one of the district judges. This action was brought to the fall term, 1852, of the District Court of Limestone county, by David B. Mitchell, as administrator of Thomas J. Smith, deceased, to recover of George A. Sublett, who was a non-resident of the State, one-fourth of a league and labor of land located under the head-right certificate of Willis M. Williams.

Error from G-uadaloupe. The case was tried before Hon. A. W. Terrell, one of the district judges. The writ of error in this case was sued out by H. H. Batey and J. H. Fennell, against whom there was judgment below, on a forfeited delivery bond, in favor of Dibrell & Brother. The return made by the sheriff upon the writ of error is stated substantially in the opinion of the court. ' The transcript was taken out by the defendants in error, and filed in this court.

<p>Objections to the admission of evidence are not available in this court unless they were made in the court below.</p> <p>A levy upon personal property is, as a general rule, held to be prima facie evidence of satisfaction of the execution. But this presumption does not arise when possession of the property remained with the defendant in execution ; and it is repelled whenever it is shown that the plaintiff has been prevented, either by the act of the defendant or the operation of law, from reaping the fruits of his levy. (Paschal’s Dig., Note 867, p. 620.)</p> <p>When two or more executions against a defendant come to the hands of a sheriff, he is required by law to number them in their order of precedence; and, in accordance with such orders, they are entitled to satisfaction out of the property of the defendant. In such case, it is of no importance under which execution a levy and sale are made; the first execution is entitled to ' the first satisfaction, although the levy and sale be made under a subsequent execution. (Paschal’s Dig., Art. 3780, Note 871.)</p> <p>If all the executions be levied on the defendant’s property, the sheriff, for the sake of greater accuracy, should show by his returns upon the subsequent executions that the levies made under them are subject to the priority of those having precedence of them; but a failure of the sheriff to make such showing could not affect the respective rights of the several plaintiffs in execution.</p> <p>A sheriff’s return of an execution is to be regarded as true and correct until the contrary is made to appear. (Paschal’s Dig., Art. 3773, Note 866.)</p> <p>The plaintiff sued upon a judgment, and, in support of his action, introduced as evidence a transcript of the judgment and subsequent proceedings, including an execution issued on the judgment, which was received by the sheriff as execution No. 2, and upon which he indorsed a levy upon real and personal property of the defendant in execution. By a subsequent indorsement the sheriff returned the execution not satisfied, stating in this return that the property levied upon had been sold under execution No. 1, in his hands, in favor of another party, and which exhausted the property. This being all the evidence with respect to the levy, sale, and application of the proceeds, it is held, that it was sufficient to prove that the judgment sued on neither was nor should have been satisfied by the levy or its proceeds.</p> <p>The taking of testimony by depositions being a departure from the common-law rules of evidence, the statutory provisions permitting and regulating it must be fully and fairly, if not strictly, complied with; and, if this be not done, such testimony should be excluded.</p> <p>The statute which provides for taking depositions requires the party to file interrogatories in the court where the suit is pending, and to cause the opposite party, or attorney, to.be served with a copy thereof, and also with a notice that he will apply for a commission, &c. (Paschal’s Dig., Art; 3726, Note 845.) This requirement was intended to secure valuable and important rights to the party in whose behalf it is provided.</p> <p>If, in the notice for the taking a deposition, the name and residence of the witness have not been truly given, the deposition is not taken in conformity with the statute, and should be excluded on objection properly interposed.</p> <p>If the deposition have been on file for one day before the trial, the objection should be made in writing, and with notice to the party; and where the objection was sustained by the court below to a deposition so on file, this court will presume that it was made in that manner, unless the contrary appear by the bill of exceptions. (Paschal’s Dig., Art. 3742, Note 851.)</p> <p>In this case depositions were objected to on the ground that the witnesses were not in fact residents of the counties specified in the notice. The party offering the depositions insisted, in the court below, that the question of fact thus raised, and the evidence pertinent to it, should be submitted to the jury along with the depositions themselves and the main issue in the cause. But the court below ruled that the question of fact involved in the objection was to be determined by the court, and, accordingly, the proof upon the question was heard by the court, who thereupon sustained the objection, and excluded the depositions from the jury: Held, that the statute does not direct the mode in which the question of fact raised by such an ■ objection is to be tried; that, on principle and authority, the objection, being preliminary to the introduction of the depositions and going to their competency and admissibility, was determinable by the court and not the jury, notwithstanding the question of fact involved in its decision. And the proof, though conflicting and contradictory, being sufficient to justify the decision made by the court below, this court will not attempt to determine on which side it preponderated, but sustains both the practice and the ruling of the court below in excluding the depositions.</p> <p>Evidence tending to show that the persons whose depositions were introduced had been fraudulently personated, or that, in fact, there were no such persons as the pretended witnesses, would, after the depositions had been admitted, be competent evidence to go to the jury. But evidence that there were no such persons as the pretended witnesses would be also competent before the court upon the preliminary question of the admissibility of the depositions, for such evidence would necessarily show that there were no such residents of the particular county where the depositions were taken.</p> <p>If there has been error in the ruling of the court below, it is the duty of the appellant to put his finger upon it. He must present the facts so as to make the error of which he complains manifest. He cannot expect the court to seek for or to find it by argument and deduction. (Paschal’s Dig., Art. 1591, Note 618.)</p> <p>If the notice of objections to the form or manner of the taking a deposition were not in writing, as required by the 78th section of the act to regulate proceedings in the district court, hut only offered ore terms, when the deposition was presented, the want of such notice should he shown hy hill of exceptions. (Paschal’s Dig., Art. 3742, Note 851; Art. 217, Note 280.)</p>

<p>Appeal from Ellis. The case was tried before Hon. Hat. M. Burford, one of the district judges.</p> <p>All material facts appear clearly in the opinion of the court. .</p>

Error from Collin. The case was tried before Hon. Hat. M. Burford, one of the district judges. The trial in the District Court was had at the spring term, 1859, and the plaintiffs sued out their writ of error in December of the same year. Away hack previous to 1835, (it does not appear just when,) Hezekiah Walters married Zeruiah, the name of whose father is not given, and, while Texas was yet part of a Mexican State, they emigrated to the country of colonial enterprises.

The case was tried, before John J. Q-ood, Esq., special judge, chosen by the parties because Eat. M. Burford, the presiding judge, was a party. Trespass to try title, instituted by the appellee on the 4th of June, 1860, to recover from the appellant one hundred acres of land in Dallas county. The plaintiff derived his title by purchase of the land at constable’s sale. The land was levied upon as the property of J. B. Hudson, defendant in execution.

The case was tried before Hon. Hat. M. Burford, one of the district judges. On the 9th of Hovember, 1859, the appellee, Gandy, filed his petition against Joshua S. Hanley, the appellant, both in his individual capacity and as the- administrator of J. A. Hanley, deceased, to recover the amount due upon a promissory note for $1,130 60,- purporting to have been executed by the said Hanleys to Alfred J. Burk, or bearer, on the 20th day of February, 1858.

The case was tried before Hon. Hat. M. Btjreord, one of the district 'judges. The facts of this case appear fully in the opinion of the court, by which also the. errors complained of are sufficiently indicated.

Error from Caldwell. ■ The case was tried before Hon. A. W*. Terrell, one of the' district judges. The defendant in error, on the 21st of January, 1858, brought his suit against D. M. Porter, the intestate of the plaintiff in error, on a promissory note for $222. On the 29th of April, 1858, the defendant filed his answer of a general denial.

The case was tried before Hon. A. W. Terrell, one of the district judges. The case is fully and clearly stated in the opinion of the court.

The case was tried before Hon. Hat. M. Bureord, one of the district judges. The appellee brought this suit on the 4th of January, 1859, to recover from the appellant, with interest, the sum of $160 paid by the plaintiff to the defendant on the 19th of September, 1855, as the purchase of one hundred and sixty acres of land in Ellis county.

The case was tried before Hon. A. W. Terrell, one of the district judges. On the 13th of May, 1858, Haney Bray and others, the appellees, as the heirs at law of John L. Bray, deceased, instituted this action of trespass to try title against one L. L. Sykes, for the recovery of one-third of a league of land in Travis county. Sykes disclaimed any interest in the land, and Cox, the appellant, became defendant on his own application, at the December term, 1858.

Error from Gonzales. The case was- tried before Hon. Fielding Jones, one of the district judges. For the purpose of elucidating the rulings of the court, the facts of this case may be stated in brief; but, as there is no statement of facts or bill of exceptions, it is not necessary to the merits.

The case was tried before Hon. Fielding Jones, one of the district judges. In 1831 Mrs. Eleanor Leving, a widow, came with her son to Austin’s colony, where for three years she resided in the family of Granville McHeil. She declared her intention to become a citizen of the country. On the 8th of December, 1831, she solicited and obtained a grant of a league of land from the proper authorities of Austin’s colony. The grant was every way in due form.

The case was tried before Hon. A. W. Terrell, one of the district judges. Few records are more painfully suggestive than that which furnishes this precedent.

Error from Travis. The case was tried before Hon. A. W. Terrell, one of the district judges. This was a suit brought 'by defendant in error, James Smith, against plaintiff in error, Robert A. Rutherford, in the District Court of Travis county, for debt on promissory note. The petition, filed January 19, 1861, alleges that defendant, Robert A. Rutherford, “ made, executed, and delivered to H. Crocheron his obligation in writing, substantially as follows: “$1,174 72.

The case was tried before Hon. I, B. McFarland, one of the district judges. The opinion of the court states all necessary facts.

The case was tried before Hon. Thomas H. Stribling, one of the district judges. The appellee was indicted for taking up and using an estray without complying with the laws regulating estrays. On motion of the defendant the indictment was quashed, and an appeal was taken by the State; but the defendant was not required to enter into recognizance.

The case was tried before Hon. Thomas H. Stripling, one of the district judges.

<p>A surviving wife, by filing in the county court an inventory of the community property of herself and her deceased husband, renders herself liable to be sued on the community debts, for which such property is expressly made liable by the statute. (Paschal’s Dig., Art. 4606, Note 1053.)</p> <p>When such inventory and appraisement are filed, the wife becomes the surviving partner and representative of the community, and while she continues to act in that capacity she may be sued for the debts of the commu.nity; but, as her capacity is a fiduciary one, and as’ such suits are more in the nature of proceedings in rem than in personam, the judgment should be that satisfaction be had out of the community estate in her hands. (Paschal’s Dig., Art. 4652.)</p> <p>Though not expressly authorized by the statute, this court is of opinion that such judgments may be ordinarily enforced by process of' execution. But if it be made to appear that by that mode of enforcement the community property is likely to be sacrificed and the estate to be rendered insolvent, ' the courts, in the exercise of their equitable jurisdiction, have ample power to afford all necessary or proper relief.</p> <p>If, upon one of the contingencies specified by the statute, (Paschal’s Dig., Arts. 4649, 4651,) administration upon the estate of the deceased husband be granted by,the county court, the wife ceases thereupon to represent his estate as survivor, and cannot be further proceeded against as such by suit or execution.</p> <p>Where the surviving wife is herself appointed administratrix of her husband’s estate, on a proper showing she may obtain a perpetual injunction against execution of a judgment previously rendered against her as surviving partner of the community, with directions that the judgment be paid by her in due course of administration.</p> <p>Judgment on a community liability was recovered against a surviving wife before she became administratrix of her deceased husband’s estate, and she obtained a temporary injunction against execution of it upon her allegation of a payment made upon the debt. Pending the injunction suit, she was appointed administratrix of her husband’s estate, which fact, and the insolvency of the estate, she represented to the court below, praying for general relief, and that if any decree be rendered against her,' it be in her character as administratrix, and to be satisfied in course of her administration: Held, that, irrespective of the payment claimed in the original petition for the injunction, which claim was not allowed, it was proper for the court below to perpetuate the injunction against enforcement of the judgment by execution and sale, and to direct that it be paid by the plaintiff in due course of her administration.</p> <p>Where an injunction has been perpetuated on grounds that did not exist at the time % was originally granted, the plaintiff should be taxed with such of the costs as are equitable. But error of this character may be remedied in this court by reforming the judgment, without remanding the cause.</p> <p>This court will not pass upon points upon which the court below has not acted, directly or indirectly.</p>

<p>Appeal from Dallas. The case was tried before Hon. Nat. M. Burford, one of the district judges.</p> <p>The appellee, Anderson D. Rice, commenced this suit against Nathaniel C. Floyd, the appellant, on the 23d of June, 1859. The object of the plaintiff was to have the boundary line between himself and the defendant established by decree of the court, though the petition also complained that the defendant had dispossessed the plaintiff of ten acres of land, and prayed restitution thereof.</p> <p>The facts of the case and the errors assigned are indicated in the opinion.</p>

Erro’r from Guadaloupe. The case was tried before Hon. A. W. Terrell, one of the district judges. The facts of this case appear fully in the opinion.

The case was tried before Hon. Fielding Jones, one of the district judges. This was an action of trespass to try title, and was originally instituted by E: W. Perry, in the District Court of Lavaca county. The property in controversy was a league and labor of land lying in the latter county. The petition was filed on the 15th of April, 1856, against C. Ballard and some ten other persons as defendants.

Error from Lampasas. The case was tried before Hon. Edward H. Vontress, one of the district judges. Covington sued Burleson and wife on their promissory note for $1,000, dated January 3, 1859, and payable January 1, 1861. The petition was filed on the 24th January, 1861.

The case was tried before Hon. Fielding Jones, one of the district judges. The case turned upon the facts and the instructions. The character and main facts of this case are substantially stated in the opinion of the court. The petition was filed on the 5th of February, 1857. The defendant, Julia Ami Trammell, was a daughter of the plaintiff Thurmond. At the spring term, 1861, the trial was had from which the present appeal was taken.

The case was. tried before Hon. Edward H. Vontress, one of the district judges. The property involved covers the “Lampasas springs,” so called from the (not infrequent in that country) immense volume of water which bursts out of the earth and flows off at once into a good-sized river. But in this case the name is better founded in the mineral properties of the waters.

The case was tried before Hon. Thomas J. Devine, one of the district judges. This suit was brought by the appellee for the use of Amos Nobles, heir at law of Durant Nobles, deceased, against ¡Reuben T. Creigler, administrator pro tem. of said deceased, and also against the appellant, Lacoste, and one Hanson Alsbury, sureties of said Creigler, upon his bond as. such administrator. The bond was executed on the 19th of October, 1853, under the 27th section of the act.

Error from Williamson. ■ The case was tried before Hon. Edward H. Vontress, one of the district judges. This was originally a suit before a.justice of the peace, instituted by the intestate of the defendant in error against the plaintiffs in error, to recover from them the amount of certain cost bills, payable by one John M. Costley, and placed in the hands of the plaintiffs in error for collection.

The case was tried before Hon. Nat. M. Burford, one of the district judges. This case is fully stated in the opinion of the court. The petition was filed February 3, 1858. There was judgment below in favor of the plaintiff, Durrett, for the land in controversy and all costs.

The case was tried before Hon. Thomas J. Devine, one of the district judges. This suit was commenced by the appellees, Emily W. Brackett and Samuel S. Smith, on the 4th of June, 1860, to enjoin execution of a judgment in favor of appellants, originally rendered against Emily W. Brackett, as surviving wife of O. B. Brackett, deceased, for some $180, which judgment was affirmed on error in the Supreme Court against Mrs. Brackett and Smith, her surety on the writ of error bond.

The case was tried before Hon. H. W. Battle, one of the district judges. It was a suit to recover slaves and their hire, under our sequestration laws. (Paschal’s Dig., Arts. 5095 to 5124, Notes 1115 to 1122.) The material facts are substantially shown in the opinion. The case was tried below at the fall term, 1861.

The case was tried before Hon. Nat. M. Burford, one of the district judges. The subject of building railroads in Texas became a very exciting one as early as 1850.

Error from Williamson. The case was tried before Hon. Edward H. Vontress, one of the district judges. The defendants in error suggest delay, and move to submit the cause, asking an affirmance with damages against the plaintiff in error, and also for a judgment against the administrator of a deceased surety of the plaintiff in error on his bond in error.

Thomas J. Devine, one of the district judges. This was an action by the appellee against W. B. Henry, sheriff of Bexar county, and the sureties on his official bond. The appellant was the executrix of Jose de la Garza, one of the sureties, who died pending the suit. A plea to the jurisdiction was overruled, and judgment rendered for the amount of the execution and damages at ten per centum per month.

Error from Bastrop. . The case was tried before Hon. A. W. Terrell, one of the district judges. The petition for writ of error 29th Hovember, 1861; citation waived 29th Hovember, 1861; error bond 26th September, 1861. On the 15th October, 1866, the attorney for appellee moved to file the transcript of the record, and that the same be docketed, and suggested delay, and asked an affirmance of the judgment, with damages. Ho motion to dismiss appears.

<p>Appeal from Williamson. The case was tried before Hon. Thomas F. Hughes, one of the district judges.</p> <p>Indictment for theft of a bell and collar of the value of $2 50.</p> <p>Slavery ceased to exist in Texas by the proclamations of President Johnson, General Gordon Granger, and Provisional Governor A. J. Hamilton. They became free in the summer and autumn of 1865. By one of the proclamations of Governor Hamilton they were subjected to trials as other persons. And by the 8th section of the constitution of 1866 it was declared, that “Africans and their descendants shall be protected in their rights of person and property by appropriate legislation, * * * * and all criminal prosecutions against them shall be conducted in the same manner as prosecutions for like offenses against the white race, and they shall be subject to like penalties;” and that they “shall not be prohibited on account of their color or race from testifying orally as witnesses in any case, civil or criminal, involving the right of, injury to, or crime against, any of them, in person or property, under the same rules of evidence that may be applicable to the "white race.” (Paschal’s Dig., pp. 943, 944.)</p> <p>The same principle was more strongly declared, > and without any exception on account of color, by the civil rights act of Congress of 9th April, 1866. (Paschal’s Dig., Arts. 5382 to 5391.)</p> <p>On the 9th day of November, 1866, the appellant, “ Seal, a freedman of color, formerly the property of William H. Swinney,” was indicted for stealing from William B. Henry a bell and collar of the value of $2 50, on the 15th of October, 1856. Henry was the only witness of the State. He swore that his bell and collar were upon his oxen the preceding evening, that is, on the 14th October; that he missed them next morning; that he suspected the accused, because he saw him pass with a wagon that evening; that he pursued the wagon, and came up with defendant and wagon near Brooksville; the negro boy, Charley, was driving the wagon a short distance ahead. “ Witness charged defendant with having a bell of his in the wagon, and he, witness, must search the wagon; that defendant called to Charley to stop his wagon, for there was a gentleman wanted to search the wagon for a bell, and that, if there was a bell in the wagon, he could have it; that Charles stopped the wagon; that "witness at once searched the wagon, in which were some bed-clothes; that upon moving the bed-clothes he heard the bell rattle, and upon unrolling them found the bell and collar, being the same he had lost, carefully rolled up in the bed-clothes, and one corner of a blanket stuffed in the bell; that the collar had been cut apparently with a dull knife; that witness at once charged the defendant with stealing the bell and collar; that defendant replied, ‘No, sir, I bought that bell to-day from a negro man, who rode up, riding a white horse, to where I was, and offered to sell me the bell, and I bought it of him, and gave him six bits in specie for it.’ That witness then asked Charley if he had a knife, and Charley replied, ‘No, sir.’ "Witness then asked defendant if he had a knife, to which defendant replied, ‘Yes, sir,’ and showed his knife, a dull one, to the witness; that witness then took his bell and collar and departed; that on the previous evening the defendant’s wagon, as shown by the trail, had left its proper road, so as to pass near where the oxen were; that at the time the bell and collar were stolen there were no negroes living in the neighborhood of Brooksville.</p> <p>“ Charles, a freed boy of color, witness for the defendant, being duly sworn, says:</p> <p>“ That he was with Seal, the defendant, during the trip with the wagon referred to by the witness for the State; that on the same morning that the witness for the State found the bell in defendant’s wagon, and about half an hour previous to this occurrence, a negro man rode up, riding a white horse, to where this witness and defendant were with the wagon, being a stranger to them both, and carrying this bell and collar, and said to defendant, ‘Here, uncle, don’t you want to buy a bell ?’ and offered to sell the bell and collar to the defendant for six bits; that defendant agreed and bought the bell and collar; that witness saw the defendant buy the bell and collar, and saw the defendant pay the negro man the money for them, upon which the negro man rode off; that witness does not know who the negro man was, and that the collar was cut when defendant bought it; that about half an hour after-wards a gentleman rode up and spoke to the defendant; that the defendant called to witness to stop the wagon, saying there was a gentleman wanted to search the wagon for a bell, and that if the bell in the wagon was his he could have it; that witness stopped the wagon; that the gentleman at once searched-the wagon, and found the bell and collar and claimed them; that before the search the bell and collar were not rolled up in the bed-clothes, but were lying partly under the bed-clothes in one corner, and that the gentleman, (the State’s witness,) in first examining for the bell, rolled the bed-clothes over and around the bell until the bell rattled, and he unfolded them and found the bell. That the gentleman charged the defendant with stealing the bell; that defendant replied, ‘Ho, sir; I bought that bell this morning of a negro man, who rode up to where I was, riding a white horse; I bought the bell of him, and paid him six bits in specie for it.’ That the gentleman asked this witness if he had a knife, to which witness replied, ‘Ho, sir.’ That the gentleman-then asked the defendant if he had a knife, to which defendant replied, ‘Yes, sir,’ and showed the gentleman Ms knife; that the gentleman then took the bell and collar and went away; that it was true that on the previous evening the defendant with his wagon had left the right road for their traveling, which was to get a load of corn in that neighborhood, but this was owing to their having mistaken the road and gone out of their way.</p> <p>Rebutting for the State.</p> <p>“ William B. Henry, being recalled, says: That he found the bell and collar in defendant’s wagon, carefully rolled up in a quilt, - and a blanket carefully rolled around that, and that it was impossible for witness so to have rolled them up as stated by witness for defendant.”</p> <p>The court defined theft in the language of the 745th Article of the Penal Code, viz:</p> <p>“ Theft is the fraudulent taking of corporeal personal property, belonging to another, from his possession or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.” (Paschal’s Dig., Art. 2381, ISTote 683.)</p> <p>And the judge concluded his charge thus:</p>

Error from Bexar. The case was tried before Hon. Thomas J. Devine, one of the district judges. This suit was commenced by E. B. Smith, the plaintiff in error, against James R. Sweet, who was the trustee, Stephen Minot and S. G. Ferrill, who were the makers of the notes and trust enjoined, and C. L. Pyron, the original payee of the notes and beneficiary of the trust. The character and leading facts of the case are stated in the opinion.

The case was tried before Hon. FT. W. Battle, one of the district judges. ■ The main facts of this case are clearly stated in the opinion of this court. The charges given to the jury by the court below, at the instance of the defendant, and which are held by this court to be erroneous, are as follows: “ 1.

Error from Bexar. The case was tried before Hon. Thomas J. Devine, one of the district judges. Suit by the defendant in error against the plaintiff in error, on an open account of $233, for goods, wares, and merchandise sold out and delivered. The defendant plead the general denial. On the trial, the plaintiffs introduced John Eckford, a member of their firm, as a witness to establish the account sued.

<p>Appeal from Williamson. The case was tried before Hon. J. A. Houghton, one of the district judges.</p> <p>Suit by the appellant, Cross, against the appellees, H. H. Everts and Catharine his wife. The original petition was filed on the 3d of February, 1866. It set forth that, about the 18th of July, 1865, the plaintiff and defendants made a mutual exchange of lands, or an agreement for the exchange of lands, plaintiff agreeing and contracting to transfer to defendants, by way of exchange, a certain described tract in Burleson county, containing two hundred and seven acres; and the defendants, in consideration thereof, exchanging or agreeing to exchange and transfer to plaintiff a certain other described tract situated in Williamson county, and containing one hundred and seventy-nine acres; that the principal inducement to plaintiff to enter into the exchange was, that he was the owner of two other tracts of land in Williamson county, lying on each side of the tract last above mentioned, and separated by it from each other; that the defendants did not consider the tract which plaintiff was to exchange to them as equal in value to that which they exchanged for it, and in consequence it was stipralated between defendants and plaintiff that plaintiff' should cause to be erected on the former tract a small house or cabin, and that so soon as the same was erected complete exchange and transfers should be made; that petitioner, in full compliance with this stipulation, had a small house erected immediately after the agreement, and afterwards, about the 1st of August, 1865, petitioner contracted to rent the land in Williamson county to certain parties in Lavaca county, who soon afterwards, having disposed of their property there, removed from said county, and, as the agents of petitioner, entered upon the possession of the said land with the consent of the defendants, who delivered such possession; that said parties, with the consent of the defendants, proceeded to and did break up a part of the lantl, and sowed wheat in the same, during which opera.tions the defendants retained the possession of the dwelling-houses on the land, but merely as tenants of the’plaintiff* until the house on the land in Burleson county should be completed by plaintiff; that, in full compliance with petitioner’s part of the contract, he had tendered to the defendants a full and perfect transfer of the land in Burleson county, and he is now willing and anxious to complete the transfers and exchange, but that the defendants have failed and refused to deliver to the petitioner or his agent or tenants the possession of the said dwelling-house bn the land in Williamson county, and to perfect the exchange and transfer of the same; that defendants allege, as their reason for so refusing, that said land is their homestead, and that the defendant, Catharine, refuses to complete the exchange of it; that the said Catharine, prior to said agreement, represented to petitioner that she was not merely willing, but was anxious to make the exchange, and that petitioner declared to her that he would not make the agreement unless she were perfectly willing; that, by reason of the refusal of the defendants to comply with their contract and deliver possession of said dwelling-houses and land, petitioner has forfeited his contract with the parties from Lavaca county, to whom he had rented the same, and will have to respond to them in damages; that by reason of the refusal and conduct of the defendants the petitioner has sustained damages to the amount of §600. He prays for judgment, divesting out of the defendants the title to the land in Williamson county, and vesting the same in him, and for his said damages, or, if such specific performance cannot be decreed, then that he have judgment for his damages against the defendants, and for general relief.</p> <p>On the 2d of May, 1866, the defendants excepted to the petition, because, 1st, it does not allege the contract to have been made in writing; and, 2d, the petition is defective and insufficient to sustain a suit against the defendants. They also filed a general denial and a special answer, averring that no contract in writing was ever made between them and the plaintiff' for the exchange of their lands, and that, if any agreement were ever made to that effect, it was a verbal agreement, and was null and void; that the land in Williamson county was the homestead of the defendants, and could not be alienated by them except in the mode prescribed by law.</p> <p>On the next day the plaintiff' amended his petition, and alleged that the agreement for the exchange was to be carried into complete effect as soon as he fully performed his part of it, by building the house on the land in Burleson county, and that the deeds were then to be made, and the whole agreement was to be fully performed within twelve months from the time it was entered into; that petitioner built the house at an expense of §200, and had in every respect fully performed his part of the contract; that inasmuch as petitioner might be absent when the house should be completed and the defendants were to remove to it, it was agreed that a mutual exchange and delivery of the deeds should be effected by depositing them in the hands of a certain third party; that petitioner proceeded to erect the said house in good faith and at great expense, and did erect it, as already stated; that on his part there had been a full performance of the contract, and on the part of the defendants a part performance of it; that in July, 1865, petitioner did deposit in the hands of the said third party a deed to the defendants for the land in Burleson county, to be delivered in accordance with the agreement, and thereby the title to said land was vested in the defendants; that the land in Williamson county, by the voluntary act of the defendants, had ceased to be their homestead; that they, by their said acts and agreements, abandoned the same as their homestead, and elected another homestead; that the defendants, for the purpose of defrauding petitioner, refused to comply with their said agreement; that the said Catharine made sundry representations to petitioner to induce him to make the agreement, and expressed her willingness to change her homestead and to sign the deed at any time, and by such false representations induced petitioner to make the outlays already stated, and to incur the liability stated to his said tenants.</p> <p>The cause was submitted to the court on the original and amended petitions of the plaintiff and the exceptions of the defendants, and thereupon the. exceptions were sustained, and judgment was rendered for the defendants. The plaintiff appealed, and assigned for errors, 1st, that the court erred in sustaining the exceptions; and, 2d, that the court “ should have held over the case for trial as to the damages asked in the plaintiff’s petition.”</p>

The case was tried before Hon. Edward H. Yontress, one of'the district judges. The appellees were the sureties of one James C. Eaves, on his bail bond for the sum of $1,800. Eaves failing to appear, judgment final was obtained against his sureties for the amount of the bail bond and for costs. Governor Houston, however, remitted the judgment, except as to the costs.

Error from Johnson. The case was tried before Hon. Hat. M. Burford, one of the district judges. The facts appear in the opinion of the court. The judgment was by default.

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

Error from Navarro. The case was tried before Hon. John G-regg, one of the district judges. The defendants acknowledged service, but filed no answer. The other facts are stated in the opinion of the court.

The case was tried before Hon. Nat. M. Burford, one of the district judges. The copy of the contract and principal facts of this case are shown in the opinion of the court. The jury returned a verdict against the appellant for $400, in accordance with the valuation of $4 per head placed upon the sheep by- the plaintiff’s witnesses. The defendant’s witnesses valued the sheep at only $3 per head.

Error from Collin. The case was tried before Hon. R. L. Waddill, one of the district judges. Suit by the defendant in error, as administrator of Robert Skaggs, deceased, against William A. Brown, David E. Best, and James H. Lovejoy, on their promissory note for $2,332, and also against said Brown and his wife, Parmelia Brown, to foreclose a mortgage executed by them upon land to secure the payment of the note sued on.

Error from Collin. The case was tried before Hon. Hat. M. Bureord, one of the district judges. Suit on a promissory note for $205, brought by the defendant in error against the plaintiff in error.

The case was tried before Hon. Edwabd H. Vontbess, one of the district judges. The appellee, M. C. Hamilton, brought this action of trespass to try title and for damages on the 20th of August, 1859. The land in question was a tract of six hundred and forty acres, in Williamson county, which was patented to the plaintiff, as assignee of William Mullen, on the 15th of Juñe, 1858. The transfer of Mullen’s certificate to the plaintiff was made on the 16th of ¡November, 1887.

Error from Navarro. The case was tried before Hon. John Gregg, one of the district judges. This was a motion entered at the fall term, 1858, of the District Court of Navarro county, by Compton & Strother, the defendants in error, against the plaintiff in error, who was the sheriff of the same county, and the sureties on his official bond. The facts are substantially shown in the opinion of the court.

The case was tried before Hon. R. L. Waddill, one of'the district judges. Suit by the appellee against the appellant. The amount in controversy was $145, being the sum received by the defendant from the State. The substance of the petition is fully embraced in the syllabus. The general demurrer filed by the defendant was overruled, which is the error assigned.

Error from Johnson. The case was tried before Hon. Hat. M. Bureord, one of the district judges. This action was brought on the 2d of March, 1859, by S. J, Baggett against Joab Watson and J. R. McKenzie.

<p>The plaintiff sued the defendants' in an action of trespass to try title. The defendants plead the general issue, and' put in evidence the record of a former suit of trespass to try title, instituted against them by the plaintiff for the same land and on the same title, which former suit had been dismissed by the plaintiff on a compromise between him and the defendants, by which the defendants agreed to pay the costs of the suit and the fees of the plaintiff’s attorneys, and the plaintiff agreed to dismiss the suit and to withdraw his claim to the land. The defendants further proved that they had complied with the terms of the compromise on their part: Held, that the plaintiff was precluded by the compromise from maintaining this second action against the defendants, notwithstanding that the compromise may have resulted differently from what the plaintiff anticipated, in consequence of the refusal of the commissioner of the general land office to permit him to float his certificate from the land.</p> <p>It will be seen that evidence of the compromise and the former judgment based thereon were admitted under the general issue of “not guilty.” (Paschal’s Dig., Art. 5307, Note 1153.)</p> <p>If a party seek to avoid a compromise for which value has been paid, and ' which has become the judgment of a court, on account of any fraud or mistake, he must attack it by a direct proceeding for that purpose. (Paschal’s Dig., Arts. 5292, 5307, Notes 1142, 1153.)</p> <p>But a party who has made a compromise, whereby he got fees and costs paid, and got a'patent for the land in suit, cannot be permitted to disregard and evade it, by maintaining a second suit against the defendants for the land upon the strength of the patent thus obtained, more than, a year after the judgment, and he retaining the benefits he had derived under the compromise. (Paschal’s Dig., Art. 5298, Note 1145.)</p> <p>Where, upon the merits, the plaintiff has no right to recover, immaterial rulings against him will not.be revised.</p>

The case was tried before Hon. Hat. M. Bupeord, one of the district judges. The appellant brought this suit to recover from the appellee a small lot of cattle, with damages for their detention. He set out his title specifically in his petition, alleging that he had purchased the cattle from one Alston, as the agent of one Scarborough, and that he paid for them with a balance due him on a joint note executed to him by the said Alston and Scarborough.

Error from Williamson. The case was tried before Hon. Edward H. Vontress, one of the district judges. Suit by one W. T. M. Dickson against W. C. Dalrymple and O. T. Tyler on their due-bill for $921. The due-bill was payable to Gamble, the plaintiff in error, and Dickson brought the action in the character of the holder and owner by delivery of the due-bill. Service on the defendants was duly had.

Error from Dallas. The case was tried before Hon. Hat. M. Bureord, one of the district judges. The plaintiff' in error brought this action against A. G. Walker, J. H. Cole, and D. H. Brundage, to recover a tract of land in Dallas county, and also for damage's. As the rulings are confined to questions of service of process, and the facts with reference thereto being otherwise sufficiently stated, a detailed account of the case is not requisite. :

The case was tried before Hon. Hat. M. Bureord, one of the district judges. The opinion of the court indicates the facts of this case.

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

The case was tried before Hon. Nat. M. Burford, one of the district judges. This was a suit for an injunction, instituted by the appellees to restrain the appellant, Throckmorton, from selling under a deed of trust a tract of land in Tarrant county. Joseph H. Wilcox, the cestue que trust, was also made a party defendant. The facts are substantially and clearly stated in the opinion of the court.

<p>Error from Hill. The case was tried before Hon. John G-regg, one of the district judges.</p> <p>All facts necessary to a clear understanding of the rulings are sufficiently stated in the syllabus and in the opinion of the court. The general demurrer to the special answer having been sustained, the defendant was left without defense, and there was judgment for the plaintiff!, from •which the defendant appealed. The question was as to the sufficiency of the answer upon a general demurrer.</p>

Error from Collin. The case was tried before A. Berry, Esq., special judge, agreed upon by the parties. So far as the facts of this case have any relation to the rulings, they are fully stated in the opinion' of the court.

Error from. Collin. The case was tried before Hon. B. L. Waddill, one of the district judges. Catón FT. Usher and his wife, Sarah A. G. Usher, brought this suit, on the 12th of March, 1860, against S. B. Skidmore and his wife, Sarah Skidmore. The suit was an action for damages incurred by reason of the arrest and imprisonment of the plaintiff, Sarah, on a charge of theft.

The case was tried before Hon. John J. G-ood, one of the district judges. On the 28th of August, 1866, the appellant filed his petition, beginning it as follows: “O. B. Eider, administrator of the estate of John L. Eider, deceased, and a resident of the county of Parker,” &c., and proceeding to set forth that he was the holder of a promissory note for $200, payable to O. W. Dixon or bearer, and made and delivered by the defendant on the 12th of March, 1861.

The ease was tried before Hon. Edmund J. Davis, one of the district judges. The defendant was indicted for perjury under the 287th Article of the Code. The indictment failed to charge that the accused deliberately and willfully swore falsely, hut attempted to use equivalent words. There was a motion to quash, which was overruled, and the defendant convicted, whereupon he appealed, and the case turned upon the sufficiency of the indictment.

The case was tried before Hon. E. W. Scott, one of the district judges.

The case was tried before Hon. John J. Good, one of the district judges. The character of these cases is sufficiently apparent from the opinion of the court, which was delivered in the case against Harvey, but is made applicable to the others.

The case was tried before Hon. John Gregg, one of the district judges. The material facts of this case are stated in the opinion.

The case was tried before Hon. W. T. G-. Weaver, one of the district judges. The facts are sufficiently indicated by the opinion of the court. The case is more fully reported in the case of Roberts v. Lovejoy, 25 Tex. Supp., 437.

The case was tried before Hon. John Ireland, one of the district judges. The appellant was indicted at the fall term, 186.6, for theft of a shirt. The indictment charged the offense to have heen committed on the 25th of bTovember, 1866, that being the same day as that on which the indictment-was returned into court.

The case was tried before Hon. John Ireland, one of the district judges. The appellant, who was a freedman, was indicted at the November term, 1866, for the theft of a horse belonging to John N. Lancaster. On the trial, at the same term, Lancaster, the witness for the State, proved that the animal stolen was a mare. The court charged the jury that proof of the theft of a mare will sustain an indictment for the theft of a horse.

The case was tried before Hon. John Gregg, one of the district judges. Trespass to try title, brought by the. appellant, on the 23d of .September, 1858, against James M. Springfield and several other defendants, for the recovery of the southeast half of a league of land originally granted to Archibald Powell.

The case was tried before Hon. Hat. M. Bureord, one of the district judges. In September, 1856, the appellants brought this suit against the appellee on a note for $330 and an open account for $227. A more satisfactory statement of the facts cannot be made within any reasonable compass than that given or indicated in the opinion of this court.

Error from Hill. The case was tried before Hon. John Gregg, one of the district judges.

The case was tried before Hon. A. D. McGinnis, one of the district judges. This was a petition for the writ of mandamus, to be directed to the commissioner of the general land office, and requiring him to issue to the appellant a patent for twelve hundred and eighty acres of land in the county of Wise. The petition was filed at the fall term, 1864, of the Travis District Court.

The case was tried before Hon. B. W. Scott, one of the district judges. At the fall term, 1865, the appellant was indicted hy the grand jury of Ellis county for taking up and using a certain ox, without complying with the laws regulating estrays. The offense was alleged to have been committed in Ellis county, and the value of the ox was laid in the indictment at $20.

The case was tried before Hon. Thomas Harrison, one of the district judges. The appellant, a freedwoman, was indicted at the fall term, 1866, of the District Court of McLennan county, for the murder of Mary, who was alleged to have been a slave of B. D. Arnold'at the time of the killing, which was laid on the 28th of October, 1863.

The case was tried before Hon. Hat. M. Bureoed, one of the district judges. On the 4th day of January, 1854, there lived in Ellis county, Texas, a man by the name of Edward Sweatt, with his good wife, Haney Sweatt. He was blessed with living children, Cynisca Sweatt, L. A. Sweatt, R. V. B. Sweatt, G. B. Sweatt, Elizabeth Sweatt Ligón, Mary P. Sweatt Davis, W. C. Sweatt, and Alexander Sweatt.

This case was tried before Hon. Edaward H. Vontress, one of the district judges. The appellee, Steele, brought this suit on the 21st of August, 1857, to recover from Giddings, the appellant, and one Chadwick, a league and labor of land in Williamson county.

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

The case was tried before Hon. Hat. M. Burford, one of the district judges. This was a motion by the appellant, as administrator of O. B. Emmons, deceased, against the appellee, as the former sheriff of Denton county, and his sureties, upon his official bond.

The case was tried before Hon. Fielding Jones, one of the district judges. Weisiger, the appellant, brought this suit to the spring term, 1859, of the District Court of De Witt county.

The case was tried before Hon. Fielding Jones, one of the district, judges. This suit was brought by the appellees on the 18th of November, 1857, to recover from the appellant a negro woman named Bettie and her three children.

<p>In his petition on a promissory note, the plaintiff alleged that the defendants were “indebted to him in the sum of $100, by promissory note made, executed, signed, and delivered to petitioner, for a valuable consideration." There being no direct averment that the defendants executed or delivered the note to the plaintiff, this court is constrained by former adjudications to hold the petition to be insufficient to sustain the judgment by default rendered below; nor is the defect cured by annexing the note as part of the petition. (For the “statement,” see Paschal’s Dig., Note 537, pp. 349, 350.)</p>

Error from De Witt. The case was tried before Hon. Fielding Jones, one of the district judges, Bonner sued Pridgen on a note for $190, with twelve per cent! interest after 1 January, 1860. The defendant made default, and on the 29th March, 1861, judgment was rendered for $200 92. The defendant prosecuted error; but he assigned no error, nor does he seem to have appeared in the Supreme Court.