Volume 29 — Texas Reports

<p>The heirs alleged that there had been no administration, and no necessity of one, upon the facts stated. The court ordered that, upon proving these facts, the heirs might be made parties.</p>

The case was tried before Hon. J. J. Holt, one of the district judges. Bicherson Ellington died childless, leaving a widow and father and mother as his only heirs. He was possessed of a number of slaves, which he owned before marriage, and of sundry personal property, which he acquired during marriage. By an ante-nuptial marriage contract the parties defined their rights in the property which they brought into the marriage, almost in the terms of the law.

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

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

The case was tried before Hon. Fielding Jones, one of the district judges. The principal question decided in the case arose upon the motion to dismiss the appeal, because the appeal bond was not under seal.

Error from Karnes. The case was tried before Hon. John F. McKinney, one of the district judges. This is an action of trespass to try title, brought by the appellees against the appellant, in the district court for the county of Karnes, by petition filed April 6, 1860, for the recovery of a lot in the town of Helena.

Error from Cameron. The case was tried before Hon. Thomas J. Devine, one of the district judges.

The case was tried before Hon. Benjamin F. Neal, one of the district judges. ■■ The indictment charged that “Warren Campbell, a freedman of color, with a certain mare, of color commonly called a bay, did willfully and feloniously commit the abominable and detestable crime against nature.” The defendant excepted to the indictment, that the offense was not sufficiently described. The exception was sustained, and the indictment quashed, from which the State appealed.

The case was tried before Hon. Benjamin P. Heal, one-of the district judges.

The case was tried before Hon. Fielding- Jones, one of the district judges. On the 30th of ¡November, 1858, Mary M. B. Smith purchased of O. W. Garrett seven hundred and seventy-one acres of land, in Lavaca county, for which she gave her three notes, due the 1st day of January, 1860, 1861, and 1862, each for $2,333 33f-, with 10 per cent, interest after maturity. Garrett gave the usual bond to make title after the payment of the notes.

<p>Where a party relies upon an estoppel in pais, he has the right to show all the facts and circumstances of the dealings and acts of those alleged to be estopped by their acts.</p> <p>The mere failure of a party to assert his right to land for ten years, where there is no adverse possession, does not amount to an estoppel.</p> <p>In Burleson v. Burleson, (28 Tex., 383,) it was held, that the tacit presence of the owner, and his knowledge of the sale of land in which the heir has a community interest, will not estop him, if the purchaser be otherwise informed of the true state of the title.</p> <p>In Scoby v. Sweatt, (28 Tex., 713,) it was held, that the acts from which the estoppel is claimed to spring in some way must have influenced the purchaser; that the basis upon which the estoppel'rests must be actual or constructive fraud on the part of the owner, or such facts as would be tantamount to a fraud, if he were permitted to receive the property. These definitions are approved.</p> <p>There seems no reason to suppose that the appellant was any better informed as to the character and legal effect of the grant, under which the administrator claimed and sold the entire league of land, than the purchaser. If one is presumed to know the legal effect, so is the other. The title showed the date of the grant. Knowing it to be community property, he was put upon inquiry as to the parties interested in it. If he were informed of appellant’s interest, to have made it known to him at the- sale would have furnished him with no additional information. If he did not know of it, appellant’s presence at the sale could not have induced the impression of a waiver or abandonment of his title, and could in no way have induced the purchase.</p> <p>The true rule seems to be, that the mere presence of the owner, if he have concealed no facts of which he was informed, and the purchaser could not have learned by the use of reasonable diligence, will not create an estoppel, unless the purchaser can show that he had reason to suppose, from the presence of the owner, that he sanctioned and acquiesced in the sale.</p> <p>It is undoubtedly true, that a party will, in many instances, be concluded by his declarations or conduct of another to his injury. The party is said in such cases to be estopped from denying the truth of his admissions. But to the application of this principle, with respect to the title of real property, it must appear, first, that the party making the admission by his declaration or conduct was apprized’ of the true state of his own title; second, that he made the admission with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge; and, fourth, that he relied directly on such admission, and will be injured by allowing its truth to be disproved.</p> <p>The only qualification which seems necessary to the doctrine laid down in these cases is, that a party may be estopped by acts and declarations which were designed to influence another who has acted upon them, although both parties were ignorant that what is thereby represented is not true; for if one of two innocent parties must suffer, he through whose agency the loss occurred should sustain it.</p> <p>Where the presence of counsel was not actually necessary, a continuance was properly refused.</p> <p>Where the opposite pstrty admitted the fact sought to be proved, the continuance was properly refused.</p> <p>Where the certificate of the officer identified the witness who proved a deed for registration as the same person who signed it, the certificate will be taken as, prima fade, true, although there be a discrepancy in the middle initial. (Paschal’s Dig., Art. 4973, Note 1084.)</p> <p>A mistake in the middle initial letter of a deed, as M. Q. B., when it was signed M. B. B., is no discrepancy or misnomer which the law will notice. (Paschal’s Dig., Art. 1, Note 221.)</p>

The case was tried before Hon. TTeldih'g- Joses, one of the district judges. The most material facts averred by the plaintiff are given in the opinion of the chief justice. The pleadings on both sides are very voluminous.

The case was tried before Hon. J. J. Holt, one of the district judges. The suit was upon a note for $376 89, with ten per cent, interest, with credit indorsed for $95 41. The note was barred when the suit was brought, but the plaintiff relied upon an acknowledgment of the justice of the claim in these words: “Indianola, January 31, 1860. “Mr. J. Grey. “Sir: I am willing to pay you the principal of what I owe you for the ‘Wave/ without interest.

Error from Goliad. The case was. tried before Hon. M. P. Horton, one of the district judges. Daniel Lloyd and wife, L. L. Lloyd, sued Ebenezer Summerlin and Eliza Summerlin, his wife. Daniel Lloyd died pending the suit, and John Eeeves, his executor, was made a party in his stead. The plaintiffs recovered a money judgment and a decree to enforce the vendor’s lien. From this judgment the defendants appealed and gave bond on the 5th December, 1858.

Error from Washington. The case was tried before Hon. Egbert E. B. Baylor, one of the district judges.

The case was tried before Hon. Robert E. B. Baylor, one of the district judges. The part of the petition for a certiorari which was held to be insufficient is given for the information of all young certiorari lawyers.

Error from Karnes. The case was tried before Hon. Edmund J. Davis, one of the district judges. Thomas Grier was indicted for “ horse-stealing,” in the district court for Karnes county, and entered into a recognizance, with the plaintiff in error as surety.

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

The case was tried before Hon. J. J. Holt, one of the district judges. Augustus L. Dibble and Henry Seeligson sued Charles Morgan for $1,100, the value of an invoice of goods shipped on Morgan’s steamer, “Harlan,” on the 10th of July, 1866, to be delivered at Indianola, upon the usual bill of lading. It was charged, that Morgan was a common carrier, and he was—in fact had been for many years—the owner of the great line of steamers from New Orleans to the gulf ports of Texas.

<p>Civil suits are commenced by filing a petition in the office of the clerk of the district court, and it must contain a “full and clear statement of the cause of action.” (Paschal’s Dig., Art. 1427, Notes 536-540.)</p> <p>At common law the leading process in a cause was the writ, but according to our system of procedure it is the petition.</p> <p>A judgment nil dicit is a species of judgment by default, but operates as a waiver of errors, which the judgment by default does not. It is considered as a waiver of all objections to the service and return of process. It amounts to an admission of the cause of action substantially stated in the petition, and, like a judgment by default, the amount and terms of the judgment must be ascertained by reference to the petition, together with the usual proceedings had upon such judgments.</p>

Error from Austin. The ease was tried before Hon. George W.. Smith, one of the district judges. The judgment was recovered against L. P. Pucker as principal, and Lewis and several others as sureties. Lewis alone prosecuted error. Upon the writ was indorsed, “I accept service. D. 0. Giddings, attorney for Mills.” But the plaintiffs appeared and suggested delay, and Lewis moved to dismiss his own writ of error.

<p>The 13th section of the act to regulate proceedings in the district court reads as follows: “The sheriff, or other officer receiving any process, shall indorse thereon the day on which he received it, and shall execute the same, where not otherwise directed by the writ or citation, by delivering to the party or parties in person, upon whom he is required to serve it, a copy thereof, and a copy of the petition accompanying it, if there be one, if the party can be found; when the process directs other mode of service, it shall be executed according to the requirements of the process. (Paschal’s Dig., Art. 1433, Note 545.) By acknowledging service, the defendants only waived citation and service, but no other right. They were entitled until the fourth day of the term to answer. (Paschal’s Dig., Art. 1508, Note 594.)</p> <p>Where the defendants acknowledged service more than five days before the court, but the petition was not filed until the fourth day of the term, the plaintiff had no right to judgment by default at the same term. The petition ought to have been filed the first day of the term.</p>

The case was tried before Hon. John K. McKinney, one of the district judges. McLane attempted to appeal, and there is copied into the transcript an appeal bond, in the usual form, but it is not approved by the clerk, nor has it any file-mark at all indicating that it was filed. The case turned upon the motion to dismiss the appeal.

<p>Appeal from Austin. The case was tried before Hon. G-eorge "W. Smith, one of the district judges.</p> <p>Eckhardt sued Schleoht in an action of trespass to try title. The defendant plead a contract for the sale of the premises, which were a part of the homestead of the plaintiff, and as there never will be just such another document set up as the foundation of a claim to specific performance, the letter written by the plaintiff’s wife is here given:</p> <p>. “Bellville, April 7, 1856.</p> <p>“Dear Mr. Schlecht: I have received your esteemed letter one day after the presence of E. K. on my premises, and when he had already asked me about land, though he mentioned nothing about there being a letter for me; in consequence I was very much astonished. I told him, upon his question, that I would ask for the acre $7; whereupon he replied that he could not allow me more than $5 for the acre. During the conversation he was in such a hurry that I could gain no time to consider, and as it was my intention to write to you an exact account, I let him go for this time, and also have I found out that it is better not to be too much controlled by such people.</p> <p>“ By noticing in your letter an exact account of your opinion, I will give to you in return an exact account of my opinion.</p> <p>“ 1. I am willing to sell unto you six acres.</p> <p>“2. I do ask for the acre $5, under the following condition: That if.you should shift your lodging, and being disposed to sell the land, I may have' the privilege of buying back that land for the same price you paid for it, and indemnify you for your improvements.</p> <p>“3. Should it not be your intention to buy, I do give to you, with pleasure, the permission to build a house upon the land, of the size proposed, and to take the necessary timber from my land.</p> <p>“4. I do make the proposition to you that it will not be necessary for you to buy the' land till your wife had been arrived, and you both unanimously do like this settlement and are pleased with the country. Besides, you may live here as long as you please, as I shall not ask for any payment during the first two years, during which time yon will get more acquainted with the surrounding country, and then you may still do what you please. I shall assist you as much as is in .my power in building up your little house. If you are satisfied with my proposition, I shall very soon expect you, and salute you as a good neighbor. Sending my best respects, remain your friend, August Eckhardt.”</p> <p>The defendant went into possession about June, 1858, under the contract, and made improvements worth from $50 to $300 before the suit was commenced, and dug a well worth from $100 to $120 afterwards. The property was a part of the homestead of the plaintiff. The case was submitted to the court, who gave the land sued for to the plaintiff, and, on the plea of reconvention for improvements, found $350 for defendant, to be paid before writ of possession should issue.</p> <p>The plaintiff' prosecuted error.</p>

<p>Error from Colorado. The case was tried before Hon. George W. Smith, one of the district judges.</p> <p>Baker sued Fowlkes upon a long merchant’s account for $272 55, all of which was for goods furnished to the son of the defendant, a minor under twenty-one years of age, except a plug of tobacco, which was purchased by the father, and charged because the merchant could not make change. After this the son inquired if his father had an account at the store, and learning that he had, he ran up the account, a few of the articles being for the slaves on the plantation, but nearly all for the son, some of which were necessaries and others not. The proof offered to establish the liability of the father was, that the son was an extravagant fellow, and in the habit of purchasing goods from the merchants in Oolumbus which the father had paid without objection, and that as to one article (a pair of saddle-bags,) purchased by the son and charged in the account, the father was seen to use them. It was also proved that the father was a man of large fortune, having two plantations and many slaves, and moving in the highest circles of society, and that the son resided upon one of the plantations, and seemed to have some control of the slaves, as no other white person resided upon that plantation; that he was a reckless, extravagant youth, much beyond the control of the father, and that the father sometimes threatened not to pay, and to tell the merchants not to credit him, but he said that he concluded not to do so, but to try to control him himself. "When the account was presented to him at the end of the year, the defendant refused to pay it, denying the authority to give the credit. The question was authority or not. The instructions of the court are given in the opinion. The jury struck out the drinkables, and gave the plaintiff a verdict for the balance of the account.</p>

Error from Goliad. The case was tried before Hon. M. P. Hortoh, one of the district judges. Francis McHugh sued Barton Peck on a contract for building a house, &e., according' to specifications, for which he claimed $12,125 31.

Error from Walker. The case was tried before Hon. Peter W. Gray, one of the district judges. Wyser sued Allen “as a non-resident,” on the 16th February, 1857, on sundry small notes and accounts, amounting to $767 25, and only prayed for process and judgment, but not for an attachment, or sequestration, or other matter in rem.

Error from Washington. The case was tried before Hon. Robert E. B. Baylor, one of the district judges. On the 24th of February, 1858, Bishop filed his petition against Thomson. Held: that the proceedings subsequent to that judgment were nullities, and said: “We think, therefore, this case must be regarded as if there had been no amendment of the return by the sheriff.

Error from Washington. The case was tried before Hon. Robert E. B. Baylor, one of the district judges. The first trial of this case in the Supreme Court is not reported in 24 Tex. It is believed to have been controlled by Thomson v. Bishop, 24 Tex., 802; same case, ante 154.

Error from Washington. The case was tried before Hon. Robert E. B. Baylor, one of the district judges. The facts and proceedings in this cause are as follows: McFarland, as plaintiff below, brought his suit against R. Antry, O. J. 0.

The' case was tried before Hon. George W. Smith, one of the district judges. The petition averred that the defendant was “nota resident of the State.” It declared for a balance of $3,917 78; it prayed for an attachment and a citation, as against a nonresident, by publication. (Paschal’s Dig., Art. 25, Note 233.) The truth of the petition was verified by affidavit, as required by the 143d section of the act of 13th May, 1846, to regulate proceedings in the district court.

Error from Austin. The case was tried before Hon. George W. Smith, one of the district judges. Eor clearness, a full history of the case is given.

<p>Error from Galveston. The case was tried before Hon. E. A.' Palmer, one of the district judges.</p>

<p>Where a party had been convicted of a misdemeanor, and an appeal taken, but the transcript had not been filed, and the attorney general moved to affirm the judgment, the court reviewed Articles 732, 733, 734, and 738 of the Code of Criminal Procedure, and held, that because the certificate did not show whether the appeal was by the State or the defendant, the motion would not be sustained. (Paschal’s Dig., Arts. 3196, 3197, 3198, 3202.)</p>

The case was tried before Hon. Colbert Calbwell, one of the district judges. The defendant was indicted (4th May, 1865) and convicted for “ distilling liquor without license.” Hnder what law the proceeding was had is not known to the Reporter.

The case was tried before Hon. James B. Kennard, one of the district judges. The appellant, bearing the euphonious name of “ Coon Cotton,” was indicted on the 25th June, 1864, for having played a game of cards at a liquor-shop on the- 6th June preceding. The only witness sworn proved that he saw Coon play cards at the liquor-shop, but when he did not say.

<p>Appeal from Walker. The case was tried before Hon. James R. Hennaed, one of the district judges.</p>

The case was tried before Hon. James M. Maxoy, one of the district judges. On the 9th of April, 1860, McMahan & Gilbert sued Busby and one H. H. Hough for $1,245 24. They averred that on the 18th February, 1859, the said J. I. Busby and one Charles Boos made and delivered to Matthew Slater their promissory note, payable to him or bearer eight months after date, for $1,245 24, with ten per cent, interest after maturity.

The case was tried before Hon. James M. Maxcy, one of the district judges. The suit was upon a note. The defendant relied upon a failure of consideration, and that, although the note was sued by an indorsee, it was in fact indorsed after maturity, and was therefore subject to all legal defenses. (Paschal’s Dig., Art. 221, Note 284.) The facts are sufficiently stated in the opinion of the court.

Error from Washington. The case was tried before Hon. Robert E. B. Baylor, one of the district judges: Adolphe Testard, for the use and benefit of Archibald H. Lowry and William B. Testard, as the owner and holder and bearer of a certain promissory note, executed and delivered by William B. Pressley, sued Pressley.

Error from Polk. The case was tried before Hon. James M. Maxcy, one of the district judges. The defendant acknowledged service more than five days before the term, but the petition was not filed until the fifth day of the term. Then the defendant confessed judgment without an affidavit, as directed by the 116th section of the act to regulate proceedings in the district court. (Paschal’s Dig., Art. 1477, Note 573.) The question turned upon the effect of the judgment.

The case was tried before Hon. Samuel A. Wilson, one of the district judges.

<p>It is well settled that deeds and instruments respecting the titles to lands executed before the passage of our registration laws should be recorded in the counties in which the lands are situated. (Paschal’s Dig., Arts. 4973, 4980-4982, Notes 1084 to 1092.)</p> <p>If conveyances be not registered, they have no effect as to the interests and rights of third parties. (Paschal’s Dig., Arts. 4978,4983, 4994, Notes 1089, 1092.)</p> <p>The older conveyance is valid, and passes the title without registration, except as to subsequent purchasers for a valuable consideration paid without notice; and as to creditors, it has no effect. (Paschal’s Dig., Arts. 4978, 4983, 4994, Notes 1089, 1092.)</p> <p>A subsequent purchaser must be one who has bought for a valuable consideration paid, and without notice of the former conveyance or sale.</p> <p>Actual notice is when the party has knowledge of the fact. Constructive notice is brought home to the party by the registration of the title papers, or when he is put upon inquiry by any circumstances, which, by the exercise of ordinary diligence and judgment would lead to a knowledge of the fact: such circumstances as make it the duty of the party to make inquiries. (Paschal’s Dig., Art. 4983, Note 1092.)</p> <p>Possession of the premises by the owner in person, or by agent or tenant, are sufficient circumstances to put any prudent man upon inquiry, as to the title under which he holds the premises, and it amounts to notice of the title under which the occupant holds and claims the land.</p> <p>A party who claims to be a purchaser in good faith, should prove the payment of the purchase-money by other evidence than the mere recitation of payment in the deed.</p> <p>Whether a lien has been lost by the failure to keep alive a judgment by the issuance of executions is a matter for the defendant in execution, and a person claiming adversely cannot avail himself of the irregularity in the sale. (Paschal’s Dig., Arts. 3953, 3954, 3783, Notes 935, 936, 873.)</p> <p>The inadequacy of price paid at sheriff’s sale is an objection which can be made only by the injured party, who is the defendant in the execution; persons claiming as subsequent purchasers with notice cannot be heard to urge this objection.</p>

The case was tried before Hon. Benjamin Shropshire, one of the district judges.

Error from Harris. The case was tried before Hon. Peter W. Gray, one of the district judges. Conlie sued Scranton for $301 25, for keeping the slave of Scranton, as jailor, and for necessaries for said slave, under the law of 1841, with reference to runaway slaves. (O. & W. Dig., Arts. 1869 to 1872.) The defendant demurred to the petition, plead the general issue, and that he was not the owner of the slave for more than three years before the institution of the suit.

The case was tried before Hon. James A. Baker, one of the district judges. The offense was alleged to have been committed, and the indictment was found in 1861, but the case was not tried until the March term of 1865. The record erects one of those monuments which mark the line between the present and the past, and the decision cannot be a precedent to guide men in their future conduct towards an unfortunate class of human beings.

Error from Austin. The case was tried before Hon. George W. Smith, one of the district judges. On the 23d December, 1858, James Culbertson executed his note, due at one day, to Cabeen & Jarman, for $1,098 14, and on the same day his other note, to the same parties, for $124 05, due at four months; and on the next day he executed his third note, to the same parties, for $2,036 68, due at six months.

Error from Harris. The case was tried before Hon. Peter W. Gray, one of the district judges.

The case was tried before Hon. Peter W. Gray, one of the district judges. Reuben W. Bennett sued Martin P. Demaret and Edgar Demaret, his security, on a note for $2,500, payable to ' Thomas C. Bradbury or order, and transferred to plaintiff “in due course of trade and for a valuable consideration.” There were several answers and amended answers.

Error from Washington. The case was tried before Hon. Egbert E. B. Baylor, one of the district judges. The facts are sufficiently stated in the opinion of the court. The case was tried on the 21st April, 1860, after the amendment to the 4th section of the law allowing discounts and set-offs had gone into effect. (Paschal’s Dig., Art. 3446, Note 797.)

The case was tried before Hon. James M. Maxcv, one of the district judges, The question arose upon the insufficiency of service of the scire facias. The return read, * * * “ and executed by delivering to defendants, J. W. Patridge and A. M. Vaughan, a certified copy of this writ.” The judgment was by default. The judgment nisi was against the defendant, William Cribbs, and his sureties. The final judgment was against Vaughan and Patridge, the sureties alone.

The case was tried before Hon. Robert E. B. Baylor, one of the district judges. Reeves sued Chilson and wife to recover three lots, which had been sold to them under a decree of foreclosure of a mortgage on these same lots, in the town of Caldwell.

The case was tried before Hon. Benjamin Shropshire, one of the district judges.

The case was tried before ITon. Kobert E. B. Baylor, one of the district judges. The record is exceedingly voluminous and complicated, hut the following facts may serve for an understanding of the principles decided: The defendant in error brought his action in the court below against the plaintiff in error, setting up a copartnership between all the parties to the suit in the purchase of a steamboat called the Fort Henry.

The case was tried before Hon. George W. Smith, one of the district judges.

The case was tried before Hon. George W. Smith, one of the district judges. The appellee brought suit in the district court to rescind a sale of a tract of land made by him to the appellant, on the ground that a mistake had been made at the time of the conveyance as to the quantity contained in the tract, and that the defendant had procured a second conveyance by fraudulent misrepresentations and concealment.

The ease was tried before Hon. Fielding Jones, one of the district judges. The record had one hundred and twenty-five pages, which include six maps, embracing the locus in quo and the surrounding country. The argument of Judge Robert Hughes for the appellants was, perhaps, the last effort of the well-stored legal mind of a man who had given his whole life to the study of the law, and the last twenty years exclusively to the practice in cases involving Texas land titles.

The case was tried before Hon. Petee W. Gray, one of the district judges. Peter Gabel was a lager-beer distiller and seller of the beverage in the city of Houston.

Error from Trinity. The case was tried before Hon. James M. Maxcy, one of the district judges. The history of the case is fully given in the opinion of the court. The suit was brought on the 6th of October, 1858.

The case was tried before Hon. Robert E. B. Baylor, one of the district judges. This suit was instituted in the court below by Whittaker & Co. against Hueske, upon an alleged breach of an implied warranty in the sale of ten bales of cotton.

¡Nothing was furnished to the Reporter hut the opinion. That does not indicate the county from which the appeal came, nor before whom the cause was tried The facts are sufficiently indicated in the opinion for all practical purposes. An application was made to the clerk for the record, but he could not find it.

The case was tried before lion. Benjamin Shorpshire, one of the district judges. Warren, a freedman, was indicted for theft, under article 745 of the Penal Code.

Error from Galveston. The case was tried before Hon. E. A. Palmer, one of the district judges. Held: and the duties whereof they respectively discharged; that the said appellants were compelled, under a penalty provided in and by said act of Congress, to employ and take into their service upon their boats propelled by steam, and upon the said boat Bayou City, such engineers so licensed as aforesaid, and none others; that the loss,…

The case was tried before Hon. E. A. Palmer, one of the district judges. The Reporter, after the most diligent efforts, has been unable to get the record in this case. But, judging from the opinion and the appellee’s brief, there is no doubt but the learned judge has given every material fact in the case,

<p>Appeal from Harris. The case was tried before Hon. Edward A. Palmer, one of the district judges.</p>

The case was tried before Hon. George W. Smith, one of the district judges. Hapoleon B. Rucker was the owner of two hundred and fourteen and one-third acres of land, which Charles Patton and John Jones wished to purchase, because it adjoined the plantation of Jones. They proposed to purchase it, and to give the acceptance of Hash, Barstow & Co., at ninety days, for $450, for the land.

<p>The sheriff’s return of service must show in what manner the process was served; in other words, that copies were delivered to the defendant in person. (Paschal’s Dig., Arts. 1433, 5121, Notes 545, 1122.)</p> <p>If the record merely shows that the defendant was served with process, without stating how, and judgment be rendered by default, the judgment will .be reversed.</p>

The case was tried before Hon. H. C. Pedigo, one of the district judges. The judgment was by default and writ of inquiry upon a special verdict, which was returned on the 24th May, 1866, for $27,379 60, “ and interest from the 1st day of March, A. D. 1860, to the 21st day of May, 1866, and that the land described in the plaintiff’s petition is subject to the vendor’s lien.” The judgment followed the verdict, without calculating the interest and adding it.

Error from Colorado. The case was tried before Hon. Benjamin Shropshire, one of the district judges. This suit was brought by Bonds, defendant in error, against Tooke and Glenn, plaintiffs in error in the court below, on the 22d March, 1866, for the alleged balance due on their promissory note, described in the statement of facts, and to enforce the vendor’s lien on certain lands described in the petition.

Error from Calhoun. The case was tried before Hon. Fielding Jones, one of the district judges. This suit was originally brought by the plaintiffs in error in the district court of Cameron county, on July 31, 1854, against the defendants in error, Maria Josefa Cavasos, Elisha Basse, Robert H. Hord, and the city of Brownsville, to recover a small tract of land, then and now within the limits of Fort Brown.

<p>Appeal from Galveston. The case was tried before Hon. Peter W. Gray, one of the district judges.</p> <p>In this case the plaintiff, John H. Burnett, shipped, on hoard the steamboat Betty Powell, on the 13th day of May, 1859, at Beaver’s and Smith’s landings, on the Trinity river, (Beaver’s landing being sixteen miles above Smith’s,) one hundred and eight hales of cotton—sixty-three hales at Beaver’s, and forty-five hales at Smith’s—and consigned to Dean, Handle & Go., in Galveston, and three bills of lading' for each lot of cotton were signed by the clerk of the boat.</p> <p>On the 17th of May, 1859, the steamboat Betty Powell, with Burnett’s cotton on hoard, was burned, and ninety-three hales of the one hundred and eight were consumed, as well as all the other cotton on board at the time; the boat being on her way to Galveston with the cotton.</p> <p>Dean, Handle & Co., the consignees of the cotton, at the time of the burning, held a policy of insurance from the Union Marine and Fire Insurance Company, by which said company insured Dean, Handle & Co., for account of whom it may concern, from ports and places on the Trinity river to Galveston, cotton valued at $50 per bale, losses paid sixty days after proof of interest and proof of loss, one-half of all produce, &c., consigned to Dean, Handle & Co., with a special clause, as follows: “This insurance is declared to he one-half the value of all shipments to assured for sale, or in which they have an interest, between the date hereof and the 1st day of December next, on board all steamboats or vessels approved by this company, except such shipments as shall have written on the face of the bill of lading, at the time and place of shipment, the words 'No insurance;’ and it is a condition of this insurance, that the assured shall make a true return, on or before the last day of every month, of all property covered by this policy, and pay all premiums due on demand made.” Policy dated 1st December, 1858.</p> <p>The hills of lading received by the consignees of plaintiff’s cotton had written across the face of the bill of lading from Beaver’s landing the words, “Ho insurance,” and so of the bills of lading from Smith’s landing, “ Insurance waived.”</p> <p>The bills of lading of plaintiff’s cotton brought by the boat had written on the face of the bill of lading from Beaver’s landing the words “Ho insurance,” and on the face of the bill of lading from Smith’s landing the words “Insurance waived.”</p> <p>The bills of lading retained by the shippers of the cotton were not so written on, or had no waiver of insurance.</p> <p>At the time of the starting of the steamboat Betty Powell down the river on this voyage she had but two negro firemen and a mate for crew.</p> <p>At the time of shipping plaintiff’s cotton, she had two negroes and two white men and the mate, and one man was employed at Calhoun’s landing.</p> <p>At the time of the burning, the crew consisted of the two negro firemen, three white men, and the mate. The engineer says: “Two negroes, firemen, and two white men.”</p> <p>The captain was in a weak state of health, and a Captain Montgomery was the captain indorsed by underwriters at the time. Mauck, who was captain at the time of the shipment and burning of plaintiff’s cotton, had been removed from command, and Montgomery placed in command, before the boat left Galveston; the cause of the change was the weak state of health of Mauck.</p> <p>The custom of the insurers is to have a boat examined by an inspector, and, if satisfied with her soundness, he gives her a certificate, which states that the company “will insure produce on this boat (name of master) while she remains in like good order, and while under command of the same master.”</p> <p>The insurance, if effected, would be insurance on cotton on steamboat Betty Powell, on a voyage from the landings to Galveston.</p> <p>The report of the cotton of plaintiff' was never returned by Dean, Handle & Co. to the insurance company as property covered by their policy.</p> <p>The mode of conducting the business with the insurance company was as follows: On receipt of bills of lading for produce not written off, the entry was made in their insurance book, which book, every month or oftener, was deposited with the insurance company, who from this book made their entries, and charged Dean, Handle & Co. with the premiums. When written off, no return was made and no premium charged.</p> <p>This cotton was entered in the cotton-book of Dean, Handle & Co. as “not insured.” Ho return made, and no demand for the insurance, and no premium offered.</p> <p>It was in testimony, that some three weeks or a month after the burning of the Powell, John Dean received the bills of lading (not written off) from Burnett, but was not then instructed to demand the insurance of the company, “but it was left until Burnett could get further information; that he had afterwards received instructions from Burnett to claim the insurance; that he had mentioned the matter to the company, but had made no demand, because he did not think the cotton was covered by the terms of his policy.</p> <p>“He talked the matter over with some of the company, and said there would be a law-suit. He told the directors of Burnett’s claim, and understood it to be refused.”</p> <p>There was a trial by jury, under the charge of the court, January 12, 1860, and verdict for plaintiff' against the insuranee company for $2,264 25; motion for new trial overruled, and defendants appealed.</p> <p>Appellants assigned for error, that the verdict was against the evidence; that the court erred in the charge to the jury, and in refusing the first, second, and third charges asked by them, and in overruling their motion for new trial. Plaintiff’s whole evidence of claim or right was the policy of insurance, testimony of appellant, Bice, and testimony of John T. Beaver, who swore that they did not instruct the clerk to waive insurance, and testimony of John T. Smith, that he did not instruct the clerk to waive insurance on the cotton shipped by Mm, and the clean bills of lading retained by the shippers. The case, as treated, was very much one of fact; and it is to be regretted that the point as to whether these clean bills of lading, being the only ones under the control of the shipper, did not overrule the others, which he may not have seen.</p>

Error from Washington. The case was tried before Hon. Egbert E. B. Baylor, one of the district judges. On the 3d day of January, 1856, Hath aniel Hoeser executed his hill of sale to Augustus Kraeka to a wagon, oxen, horses, cattle, and other chattels, of the alleged value of $2,500.

Error from Galveston. The ease was tried before Hon. Peter W. Gray, one of the district judges. The record is frightfully voluminous,- and it contains a full history of the hopes and prospects of building a great city at La Baile, with not a little which in the past, and prospectively, affects the growth of Galveston and Bolivar. The most to be deduced from the whole record is, that interest can destroy the most sanguine expectations of castle builders and city builders.

The case was tried before Hon. Benjamin Shropshire, one of the district judges. Held: that the application was good, and granted the continuance.

Error from Harris. It seems that the defendant prosecuted error under article 738 b of the Code of Criminal Procedure. The attorney general moved to dismiss the appeal, because the bond did not conform to the statute in civil cases.

<p>Appeal from Fayette</p>

<p>The 6th division, article 672, of the Code of Criminal Procedure, reads as follows : “ Where new testimony material to the defendant has been discovered since the trial, a motion for a new trial based on this ground shall be governed by the same rules as those which regulate civil suits.” (Paschal’s Dig., Art. 3137, Note 762.) The motion should always be supported by the affidavits of the persons by whom the party expects to prove the facts alleged; or, if the affidavits have not been obtained, the failure must be satisfactorily accounted for. The court will then consider the question of diligence, and whether the evidence will probably change the result.</p>

<p>Where the statement of facts is not approved by the judge it cannot be considered. (Paschal’s Dig., Arts. 1490, 3138, Notes 582, 763.)</p> <p>In an indictment for horse-stealing it is not necessary to aver that the horse stolen was of value. (Paschal’s Dig., Art. 2409, Note 686.)</p>

<p>Appeal from Austin.</p>

The case was tried before Hon. George W. Smith, one of the district judges. The indictment charged that S. Alexander, &c., &c., “ did sell spirituous liquors in less quantities than one quart, without then and there having a license to do so.” The defendant moved to quash the indictment, which motion was overruled, and the defendant was convicted and appealed. As the case turned upon the sufficiency of the indictment, it is useless to further notice the record.

<p>The 16th section of the road law provides as follows: “ And on failure to put up mile-posts marked as aforesaid, or index-boards, within six months after their appointment, the overseer of such road, for such failure and neglect, shall be liable to indictment, and on conviction thereof before the district court shall he fined in the sum of $5, and all costs of prosecution.” (Paschal’s Dig., Art. 5070, Note 1111.) The law. does not wait for any formal act of acceptance on the part of the overseer, but requires him to do certain things within a certain time after his appointment,</p>

Rothing has been furnished to the Reporter but the brief for the State and the opinion, neither of which shows from what county the case was brought. In the absence of the record the Reporter gives the brief of Mr. Jack, who represented the attorney general.

The case was tried before Hon. Peter W. Gray, one of the district judges.

The case was tried before Hon. J. M. Maxoy, one of the district judges. The defendant was indicted for swindling, found guilty, and his punishment assessed at two years’ imprisonment in the penitentiary; and from this judgment he appealed. The case turned upon the sufficiency of the evidence to convict.

Error from Dallas. The case was tried before Hon. Nat. M. Bureord, one of the district judges. On the 21st of May, 1859, J. W. Latimer executed his note to John M. Crockett, due one day after date, for $200. Two months after its maturity, and after the death of Latimer, Crockett indorsed the note in blank, and under his name followed the names of the defendants, J. W. Smith, D. W. C. Smith, and M. L. Hoffman.

The case was tried before Hon. A. W. Terrell, one of the district judges. This case was an application made by the appellant for a mandamus to Francis M. White, as commissioner of the general land office. The essential .facts are stated in the opinion of the court, and need not be repeated here.