Volume 3 — Texas Reports

— Error from Travis County. This suit was brought by the defendant in error to recover of the plaintiffs in error $200, alleged to have been money loaned. The petition is, in form, a common law count for money loaned.

— Writ of Error from Harris County. This suit was brought by the defendant in error against the plaintiffs in error as common carriers, to recover damages for the loss of goods, of which they had undertaken the transportation. The goods were alleged to consist in a trunk and its/ contents, claimed to have been of the value of two hundred dollars. The plaintiff recovered a verdict for fifty dollars.

<p>— Error from Colorado County.</p>

— Appeal from Washington County. This suit was brought on a note of hand for one hundred dollars, given by the appellants to the appellee, guardian of Sarah ■Jane McIntyre, minor heir of James McIntyre, deceased. There was a judgment by default, on the 1st day of December, 1846, which was set aside on the 5th of the same month, and the defendants plead a want of a legal service of process, ■and a general denial of indebtedness.

<p>Appeal from Harris County.</p>

<p>Neither party can have a cause docketed in this court at a term subsequent to the one at which the appeal or writ of error should have been prosecuted.</p> <p>A supersedeas has lost its force after the expiration of the term of the supreme court succeeding its issue, and the party may proceed as if no such writ had issued. [Post, 189; 14 Tex. 18.] ' .</p> <p>Citations on writs of error should issue immediately after the writ is sued out; and if it be not served, alias and pluries citations should follow, without unnecessary delay.</p>

— Appeal from Guadaloupe County. The appellee sued the appellant and obtained judgment against him before a justice of the peace, but for a less sum than that claimed by him. From this judgment he appealed to the district court. The appellee in that court, Hipp, obtained two successive continuances on account of the absence of witnesses, and at the fall term, 1848, made a third application, which was overruled by the court.

— Appeal from Guadaloupe County. This was a suit brought by the appellant to foreclose a mortgage, given by the appellee, to secure the payment of three hundred dollars. At the spring term, 1847, the defendant pleaded the payment, at different times, of several sums, particularly describing them by their amounts and dates.

<p>— Error from Bastrop County.</p> <p>Case stated in the opinion of the court.</p>

<p>— Appeal from Washington County.</p> <p>Case stated in the opinion.</p>

The appellant was convicted of playing at cards at the fall term of the district court, 1848. The defendant moved for a new trial on the ground of the misconduct of a juror; and, in support of his motion, read the affidavit of one Wm. It.

- Error from Galveston County. This suit was brought to recover the balance of an open account, amounting to $9,545.17 alleged to be due from the defendant’s intestate, Hall, to the firm of Tompkins & Co., late merchants of the city of New Orleans. The account was commenced on the 25th March, 1840, and continued until the 22d May, 1842. The suit was instituted in April, 1845.

<p>To entitle a party to a new trial upon the ground of newly discovered evidence, the facts in which the evidence consists must be stated in the application, so that the court may judge of their materiality — whether the evidence be merely cumulative — and if admitted, whether it would probably change the result. [4 Tex. 89, 811; 6 Tex. 86; 7 Tex. 463; 8 Tex. 463; 11 Tex. 314; 14 Tex. 356; 19 Tex. 96; 20 Tex. 450; 30 Tex. 50.]</p> <p>It must also be shown, that a knowledge of the existence of the new evidence was acquire’cl after the former trial, and its not being discovered sooner, was not owing to a want of due diligence.</p>

— Appeal from Travis County. This is an application for a mandamus to compel the commissioner of the general land office to issue a patent on a survey made ])y virtue of a certificate for headright, issued by the board of land commissioners of Jasper county to one Henry P. Pock. The appellant was the assignee of this certificate.

<p>— Appeal from Liberty County.</p>

— Appeal from Brazos County. The facts of this case are stated, in the opinion of the court, as far as the reporters are able to give them. The originals of the several exhibits used as testimony at the trial, and referred to in the opinion, were sent up to this court by the order of the district judge (except exhibit X), and were not copied in the transcript of the record.

— Appeal from Jackson County. This is an action to try title. The snit was instituted by the appellee on the 21st of March, 1839, in the county of Victoria, and was subsequently removed to the county of Jackson by change of venue.

— Appeal from Gonzales County. The facts are stated in the opinion of the court. The verdict of the jury in this case should have been set aside and a new trial granted. The policy of American law is generally in favor of the stability of the marriage union.

This is an application for a mandamus to compel the surveyor .of Gonzales county to survey for the appellee a certain tract of land which he designates in his petition, and which he alleges he selected and pointed out to said surveyor on the 15th of February, 1838, to be surveyed under and by virtue of a certificate issued to him on the 18th of January, 1838, by the board of land commissioners of Fayette county, and that the surveyor refuses to malee the survey, assigning as…

<p>It is an irregularity in practice to take up and argue a demurrer after a jury has been impaneled to try the cause, but this irregularity cannot affect the judgment rendered on the demurrer.</p> <p>A party may avail himself of the statute of limitations upon demurrer. If the petition does not show that the plaintiff has a right to sue, at the time he brings his action, a demurrer is the appropriate mode of reaching it.</p> <p>If the probate judge refuses to permit an administrator to contest a claim presented against an estate, or to allow an appeal, the district court would, in the exercise of its jurisdiction, afford a remedy.</p> <p>Where an administrator verbally admits a claim against the estate of his intestate to be good, and that it will be paid, and thereby induces a third person to take the claim, he will be estopped from interposing any defense against it in the hands of such third person. [9 Tex. 517; 14 Tex. 312; 18 Tex. 873; 25 Tex. Sup. 120.]</p>

<p>— Appeal from Gonzales County.</p>

<p>The hire or use of property sequestered is not one of the enumerated subjects of the liability of a surety on a bond to obtain its release, and the enumeration must be held to include all.</p> <p>A surety upon a bond for the production of property seized under a writ of sequestration is discharged by the delivery into the hands of the sheriff of the property, as well before as after verdict, and is thereby rendered competent to testify between the parties.</p>

<p>— Appeal from Goliad County.</p>

<p>A writ of error, as recognized by our law, is one of tbe modes prescribed for bringing up a cause for revision. The whole case, embracing the facts as well as the law, is brought up by this mode as well as by appeal.</p> <p>In the absence of a statement of facts, every presumption is in favor of the verdict; but when the verdict is repugnant to the admissions in the pleadings, there is no necessity of a statement of facts to show that the verdict is wrong. Nothing can be presumed to have been proved which could not legally have been proved under the pleadings.</p> <p>A conditional sale passes the title to the vendee in the first instance, with a reservation to the vendor to re-purchase at a fixed price and in a specified time.</p> <p>A mortgage is a conditional transfer of property, which becomes absolute in law if the condition be not performed.</p> <p>A pledge or. pawn is a deposit of goods, redeemable on the terms prescribed; it gives no right to the pawnee except that of possession, and as a security for the debt for which the pledge was made.</p> <p>A mortgage is a pledge, and more. It is an absolute pledge, to become an absolute interest if not redeemed at a certain time. A pledge is a deposit not to be taken back but on the payment of a certain sum. [11 Tex. 479.]</p> <p>In the case of a mortgage, the legal property passes to the mortgagee, with a right of defeasance. The possession need, not accompany the mortgage. In a pledge the general property does not pass to the pawnee; he acquires only a right to the possession and use. The possession must follow the pledge.</p> <p>A pawnee has two remedies when his debt is due and the pawn is not redeemed. He may foreclose and have a judicial sale, or he may sell without foreclosure upon giving reasonable notice to the debtor. This notice is, however, indispensable, and the sale must be at auction. [5 Tex. 818.]</p> <p>A stipulation in a contract of pawn, that if the pawn be not redeemed within a specified time the right of property shall be absolute in the pawnee, can have no effect. Such a stipulation is inoperative to vest in the pawnee an absolute right of property.</p> <p>The purchaser of property pawned, after the time when it should have been redeemed, acquires no higher right than the pawnee possessed.</p> <p>An assertion to an absolute' right on the part of the pawnee to the thing pawned, or a sale of it to another, dispenses with the necessity on the part of the pawnor to make a tender of the amount of the debt, to entitle him to his action to recover the pawn. [4 Tex. 811; 6 Tex. 515; 18 Tex. 198.]</p> <p>St is competent for an appellate court to reverse the judgment of the court below, and remand the cause for a new trial, .notwithstanding the number of new trials which the law allows to the party had previously been granted by the court below. [20 Tex. 164. J</p>

— Appeal from Jackson County. The record in this case presents a large mass of documentary and other evidence, and sundry bills of exception to various rulings of the court at the trial below; but as all the facts essential to an understanding of the questions decided in this court are stated in the opinion, it is deemed unnecessary to give a more detailed statement of them here. contended that the corporation of Victoria showed no sufficient or valid title to the four…

— Error from Liberty County. The plaintiff in error sued the defendant for the alleged breach of a contract, by which the latter had undertaken, as the attorney of the former, to prosecute for him certain suits then pending in the district court of Montgomery county. The contract is set forth, and bears date on tbe 4th day of October, 1842.

<p>— Error from Washington County.</p> <p>Case stated in the opinion of the court.</p>

<p>— Appeal from DeWitt County.</p> <p>The case is stated in the opinion of the court.</p>

— Appeal from Fannin County. The appellant filed his petition in the district court on the 22d day of August, 1843, alleging that in April, 1840, he purchased of the appellee (who was defendant below) .fifteen head of cattle for which he paid $125; that, by agreement between the parties, the cattle were to remain at the plaee of the defendant’s residence until the plaintiff might choose to take them away; that subsequently, in the same year, he called upon the defendant for…

<p>When an answer admits certain allegations in the petition, and sets up matter in avoidance, the matter thus set up must be proved; otherwise the admissions in the answer are proof of the allegations of the petition.</p> <p>When a petition shows on its face equity, and which, if true, would entitle the plaintiff to recover, it is error on demurrer to dismiss the suit. When taken up on the demurrer, the truth of the allegations is admitted.</p>

— Appeal from Yictoria County. The appellant applied to the judge of the district court for an injunction to restrain the appellee from selling certain lands, under an execution sued out on a judgment rendered by a justice of the peace.

<p>- Appeal from Victoria County.</p>

<p>Courts established by law cannot transcend the jurisdiction given by the law of their creation; their powers cannot be enlarged by intendment, so as to embrace objects not expressed in the law. [1 Tex. 664; 6 Tex. 457 ; 9 Tex. 313, 544; 10 Tex. 216; 21 Tex. 166; 28 Tex. 230; 30 Tex. 115.]</p> <p>An appeal cannot confer upon the appellate court a jurisdiction which the court a quo did not possess.</p>

— Appeal from Victoria County. This is an action of trespass to try title. The suit in most respects is similar in its features to a cause tried in the county of Jackson, between the same parties, and which has been revised in this court at the present term. [See ante, 135.] The most essential difference between the two cases grows out of the right of one Esparsa, under whom the intestate of the appellant claimed.

<p>— Appeal from Titus County.</p> <p>■Case stated in the opinion of the court.</p> <p>It is only by a strict compliance with the provisions of the ■statute authorizing the settlement of disputes by arbitration, that parties can avail themselves of its benefits. Hone of the requirements of the statute have been complied with in this case.</p> <p>1st. The agreement to arbitrate is defective in not stating the matter in dispute or controversy, or the cause of action.</p> <p>2d. It does not state who is plaintiff and who is defendant, nor is it signed by the parties as such.</p> <p>3d. It provides for six instead of two arbitrators.</p> <p>4th. It prescribes a penalty for the enforcement of the award. The award, therefore, could not be made the judgment of the court under the statute. [Acts 1846, p. 127; Stev. H. P. 47 to 50, inclusive.]</p> <p>If this be a submission under the common law, the award is defective and could not be enforced, because it is not within the terms of the submission. It was made by five instead of six arbitrators to whom the matter was referred. [6 Johns. 39; 1 Kin. Comp. 62; 2 Tidd’s Pr. 827; 3 Black. Com. 16.]</p> <p>If the award were good as a proceeding under the common law, it could only be enforced by a' suit upon the arbitration bond. [3 Black. Com. 16; 2Tidd’s Pr. 820, 7Ó8; Stev. H. P. 35; 1 Kin. Comp. 60.]</p>

— Error from Lamar County. This is a suit upon a promissory note, brought by the plaintiff Reynolds against Charles Adams and Hiram Sadler. Process was duly served upon Sadler, but not upon Adams. Ho discontinuance appears to have been entered as to Adams, but the canse went on to trial between Reynolds and Sadler. There was a verdict and judgment for the defendant.

<p>— Appeal from Victoria County.</p> <p>The facts of this case are generally stated in the opinion of the court. There is an assignment of errors spolcen of in the opinion, consisting of eleven distinct grounds of error urged against the judgment, but as it is not found among the papers-of the cause, the reporters are unable to give it here. The arguments of the counsel appear to have been based upon that assignment of errors, but without stating the several grounds in their order, or in the language in which they were presented.</p> <p>One of the errors assigned is, that the suit is brought by a feme eovert, in her own name, without the intervention of a 'proohe'im, ami. This alone is sufficient to require the court to dismiss the cause. [2 Howard’s R. 753; 2 Story’s Eq. 651; Cooper’s Eq. PI. 163; 2 Hill (S. O.) R. 26.]</p> <p>The order for alimony was granted upon the allegations of the petition unsupported by the affidavit of the party or testimony aliunde. This was error. [Laws of Texas 1841, p. 21, sec. 8; 1 Texas R. 58, 481; 1 McCord Oh. 197.]</p> <p>It was error in the judge to refuse to set aside the order for alimony when the motion was made at the ensuing term of the court, upon the ground that the order was improvidently made upon the allegations of the petition, unsupported by affidavit or other evidence; and which allegations, if sustained, present no case authorizing it. [2 Howard, 753.]</p> <p>The petition does not state such facts, explicitly averred, as-show that it was “ insupportable ” for the parties to live together as husband and wife. It is essential that the facts should be so stated: 1st, to control the testimony; and 2d, to apprise the defendant of the nature of the charges to be exhibited against him by the testimony. [2 How. R. 753;. Texas Laws, 1841, p. 21; and Texas Reports cited above.]</p> <p>The injunction was erroneously granted because the petition alleges no fact authorizing it. It does not aver that the property was in imminent danger of being destroyed or so disposed of that the petitioner’s judgment, when obtained, would be fruitless. It was injurious and oppressive to the defendant,, because it prevented him from disposing of property at pri-Yate sale, to enable him to comply with the order for alimony, and forced him to submit to the sacrifice of sales made quarterly, under fi. fa. in default of the payment of the alimony. The injunction, having been improvidently granted, it ought to have been dissolved on motion.</p> <p>There is no sufficient ground alleged in the petition either for a divorce or alimony, nor does the proof show a propel case for either. “ A few harsh, ill-humored words, used six or eight years ago by the appellant to the appellee, is the head and front of his offending.” “ Mere petulance of language, ■austerity of temper, rudeness of manners, or even occasional sallies of passion, if they do not threaten bodily hurt, will not authorize a decree for a divorce.” “ The wife must disarin such a disposition in her husband by the weapon of kindness.” [2 Howard, 754; 2 Kent’s Com. 126; 1 Texas it. 58, 481.]</p> <p>It was error to permit testimony to be given of the general character of the defendant. If such testimony would be admissible under proper averments in the petition, it was inadmissible in this case, where there was no specific charge of general bad character. The defendant was not required to ■come in prepared to prove all the transactions of his life. Besides, the testimony did not relate to a loss of character after the marriage. It applied to his whole life, and the wife had no right to complain of his want of character before marriage.</p> <p>The petition is defective in setting out two separate and distinct causes of action. One in the nature of an ejectment upon an alleged title to land, and triable in a court of law, and the other for a divorce, triable in a court of chancery. Granting that our courts have equity and law jurisdiction," still ■“ they are separate and independent of each other, and no more capable, from their very natures, of being mixed, commingled, interfused and blended, than water and oil. When our law says, in substance, that the court shall proceed to try the cause upon the allegations and proofs of the parties, without any distinction between law and equity, it only intended, •as is confidently believed, to permit an equitable defense, technically such, to be set up to bar or avoid the consequences ■of an action of lave, and mutatis mutandis.”</p> <p>The case, or rather cases, presented in the petition, require the action of a judge in a court of law, and the action- of a -chancellor in a court of equity, at one and the same time. It is a misjoinder of the causes of action which the law does not tolerate, and is rendered more conspicuous in this case by the final judgment of the court as to one-half of the action, and a ■continuance of the cause as to the other half. [Laws of Texas, 1811, p. 20, sec. 4.]</p> <p>“The appellee’s separation from her husband was wrongful; joining her claim of property in the petition was wrongful; every separate order of the court in her favor was wrongful, and the decree of the court was wrongful.” [2 Dessans. 45; 4 id. ¿3, 99; 1 McCord, 209; 1 McMullen’s Eq. 84; 9 Dana E. .52; 10 Mo. E. 499.]</p> <p>The errors set forth in appellant’s assignment are reducible to four heads. The first is the error alleged in granting the injunction.</p> <p>The 6th section of the law of 1841 gives the right to the court to make any temporary orders respecting the property, and an order restraining the appellant is within this power, and must he presumed by this court to have been granted advisedly. It was granted in term time, and does not appear to have been excepted to, or upon what evidence it was made. There is no provision in this law requiring the petition to be sworn to. There was then no error in refusing to dissolve the injunction upon motion, if such a motion was made, which does not appear. [Laws Texas, vol. 5, p. 17.]</p> <p>2d. As to the order granting alimony. It is made the duty of the court to make proper allowance for alimony. [Laws 1841, sec. 8.] There was no exception to the order when made, and consequently there was no error in refusing afterwards to set it aside.</p> <p>3d. Errors alleged in overruling objections to questions put to the witnesses by the counsel for appellee. The objections to the questions were, first, that some of them were leading; and secondly, in regard to the general character of the defendant below. The questions called leading were only such as were-necessary to bring the minds of the witnesses to the subject under investigation. The answers to them were immaterial. There was no error in overruling the other objections. The character of the party, from the very nature of the action, may be shown, as it may in' mitigation of damages in slander, libel, seduction, breach of marriage promise, etc. Where-excesses are charged, it is the very gist of the action. Excesses may exist in secret vices or notorious want of principle, as well as in open acts of violence or cruelty. Loss of character is one of the best evidences of excesses and outrages. A character such as the appellant has, according to the testimony of the witnesses, is such an outrage as would render it insupportable for any woman of ordinary feeling and pride to live with him. Besides, as a matter of inducement the proof of character was admissible, because it showed good reasons for the fear which the appellee entertained, and explained her conduct.</p> <p>4th. Error in refusing to grant a new trial, because the facts-proved did Hot justify the verdict.</p> <p>In this there was no error: 1st. Because the character alone of the appellant would justify it. 2d. The dread with which the appellee was inspired towards the appellant, either from facts within her personal knowledge, and which she was not permitted to divulge in a court of justice, or from his general character, would justify it. And 3d. His treatment in other respects would be sufficient, after the finding of a jury, to-prevent this court from reversing the judgment.</p>

<p>If an appeal or writ of error be not docketed at the term to which it is made returnable, its force and effect is destroyed for every purpose whatever. [Ante, 16.]</p>

<p>— Error from Lamar County.</p>

- From Austin County. This was a motion made at the term subsequent t'o the one to which the writ of error was returnable, for permission to file a transcript of the record, and to docket the cause.

— ' Error from Walker County. Case stated in the opinion of the court. made and elaborated the following points: 1st. The plaintiffs being parties beneficiary in the trust, the holding of the negroes by S. Gr. McClenney was not inconsistent with the trust, and the statute of limitations would not run against them. 2d. That at all events it would not run against them in favor of a fraudulent purchaser, and without consideration.

— Appeal from Colorado County. Case stated in the opinion of the court. The liability of Montgomery is that of a principal debtor. The promise to pay depends on the condition, only, that Smith would furnish the goods to Tennard. It is not a promise to pay if Tennard should fail, but it is an absolute promise to see him paid (which is a promise to. pay himself) if the goods are furnished.

— Appeal from Shelby County. Case stated in the opinion of the court. cited the following authorities: 1 Star-kie’s Ev. pp. 414,418, 419, 421; Chittv on Bills, 9th Am. from 8th London ed. 579; Arch. Cr. PI. 3d Am. ed. 101; 13 Johns. 486; 5 Johns. B. pp. 1, 29; 1 Leach. 227; 1 Chi tty’s PL 7th Am. ed. 334, 14, 519; 10 Johns. B. p. 133; 1 Starkie, 413; 2 Starkie, 149. cited: 1 Chi tty PI. 331, 336, 341; 1 Greenl. Ev. 126, 127, 133, 137; 1 Phil. Ev. 208.

<p>Defenses which are admissible either in courts of law or of equity, where those jurisdictions are separate and distinct, are available here, where there are no separate courts in which equitable rights are exclusively cognizable.</p> <p>Our courts having jurisdiction of rights as well equitable as legal, all the rights, both equitable and legal, appertaining to the parties and subject matter, must be adjudicated here, in every suit wherein they are litigated and drawn in question.</p> <p>in a suit between the payee and makers of a promissory note, parol evidence is admissible to show that one of the makers signed the note as surety, although upon the face of the note they all appear to be principals; and the same rule applies to a note or obligation under seal. T4 Tex. 325; 8 Tex. 66.]</p> <p>To deny to parties capable of contracting the power and right to make their own contracts, would be for the courts to assume the guardianship of adults as well as of infants.</p>

- Appeal from Anderson County. This suit was brought in the county of Anderson by the appellants, Richardson and wife, for the recovery of a number of negro slaves, alleged to be the property of the wife.

<p>A motion to dissolve an injunction may be tafeen and disposed of at any time before the cause is regularly reached on the docket or called for trial.</p> <p>A party who is surprised by the decision of the court, in ruling out his testimony, may take a nonsuit, and afterwards move to set it aside and reinstate the cause on the docket, and an appeal will- lie from the judgment of the court overruling such motion.</p> <p>In our courts it is not proper for the judge to order a nonsuit in any case.</p>

— Appeal from Nacogdoches County. ■ This was an application presented to the board of land commissioners of Nacogdoches county, by James Riley, assignee of' Dolorez Hernandez, for a certificate under the 12th section of the general-land law- of 1837.

— Error from Jasper County. The only question presented in this cause is one which came up on a bill of exceptions to the decision of the court in refusing to give certain instructions to the jury. It is fully stated in the opinion of the court. The form of government established after the overthrow of the Spanish Vice-Poyalty in Mexico, was a limited monarchy, in conformity with the Plan of Iguala, and treaty of Cordova, and the Spanish monarchy was provisionally adopted.

<p>— Writ of Error from San Augustine County.</p> <p>The defendant in error, who was plaintiff below, instituted suit against the plaintiff in error, in September, 1846, upon several promissory notes.</p> <p>The plaintiff sued by the name of Leon Chobert. In issuing the citation, the clerk omitted to affix to it the seal of the court.</p> <p>At the first term (being the fall term, 1846s), and on the 6th day of October, an attornéy of the court, as “ amicus curiae,” moved the court to quash the writ on account of the omission of the seal. On the same day the clerk filed, in writing, an application for permission to amend the citation, by affixing the seal of his office, nunc pro tunc, and gave notice of his application.</p> <p>On the 8th of the same month a judgment by default was entered. On the 22d, the court acted upon the application to amend, and permitted the amendment, upon the payment of costs by the clerk; and, at the same timej ruled that the defendant should then be allowed to plead as fully as he might have done on the first day of the term. On the same day the defendant appeared, and moved the court for a Rule against the plaint-. iff for security for costs, and, at the same time, pleaded in abatement to the name of the plaintiff, alleging that.his name was Chabert, and not Chobert, as alleged in the petition. He also filed exceptions to the petition, and a general denial.</p> <p>At the next succeeding term the defendant moved to dismiss the cause for the want of security for costs. Security was given, and the cause continued “ as upon affidavit of defendant.” At the fall term, 1847, the plaintiff obtained leave to amend, and at the spring term thereafter (1848) filed an amendment to his petition in respect to the name of the plaintiff, substituting Chabert for Chobert, in conformity to the plea in abatement.</p> <p>The plaintiff having, in his amended petition, so carelessly written the name of Chabert, that it appeared to the defendant to be written Chabon, he again pleaded in abatement to the name; whereupon the plaintiff again amended, giving his name conformably to the plea. The defendant objected to the amendment, and moved the court to reject it; but the court overruled the objection, and permitted the amendment upon the payment by the plaintiff of all costs. There were other proceedings not now material.</p> <p>There was a verdict and judgment for the plaintiff for fifteen thousand, eight hundred and twelve dollars, seventeen cents; to reverse which the defendant prosecuted this writ of error.</p>

- Appeal from Fort Bend County. On the 26th day of March, 1845, the appellant filed his bill or petition in tlie district court, praying that a decree of said court, previously rendered against him in favor of the appellee, might be reviewed and reversed, etc. To this petition for a review, the defendant filed a general demurrer, which was sustained by the court, and the petitioner appealed to this court. The other material facts appear in the opinion of the court.

— Appeal from Austin County. The appellant brought suit in the district court to the fall term, 1843, alleging that he administered on the estate of Benj. Thomas, deceased, and that, while acting as administrator, he paid debts of the estate to the amount of eleven hundred and forty-eight dollars; that he afterwards resigned the administration, and, that after his resignation, he presented his claim to the administrator de 'bonis non, who refused to allow it.

— Appeal from Austin County. This suit was brought by the appellee against the appellants, in 1845, for the partition of certain lands. The plaintiff below claimed title to the undivided half of a grant of five leagues of land alleged to have been derived as follows.

— Appeal from Anderson County. The appellant was indicted upon a charge of kidnapping, at the fall term, 1817.

— Appeal from Yictoria County. The material facts of this case are stated in the opinion of the court. The principles whicli govern in tbe trial of ejectment are applicable in this action. 1st. There is no evidence to show that the plaintiff, or tbe Mexican Catholic church, ever bad possession of tbe premises in question.

— Writ of Error from Harris County. This was a suit to compel the specific performance of a contract, instituted by the defendant in error against the plaintiffs 'in error, in the Gralveston district… Held: as aforesaid, by the said Hall and Jones, jointly.

— -Writ of Error from Harris County. The defendant in error brought suit against the plaintiff .in error by filing his petition in the district court of Harris county, on the 7th day of February, 1846. The petition represents that the residence of the defendant is in the county of Galveston.

— Appeal from Houston County. The appellee filed his petition, alleging that the appellant, who was defendant below, “ on the-day of-, 1847, was indebted to him in the sum of twelve hundred dollars, as well for work and labor, care and diligence, and divers materials and necessary things in and about the said work by your petitioner, to and for the use of said Caldwell, at his special instance and request, before that time done, performed, bestowed and promised; and for…

This action was commenced for the recovery of lands lying in the county of San Augustine. The petition states, in substance, that one Francisco Guerrero, in March, 1827, applied to the political chief of the department of Texas, praying to have-the boundary lines run, and a complete title made to him of a farm called the Attoyaque, which he had then in possession as his own property, having improved and cultivated the same.

- Appeal from Montgomery County. The appellant brought suit against the appellee for a breach ■of the condition of the bond of the latter to make title to the former to a certain tract of land.

<p>— Error from Walker County.</p> <p>Case stated in the opinion of the court.</p>

- Appeal from Harrison County. The suit in this case was brought by the appellee against the appellants, McGimpsey, Gill and Hill, in the district court of Harrison county, on the 23d of October, 1843.

<p>The competency of a witness is always a question for the court, and his credibility for the jury.</p> <p>As the credibility of a witness must be judged of by the jury, any evidence which tends to affect it is competent.</p> <p>'Though an interest in the question merely does not affect the competency of the witness, yet it may be shown to enable the jury the better to judge of his credibility.</p> <p>A civil disability, of a character to disfranchise and deprive a party of his most sacred rights, ought to be established clearly and conclusively, and not left to mere implication, argument and inference.</p>

— Appeal from Burleson County. The appellees, John York and the heirs of Walter Sutherland, brought suit against the appellants to recover a league of land originally granted to one Thomas S. Haynes.

— Appeal from Comal County. The facts of this case are fully stated in the opinion of the court and the arguments of the. counsel. The judgment below was for the appellee, and- he relies upon its affirmance here, on the ground of the unconstitutionality of the last legislature apportioning senators and representatives among the several counties of the state, according to the requirements of the constitution.

— Appeal from Travis County. This is an appeal taken by the state from the decision of the district court, upon the following mandate of the supreme court made in this cause, at its last term, to wit: “The State of Texas to the District Court of Travis County, Greeting: ” “ Before our supreme court, on the eighth day of April, A. D. one thousand eight hundred and forty-eight, the cause, upon appeal to revise or reverse your judgment, between Sam Houston, president of the…

— Appeal from Travis County. The petition in this case, after setting forth the fact that James F. Perry is the executor of Stephen F. Austin, proceeds to state that the said Stephen F. Austin and Samuel M. Williams, in February, 1831, contracted with the supreme government of Coahuila and Texas, as empresarios, to introduce into Texas and colonize eight hundred families, Mexican and foreign, according to the laws of colonization then existing, within certain limits therein…

— Appeal from Brazoria County. This was an action of trespass to try title, brought by the appellants, who were plaintiffs in the court below.

<p>All exceptions to the charge of the judge, orto his refusal to charge, should be made as they occur; and then, if signed and sealed by the judge during the term, it will be sufficient. If such exceptions are not taken until after the trial of a cause, they cannot be considered in the appellate court.</p> <p>Where suit had been brought upon a note not negotiable, and a third party had interpleaded, claiming to be the true owner of the same, and proved by a witness his purchase of a note similar to the one sued upon, and that he had placed it in the hands of a justice of the peace for collection, but the witness could not say that the note sued on was the same one, it was error in the judge to refuse to allow the justice’s receipt to be given in evidence for the purpose of proving its identity. *</p>

<p>When the legislature has prescribed the form of the oath to be administered to the jury in capital cases, and the record, in such a case, shows affirmatively that the statutory requirement has been disregarded, it is a fatal objection to the regularity and legality of the verdict and judgment.</p> <p>If, in such case, the record had merely stated that the jury were duly sworn, the presumption would be that the proper oath had been administered to them.</p>

— Appeal from Bexar County. This was a suit brought by the appellees (complainants in the court below) to obtain the rescission of a sale of three leagues of land which apart of the heirs of Joseph De la Baum had sold to the appellant, Erskine, in 1844, on the alleged ground of fraudulent representations made by Erskine, at the time of the sale, and on account of inadequacy of the price paid.

— Appeal from Washington County. This suit was brought by the appellee (Clemmons) against the appellant (Holt) to recover certain sums of money alleged to be due on promissory notes. Holt pleaded a failure of the consideration for which the notes were given.

<p>An application for an injunction to stay proceedings on a judgment must be to the court in which the judgment was rendered, unless made by one who was not a party to the judgment, and whose residence is in a different county.</p> <p>Where the property of a ¡person, who is not a party to the judgment, has been levied upon, he may claim that his rights shall be tried in the court of his domicile.</p>

— Error from BrazoriCounty. This suit was brought by the defendant in error against the plaintiff in error to recover the value of work alleged to have been done by the former as a carpenter for the latter. The account, which is appended to the petition, charges the work by the day, at so much per day. ' At the trial, the plaintiff below proved his skill as a workman by another carpenter, and the price usually paid to good carpenters for their work, by the day.

— Appeal from Harris County. The appellee, who was plaintiff in the court below, brought suit against the appellant on the 13th day of March, 1846, to try the title to one-half league of land situated in Liberty county. The venue was, by agreement of the parties, subsequently changed to Harris county.

<p>— Error from Walker County.</p> <p>Case stated in the opinion of the court.</p>

<p>The amount due on a negotiable note, supposed to have been negotiated and passed out of the hands of the payee, cannot be attached in the hands of the maker.</p>

— Appeal from Houston County. The substantial facts of this case are as follows: Warren and wife arrived in Texas in the summer or autumn of 1840, bringing with them the slave in controversy; that Warren, the husband, claimed and exercised ownership over the slave, and that nothing was ever heard of the separate right of the wife to the slave until about the time that Warren sold the slave to Tutt, and then only a rumor that the slave belonged to Mrs. Warren; but not a…

<p>— Appeal from Washington County.</p> <p>Tills action was brought for the recovery of lands. There were two suits between the same parties, each for separate parcels of land; hut as they involved precisely the same questions, they were consolidated; and the judgment rendered for the plaintiff in the court below (tho appellate here) embraced the lands in dispute in both cases. i</p> <p>The petition alleges title in the plaintiff, and trespass by the defendant.</p> <p>In the answer, the limitation of five years and of three years is pleaded. And it was further averred that the plaintiff had, in the year 1839, put Nathan P. Browning into possession, and had, in the year 1841, delivered to the said Nathan his bond, a copy of which is annexed, to make title to the said lands; that the said Natlia'n remained in possession with the assent of the plaintiff, and made improvements thereon for more than five years previous to his decease, in the year 1845. That the said bond has been returned as part of the estate of the said deceased, and that the defendant, as one of his administrators, hath held possession of the said lands.</p> <p>It was further averred that the plaintiff had sold the land to the said Nathan, now dead, and executed his deed for the same, a copy of which is annexed. The same instrument is referred to in each of the last pleas, and is a penal bond, the important condition of which is, in substance, that the plaintiff would make to the said Nathan a good and sufficient title, in fee simple, to the land, so soon as the said Browning should make payment of two promissory notes, securing the purchase money; one of which became due on the 25th December, 1840, and the other on the 25th December, 1841.</p> <p>The facts were found specially by the jury. In them it was stated, in substance, that the plaintiff derived his title from the grantee of the government before the 27th September, 1839; that on that day the plaintiff and 17. P. Browning contracted and bargained for the sale of the said land, at which time Browning executed his notes to secure the consideration for the said sales, andj by agreement of the parties, the plaintiff was, at a more convenient time, to execute his bond for title whenever the consideration should be paid; and that in pursuance thereof the said bond was executed. That Browning in his lifetime made various payments, indorsed on said notes, and remained in possession of the lands until his death. That the bond was returned as a part of the estate of the deceased.</p> <p>That the administrators having refused to allow the balance claimed to be due on the said notes, an action has been brought, and is still pending for its recovery, and a transcript of the record of said suit is made a part of the finding. The estate of Browning is found to he solvent, and able to pay any recovery that may be had upon the said notes. That no other title was ever made to the said Browning, or his administrators, or heirs, since his death. It was admitted that the plaintiff demanded possession of the tracts of land before the commencement of the suit. It appears from the transcript of the suit upon the notes, that the defense set up was the statute of limitations, and that the rate of interest stipulated for in the said notes was usurious.</p> <p>Upon these facts the jury submitted the law of the case to the court, which the court decided to be in favor of the plaintiff, and gave judgment that he recover the land in controversy. The defendant took an appeal.</p> <p>The record shows that the petition in this case was filed on the 22d of October, 1846, and the accompanying transcript. which is made a part of this case by the special verdict, shows that suit was commenced by Estes against the administrators of Browning, for the recovery of the balance of the money claimed to be due on the notes, on the 7th of October, 1846, and that the last mentioned suit was pending at the time the verdict and judgment were rendered in this case. The transcript of the suit on the notes also shows that Browning had paid in part of the consideration for the purchase of the land to Estes, previous to his death, $2,249.88.</p> <p>That Estes sold the land to Browning in 1839, at which time Browning went into possession under the sale, and retained the possession up to the time of his death in 1845, cannot be controverted. Estes’ bond to Browning proves the sale. It is true there was no formal deed made to Browning, but a deed would only have been a higher species of evidence of Brown-, ing’s right; the right to the land existed without it. Equity would regard it as a sale even without the bond. [2 Story’s Eq. p. 98*, secs. 790, 791.]</p> <p>A parol sale of lands in 1839, accompanied by possession, was good; no written title was necessary to secure the rights of the purchaser. [Briscoe vs. Bronaugh, decided at the last term of this court.]</p> <p>If this had been a suit by Browning’s administrator against Estes, to compel him, under his bond, to execute a deed for the land, it is admitted, to entitle him to a decree, he would have had to show a performance of the precedent condition — the payment of the purchase money; but it is not a suit of that character. It is a suit by the vendor against his vendee to recover lands, which his own bond shows he had previously sold, and without alleging any legal or equitable consideration upon which he can base a right to a recovery. [2 Story’s Eq. p. 22, sec. 715; Adams on Eject. 247, 285.]</p> <p>The special verdict shows that the estate of Browning is solvent and amply sufficient to pay any claim which the appel-lee may have upon it for the purchase money of the land; the non-payment of the purchase money, therefore, is no ground for the rescission of the contract of sale, even had this been an action for that purpose, and in which it was alleged that the-purchase money had not been paid. The appellee’s remedy obviously was to bring a suit for the purchase money due upon the notes, which he did. He could not at his own mere pleas-ui’e rescind the sale and take back the land, and more especially after he had received a large portion of the purchase money, and was then actually prosecuting a suit for the-recovery of the residue of it. [8 Ala. R. N. S. 458.]</p> <p>Had the estate of Browning been insolvent, and unable to pay for the land, possibly a suit in chancery, praying a rescission of the contract upon that ground, might have'been maintained. This, however, would have been a doubtful right.. The vendor had a lien upon the land for the payment of the notes, and in a proper proceeding he might have enforced that lien. Beyond this he had no claim to the land after the sale to Browning, and after he had put Browning in possession. [2 Story’s Eq. pp. 4, 5, 6, 97, sec. 789; Briscoe vs. Bronaugh, and authorities there cited; 3 Ala. R 305; 1 Ala. R, 273, 622; 4 Ala. H. S. 86.]</p> <p>If Estes can recover the land in this action, that recovery must decree a rescission of the sale made to Browning, and if the sale he rescinded, what becomes of the money which Browning lias paid, and of the notes upon which he is now sued? There is no principle better settled than that even a court of equity will not rescind a contract or sale (not tainted with fraud) unless the parties to it can be restored to their original positions. In this suit it is impossible to restore the parties to their original condition, because the administrator of Browning cannot recover in this action a judgment against Estes for the money already paid, or compel him to restore the notes. [2 Story’s Éq. pp. 8, 62, secs. 696, 759; 3 Ala. R. 421.]</p> <p>Had this been a suit in equity for a rescission of the contract, it is well settled that before the party can claim the benefit of a court of equity, he must himself do equity. Estes, to entitle himself in a court of equity to a rescission of the sale, must not only have alleged that injury would result to him from the inability of Browning’s estate to pay for the land, but he must have offered to return the money already received, and to have given up the notes; neither of which has he done. [1 Fonblanque Eq. 142; 2 Story’s Eq. p. 16, sec. 707.]</p> <p>If it be contended that Estes, strieti juris, has a right to recover the land because the legal written title has not been conveyed to Browning, then we say, that if he holds at all, which we do not admit, he holds it in trust for Browning, and may be compelled to convey. A trustee who holds the legal title cannot set up that title against the equitable rights of the oestui que trust for the purpose of dispossessing him. If Estes were to recover the possession of the land, it would only be to hold it in trust for Browning, and it would be absurd to say that he can recover from Browning in order that he may hold for Browning. [2 Story’s Eq. p. 97, sec. 789.]</p> <p>But apart from every other consideration, if the plaintiff had a right to bring a suit for the recovery of this land from the defendant, after having sold it to him and placed him in possession, we then say that his right to a recovery is barred by the statutes of limitation. The land was sold to Browning-in September, 1839; this suit was not brought until August, 1846. Browning went into possession by the consent of the plaintiff at the time of the sale in 1839, and remained in possession under the sales from that time until November, 1845, when he died, and his administrator went into possession in virtue of his right, and was in possession when the suit was brought in August, 1846.</p> <p>By the 39th section of the act of December 20, 1836, to organize inferior courts, etc. [1 vol. Laws, p. 156], the peaceable possession of land under color of title for five years gave a valid title against all other persons not within the exceptions of the law; and by the 15th section of the “act of limitations” of February 5, 1841, it is provided that all suits for the recovery of real estate against a person in possession under color of title shall be instituted within three years next after the cause of action accrued, and not afterwards. [1 vol. Laws, p. 156, see. 39; 5 vol. Laws, p. 167, sec. 15.] .</p> <p>Browning not only was in possession under color of title, but be was in under an actual and valid title — good against the woi’ld — that is, supposing Estes’previous title to have been so, for he was in under all the title that Estes possessed.It would be absurd to saj that he was not in under color of title, when Estes declares by his bond that he had sold the land to him. If a parol sale, accompanied by possession, conveyed a valid and legal title in 1839, surely that sale is not impaired by the vendor having furnished the vendee with a higher species of evidence to establish the sale, than he would have had if the contract had rested entirely on parol proof. [Briscoe vs. Bronaugh.]</p> <p>“Title,” says Blackstone, “is the means whereby the owner of lands has the just possession of his property.” [Black. Com. vol. 2, p. 195.]</p> <p>The “ means ” alluded to by Blackstone, or “justa causa ” by Lord Coke [1 Inst. 345], is nothing more than those indicia of ownership which are recognized by the laws of the country as evidence of right. In a country where a parol sale accompanied by possession gives á legal and valid right to the land, the title thus acquired, though more difficult to prove, is just as valid, and carries with it all legal consequences to the same extent that it would do if evidenced by the most formal deed of indenture, in countries in which such modes of conveyance are required. [2 Con. B. 437; 5 Con. B>. 684.]</p> <p>If it be contended that the plaintiff should recover the land back because the statute of limitations may bar a recovery of the balance due on the notes, we reply that he cannot do so in this action, because he has alleged nothing in his petition which shows even an equity. He does not allege that the defendant has not paid for the land, and that he cannot recover the purchase money in his action against him upon the notes; nor does he offer to pay back the money he has already received, and give up the notes. He alleges nothing, except that the bare naked legal title is in him, and this the record shows was not the case, as the title had passed from him by the sale to Browning.</p> <p>Even had this been a suit in chancery, to compel the defendant to reconvey tbe land, or pay tbe residue of tbe money, it may well be doubted whether such a decree could have been made. Tbe fact that tbe statute of limitations might prevent a recovery on tbe notes, would afford no good reason for such a decree, as a party could not come into a court of equity to enforce a right which was strictly legal, merely because be had lost bis right to enforce it in an action at law by his own neglect and laches. “ "Where the law has determined a matter with all its circumstances, equity will not interfere, notwithstanding accident or unavoidable necessity.” [1 Story’s Eq. p. 68, sec. 61.]</p> <p>But however the law may be in respect to permitting a court of equity to relieve against the statute of limitations, in any case or under any form, where a court of law could not relieve, still the only remedy of the plaintiff was by enforcing his lien upon the land, by having it sold for the payment of his debt; that is, if he could not recover it by other means.</p> <p>We again repeat, that this is not an action brought by the vendee against the vendor for a specific performance; and whatever might be deemed the equitable rights of the vendor in such a suit, they cannot he made applicable in the present one.</p> <p>The New York and other cases which assert that where anything is left to be done at a future day, to complete the title, it is only a contract to sell, and. not an absolute sale, and the vendor may maintain ejectment at law to recover the possession, at any time before the title is executed, cannot apply to a contract which states expressly that the land is sold, and more particularly in a country where a title in writing by deed is not necessary. And even in New York such a contract would be enforced in equity between the parties, and would not be rescinded upon tbe action of either, unless full justice was done to the other. [9 Cowen, 269.]</p> <p>An equitable title will prevail against the creditors or purchasers of him who has the mere legal title. [3 Stewart B. 386.]</p> <p>The only claim the defendant could set up to the land in controversy must arise out of the contract or agreement set out in the plaintiff’s bond, executed to Nathan P. Browning in his lifetime, and under whom defendant claims as administrator. The bond is only evidence of what the plaintiff obligated himself to do; and though it be for the conveyance of land, it cannot, of itself, effectuate that object, and transfer to the obligee such a legal estate as would serve him as a defense to an action of ejectment or trespass, to try the title. [Agricul. Bank of Miss. vs. Pice et al. 4 How. U. S. 225; Wright vs. Moore, 21 Wend. 230, and cited cases.] Certain apt and meritorious words must be used by the grantor to convey ^uch an estate. [Id.]</p> <p>The bond was for the conveyance of a title to the land, upon the consideration money being first paid; until that was done neither the obligee, or any one claiming under him, could demand and force a compliance with the undertaking therein, even in a court of equity. And if the defendant had set up and proved payment of the whole consideration money, it would only have shown in him an equitable interest in the land, and not such an estate as he could plead in defense of the legal title in an action of ejectment. [3 Johns. E. 422, and cases cited; 2 id. 221; 3 Howard U. S. 759; 21 Wend, above cited, 230.]</p> <p>These authorities show most clearly, both that the only interest a purchaser can take under, a bond for title to land is an equitable one, and that such an one is not a bar to this character of action.</p> <p>The bond limits and defines the rights of the parties to it at the time of its execution, and estops the party claiming under it from setting up any right inconsistent with that he then contracted for. And though he had been in possession of the same land, as found by the jury, some time prior to the execution of the bond, he cannot consistently with that, in the absence of any proof to the contrary, be regarded otherwise than as tenant at will, or at any rate in no higher light, having merely parol permission to occupy the premises. By accepting the bond for a title to the land, to be made to him on the performance of certain stipulations on Ms part, he acknowledged himself, at that time, as holding under the obligor, and in legal contemplation as nothing more than his tenant, holding the land in trust for him under whom he held. [Galla-way vs. Finley et al. 12 Peters, 264; 4 Howard U. S. 295, and ■cited authorities.]</p> <p>Judging from the pleas appearing in the record, the only ■right set up by the defendant below is under the several sections of the act of limitations, to which they obviously refer. And this right, when the acknowledged aim and policy of such laws are inquired into, and the character of claims intended to be protected under their peaceful and quieting mantle, as well ns the necessary character of an adverse possession, upon which these statutes can operate, will, it is thought, be found to ■occupy a narrower foundation than such pretended rights have ordinarily sustained in courts of justice.</p> <p>The 15th section of the act of 5th February, 1841, page 167 clearly contemplates such titles as are held in a direct line or chain of transfers from the government, and can be traced from the holder by a direct line of regular, unbroken transfers to the ■original sovereign of the soil. And a color of title, as explained by the legislature using the expression, only differs from the unqualified title in this: that some of the intermediate links of transfer might be irregular, or not be in strict accordance with the rules of conveyancing in every particular, but does not free the claimant to lands from the necessity of having the •transfer direct to himself, regular. This is a construction that it seems might have been very well placed upon this section, in the absence of any legislative interpretation of the sense in which these words are used; the next section of the act requires -a longer time (five years) claiming under a deed duly registered, etc., but does not impose the necessity on the holder of tracing 1ns title by a regular consecutive chain of transfers, back to the government, but suffers him to hold the absolute fee under a deed to him, without looking back after the title of his grantor.</p> <p>How is it not manifest, from the terms used throughout both these sections, that the legislature could not have contemplated any other than a claim to a complete legal title? and which a holder must set up in his own right, not in subordination to, or privity with, any other, by him recognized, superior title, to entitle him to the benefit of the operation of these statutes? This will hardly be controverted.</p> <p>Then, returning to the position before assumed, that Brown'ing, by accepting the bond of the plaintiff for a title, acknowl- ■ edged the supremacy of his right, and if provision had been made therein for his taking immediate possession, he would, in legal contemplation, have been nothing more than the tenant or trustee of the vendor, and equally estopped from disputing the title of his vendor, as such. The relation between them as-vendor and vendee is equally fiduciary as that of landlord and tenant. While that confidential relation existed between them, no length of time could be insisted on by the vendee to augment his interest in the estate; before any limitation could run in his favor he must set up an adverse possession in his own right, clearly and expressly disavowing to hold under or in right of his vendor, which disclaimer of the vendee must be' brought home to the vendor, and that fact shown, or the original relation will be supposed existing between them. [4 Howard IT. S. 295, 296; 5 Co wen, 74, 92, 99, 100, 104, 484;. 16 Johns. R. 301; 1 Cowen, 610; 4 Co wen, 401.]</p> <p>A contract for a deed, though the purchaser enter under it,, does not place him in a situation to hold adversely till he perform the condition of the purchase by paying the purchase-money, such possession not being hostile in its inception. [Adams’ Eject. 57, note 2, cites Botts et al. vs. Shields’ Heirs,. 3 Litt. 34, and Yorheirs-ws. White’s Heirs, 1 Marshall (Ky.),. 27; 3 Peters, 44; 5 Yerger’s Tenn. 398.]</p> <p>When one claims under or through another, there shall be no-adverse possession in such a case, sufficient to give a title, e. g., purchaser under his vendee. [Adams’ Eject. 50, note 1; 1 Johns. R. 157.] Possession must be adverse to give a title. [Adams’ Eject, 50, note 2; 9 Wheaton, 241, 288.]</p> <p>It seems that these authorities establish beyond question,</p> <p>1st. That a contractor for the purchase of land, though he enter under the terms of the contract, takes only as tenant of the vendor, and holds subservient to the title for which he contracts.</p> <p>2d. Until he has performed all the conditions of the purchase on his part, he is not in a situation to hold the land adverse to the possession of the vendor, without setting up a claim to the absolute fee of the land, and disclaiming to hold under the vendor, and bringing notice of that fact home to him.</p> <p>3d. Limitation will not run from the time of entry and claim under a superior title, but from the date of the event, by which the possession becomes adverse and independent of that title.</p> <p>4th. Adverse possession cannot be set up under a claim of any title less than a fee simple, to invoke the aid of the law of limitation, to defeat such higher estate.</p> <p>5th. If a party claims a higher estate than that he takes an entry, it devolves on him to establish those facts necessary to create such higher estate; for until then he will be presumed to hold consistently with his entry.</p> <p>In the case of bar, it would be manifestly unjust that the heirs of Browning should be permitted to retain the possession of this land, and not pay what is'justly due. “They should either pay up the money or give up the possession.” fl How. U. S. 56; 15 Yesey, 317.]</p> <p>It is a well settled principle in equity, that although the law would declare void a security taken for money, and bar the-right of action, yet the party coming into equity asking anything will be compelled to do equity, by paying what is justly due and legal interest. [16 Yesey, 124; 19 id. 470; 1 Mad. Oh. 305; 10 Peters, 525.]</p>

— Error from Washington County. This suit was brought upon one of the notes given by the plaintiff in error (Holt) to Lewis 0. Clemmons, for the purchase money of the tract of land mentioned in the case of Holt vs. Clemmons, decided at the present term. The note was indorsed by Clemmons to Payne, and the suit was brought by Payne-against both maker and indorser. Holt pleaded in this case, as-ín the former, a failure of consideration. Clemmons made no-defense.

— Appeal from Galveston County. This was a suit brought by Stewart, the plaintiff in the court below, to recover of the defendant, Dorr, damages for an alleged breach of contract entered into between them on the 15th day of February, 1847, by which the plaintiff agreed to do the carpenter’s work on a brick store, for Dorr, and furnish materials for the same. The brick work was to be done by ¥m. B. ISTichols.

— Writ of Error from Brazoria County. This was a suit brought by Hugh MeGreal for the use of the other defendants in error.

<p>— Appeal from Walker County.</p> <p>Case stated in the opinion of the court.</p>

<p>— Error from Walker County.</p> <p>Case stated in the opinion of the court.</p>

— Error from Houston County. The petition in tliis case alleges that about the first of January, 1835, George Robbins, the ancestor of the plaintiffs, contracted with Nathaniel Robbins, the ancestor of the defendants, to select, locate and obtain the title from the government, of the league of land to which he was entitled as a colonist in Yehlin’s colony, and for which services, and the money to be advanced in their performance, he agreed to convey to him, the said…

— Writ of Error from Houston County. This was a suit brought by the defendants in error (plaintiffs-in the court below) to enforce a verbal contract for the conveyance of a tract of land entered into in the year 1834, between George and Nathaniel Robbins. There was a verdict and judgment for the plaintiffs, upon which the defendants sued out this writ of error.

— Appeal from Nacogdoches County. This action was instituted against the republic, to establish, the validity of a claim to lands within the twenty border leagues, by virtue of authority derived from the act to quiet the land titles within that section of the country, approved January 9y 1841. [See Laws of 1841, p. ITT.] The petition represents that Jose Ybarbo, for himself, and on behalf of his three brothers, applied, in the month of February, 182T, to the political chief…

— Error from Harrison County. A motion was made in this case to dismiss the writ of error because the citation was not served upon the defendants in error, who were the plaintiffs in the court below. The citation appears to have been served on their attorney in the district court.

— Writ of Error from Lamar County. — Same. Judgment in these cases was rendered on the 15th day of May, 1848, being the sixth day of the spring term, 1848, for the county of Lamar.

<p>The jurisdiction of this* court is exclusively appellate, but its revisory; power is to be exerted, not over its own judgments, but over those of inferior jurisdiction. [9Tex.j300.j</p> <p>"When the judgment of this court is entered, its minutes authenticated as a record, and the term closed, the court has no further power over the decree for the purpose of revision or modification upon the merits. The rights therein adjudicated are irrevocably concluded and established. [6 Tex. 76; 10 Tex. 127. J</p> <p>This limitation upon the authority of the court does not prevent the correction of clerical errors or mistakes, or defects of form, or the addition of such clause as may be necessary to carry out the judgment of the court or to declare a judgment null and void which was rendered in a case not legally before the court. [9 Tex. 109; 19 Tex. 321; 25 Tex. Sup. 261.]</p> <p>The want of proof of notice to the defendant in error is cured by his voluntary appearance in this court.</p> <p>Where there are no bills of exception, stateme’nts of facts nor error suggested or apparent on the record, jt is the duty of the counsel for the appellee or defendant in error to suggest delay; and even should he omit to do so, the court will usually, under such circumstances, award the damages authorized by law in cases of frivolous appeal.</p>