Volume 30 — Texas Reports

<p>The 10th section of the execution law makes the sheriff liable to a summary-motion for money collected, when it has been “demanded by the person entitled to receive the same.” (Paschal’s Dig., Art. 3781, Note 872.)</p> <p>The section does not prescribe in whose name the motion shall he made, and it may be made by the person entitled to the money.</p> <p>The fees of officers are required to be taxed by the clerk, and to accompany the execution. (Paschal’s Dig., Arts. 3772, 3831, Note 863.)</p> <p>When the sheriff receives the costs, he receives it for the use of the officers, and not of the plaintiff in the execution. The clerk, therefore, entitled to such costs, may demand them of the sheriff, and is entitled to a motion under the 10th section of the execution law. (Paschal’s Dig., Art. 3781, Note 872.)</p>

The case was tried before Hon. William S, Tqdd, one of the district judges. Harris, Horton & Co. recovered a judgment on the 17th September, 1857, against Littlebury A. Ellis, for $198 23 and costs.

The case was tried before Hon. William S. Todd, one of the district judges. This suit was instituted by appellants, Mills, Ward, & West, to recover one thousand seven hundred acres of land. Plea of not guilty filed by defendants. The intervenor, Prances, claimed three hundred and twenty acres of the land in controversy out of that portion .claimed by defendant, Traylor, to which plea of intervention Traylor demurred, plead the general issue, and not guilty.

Error from Smith. The case was tried before Hon. Reuben A. Reeves, one of the district judges. This was a trial of the right of property to a slave. Execution in favor, of Joseph B. Arnold, against Bohert 0. Beene, was levied by the sheriff of Smith county, September 29, 1859, on the negro girl in controversy. The cause was submitted to the court below without the intervention of a jury.

Error from Marion. The case was tried before Hon. H. P. Mabry, one of the district judges. The facts are very fully given in the opinion of the court. The hill on which suit was brought was in these words, with the indorsement of “ Henderson, Terry & Co.” across the face of the note: “ 307 78. Hew Orleans, 2d May, 1861. “ On the 12th day of December, after date, pay to the order of 0.

Error from Houston. The case was tried before Hon. Reuben A. Reeves, one of the district judges. Butler having obtained judgment by default, Beavers prosecuted error, but instead of directing the writ to Galveston, where the petition averred Butler’s residence to be, he had it directed to Houston and served upon Butler’s attorneys. The plaintiff in error did not appear, but defendant suggested delay.

Error from Cherokee. The case was tried before Hon. Reuben A. Reeves, one of the district judges. Henry sued Daniel on the following instrument: “$250 00. By the first day of April next we, or either of us, promise to pay M. W. Henry, or bearer, the sum of two hundred and fifty dollars, for value received of him this the 6th day of March, 1857.

Error from Houston. The case was tried before Hon. Reuben A. Reeves, one of the district judges. The original petition declared for the debt. Of this there was service, but no appearance. At a subsequent term, the plaintiff amended, and declared for the foreclosure of the vendor’s lien on the land for which the note was given; hut of this amendment the defendant was given no notice.

Error from Houston. The case was tried before Hon. Reuben A. Reeves, one of the district judges. Shirley sued Rhone, Adair, and Hail; Rhone and Adair acknowledged service. There was no process, acknowledgment, or appearance as to Hail. Judgment against the “defendants” 1-y default. Rhone and Adair sued out a writ of error, in which they assign generally, that the judgment was contrary to law and evidence. The plaintiffs in error did not appear.

The case was tried before- Hon. Reuben A. Reeves, one of the district judges. This suit was brought to recover a league of land. Both parties claimed under the same title. But the defendants claimed that,- after Johnson’s purchase from the ancestor, they had purchased half the league of land from the heirs of the ancestor without notice.

<p>Error from Cherokee. The case was tried before Hon. Reuben A. Reeves, one of the district judges.</p> <p>This was a suit instituted by Henrietta Arnis, defendant in error, against Williams & Meadow, plaintiffs in error, 26th February, 1866, on a promissory note, as follows:</p> <p>“ $700. Twelve months after date, I promise to pay Mrs. Henrietta Arnis or bearer seven hundred dollars, for .the hire of three negroes, Ben, Charles, and Eliza, to be paid in current funds, with eight per cent, interest after maturity, if not punctually paid. P. Williams,</p> <p>“January 1,1865. H. J. Meadow.”</p> <p>To which defendants, on 26th February, 1866, answered substantially:</p> <p>1. To the jurisdiction" of the court, that the note showed on its face that it was for a sum less than $100.</p> <p>2. That the note was procured by fraud, in this, that the plaintiff represented, at the time it was given, that she was the owner of said negroes, when in fact they were free.</p> <p>3. That it was well understood, contracted, and agreed by the parties, that the note was to be paid in confederate money, and that the term “current funds” was intended for this; and that plaintiff received confederate money from other parties for other negroes hired to them.</p> <p>On the 28th February, 1866, defendant, Williams, filed amendment, substantially as follows:</p> <p>1. That the note was fraudulently procured, in this, that the plaintiff represented said, negroes to be her right and property, and that she had the right to hire them for the year 1865; but that they were not her property, but were freed by the proclamation of the President of the United States on the 1st January, 1863, and which proclamation has since been confirmed by the amendment to the Constitution of the United States.</p> <p>2. Failure of consideration, in this, that said negroes, being freed, did not work so as to earn wages, and that, about June, 1865, said proclamation went into complete effect, and said negroes had the right to control their own time, and that defendant lost the control and benefit of them for at least one-half the year.</p> <p>3. That it was intended and' understood by the parties that this contract was made with reference to confederate money, and the note was intended to be paid in this currency, which was then not worth more than twenty or thirty for one, and that defendant proposed and tendered to pay off this note, before suit, in specie, at the rate of twenty for one.</p> <p>On the 29th March, defendant again amended, substantially, that said note was given for the hire of said negroes for the whole of the year 1865, and that it was understood and agreed that it was to be paid in confederate money, which at the time was not worth more than from twenty to forty for one, and at the maturity of the note was worthless, and that on the 28th June, 1865, said negroes were made free and self-controlling, so that there was a failure of consideration.</p> <p>On the 19th September, 1866, plaintiff amended, substantially:</p> <p>1. That by “ current funds,” as mentioned in said note, was intended whatever currency or money was current at the maturity of said note on the 1st January, 1866, and which was alleged to have been gold and silver.</p> <p>2. That by “ current funds,” as mentioned in said note, was intended whatever currency or money was current at the maturity of said note, on the 1st January, 1866, and which was alleged to have been United States currency or greenbacks, and which was then of the reasonable value of, to wit, $1 in this for $1 in specie, and asks judgment for this amount.</p> <p>On the 15th March, 1866, plaintiff excepted generally and specially to the said answer of defendant, Williams, filed on the 28th February, 1866, and the court sustained the second and fourth special exceptions, and so much of the exception to said answer, relating to an alleged tender, as to require the defendant to aver when the tender was made and to whom made, and overruled the others. It is deemed necessary in this attitude of the ease to consider those exceptions only which were sustained, and which are substantially as follows :</p> <p>“ 2. That said fraud, if any, was a fraud upon said negroes, and defendant shows himself to have been a particeps criminis to said fraud, and should not be permitted to avail himself of the services of said negroes, and then seek to shield himself under his own wrong and turpitude, and thus commit a double fraud.”</p> <p>“4. That it does not appear in and by said answer that said negroes were lawfully freed; that the President had any lawful or constitutional right to issue said proclamation; and that it does not appear that said amendment was made prior to said hiring.”</p> <p>“ 7. And for the special exception to the plea of tender, that the same is uncertain, does not show when and where the same was tendered, to whom tendered, and the amount tendered.”</p> <p>And, on the 15th March, 1866, plaintiff excepted generally and specially to the answer of both said defendants filed on the 27th February, 1866.</p> <p>The following special exceptions were sustained, and they only are deemed necessary to be considered, as the case is now presented:</p> <p>“ 1. That the plea of jurisdiction is not true in fact, and not supported by the record.</p> <p>“ 2. The same special exceptions which were sustained to the answer of defendant, Williams.</p> <p>“ 3. To so much of said answer as sets up that plaintiff hired other negroes to other parties, and received confederate money, as setting up no defense to this action.”</p> <p>“ On the trial, plaintiff’s first special exception to defendant’s (Williams) answer overruled; second exception sustained; bio. 3 overruled; fourth exception sustained; bio. 5 overruled; and special exception of the plaintiff, relating to tender sustained so far as to require defendant to answer when the tender was made, and to whom made. Exception to the plea of jurisdiction sustained. Exceptions to so much of said answer setting up payment in confederate money by other parties sustained. Verdict and judgment for plaintiff $466 66 principal, and $26 96 interest.”</p> <p>Historically it is judicially known- and generally noticed, that the proclamation of President Lincoln declared the slaves in Texas and other rebel States free on the 1st day of January, 1863. They remained in slavery, however, until after the amnesty proclamation of President Johnson, the proclamation of General Gordon Granger, the universal amnesty oaths of the people, and the great practical revolution by which slaves all went free in Texas, in the summer of 1865. So that the great question of a vis major was intendéd to be presented by the pleadings, and was universally known to the country. So it was historically true, that on the day of hiring, 1st January, 1865, there existed laws of the confederate congress which punished the dealing in United States treasury notes; and no one could have safely bargained for their payment in futuro. The counsel then intended to present the question, whether a contract to be discharged in “ current funds,” which was proved to have meant “ confederate treasury notes,” and for 'over two years preceding the contract, could have meant nothing else in Texas, was such an illegal dealing as rendered the contract null and void ?</p> <p>The court, upon the facts proved and judicially known, charged the jury as follows: “ The note read in evidence entitles the plaintiff" to recover the amount of money therein agreed to be paid, unless the evidence shows that the parties intended, by the expression 6 current funds,’ that the same was to be paid in confederate money, and then the plaintiff" could only recover the value of the confederate currency, at the maturity of the note, according to the evidence. It is necessary for the defendants to prove that such was the intention of both the plaintiff or her agent and the defendants; and, unless this has been done, neither the confederate currency nor its value would be the measure of compensation to which the plaintiff is entitled. But the jury will inquire and ascertain from the evidence whether the parties intended some other paper currency, and if they did, then the plaintiff could recover the value of the same, at the maturity of the note, according to the proof. 1 Current funds,’ as expressed in the note, does not import in what currency the note is to be paid, and the intention of the contracting parties at the time the note was given, as shown from the evidence, so find; and, if for the plaintiff, she is entitled to interest, at the rate of eight per cent., from the maturity of the note. If the consideration of the note has failed, that is, if the negroes left the service of the defendants before the expiration of the hiring, it would be incumbent on the defendants to prove it, and, if it has not been done, the jury need not consider that part of the defense as set up in the pleadings. If you find for the plaintiff, state the amount. If for the defendants, so say by your verdict.”</p> <p>As a different view of the law has been taken by the Supreme Court in subsequent cases, which will appear in volumes 30 and 31, the Reporter deems it best to give the statement of facts and the instructions in full.</p> <p>The plaintiff read the note hereinbefore described. He then introduced Thomas J. Word, who testified that, at the maturity of the note, January 1, 1866, greenbacks and gold and silver were the currency of the country. At the date of the note, January 1, 1865, confederate money was the currency of the country. Witness, in writing a note payable in current funds, would mean funds current at the maturity of the note. But there was no custom in the country at the time fixing the meaning of current funds. Confederate money was all the paper money in the country at the date of the note, and was without any value at the maturity of the note, on the 1st day of January, 1866. At the date of the note, confederate money was worth twenty dollars to fifty dollars for one; at the maturity of the note it was worth nothing. Proof by the defendants.</p> <p>T. J. Durrett, a witness for the defendant, testified, that he knew what the note sued on was given for; it was for the hire of negroes, belonging to the plaintiff", for 1865. It was a general hiring-clay of plaintiff’s negroes, by her agent, a Mr. Harris. Witness and defendant were there that clay. Witness did not see the note given; he had left the ground before the note was given. Plaintiff’s agent, Mr. Harris, told him and others, on the day of hiring, that he was taking confederate money, and this seemed to be the general understanding. The witness said that one of the negroes was hired for $50 in coin. Witness hired one of the negroes from plaintiff’s agent the same day, and gave his note payable in purrent funds. The agent, Harris, said he would take confederate money now. Witness got the money the same day, and paid off' his note the same day, but after it was given in confederate .money. Witness claimed that plaintiff should refund to him a part of the hiring paid, as he paid in advance the whole year, and plaintiff’s agent refunded to witness accordingly, in hiring notes like the one sued on, at the rate of twenty dollars for one.</p> <p>■ Cross-examination by plaintiff': Plaintiff’s counsel asked the witness, Durrett, why it was, if the notes given for the hiring of these negroes were to be paid in confederate money, that the words confederate money were not put in the notes in place of current funds. Witness replied, that there was a good deal of grumbling by persons who hired negroes because the words current funds were used. He said he was not present when the note sued on was given, and knew nothing about it. Plaintiff’s counsel asked the witness if it was not true that said agent stated, on the day of the hiring, that he was then willing to take confederate money, if paid down; but, if he had to take the notes, he would take them payable in whatever might be current at the maturity of the note; and that, rather than give their notes, several persons preferred to pay, and did pay at the time, confederate money; and was it not true that he, the witness, rather than run the risk that some other money might be current funds when the note matured, obtained the confederate money that day, and paid off the note which was due in twelve months; to which question witness answered, that he always paid off his notes when he had the money; that he did not like for his notes to be out, and that he got the money on the same day, but after he gave his note, and paid it off.</p> <p>It is but just to the court to remark, that when the opinion in this case was delivered, the country was in a great state of uncertainty as to what would be finally settled as to the great events of the revolution; hence questions involving contracts of the kind were not decided, unless they were fórced upon the court:</p> <p>The affidavits for a new trial have not been given in this statement. They only proposed to prove the things already proved, or else those which were universally, if not judicially known.</p>

Error from Houston. The case was tried before Hon. Reuben A. Reeves, one of the district judges. The returns read: “Executed August 10,1860, by delivering to W. W. Williams a copy of this citation, and a certified copy of plaintiff’s petition.” And “ Executed the same day, by delivering to John H. Bennett, in person, a true copy of the within citation, and also a true copy of the plaintiff’s petitiofi.” The judgment was by default.

The case was tried before Hon. Reuben A. Reeves, one of the district judges. The facts in the record are sufficiently set forth in the opinion. There was no appearance for the plaintiff in error, and the defendant suggested delay. The point, as to whether service by publication could be legal, when the proceeding was not in rem, was not presented to the court.

Error from Cherokee. The case was tried before Hon. Reuben A. Reeves, one of the district judges. The suit was for a fee for aiding to prosecute Archibald Murphy, and William Oliver for being an accomplice, in the murder of William R. Wiggins. There were many counts and amendments in the petition, hut they were narrowed down to a demand for a fee of $150. The services were rendered, and the only question was, as to the retainer by and liability of the defendant.

The case was tried before Hon. John J. Good, one of the district judges. The allegations in the indictment are sufficiently set out in the opinion. A general exception to it was sustained. The State appealed.

The ease was tried before Hon. B. W. Gray, one of the district judges. The appellants, James H. Selvidge and Mumford Harmon, were indicted for horse stealing. The material points in the case arose upon the confessions of the prisoners.

The ease was tried before Hon. Reuben A. Reeves, one of the district judges. Every fact necessary to a clear understanding of the case is succinctly set forth in the opinion, nevertheless the following facts may serve as a guide in practice: This was a suit instituted in Cherokee district court, on the 7th March, A. D. 1859, by Obadiah Prestidge, the appellee, against Andrew 0.

. The case was tried before Hon. Reuben A. Reeves, one of the district judges. The suit was brought on a note payable to the * * “ or bearer.” The plaintiff was not one of the payees, nor did the petition aver delivery to him, or that he was holder or bearer. The judgment-was by default. The defendant prosecuted error, and assigned several causes, but not the one on which the case turned. The defendant in error suggested delay, and thus opened up the errors of record.

Error from Rusk. The case was tided before Hon. 0. A. Frazer, one of the district judges. The suit was on a note against Thomas A. Brown and John G. Brown. There was correct service as to Thomas A. Brown.

Error from Wood. The case was tried before Hon. Charles A. Erazer, one of the district judges. The judgment was rendered at the May term, 1860, and the writ of error issued on the 7th of August, of that year, and was returned to the Tyler session of 1861, and the transcript was filed 25th April, 1861. The facts of the case are sufficiently set forth in the opinion.

The case was tried before Hon. Charles A. Frazer, one of the district judges. This was an action brought by the appellants against the appellee to recover back the sum of $280, paid by them to Panola county as a license tax for retailing spirituous liquors. The demurrer of defendants was sustained, judgment rendered against plaintiffs, to which they excepted, and brought this appeal.

<p>Error from Cherokee. The case was tried before Hon. Beuben A. Beeves, one of the district judges.</p> <p>The following are the facts of the case: J. W. McElroy was indicted in the district court of Cherokee county for disturbing public worship. On 3d of April, 1860, he was tried, convicted, and fined $20. Motion for new trial overruled, and appeal to Supreme Court. Beeognizanee, with plaintiff in error as his sureties.' On the 18th of May, 1860, the defendant died. On the 23d of May, 1860, the judgment of the district court was affirmed by the Supreme Court, the death not being known to the court. (McElroy v. The State, 25 Tex., 508.) On the 23d of July, 1860, affidavit was made by W. F. Conner, one of the appellants, of the death of McElroy. This affidavit being made, the clerk issued an execution against appellants, as the sureties of McElroy. On the 20th of March, 1861, appellants filed a motion to quash the execution, (an alias having been issued,) averring that said execution was a nullity, because there was.no judgment authorizing it; and that the judgment of the Supreme Court, affirming the judgment against McElroy, was void, the party having died before the date of the judgment. On hearing the motion the court quashed the execution, and rendered judgment against the appellants in favor of the state for the sum of $65 20, less $3 50, which had been paid, and the costs of the motion, which had been sustained. From this judgment appellants prosecuted an appeal to this court.</p>

Error from Busk. The case was tried before Hon. Charles A. Frazer, one of the district judges. This suit was brought by the plaintiff in error against the defendant in error, upon a note executed by the latter to the former, on the 8th February, 1841, and upon a supposed acknowledgment of the justice of and promise to pay the claim, made on 15th March, 1854. The suit was instituted on 1st March, 1858.

The case was tried before Hon. J ohn D. Do chard, a special judge chosen by the parties, in place of Hon. Reuben A. Reeves, one of the district judges. The suit was an action of trespass to try title, and to recover a part of a location and survey, under the head-right certificate of Lawrence W. Simpson.

The case was tried before Hon. Beübes A. Beeves, one of the district judges. This case introduces a new feature in the history of Texas jurisprudence. There was literally nothing in the laws of the republic in relation to apprentices.

The case was tried before Hon. Charles A. Frazer, one of the district judges. The defendant below, Smith, sold to the plaintiffs a draft in the following words: “ $750. January 24, 1857. “At sight pay to the order of D. X. Smith or bearer $750, value received, and charge the same to account of “Wyly & Totty. “ To Messrs.

Error from Harrison. The case was tried before Hon, Charles A. Erazer, one of the district judges. The case turned upon the sufficiency of the petition to charge the wife. The averments are sufficiently set forth in the opinion of the court.

Error from Upshur. The case was tried before Hon. Charles A. Frazer, one of the district judges.

Harrison. The case was tried before Hon. M. D. Ector, one of the district judges. The suit was an action to try title by Willie J. Perch-man, “who sues for the use of the heirs of Jesse Perch-man,” (naming them,) and for the recovery of the west half of the Amy Dunman league and labor. The defendant plead not guilty. The death of Hooper was suggested, and his administrator was brought in by scire facias.

'Appeal from Anderson. The case was tried before Hon. Reuben A. Reeves, one of the district judges.

The case was tried before Hon. Reuben A. Reeves, one of the district judges. Atanacio Hotchkiss was indicted for an assault “with intent to kill and murder.” He was arrested upon a capias and entered into bond, which described the offense as “assault with intent to kill.” The defendant did not appear, and when the district attorney moved to forfeit the bond, Francisco Acosta, one of the sureties, moved to quash the bond, because it recited no offense knowrn to the law.

Error from San Augustine. The case was tried before Hon. A. W. 0. Hicks, one of the district judges. This was a three-cornered fight. The record is exceedingly voluminous, and the briefs of the counsel printed and written are little less so. The following statement of pleadings and facts is principally copied from the brief of Donley Anderson.

The case was tried before Hon. M. D. Ector, one of the district judges. The record of this case is a statement of facts made up under the act of 5th February, 1858, further regulating proceedings in the district court. (Paschal’s Dig., Art. 1516.) The substance of the statement is as follows: Squire W. March brought suit against Bichard S. Van Wey, in the district court of Panola county, and obtained judgment for a large amount in damages.

Error from Panola. The case was tried before Hon. Eeuben' A. Beeves, one of the district judges. All .that is necessary in the record is set forth in the opinion. The injunction was dissolved upon motion, without any answer by the defendant, so that the case turned upon the sufficiency of the petition to prevent the sale of lumber charged to be destined for 'the homestead. The plaintiff prosecuted error.

Smith. The case was tried before Hon. Reuben A. Reeves, one of the district judges.

Error from Hunt. The case was tried before Hon. W. GL T. Weaver, one of the district judges.

Error from Panola. . The ease was tried before Hon. Charles A. Frazer, one of the district judges. The record presented very much of a fact case.

The case was tried before Hon. Charles A. Frazer, one of the district j udges. H. H. Black, a beef-packer, of Jefferson, Texas, drew a draft on Fellows & Co., of Hew Orleans, dated 31st January, 1860, and due at three days’ sight, in favor of A. G-.

<p>Appeal from Harrison. The case was tried before Hon. Charles A. Frazer, one of the district judges.</p> <p>The suit was to recover two slaves and the increase of one of them.</p> <p>The case turned entirely upon the sufficiency of the petition upon demurrer.</p> <p>The facts of the case embodied in the petition were as follows:</p> <p>On the 13th December, 1835, in the State of South Carolina, Mary W. Miehan and Benjamin S. Mitchell were intending to marry. She owned two negroes, Simon and Bina; and in consideration of said proposed marriage the parties made a marriage settlement, by the terms of which the said Mary “granted, bargained, sold, and delivered to Mina McCoy, who was a party to the settlement, the said negroes, to have and to hold to him, the said Mina McCoy, his heirs, executors, and administrators, the said slaves Simon and Bina, with the future issue and increase forever, in trust and for the sole and separate use of the said Mary for and during her natural life, not subject to the debts, incumbrances, charges, demands, power, or control of the said Benjamin, or any future husband, to pay over to the said Mary the hire aforesaid of the labor of said slaves, and their future issue and increase, to and for her sole and separate use; or, at the option and choice of her, the said Mary, to permit her, notwithstanding her coverture, to hold and possess, use and enjoy, said slaves, with their issue and increase, without the same, or any part thereof, or their hire, or the profits of their labor, being in any way subject to the debts, liabilities, or control of the said Benjamin, or any future husband that she might have; and'that, if the said Mary should depart this life without leaving issue alive at the time of her death, and without disposing of her separate estate by last will and testament, then and in that case the said Mina McCoy should hold said slaves, with their issue and increase, in trust, to convey the same to her, the said Mary’s, heirs at law, to be divided according to the statutes of the State of South Carolina.” The marriage took place immediately. In January, 1840, the parties removed to Texas, and on the 1st day of June, 1841, Mrs. Mitchell died in Texas, without children or their descendants, without' father or mother, brother or sister, except her half sister, the plaintiff Harriet, and without disposing of her separate estate by will, and was survived by her husband, the said Benjamin. She elected upon her marriage to take possession of the slaves, and had the possession and use of them until her death.</p> <p>The trustee is dead, and his heirs, executors, and administrators live beyond the limits of the State of Texas, and are prayed to be made parties upon their coming into the jurisdiction of the court. The prayer is to recover the slaves and damages for their detention.</p> <p>To this state of the case the defendant interposed a demurrer, which was sustained by the court below, with leave to the plaintiff to amend, which was declined, and judgment final rendered for the defendant. The correctness of this ruling is the only matter for discussion.</p>

The case was tried before Hon. L. W. Cooper, one of the district judges. There was no question about the plaintiff’s title, or the exact extent of the conflict with the supposed outstanding grant of Acosta.

The case was tried before Hon. Reuben A. Reeves, one of the district judges.

The case was tried before Hon. A. W. 0. Hicks, one of the district judges. The defendants and appellants having moved to continue the cause and filed a very long affidavit, the application was overruled, and the defendant excepted; and judgment having been rendered against him', he appealed, and assigned for error the action of the court in overruling the continuance. The grounds of the motion are sufficiently set forth in the opinion.

The ease was tried before Hon. Reuben A. Reeves, one of the district judges. The plaintiff below sued the defendant for the value of a horse lost by the defendant as an inn-keeper. She plead an arbitration and award, in which the matter in controversy was submitted, and by them decided in favor of the defendant. The plaintiff filed several exceptions to the award, and also replied that it was founded in fraud.

Error from Harrison. The ease was tried before Hon. Charles A. Erazer, one of the district judges. The suit was against the heirs of Giles B. Crain, on the warranty of the soundness of a slave, Clarissa, who was alleged not to be sound, but to have died of a disease which was concealed from the purchaser. The points decided turned upon the bill of exceptions of the plaintiff below, in excluding evidence.

<p>Appeal from Harrison. The case was tried before Hon. J. B. Williamson, one of the district judges.</p> <p>On the 18th January, 1866, John IP. Witherspoon and Mary 0. Alexander entered into an agreement, which read in substance: In the matter of the estate of L. 0. Alexander and the estate of Josiah Marshall, in regard to thirty-four bales of cotton, &c., which, &e., is now in the possession of the estate of L. 0. Alexander, which cotton is claimed by the estate of Josiah Marshall, the parties therefore agreed to refer the questions of claim and value to arbitration.</p> <p>On the 18th of April thereafter the arbitrators (by whom named does not appear, for they were not named but only agreed to be selected in the agreement) made their award, that the cotton belonged to the estate of Josiah Marshall, the number of pounds, and the value, 25 cents per pound in coin. It had been agreed to make the award the judgment of the court, and no right of appeal was reserved in the agreement.</p> <p>The district court of Harrison county was commenced on the 19th March, 1866. The award was filed on some day of the term, but when does not appear, but certainly on or after its date; and on the 24th of April, 1866 (which the Beporter thinks was the day of filing the agreement and award) judgment was rendered against the defendant for $4,250 80, the value of the cotton at the rate awarded.</p> <p>In the state of the record, which contained nothing hut the agreement, the award, and the judgment, all without date of filing and rendition, the court only considered the question, as to the right to file the award and to take judgment upon it at the same term of the court during which it was made, without any notice to or appearance of the defendant or losing party. The date of the judgment was ascertained from the petition for a writ of error and from the error bond.</p>

Tlie case was tried, before X>„ C. Jennings, Esq., a special judge, chosen because of the interest of Hon. Charles A. Frazer, one of the district judges. Hendricks sued William Snediker and William B. Cole, in an action of trespass to try title, for the recovery of a lot and improvements thereon, in the town of Harrison.

The case was tried before Asa H. Willie, Esq., a special judge chosen by the parties, because Hon. Charles A. Frazer had been of counsel in the matter. The record is exceedingly voluminous, extending over two hundred and sixty-six closely written pages. But this grows out of our peculiar system. The law provides for a record-of all proceedings, and that administrators render annual accounts.

The ease was tried before Hon! J. B. Williamson-, one of the district judges. The record in this case is voluminous, and the facts somewhat contradictory; but it is believed the following summary will be as satisfactory as any which can be given. The real issue was whether the whole transactions between the parties were in fact a mere security for money, or were they a conditional sale? And this was made to depend not upon the writings, but upon the proofs.

The case was tried before Hon. Richard S. Walker, one of the district judges. The material facts relied on by appellant are as follows: H. 0. Ashton, Sr., on March 18,-1861, executed an instrument in writing, intending to dispose of his property after his death upon a certain contingency.

The case was tried before Hon. Reuben A. Reeves, one of the district judges. Lacy, Colby & Co. sued Solomon Wolfe on a bill of lading, by which Wolfe undertook to deliver one hundred and sixty-one bales of cotton at Sabine Pass for shipment to blew Orleans. The issue was as to carelessness and want of diligence, or not. The proof of the damage was conclusive, the proof of the carelessness was satisfactory to the jury.

The case was tried before Hon. Charles A. Frazer, one of the district judges. Samuel H. Davis was indicted, “for that he did take up and use a certain horse, of the value of $100, the same being an estray horse,” &c. Davis was arrested and gave bond, which recited that the capias was The defendant failing to appear, the bond was forfeited as to principal and surety..

1 The case was tried before Hon. M. D. Ector, one of the district judges. The appellee, a freedman, was indicted for stealing a mule, and the jury found him guilty, and assessed his punishment at twelve months’ imprisonment in the penitentiary. The court sustained a general motion in arrest of judgment, and the State appealed. The indictment alleged no date on which the offense was committed.

The case was tried before Hon. M. D. Ector, one of the district judges.

The case was tried before Hon. K,. W. Scott, one of the district judges. This was an indictment under the act of 28th May, 1864, “ to punish unlawful interference with private property or private rights.” .The defendant was indicted in the district court of Kaufman county, at the fall term, 1865.

The case was tried before Hon. M. D. Ector, one of the district judges. * Burnell Benton died in Panola county, Texas, having made a last will and testament, in which executors were named, who probated the will, but did not qualify. The appellant was appointed administrator with the will annexed, and gave bond.

The case was tried before Hon. John J. Good, one of the district judges. The appellant was indicted for stealing a Mexican blanket from the possession of William Manley, who was holding it for William Ramsey, the owner thereof.

The case was tried before Hon. John G-reqig, one of the district judges. The facts are sufficiently set forth in the opinion of the court. There was judgment for the plaintiff, from which he appealed.

The - case was tried before Hon. Egbert E. B. Baylor, one of the district judges. This was a suit commenced by the appellees in the court below, for title to the league of land granted to Ann Wheelock, now Ann Walling.

The case was tried before Hon. H. W. Battle, one of the district judges. On the 4th of Hovember, 1861, the judgment was rendered for Berry against Blankenship, for recovery of certain negroes, with an alternative for money. On the 10th of December, 1861, the defendant filed Ms appeal bond, and on the 15th of October, 1866, the clerk certified the judgment for affirmance, under the 7th section of the act 11th February, 1850.

The case was tried before Hon. Thomas Harrison, one of the district judges. There was but one question involved in this case, and that was, as to whether or not article 1307, Paschal’s Digest, is a statute of limitation; or, whether or not section 6, ordinance No. 11, convention of 1866, contemplated proceedings under said article 1307. Letters of administration were granted upon the estate of E. D. Ryan to appellant November 27,1865.

The case was tried before Hon. Thomas Harrison, one of the district judges. The proceeding was upon a forfeited bail .bond, and the facts are sufficiently stated in the opinion of the court.

Error from McLennan. The case was tried before Hon. Thomas Harrison, one of the district judges. Trunsler sued Shaw on two notes, the first dated 28th March, 1864, due one day after date, for $50 “in specie;” the other dated Hovember 18, 1863, and payable “three months after a ratification of peace between the Confederate and United States of America,” for $600, in gold.

The case was tried before Hon. B. W. Scott, one of the district judges. The defendant was convicted of retailing liquors in quantities less than one quart, without having obtained a license therefor. (Paschal’s Dig., Art. 2075, Bote 654.) He appealed, entered into a recognizance, which is sufficiently described in the opinion. It did not set forth the offense, as required by the third division of article 263 of the Code of Criminal Procedure.

The case was tried before Hon. W. T. G-. Weaver, one of the district judges.

The case was tried before Hon. John J. Good, one of the district judges. ' The suit was upon notes. The defendants plead usury. The facts are substantially stated in the opinion. The instruction assumed the possibility of a fair transaction, where twenty-five per centum interest, compounded every year, was charged for the use of 'money. The good lady thought she had avoided the-statute by first shelving the ' notes, and then taking other notes for forbearance.

The case was tried before Hon. John J. Good, one of the district judges. The defendant was found guilty of malicious mischief and fined $15.

The ease was tried before Hon. W. T. Gr. Weaver, one of the district judges. The case turned upon the propriety of overruling the motion to quash the indictment. The grounds are stated in the brief of the' appellee and the opinion of the court. The defendant was found guilty of an aggravated assault and battery, and fined $100; and he appealed from the judgment.

The case was tried before Hon. John J. Good, one of the district judges. This is a suit by appellee on a promissory note, executed by the appellant, Lane, and one G. B. Wheeler, in his lifetime. Wheeler died before the institution of the suit, and his surviving widow, Electra Wheeler, (one of the appellants,) who had given bond and filed an inventory under the statute, (Paschal’s Dig., Art. 4646, et seq., p. 780,) was sued with Lane on the note.

The case was tried before Hon. Hat. M. Burford, one of the district judges. The case turned upon the petition and demurrer, and the facts are sufficiently stated in the opinion of the court.

Error from Navarro. The case was tried before Hon. John Gregg, one of the district judges. The record is exceedingly voluminous. In the original suit Madison G. Whitaker sued Jacob Eliot in an action of trespass to try title. There was an amendment, which brought in Croft and Robertson county as defendants. The verdict was against all the defendants. Eliot only prosecuted error.

Error from G-uadaloupe. The ease was tried before Hon. R. L. Waddell, one of the district judges. As there was no assignment of errors, there must have been a suggestion of' delay, since the judge discusses the facts. (Paschal’s Dig., Art. 1591, hTote 618.) The facts are sufficiently set forth in the opinion.

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

The case was tried before Hon. John Ireland, one of the district judges. ' The defendants were indicted for permitting gaming at their house, within the language of the statute. (Paschal’s Pig., Art. 2055, Rote 648.) It was proved that the defendants were the joint owners of a tippling-shop, and that a party rented from them an adjoining room, which was commonly used for gaming purposes.

The case was tried before Hon. John J. Good, one of the district judges. The opinion turned upon a question of practice, and the facts are sufficiently stated in the opinion of the court.

The case was tried before Hon. Bobert W. Scott, one of the district judges. The indictment followed the language of the statute. The defendant plead guilty, but afterwards appealed.

The case was tried before Hon. R. W. Scott, one of the district judges. This was an action brought by appeal from the county court of Tarrant county, seeking to revise and reverse an order of the probate court, entered at the December term, 1862, thereof, setting apart, for the use and benefit of appellant, the widow of A. Y. Fowler, deceased, the law library of said decedent, valued at $774 85; also $30 in cash, in lieu of a horse.

The case was tried before Hon. William Y. McFarland, one of the district judges. The judgment being against the county, it gave notice of appeal, but did not enter into a bond. William Robinson took up an estray mule under the 2d section of the estray laws. (Paschal’s Dig., Art. 3678.) He gave the usual bond, conditioned to comply with terms of the act. He sold the mule at his own house, instead of at the court-house door, as required by the 5th section of the act.

Error from Guadaloupe. The cases were all tried before Hon. A. W. Terrell, one of the district judges. There was no statement of facts in the case. The following were the facts of record: The judgment in each of the above cases is upon a forfeited bail bond executed to the sheriff. The question will more clearly appear -from a statement of the record in each case.

<p>The prohibition in article 2044 of the Penal Code, about gaming, is for playing cards at any public house; and a house “ for retailing spirituous liquors” is specifically mentioned as such public place. (Paschal’s Dig., Art. 2044, Note 640.)</p> <p>Whether a room in which the cards were played was part of the drinking establishment was a question for the jury.</p>

<p>Where the mortgagor resided upon the same lot upon which his storehouse, in which he conducted the mercantile business, was situated, the whole was his homestead, and exempt from foreclosure of the mortgage and forced sale, under the 22d section of the Vllth article of the constitution of 1845. (Paschal’s Dig., p. 65, Art. VII, sec. 22, Note 198.)</p> <p>The cases of Hancock v. Morgan, 17 Tex., 582, affirmed by Prior v. Stone, 19 Tex., 371, and Sossaman v. Powell, 21 Tex., 664, are approved, and they are decisive of this case. (Paschal’s Dig., Note 198.)</p>

<p>While the application for continuance stated that the defendant could prove by three women that he won the coat which he is charged with stealing from another freedman on the day, &e., (see statement,) the showing is not a compliance with the code. (Paschal’s Dig., Art. 2987.) On the first application, if the statute be complied with, a continuance is granted, of course.</p> <p>When not in accordance with the statute, it is addressed to the sound discretion of the court.</p> <p>Where the property was stolen, and the party was found in possession of it three hours afterwards, he is, prima fade, guilty, and unless there be proof to rebut this presumption, the verdict will not be disturbed.</p>

<p>The 722d Article of the Code of Criminal Procedure requires the defendant, who appeals in a criminal case, to enter into a recognizance to appear before the district court to abide the judgment of the supreme court. (Passchal’s Dig., Art. 3186, Note 770.) Held, in effect, that the recognizance must describe the offense, and otherwise comply with article 263 of the code. (Paschal’s Dig., Art. 2731, Note 708.)</p>

<p>Appeal from Bastrop. The case was tried before Hon. John Ireland, one of the district judges.</p> <p>Charles Clark, alias Steiner, a freedman, was indicted for a rape, for that, &e., he did then and there, feloniously and violently, make an,assault on and upon one Ann Washington, a freed girl, and her, the said Ann Washington, violently and against her will, and therefore feloniously, did ravish and carnally know.</p> <p>One witness swore to the evidences of violence, and that the girl violated was a child. Another swore to her statements of violence immediately after the act, and m her own examination the outraged girl swore to the force; that she tried to halloo, but the prisoner put his hand over her mouth. But on cross-examination she swore that she consented on a promise of some candy". Three witnesses swore to the fact that she was over fourteen years of age. It was also proved that she stated to a witness that she consented, and by an expert that she was over fourteen years of age. The court instructed the jury, that if she consented; and was over fourteen years of age, they would find the defendant not guilty; if not, find him guilty. The jury found the defendant guilty, and he was sentenced to twenty years’ imprisonment in the penitentiary. The defendant moved for an arrest of judgment and for a new trial, which motions were overruled, and he appealed. There was a bill of exceptions, which seems not to have been noticed.</p>

<p>Where the proof was that the accused took the tobacco openly, without any attempt at concealment, it should have been left to the jury to determine whether, under all the circumstances, the party intended theft, and the court should have at least defined theft.in the language of the statute. (Paschal’s Dig., Art. 2381, Note 683.)</p> <p>One of the most material considerations respecting the “ taking,” to constitute theft, is, whether the act was done animo furandi.</p> <p>In an indictment for theft, the property stolen may be laid in the true owner or in the bailee; but to sustain a conviction, the proof must correspond with the averment of ownership, and when, on the trial, the question of ownership is raised, the defendant has the right to have it submitted to the jury.</p>

The case was tried before Hon. Geobge H. Noonan, one of the district judges. This was a suit brought originally in the district court of Guadaloupe county, by ¥m. T. Noel against Thomas H. Duggan, to recover the amount and interest due upon a note for $2,000 and also to foreclose a mortgage executed by Duggan to Noel to secure the payment of the note. Duggan died,'and in March, 1866, Ed. Duggan, his administrator, was made a party defendant.

Error from G-uadaloupe. The case was tried before Hon. A. W. Terrell, one of the district judges. The facts are fully set out in the opinions of the judges.

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

The case was tried before Hon. John J. Good, one of the district judges. As the case turned upon the question of jurisdiction, the facts are unnecessary. The verdict was for the defendant, and the judgment was for costs, without further disposing of the case. (Paschal’s Dig., Art. 1476, Note 572.)

<p>Appeal from Williamson. The case was tried before Hon. John Ireland, one of the district judges.</p> <p>Charles Thompson, Thomas Ake,Elijah Oates, and David Williams, all freedmen, were indicted for the murder of William Dobbs.</p> <p>The substance of the principal evidence is given by the learned judge, hence a more consecutive statement is omitted.</p> <p>Thompson severed, and was tried alone.</p>

<p>Appeal from Travis. The case was tried before Hon. John Ireland, one of the district judges.</p> <p>Westfall sued George Flournoy and Frederick W. Chandler upon a promissory note, dated 28th of February, 1861, and due one day after date, whereby Flournoy promised to pay John T. Miller or bearer $125.</p> <p>The petition averred that, on the 1st of January, 1863, Chandler, for a valuable consideration, sold, transferred, indorsed, and conveyed said note to the plaintiff, writing his name on the back thereof in blank, whereby the defendants became indebted to the plaintiffs for the amount of the note.</p> <p>Chandler accepted service on the 6th of October, 1865. Flournoy was duly served by publication and also by personal service.</p> <p>Chandler filed a general demurrer, and also denied that he ever sold the note, &e.; that ever the plaintiff got possession of it from him.</p> <p>The petition also averred, that if he indorsed it, he indorsed it on the day of the date of the note. The defendant demurred to this answer, and also replied, that civil suits were suspended from the 1st of February, 1861, to the 1st of September, 1866. Chandler’s demurrer was overruled, and judgment was rendered against both of the defendants. Chandler only appealed.</p> <p>The statement of facts shows that the note with Chandler’s indorsement, “F. W. Chandler,” was read to the jury. Chandler propounded interrogatories to the plaintiff. He admitted that he did not purchase the note from Chandler, and stated that he supposed when he bought it that Chandler had put his name on the back of it to make himself an indorser. The question was as to the character of Chandler’s liability.</p> <p>The Reporter cannot but observe that the court overlooked, or did not deem it worth while to notice, the stay laws passed during the war, which declared, that it should not be necessary during the war to bring suit against the acceptor of such bill of exchange as indorser and maker of a promissory note, in order to fix the liability of any drawer or indorser of such bill or note. (Paschal’s Dig., Arts. 5130, 5144.)</p>

The case was tried before Hon. Bighard Coke, one of the district judges. As the ease is the first of the kind in the Texas Begorts, a fuller history of it than usual is given. This was a suit by the appellees against the appellants^ who are passenger carriers, to recover damages for injuries to the person of one of the appellees, caused by the upsetting of the coach in which the appellees were passengers.

<p>When the case was called for trial the witnesses of the state were absent, and the prosecuting attorney moved for a continuance, which the accused opposed; the case was continued, and four days afterwards, the witnesses having appeared, the continuance was set aside, whereat the accused said he was surprised, and protested, but did not move a continuance for want of witnesses. There was no error in this. (Paschal’s Dig., Art. 2984,2986.)</p> <p>Where the charge defined theft in the language of the code, and the proof was clear that the property was stolen in one county and sold by the accused in another, there was no error in the charge, nor was the court obliged to treat the statements of the prisoner, when selling the property, as confessions. (Paschal’s Dig., Arts. 2381,3061, 3127, Notes 683, 761.)</p> <p>When the record does not show whether the prisoner was present when the verdict was rendered or not, the court will not presume that he was absent. (Paschal’s Dig., Arts. 3088, 3089, Note 752.)</p> <p>Where the property stolen in one county was the next day sold by the accused in another, he saying that he had bought the property, and giving reasons, not proved to be true, why he wanted to sell, there was no error in refusing a new trial. (Paschal’s Dig., Art. 3137, Note 702.)</p>

Error from Gfuadaloupe. The case was tried before Hon. I. B. McFarland, one of the district judges. This case, which was once before the Supreme Court, is reported in 24 Texas, 195. The original petition was filed in the district clerk’s office of Gfuadaloupe county on the 12th day of January, 1859. There was endorsed upon the back of the petition, in pencil, the following: “ The clerk will not issue upon this until further instructed by me.

The case was tried before Hon. Thomas Habbison, one of the district judges. On the 31st of October, 1861, J. W. ¡Nowlin executed his note to B. F. Faulkner, of which the following is a copy: “[§334 15.] Waco, October 31,1860. On or before the 1st day of March next, I promise to pay B. F. Faulkner, or order, three hundred and thirty-four dollars and fifteen cents, value received. “ J. W. ¡Nowlin.” First endorsement on same: “March 15, 1865.

The case was tried before Hon. Hat. M. Burford, one of the district judges. The original petition was a suit against the maker of a note and the stake-holder, to recover the amount of a note for $250, won on a horse-race, and which the stake-holder refused to surrender and the maker to pay. On this petition a writ was issued on the 15th December, 1859, on which there was no return.

The case was tried before the Hon. John J. Good, one of the district judges. The suit was upon a note for $1,075, due 1st of January, 1867, dated 30th of March, 1866. There was some plea as to the failure of consideration, but it went behind the note, and related to a note which had been merged into the one upon which suit was brought. The judgment, however, was rendered by agreement that the plaintiff recover $1,092 92, with ten per cent, interest until paid.

Appeal- from Ellis. The case was tried, before Hon. John J. G-ood, one of the district judges.

The case was tried before Hon. John J. Good, one of the district judges.

The case was tried before Hon. John Ireland, one of the district judges.

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

The case was tried before Hon. John Ireland, one of the district judges. The defendant was indicted under the act of 4th March, 1863, to regulate the sale of beef cattle, &c., for that he butchered beef for the market, &c., without keeping and' recording lists of marks and brands, as by that act required.

The case was tried before the Hon. John J. Good, one of the district judges. The defendant was indicted for that, on the 10th April, 1866, &c., he did, without complying with the laws regulating estrays, take, up and use and sell one brown horse of the value of $100, the owner of the said horse being to the grand jurors unknown, and the same being then and there estray. The jury found a verdict of guilty, and assessed the fine at $15.

The case was tried before Hon. John J. Q-ood, one of the district judges. The indictment charged that J. M. Spillers, &c., without complying with the laws regulating estrays, did take up and use one horse, &c., which said horse was then and there an estray.

The case was tried before Hon. John Ireland, one of the district judges. The indictment charges that Meschac, &c., did knowingly, without complying with the law regulating estrays, take up and use a horse coming within the meaning of an estray, worth $25, without the consent of the owner, &c. The defendant moved to quash, because the indictment stated no offense, and was not intelligible. The motion was sustained, and the indictment quashed. The state appealed.

The case was tried before Hon. John Ireland, one of the district judges. The defendants were indicted as keepers of a grog-shop, under the Sunday law, for that they engaged in the retail of spirituous liquors on Sunday. The proof was that they were the owners of a liquor-shop, and that certain persons were seen to drink liquor there on Sunday. The jury found them guilty, and assessed their fine each at0 $15.

The case was tried before Hon. John Ireland, one of the district judges. The defendants were indicted as joint owners of a liquor-shop called the “ Bull’s Head,” for permitting a game of billiards to be played on their billiard table, by them kept, in violation of the Sunday law. (Paschal’s Dig., Art. 1908.) The defendants excepted to the indictment that it charged no offense, which was overruled.

<p>Appeal from Bastrop. The case was tried before Hon. John Ireland, one of the district judges.</p> <p>This was another Sunday case. The indictment charged that August Eisner, &c., on the 19th of May, 1867, &c., did then and there, on Sunday, engage in the sale of spirituous and intoxicating liquors to Bufus Green, against the peace and dignity of the state; and that Eisner was a grocer, and did' then and there, on the Sundays aforesaid, trade lager beer to Green.</p> <p>The defendant moved to quash the indictment, because it charged no offense known to the law, and because it was vague, and otherwise informal, defective, and insufficient. The court overruled the motion. The jury found the defendant guilty, and assessed his fine at $15. The defendant moved for a new trial, but was overruled, and he appealed.</p> <p>There was a bill of exceptions^ on the ground that Bruno Eisner had stated, when he let these parties have • the lager beer, that he was not the clerk or agent of the defendant, which plea the court refused to admit. The proof was that Turner, Green, and John Scott, a witness, went into the saloon of Eisner on Sunday, and that Green called for lager beer and young Eisner let him have it, and Green asked what was the price of the beer. The young man said 40 cents a quart. There was some dispute about the price, and as the parties left Green left 20 cents for the quart, saying that was the price. The witnesses went in through the back way, and left the same way. Green stated that he only paid 20 cents, and that Bruno Eisner let him have the lager beer, but he was the son of the defendant.</p> <p>Another witness swore that Eisner, on Sunday, let him have beer, for which he paid him a dime. He knew of no other selling or trading than his leaving that dime for him and taking the beer, though he had seen him sometimes refuse to take pay for the beer on Sunday, and he always said he could not sell on Sunday, and did not keep his doors open. There was proof tending to show that he had often refused to take money from his customers on Sunday. One witness swore that he had drank one hundred and seventeen glasses of Eisner’s lager in one day, and it did not intoxicate him, but he went home sober. There were • various witnesses who swore that they drank lager at the house of the defendant on Sunday, and he would take no money for it. (Act. 11th Leg., p. 222, secs. 2, 4.)</p>

The case was tried before Hon. Peter W. Gray, one of the district judges. The original and amended record cover over five hundred pages of closely-written manuscript. In after ages, when the world shall wonder at trials about a single land grant, large enough for a kingdom, it will be a matter of regret that our reports of such cases are not in extenso. But the Reporter is limited, to an intelligent statement of the narrative of facts.

The case was tried before Hon. George W. Smith, one of the district judges. . Judgment was rendered on the 10th day of October, 1859. The facts are sufficiently stated in the opinion of the court. It may not be improper to remark, however; that before the decision of the Supreme Court the slaves had become free, and there remained nothing but a question of costs.

The case was tried before Hon. George W. Smith, one of the district judges. In a case .so purely of fact, spread over a record so voluminous, and depending so entirely upon its own peculiar circumstances, the Reporter could not hope to give a clearer statement of the facts than is given in the opinion of the court.

Error from Goliad. The case was tried before Hon. Thomas J. Devine, one of the district judges. The facts upon which the case turned are stated in the opinion of the court.

The casé was tried before Hon. George W. Smith, one of the district judges. The facts of the ease are sufficiently stated by the court. The chief justice fell into an immaterial error as to the time of the sale by Russell. He sold, on the 24th of March, 1834, to one Garrison, and Garrison sold to Mills on the 30th of September, 1836; but the right of Russell to sell before the expiration of six years was not raised. (Pas-chaTs Dig., Arts. 589, 706, 708, Rote 364.)

The case was tried before Hon. Fielding Jones, one of the district judges. The written documents and much of the evidence will be found in the former report of this case. (21 Tex., 121.) The general facts are as follows: The land in controversy is situated in Colorado county, on the west bank of Colorado river, above and adjoining the town of Columbia.

The case was tried before Hon. Robert E. B. Baylor, one of the district judges. The trial was upon an agreed case, and the facts are stated in the opinion of the court.

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

The case was tried before Hon. George W. Smith, one of the district judges. Although the decision amounts to the statement that the certiorari to the proceedings of the county court ought not to have been- granted, and that the decree setting aside the last action of the county court was wrongfully rendered, yet as the whole merits of the case were heard and brought up on statement of facts, the Reporter deems a full history of the case necessary.

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

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

Error from Fort Bend. The case was tried before Hon. George Schley, one of the district judges. The whole record of the estate was brought up, but no point in it, except the canon of descent, stated by the judge. The arguments were all able, but they were principally upon the construction of the statutes.

The case was tried before Hon. L. W. Moobe, a special judge. The history of the case is sufficiently given in the opinion of the court.

Error from Colorado. The case was tried before Hon. Benjamin Shropshire, one of the district judges. All the facts necessary are set forth in the opinion.

<p>Where a plaintiff, in a petition for an injunction, claimed a credit on his note, say for $10,000, and the defendant in his answer set forth the items and dates of credits, and showed that they only amounted to $8,000, and the parties went to trial upon bill and answer, neither offering proofs, the plaintiff is presumed to acquiesce in the defendant’s answer.</p> <p>An injunction, founded upon the motion that the stay law entitled a debtor who had executed a deed of trust to a perpetual injunction, was properly dissolved, and ten per centum damages for delay were properly awarded. (Paschal’s Dig., Art. 3935, Note 92V.)</p> <p>Where the sureties to an injunction bond have not appealed, the sufficiency of the bond is not properly before the court.</p>

The ease was tried before Hon. E. P. Hpton, one of the district judges. W-ar -was the inevitable result of secession. With the latter commenced actual hostilities. Held: owned, possessed, and enjoyed by or for any alien enemy since the 31st day of May, 1861, &c., to be sequestrated by the Confederate States of America. (Stats, at Large, Sess.

The case was tried before Hon. James E. Shepard, one of the district judges. The facts agreed upon are as follows : The defendant executed and delivered to the plaintiff, for value, the note described in the petition. During the late civil war the note was confiscated by the so-called Confederate States government, and taken from the possession of the plaintiff’s attorneys, against their consent, on the ground that the usees in this suit were alien enemies.

<p>Appeal from Washington. The case was tried before Hon. James E. Shepard, one of the district judges.</p> <p>The original note of $250 was executed to Howes, Hyatt & Co., of Hew York. The case was tried upon the following agreed statement of facts:</p> <p>“ The defendant executed to the plaintiff the note sued on and described in the plaintiff’s petition for a valuable consideration. During the late civil war between the so-called Confederate States and the Hnited States the said note was confiscated by the so-called Confederate States government, and the principal and interest of the note sued on paid over by the defendant to the Confederate States receiver in the currency commonly called confederate treasury notes, and the note delivered up to be canceled by the defendant, which was done. It is agreed that the above are all the facts in this cause, and that all the matters of law and fact shall be submitted to the court without a jury; and, if in the opinion of the court the law is for the plaintiff, he shall have judgment for the note sued on, with interest and costs; and if, in the opinion of the court, the law is with the defendant, judgment shall be rendered in his favor.”</p> <p>The judgment was for the defendant.</p>

The case was tried before Hon. Benjamin Shropshire, one of the district judges. The record is voluminous, but the material facts are stated by the judge who delivered the opinion. The fact in regard to the payment to House is, that Stephenson, the defendant, had made himself liable to pay the debt of the plaintiff to House in 1861; but he did not pay it until the 10th of November, 1865, which was after the decision of the arbitrators that he should pay it.

<p>Appeal from Galveston. The case was-tried before Hon. John E. Kinnard, one of the district judges.</p> <p>McMahan & Gilbert, having recovered certain judgments and decrees for the foreclosure of mortgages, applied to the clerk of the district court of Galveston county to issue orders of sale. The clerk refused, because of the stay law, which, not being in any digest, is here printed:</p> <p>“Ah Act regulating the collection of debts.</p> <p>“ 1. On all judgments rendered prior to the first day of January, 1867, the judgment debtor shall have twelve months thereafter within which to pay to the plaintiff, his agent or attorney, one-fourth part of said judgment and all costs; and that no. execution shall issue thereon until the expiration of tlie time aforesaid, except in like cases and under like circumstances, authorizing the issuance of attachments, in which case execution may issue for the entire amount of said judgment. If within the time aforesaid the said debtor shall pay or cause to be paid the said one-fourth part of said judgment and all costs, then -the said debtor shall have twenty-four months from the said first day of January, 1867, within which to pay one-third part of the remainder of said judgment, and that execution shall not issue thereon until the expiration of the time aforesaid, except' in like cases and under like circumstances, authorizing the issuance of attachments. If within the time aforesaid the said debtor shall pay or cause to be paid the two installments above specified, then execution shall not issue on such judgment until thirty-six months from the said first day of January, 1867; and that if the said debtor shall pay or cause to be paid, within the time aforesaid, one-half of the remainder due on such judgment, then execution shall not issue thereon until forty-eight months from the said first day of January, 1867, except in like cases and under like circumstances, as above specified: Provided, That if payment shall not be made within the time above specified, and in default of said debtor to make payment of any one of said installments, then execution shall issue for the amount of the installment due, as aforesaid, and all costs; Provided further, That the provisions of this act in relation to the issuance of attachments shall not be so construed as- to subject the produce of the debtor’s farm to attachment, on being removed to market; Arid provided further, That the provisions of this section shall not apply to judgments rendered foreclosing mortgages or liens upon real or personal estate.</p> <p>“ 2. On all judgments rendered after the first day of January, A. D. 1867, except such as are hereinafter mentioned, the judgment debtor shall have twelve months from the date of such judgment within which to pay one-third part thereof, and. that no execution shall issue thereon until the expiration of the time aforesaid, except in like cases and under like circumstances, authorizing the issuance of attachments; and except, also, in cases of attachment, sequestration, or injunction, where property or effects may be in the hands of an officer under process, or restrained in the hands of another, by virtue of process duly issued, or by agreement of parties interested therein, in which case execution may issue for the entire amount of said judgment or order of sale of such property. If within the time aforesaid the said debtor shall pay or cause to be paid the said one-tliird part of such judgment, then the said debtor shall have twenty-four months from the rendition of such judgment within which to pay one-half of the remainder due thereon, during which time execution shall not issue, except in cases as above provided. If within the time aforesaid the said debtor shall pay or cause to be paid the two installments, as above specified, then the debtor shall have thirty-six months from the rendition of such judgment within wrhich to pay the entire balance due thereon; and in default of the said debtor to make any one of the payments within the time specified therefor, then execution shall issue for the amount of the installment then due; And further provided, That on all judgments hereafter rendered, execution may issue in favor of the officers of court for all costs due thereon; And provided further, That the provisions of this act shall not be so construed as to proMbit sales of real or personal estate, in the settlement of estates of deceased persons, in payment of any mortgage or lien; Provided, The county judge shall not confirm any sale, unless the property sold shall have brought at least three-fourths of its actual value.</p> <p>“3. On all judgments heretofore or hereafter rendered, foreclosing a mortgage or lien upon real or personal estate, the judgment debtor shall have two years from the first day of January, 1867; on all Judgments rendered prior to that time, and on all judgments thereafter rendered, two years from the rendition of such judgment within which to pay two-thirds of such judgment; and if payment thereof be made within the time aforesaid, then execution or order of sale shall not issue until twelve months thereafter; and in ease of default to make payment of the said two-thirds of such judgment within the time above specified for the first installments, then execution and order of sale shall issue for the entire amount of such judgment, interest and costs due thereon, and sale shall be made, and the proceeds thereof applied to the payment of such judgment liens or mortgages, in the manner now provided by law.</p> <p>“4. In all suits now pending or hereafter instituted upon accounts, bonds, bills, promissory notes, contract, or other obligation in writing, for the payment of money, made, executed, or entered into before the twenty-sixth day of May, 1865, or in the settlement, substitution, liquidation, or discharge of any such accounts, contract or obligation, made or bearing date since the said twenty-sixth day of May, 1865, it shall be competent to prove by parol testimony, in all suits, that the same wnre given or entered into. in the settlement, substitution, or liquidation of an account made or contract entered into prior to that time; and also the debtor shall, in all cases, be permitted to prove, by parol testimony, that the same were, by the agreement or understanding of the parties, to he paid in confederate currency, and the value thereof at the time the same became due and payable.</p> <p>“5. Hothing herein shall prohibit the issuance of attachments as heretofore provided by law; and all causes of action which have accrued since the twenty-sixth day of May, 1865, and which are not in discharge of causes of action existing prior to that date, shall be subjected to and regulated by the laws in force prior to the second day of March, 1861.</p> <p>“ 6. It shall not be lawful for any trustee to sell, or cause to be sold, (except with the consent of the parties interested,) any property or real estate, held in trust to secure the payment of the debt or debts therein specified, within two years from, the first day of January, 1867. And if the debtor therein shall pay, or cause to be paid, two-thirds of the entire debt or debts secured thereby, within the time aforesaid, then it shall not be lawful for any trustee to sell such trust property until .the expiration of twelve months from the time aforesaid; and that if the said debtor shall make default, and fail to make such payment within the two years from the said first day of January, 1867, then it shall be lawful for said trustee to sell the entire trust property, or sufficient thereof to pay the entire debt or debts, interest and costs, in conformity with the directions and provisions specified in such trust deed.</p> <p>“7. All. railroad companies that are owing interest upon their bonds for loan of the common school fund, shall have an extension of time for the payment of the interest now 'due, as follows: The entire amount of interest now due shall be divided into eight equal parts, and paid as follows, in specie: One equal eighth part, due by each company, shall be paid on or before the first day of January next; and one equal eighth part every six months thereafter, until the entire amount shall have been paid; Provided, That on failure of any company to pay any one of such installments, as above stipulated, such company shall forfeit the benefits of this act, and the entire amount of interest then due shall, be collected as now provided by law.</p> <p>“8. The provisions of the 1st, 2d, and 3d sections of this act shall not apply to, and there shall be no stay of execution upon, suits in’ behalf of the state of Texas on official bonds, forfeitures, or fines, or to judgments for taxes due the state, or any county, or to suits or judgments for money or property held on deposit or in trust, nor to suits by wards against guardians, nor to suits against administrators, nor to suits for damage's done to the property or person of another. Took effect November 10, 1866.”</p> <p>After the refusal, the plaintiff applied to the judge of the district court for a mandamus to compel the clerk to issue the executions. The judge issued a rule to show cause, returnable to the district court of Harris county. Jones, the clerk, pleaded to the jurisdiction of that county.„ The objection was overruled, and, upon hearing, the court issued the peremptory mandamus, and from that judgment the clerk appealed. (For dates see appellant’s brief.) So that the questions were, first, the right of the court to compel the clerk of Galveston county to show cause in Harris county; second, the constitutionality of the stay law.</p>

<p>An attachment bond, executed under the 5th, 10th, and 26th sections of the act of 11th March, 1848, to which there is neither scroll nor seal, was rightly quashed -on motion, for want of a sufficient bond. (Paschal’s Dig., Arts. 143, 148, 163.)</p> <p>The first section of the common-law act, 20th January, 1840, about conveyances, reads as follows: “ The common law of England (so far as it- is not inconsistent with the constitution or the acts of congress now in force) shall, together with such acts, be the rule of decision in this Republic, and shall continue in full force until altered or repealed by Congress.” (Paschal’s Dig., Art. 978, Note 418.) The 1st section of the act of 5th February, 1840, reads as follows: “ Any instrument to which the person making the same shall affix a scroll, byway of seal, shall be adjudged and holden to be of the same force and obligation as if it were actually sealed: Provided, The person making the same shall, ih the body of the instrument, recognize such scroll as having been affixed by way of seal.” (Paschal’s Dig., Art. 997, Note 420.) Each of these acts took effect on the 16th March, 1840.</p> <p>On the 11th' of March, 1848, the legislature passed the law regulating attachments, the 26th section whereof expressly recognizes scrolls as seals. (Paschal’s Dig., Art. 163.)</p> <p>On 2d February, 1858, the legislature passed the act to dispense with seals . in certain cases. It reads as follows: “No scroll or private seal shall be necessary to the validity of any contract, bond, or conveyance, whether respecting real or personal property, except such as are made by corporations ; nor shall the addition or omission of a scroll or seal in any way affect the force and effect of the same; and every contract in writing hereafter made shall be held to import a consideration as fully and in the same manner as sealed instruments have heretofore done.” (PaschUl’s Dig., Art. 5087, Note 1114.) The object of this law was to dispense with a mere formality in the execution of a certain class of contracts, (private acts,) not to change the law regulating proceedings in the district courts, which are public acts, not to be repealed by a general law, which might be subj ect to the constitutional objection of embracing more objects than one. (Paschal’s Dig.,' State Cons., Art. VII, sec. 24, Note 199.) .</p> <p>It is not the province of the court to improve, polish, or refine the laws, but to construe them as they are.</p> <p>The case of Champlin v. Foster, (29 Tex., 22,) which involved an appeal bond, may be distinguished from this.</p>

<p>The 142d section of the act to regulate proceedings in the district court, as well as the 9th section of the statute of limitation, forbids that any writ of error shall he prosecuted after the expiration of two years from the rendition of the judgment. (Paschal’s Dig., Art. 1496, p. 588; Art. 4616, Note 1026.)</p>

The case was tried before Hon. Benjamin F. Neal, one of the district judges. The petition for injunction stated that the judgment was rendered against the applicant at the fall term, 1866, for $473 73, in gold and silver currency; that the service was had, the writ not being stamped; the judgment was wrong, being in coin; and that execution had been sued out. .

The ease was tried before Hon. James Love, judge of the criminal court of the county of Harris.

The case was tried before Hon. Robert S. Gould, one of the district judges. . As the decision turned upon the principle that the contract was itself a nullity, the history given by the court is deemed sufficient.

The case was tried before Hon. J. J. Holt, one of the district judges. As the case really turned upon the liability of the drawer, in the absence of proof that the draft was ever presented or dishonored, it is only necessary to add to what the chief justice has, said a copy of the draft. It read as follows: “ Brownsville, March 9,1863. “ Messrs.

The case was tried before Hon. Wesley Ogden, one of the district judges. The defendant was convicted of malicious mischief for killing hogs. It was proved that the defendant killed the hogs, but said he did so through mistake. He killed eleven, and sent six of them to the owner. The other facts are sufficiently stated in the opinion of the court.

. The case was tried before Hon. Benjamin Shropshire, one of the district judges. The facts are sufficiently set forth in the opinion of the court. *

The case was tried before Hon. Benjamin Shropshire, one of the district judges. The material facts are stated in the opinion of the court.

The case was tried before Hon. J. J, Holt, one 'of the district judges. This was a suit'on the warranty of a slave; and, apart from the exclusion of evidence, the case turned upon the facts. The ground of excluding the evidence is not stated; but the presumption is that it was excluded because the evidence was as to soundness after, and not before the sale.

Error from X)e Witt. The case was tried before Hon. J. J. Holt, one of the district judges. The suit was upon a note for ninety beeves, on which were several credits, acknowledged in the petition, and also for a note of $300, coin, alleged to be given in consideration of one of the credits.