Volume 31 — Texas Reports

Error from Colorado. The ease was tried before Hon. Benjamin Shropshire, one of the district judges. The history of the case is given in the opinion of the court.

Error from Harris. The case was tried before the Hon. John B. Kenard, one of the district judges.

The ease was tried before Hon. Benjamin Shropshire, one of the district judges. James Paul was an old bachelor citizen of Texas, who acquired a large fortune. By his will he devised a large amount of real estate to his next of Ldn and to strangers.

The case was tried before Hon. Benjamin F. Heal, one of the district judges. This case was commenced in the district court of Hu'eces county, by arbitration, under the statute. The right of appeal was not reserved. The agreement to arbitrate was filed October 20, 1866, and arbitration commenced on 5th December, 1866. The arbitrators disagreeing at the outset, and failing to agree upon an umpire, one was selected by the clerk, and he appeared and was sworn.

Error from Nueces. The case was tried before Hon. B. F. Niles, one of the district judges. The plaintiff below sued the defendant upon an instrument in these words: “ Corpus Christi, May 12,1862. “ Twelve or six months from date I promise to pay to Peter Stefanek three hundred dollars ($300) in current money, for which amount said Peter Stefanek' has a deposit in my hands.

The case was tried before Hon. William 3L Fayle, judge of the criminal court of Harris and Galveston counties. The indictment charged that De Gaultie “ did fraudulently and feloniously steal, take, and carry away, from the person of M. Brady, four hundred and sixty dollars, in United States currency,” and that this was done in the county of Harris, on the 10th day of August, 1867. The evidence is sufficiently given by the court.

The case was tried before Hon. Wesley Ogden, one of the district judges. The defendant was indicted and convicted of an assault with intent to commit a rape, and sentenced to five years’ imprisonment in the penitentiary. He moved for a new trial, but there is no statement of facts. He also moved in arrest of judgment, upon grounds set forth in the opinion.

The case was tried before Hon. James E. Shepard, a special judge. The defendant was indicted for swindling. He moved to quash the indictment, which motion was sustained. The State appealed, but the defendant gave no bond.

Error from Harris. The ease was tried before Hon. James Love, judge of the criminal court of Harris and Galveston counties. The facts are sufficiently set forth in the opinion of the chief justice.

Error from Jasper. The case was tried before Hon. 0. Payne, one of the district judges. The facts are sufficiently given in the opinion of the court. The arguments embraced questions of practice not noticed in the Opinion.

Error from De Witt. The case was tried before Hon. J. J. Holt, one „of the district judges. The suit was upon a note made on the 25th February, 1861, by the defendants, payable twelve months after date to the plaintiff below, as administrator of John York’s estate, for $295 20, and a mortgage upon a tract of land purchased at administrator’s sale, which was the consideration for the note.

The case was tried before Hon. J. J. Holt, one of the district judges. The history of the enterprise is given in the case of this road against Jones, 28 Tex., 20.

The case was tried before Hon. James Love, judge of the county court. Doras Adler was tried and convicted of keeping a disorderly house. She appealed.

The case was tried before Hon. Edward Dougherty, one of the district judges. The case turned upon the facts. The proof was that the accused came home drunk and ordered the injured woman to make some coffee. She replied that she had no water; thereupon the accused flew at her with a knife. In trying to disarm him, she got her hand cut; and, she falling down, the accused cut off some of her hair. There seemed to be no effort to kill. Certainly there was opportunity.

The case was tried before Hon. Benjamin Shropshire, one of the district judges. Adelaide Spencer, a 'freed woman, was indicted for fornication with one Churchill. When evidence of what Churchill said about it was offered the accused objected, but the objection was overruled. Mainly on this evidence the negreas was convicted. She appealed.

Error from Brazoria. The case was tried before Hon. Benjamin Shropshire, one of the district judges. On the 17th of April, 1858, Joel Spencer received from “Lewis J. Banton, guardian of G-lover Banton,” an accept-an.ce for $831 55, for which he executed, his receipt, promising to pay ten per centum per annum interest. Glover Banton having died and left no heir but his mother, she, joined by her husband, sued Spencer on this receipt for the money collected on the draft.

The ease was tried before Hon. Benjamin Shropshire, one of the district judges. The petition was for the balance of an open account, and did not aver where the account was made or payable. Brit the plaintiff made affidavit to it in Matamoros, Mexico. The defendant pleaded the general issue, payment, set-off, that interest was only due after the 1st of January, 1866, and specially against some items. The j ury found a verdict for the amount of the account and interest.

The ease was tried before Hon. Benjamin Shorpsiiire, one of the district judges. When the cause was called for trial the defendants below (Carr et als.,) objected to go to trial before the jury that was then in the jury-box, because the names of five of them (giving their names) were not on the jury-list. The objection was overruled, and they were compelled to submit to the verdict of a jury. This point in the ease is developed in the bill of exceptions.

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

The ease was tried before Hon. Benjamin Shropshire, one of the district judges. The facts necessary to understand the points decided are given in the opinion of the court.

The case was tried before Hon. Isaac B. McFarland, one of the district judges. The appellant, a freedman, was found guilty of adultery, and fined $100. He appealed, but the recognizance did not state the offense.

Error from Walker. The case was tried before Hon. Peter W. Gray, one of the district judges. On the 12th of January, 1856, judgment was obtained by the defendant in error against one W. W. Leach, in the circuit court of the United States, then sitting at Galveston. Execution was issued on the 29th of March, 1856, and the land in controversy sold by the marshal to Lowery, to satisfy the execution, on the 4th day of November, 1856.

The case was tried before Hon. Edward Dougherty, one of the district judges. There were many questions of practice raised which the chief justice disregarded, and considered only the equitable rights of the parties under the proofs. These facts are sufficiently stated in the opinion of the court.

The ease was tried before Hon. ■ Edward Dougherty, one of the- district judges. This cause is the result of two cases tried in the district-court upon consolidation. Suits were begun in the district court by one A. McMillen, the appellee’s testator in his lifetime, against the appellant, upon certain piL-nissory notes, and they have since been conducted to judgment in the name of the appellee, as the representative of said McMillen.

Error from Jasper. The case was tried before Hon. Samuel A. Wilson, one of the district judges. The facts are sufficiently stated in the opinion of the court..

Error from Liberty. The case was tried before Hon. O. W. Buckley, one of the district judges. The record was frightfully long, covering two hundred and nine pages.

The case was tried before Hon. E. Basse, one of the district judges. Hall having recovered a judgment in debt against Daniel Kernaghan, the latter filed his. appeal bond on the 13th December, 1867, but the record was not certified until the 8th January, 1868, and it was filed on the 17th January thereafter.

<p>Articles 661 and 662 of the Code of Criminal Procedure only admit confessions to be used against the accused where they have been freely made, without compulsion or persuasion; and if the accused was in prison the rule is given in the statute. (Paschal's Dig., Arts. 3126, 3127, 2d ed.)</p> <p>If under a threat a party show the stolen property, his confession that he stole it should not be used against him, unless it be also proved that it was his voluntary confession before a magistrate, or else made after he was cautioned • that it might be use'd against him. (Paschal’s Dig., 2d ed., Art. 3127, Note 761.)</p>

The case was tried before Hon. James Love, judge of the criminal court of Galveston county. The material question in the case was as to the sufficiency of the evidence to establish the guilt of the appellant. The appellant seemed to have been living in some relation with Mollie Harris, colored; had been her co-slave on the same place when they were slaves, and while in this relation they had had two children. The deceased had also been a slave.

Error from Red River. The case was tried, before Hon. William S. Todd, one of the district judges. The note described no particular tract of land, and there was no averment to let in proof. Otherwise the facts are sufficiently stated by the court.

The ease was tried before Hon. Charles A. Frazer, one of the district judges. As the case turned upon the demurrer to the petition, the statement of the court in regard to the facts is quité sufficient.

The case was tried before Hon. Winston Banks, one of the district judges. The defendant was indicted for murder in the usual form. The jury found the defendant guilty. As the case turned upon the sufficiency of the verdict, no further statement of the facts is necessary.

Error from Wood. The case was tried before Hon. Charles A. Erazer, one of the district judges. The facts are sufficiently set forth in the opinion of the court. There were three defendants. Judgment having been rendered by default against all, two only prosecuted error.

Error from Cherokee. The ease was tried before Hon. Reuben A. Reeves, one of the district judges.

<p>The case was one of original jurisdiction upon habeas corpus.</p>

Error from Smith. The case was tried before Hon. Reuben A. Reeves, one of the district judges. The record in this case is immensely voluminous. Many issues were presented in the pleadings and the able arguments of the counsel which were immaterial to the view taken by the court.

The ease was tried before Hon. ¡Reuben A. ¡Reeves, one of the district judges. The fáets were presented upon an agreed statement, the substance of which is set forth in the opinion of the court.

Error from Lamar. The case was tried before Hon. William S. Todd, one of the district judges. The record is exceedingly voluminous and its history difficult. The material facts are, that the holder of a bill sued all the acceptors and the drawer and indorser in the same action, and on the same day she sued the administratrix of one of the acceptors in another action.

Error from Jasper. The case was tried'before Son. A. W. 0. Hicks, one of the district judges. The opinion was upon the motion to dismiss the writ of error.

Error from Kaufirfan. The case was tried before Hon. Reuben A. Reeves, one of the district judges. The facts are sufficiently set forth in the opinion of the court. The case turned upon the necessity of fixing the liability of the indorser.

The case was tried before Hon. Reuben A. Reeves, one of the district judges. The note called for $250, for the hire of a negro woman twelve months, dated 18th January,. 1864, due on the 24th of December thereafter. The defendant proved nothing about any promise to receive payment in Confederate money, but did prove that the value of the hire was not over $60. Hpon this he claimed the benefit of the scaling ordinance. The jury found for the amount of the note.

<p>Error from Smith. The case was tried before Hon. Reuben A. Reeves, one'of the district judges.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

<p>The stay law of 1866 is unconstitutional, upon the principle decided in Jones v. McMahan et al., 30 Tex., 719.</p>

The case was tried before Hon. B. W. Qbay, one of the district judges. The facts are sufficiently indicated in the opinion of the court.

Error from Smith. The case was tried before Hon. Reuben A. Reeves, one of the district judges. The contract is sufficiently set out in the opinion of the court. The defendant having made default, judgment was rendered against the defendant for $461 56. The defendant prosecuted error.

The case was tried before Hon. John J. Good, one of the district judges. The facts are sufficiently set forth in the opinion of the court.

Error from Houston. The case was tried before Hon. L. W. Cooper, one of the district judges. The only fact material to be stated is, that the note was payable “in Confederate bonds.”

Error from Houston. The case was tried before Hon. Betjben A. Beeves, one of the district j udges. The first bond for certiorari was not conditioned as the law requires, nor was it under seal. The plaintiff was allowed to execute a new bond, tó which the defendant excepted.

The case was tried before Hon. Reuben A. Reeves, one of the district judges. The indictment was for assault and battery.

Error from Houston. The case was tried before Hon. Reuben A. Reeves, one of the district judges. The record in this case discloses that the defendant in error was a resident citizen of the State of Texas in the year 1830, then subject to the government and laws of the state of Mexico. In 1830 or 1831 the defendant commenced living with one Orispy Van, in the county of Shelby, and the rites of matrimony were celebrated by one Ryan, who was reputed to be an alcalde.

The ease was tried before Hon. Reuben A. Reeves, one of the district judges. The question turned entirely upon a question of practice, and the facts are sufficiently stated by the judge. The facts in reference to the withdrawal of the original plaintiffs and the proposed amendments in the docketing of the cause are stated in a bill of exceptions.

The case was tried before Hon. Samuel L. Éarl, one of the district judges» The defendant was indicted for swindling, under the 773d article of the code, for that, &c., &c., he did fraudulently sell and dispose of one yoke of oxen of the value of $40, after having made or given a mortgage in writing on said oxen to Edward Hill, &c. The defendant demurred to the indictment, and assigned various causes of insufficiency. The indictment was quashed, and the state appealed.

Hardin Hart, one of the district judges. The applicant having been committed-by a justice of the peace, he renewed the application for bail before the district court. Bail having been refused, he appealed to the Supreme Court. To make the precedent of any value the facts should be given.

Error from Shelby. The case was tried before Hon. A. W. 0. Hicks, one of the district judges. The suit was virtually upon the implied warranty which the law creates upon the sale of a land certificate, which proved to be unrecommended, fraudulent, and of no value. The plaintiff, by amended petition, averred that the price agreed upon was $125, and the payment was made in a mule valued at that sum.

<p>The 140th section of the district court act, in reference to the service of a writ of error, reads as follows: “And if the party is a non-resident of the state or cannot be found, the citation may be served on the attorney of record.’’ (Paschal’s Dig., Art. 1495, Note 587, p. 371.) The fact to authorize service on the attorriey must be averred in the petition. The mere fact that the defendant cannot be found is not enough.</p>

The case was tried before Hon. M. D. Ector, one of the district judges. The contract which was the foundation of the action was in these words: “By the first day of November, eighteen hundred and sixty-four, I promise to pay to J. P. Dickson or bearer four bales of (two thousand lbs.) picked cotton, for value received in land this 21st day of July, A. D. 1863. his “Izaah + Davidson.” mark.

The case was tried before Hon. Charles A. Frazer, one of the district judges. The suit was to cancel the constable’s deeds spoken of in the opinion.

Error from Harrison. The ease was tried before Hon. Charles A. Frazer, one of the district judges. This is an ordinary action of trespass to try title, instituted on the 9th of February, 1857, by the plaintiff in error, for the recovery of three lots of ground situated in the town of Marshall. The defendant pleaded not guilty, and the three, five, and ten years’ statute of limitation.

Error from Rrusk. The case was tried before Hon. J. B. Williamson, one of the district judges. On the 8th day of February, 1860, Bichard B. Tutt probated an account against the estate of J. T. Likens for $456 03. The account was on that day allowed by J. B. Likens, administrator of the estate of J. T. Likens, and on the 13th of February, 1860, approved by the chief justice.

The ease was tried before Hon. M. D. Ector, one of the district judges. The facts agreed on were as follows: The defendant was ntrusted with four hales of the plaintiff’s cotton, to carry it to Havasota and sell it for forty cents a pound in Confederate money. Failing to get the price, he deposited it in a warehouse, and drew thirty-six cents a pound on it for his own use, and the cotton was sold to indemnify this advance.

Error from Panola. The case was tried before Hon. M. D. Ector, one of the district judges. The facts are sufficiently stated in the opinion of the court.

Errors from Parker. These cases were tried before Hon. John J. Good, one of the district judges. There were two cases against Gonzales and sureties, and one against Johnson and sureties.

The case was tried before Hon. John Ieeland, one of the district judges. There is a motion made by Morrison to dismiss the appeal for want of jurisdiction, but as the court considered the material facts in the record, for the proper understanding of this motion it may be as well to state them. On the 11th of October, 1865, Kennedy filed his suit in the district court of Bastrop county against Morrison to recover the sum of $5,530 11.

The case was tried before Hon. A. W. Terrell, one of the district judges. On the 4th day of November, 1850, Paris Smith, as administrator of Charles A. Smith, deceased, sold, under orders of the probate court, the land described in the petition, and one John I. St. Clair became the purchaser.

<p>Appeal from Guadalupe. The case was tried before Hon. A. W. Terrell, one of the district judges.</p> <p>This was a suit instituted by appellee against one Means and the appellant, Gay, on a note executed by Means to W. P. Hardeman, and by him indorsed to the appellee. Judgment was sought on this note against Means, and, upon an allegation in the petition that the note was given by Means to W. P. Hardeman for a steam engine, boiler, fixtures, &c., and that, at the time of the execution of the note, a verbal lien on the property sold was expressly agreed upon between Means and W. P. Hardeman, and that the appellant had purchased the property afterwards from Means with notice of such agreement for a lien, it was sought to subject the property in the hands of appellant to sale for the satisfaction of the note.</p> <p>Judgment by default was taken against Means, who made no defense.</p> <p>The appellant answered, admitting that he had purchased the mill, &c., but denied all knowledge of any lien.</p> <p>There was but one witness introduced, and he was relied upon to prove both the express agreement for the lien between Means and W. P. Hardeman and notice of such lien to the appellant.</p> <p>The evidence to prove the verbal understanding was objected to, because it was not competent to establish the lien alleged in the petition, and for the further reason that the evidence was not consistent with allegations in the .petition. These objections were overruled, and a bill of exceptions was taken to the admission of the evidence. There were a verdict and judgment against both Means and Gay.</p> <p>The court charged the jury, that if the. note was given to secure the payment of the purchase-money for the mill, &c., it constituted a lien upon the property, and if Gay purchased with notice they would find for the defendants; that a lien could not exist upon personal property except by special contract, and that if a subsequent purchaser had notice of such contract he would be bound by the lien.</p>

Error from Bastrop. The case was tried before Hon. John Ireland, one of the district judges. Goodman sued McGehee on a note, dated 18th of May, 1863, due at one day after date, for $700, with interest at ten per centum per annum.

The proceeding was had before Hon. J. 'J. Thornton, one of the district judges. Alexander McLane and Marion Montgomery, with others, were indicted for stealing animals. They were arrested and entered into a recognizance.

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

The ease was tried before Hon. J. J. Thornton, one of the district judges. The record was exceedingly voluminous, containing one hundred and forty pages. The plaintiff appealed upon the right to the property; the defendant appealed upon the question of damages. He had taken exceptions to the plaintiff’s evidence, and assigned several errors.

<p>Appeal from Medina. The case was tried before Hon. E. F. Buckner, one of the district judges.</p> <p>Benseman presented his petition to the district court, alleging that Tarde was keeping a billiard table, and had refused to pay the tax of fifty dollars, the license required by law. Wherefore he sues him for $100. The defendant pleaded to the jurisdiction because of the amount; he also demurred, and pleaded the general issue, and that the billiard table was kept for another person, and in a private room, and not for profit.</p> <p>The motion to dismiss for want of jurisdiction was overruled. The plaintiff also demurred to the special pleading of the defendant, “ for that he admits he keeps a billiard table, and only denies that he keeps the same for profit to himself, whereas the law gives the penalty for the mere keeping of the billiard table, without reference to its being kept for profit.” This demurrer was sustained and the special plea stricken out. The case was submitted to the jury without any proof whatever, and the court gave judgment for $100; $50 “to be paid to the county treasury.” [See the briefs for further facts.]</p>

Error from Bexar. The ease was tried before Hon. Thomas J. Pevihe, one of the district judges. The petition of A.P. Saxel against E. S.Violand and Justin McCarthy was filed on the 16th day of October, I860,' and the citations to the defendants, issued on the same day, summoning them to appear and answer at the term of the court to be holden “ on the first Monday of March, A. D. 1860.” The judgment was rendered by default on the 15th of March, 1861.

Error from Caldwell. The case was tried before Hon. John Ireland, one of the district judges. The case was stricken from the docket for want of a sufficient petition and bond, hence a history of the case would be out of place. The defects are sufficiently given in the opinion of the court. There was a good bond, unless it be material to describe the term or day on which the judgment, otherwise well described, was rendered.

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

Error from Bexar. The ease tried before Hon. A. W. Terrell, one of the district judges.

The case was tried before Hon. John Ireland, one of the district judges. The appellant was indicted in two counts, one for playing cards in a public place, the other for playing in a gaming-room attached to a liquor-shop. (Paschal’s Dig., Arts. 2044, 2045, Hotes 640, 641.) The defendant moved to quash, on the ground of this improper joinder, which motion was overruled.

<p>There is a distinction between the right to admit proofs, aliunde, to show that the supreme court has no jurisdiction, and the same character of proof to show that the court below had no jurisdiction.</p> <p>It has been the settled law of this court, ever since the decision in Harris v. Hopton, 5 Tex., 529, that proof, aliunde, will be heard touching the question of its own jurisdiction. (Paschal’s Dig., Art. 1481, Note 583.)</p> <p>Where from an affidavit of counsel and the appearance of the bond found in the record the signatures had been attached after the approval by the clerk, and the amount of the penalty and the condition had been changed, the presumption in favor of the clerk’s certificate is removed, and the court being satisfied that the bond found in the record was in fact a blank, the case was dismissed for want of a bond.</p> <p>The amendment to the district court act of 1858 reads as follows: “No writ of error, to remove a cause from the district to the supreme court, shall in any case issue, unless the plaintiff in error give bond, with sufficient security, for all the costs which may accrue in the supreme court, and which may have accrued in the district court.” (Paschal’s Dig., Art. 1517.) This section, taken in connection with the act of 13th of May, 1846, requires the bond to be executed within two years after the judgment sought to be revised has been rendered.</p> <p>The writ-of-error bond is a condition precedent to be performed by the plaintiff in error,-and it is an indispensable authority to the clerk for the issuance of the -writ.</p> <p>Both the bond and the petition for a writ of error are indispensable, and they must be filed by the clerk of the district court in the county where the judgment was rendered.</p> <p>Filing a bond in the supreme court would not be a compliance with the law.</p>

The case was tried before Hon. Isaac B. McFarland, one of the district judges. The facts are sufficiently set forth in the opinion of the court.

Error from Guadalupe. The case was tried before Hon. John Ireland, one of the district judges. This was a suit by plaintiffs in error against defendants in error upon a note for $474 78, signed “E. A. Jefferson, by J. R. Jefferson.” The petition alleges that E. A. Jefferson, being indebted to plaintiffs for necessaries furnished herself and family, did, by .her agent, J. R. Jefferson, make, execute, and deliver the note to plaintiffs.

<p>Error from Bexar. ' The case was tried before Hon. Thomas J. Devine, one of the district judges.</p> <p>This was an action by plaintiff in error against the defendants to recover $2,000 for deficiency in a tract of land sold by B. Callahan, the ancestor of defendants, to the plaintiff. The tract was sold as a third of a league, and was found to be deficient two hundred and thirty-five acres. Defendants plead limitation of two, four, and six years. The court charged the jury: “Under the defendants’ plea of the statute of limitation the presumption must be that the cause of action arose at the time of the sale, and if four years have elapsed between the time of the sale to the plaintiff, the bringing of this suit on the 9th January, 1859, then you must find for the defendant.”</p> <p>The court also refused to give the following instruction asked by the plaintiff: “ That plaintiff has four years from the discovery of the conflict in which to sue.”</p> <p>The court also excluded the deposition of G-. H. McDaniel, taken by agreement in another suit, for the same matter in controversy, and between the same parties.</p>

The' case was tried before Hon. Thomas H. Stribling, one of the district judges. The facts are substantially set forth in the opinion of the court, although the record was voluminous. The real point was as to the failure of consideration. The exact facts were, that a sale was ordered to pay the mortgage of Merriweather upon a tract of land, and the land was sold for specie, and Bender became the purchaser for less than Merriweather’s debt.

Error from McLennan. The case was tried before Hon. M. A. Long, a special judge, agreed upon by the parties. * The facts as tc? the petition are sufficiently indicated in the opinion of the court. The defense set up in the answer attacked a deed made by the defendant’s intestate, and set up an equity in favor of ■ his subsequent creditors.

The case was tried before Hon. Andrew J. Evans, one of the district judges. There was no bill of exceptions to the overruling the motion for a continuance, but the order stated that the defendant did except.

The case was tried before Hon. Thomas H. Stbiblixg, one of the district judges. Ernst Kapp had sued Wallerath and wife in the county court on two promissory notes. Mrs. Wallerath demurred to plaintiff’s petition as insufficient to charge her, and also pleaded that one note was given for usurious interest; that the other had been paid by a proper application of the payments of usurious interest on it.

The case was tried before Hon. George H. Hoonan, one of the district judges. The trial was for damages for obstructing a water-course, or, rather, using it for irrigation purposes, so as to weaken the stream before it reached the land of the plaintiff. The defendant pleaded that he owned the stream, and had the right thus to use the water.

The case was tried before Hon. George W. Scott, one of the district judges. The suit was on a note. The plea in reconvention was frivolous.

<p>It is necessary that a summons should recite the names of all the defendants to an action, even though a copy of the petition be served, which petition named all the defendants. (Paschal’s Dig., Art. 1430, Note 542.)</p> <p>The 13th section of the act to regulate proceedings in the district court allows a defendant to waive service in writing. (Paschal’s Dig., Art. 1432, Note 544.) It is no objection that the waiver was dated before the petition is filed.</p> <p>Where an indorser was sued, but not served, it is immaterial that the judgment by default took no notice of him.</p>

Error from Falls. The case was tried before Hon. R. S, Gould, one of the district judges. The petition merely described the plaintiff as “ executor of John E. Edwards, deceased;” set out the note; and concluded with a general averment of non-payment. The demurrer objected, that the petition did not show the representative character of the defendant. The demurrer was overruled, and there were a verdict and judgment for the plaintiff, from which the defendant prosecuted error.

The case was tried before Hon. Robebt J. Townes, a special judge agreed upon by the parties. The record is exceedingly voluminous, but the following facts are all that are necessary to the point decided: On the 10th January, 1857, the sheriff of Travis county, by virtue of two executions in his hands in favor of T. W. House against S. G-.

The case was tried before Hon. Thomas J. Devine, one of the district judges. Carolan sued Henry and his securities on two different bonds for certain moneys which he charged that Henry received as sheriff for costs and fees due him, Carolan, as clerk. The bonds were not set out in the petition, the conditions were hot averred, nor were any specific causes of breach set forth.

The case was tried before Hon. George K. Scott, one of the district judges. The case turned upon the demurrer, and the facts are set forth in the opinion.

The case was tried before Hon. George H. Noonan, one of the district judges. The facts are sufficiently stated in the opinion of the court. The only question was as to the necessity of a bond for certiorari being under the statute, which uses the word “bond.” (Paschal’s Dig., Art. 468, Note 331.) The chief justice followed the views in Foster v. Champlin, 29 Tex., 22, and Russell v. McCampbell, 29 Tex., 37. Mr. Justice Lindsay followed Read v. Levy, 30 Tex., 738.

The case was tried before Hon. W. T. GL Weaver, one of the district judges. The record is voluminous, but the facts are sufficiently indicated in the opinion of the court and the preceding syllabus.

The case was tried before Hon. Samuel L. Earle, one of the district judges. There were several points and a full statement of facts in the case, but it is enough to say that the statement of facts showed no proof that the homicide was proved to have been committed in anyplace; and for that reason the points of counsel are useless.

<p>Appeal from Karnes. The case was tried before Hon. George R. Scott, one of the district judges.</p> <p>The material facts are stated in the opinion of the court. In the original petition the plaintiff declared upon a written contract, which he set out in words, and it was a partnership agreement, whereby the plaintiff undertook to keep 'the stock of the defendant for every fourth calf, or one-fourth of the increase. The contract was to terminate in 1860, but the plaintiff alleged that it had been altered, (by whom he did not say,) so as to make it terminate in 1860, instead of 1861, the true time. The defendant in his answer admitted such agreement in all except as to the alteration, and he plead inattention and damages in reconvention, so that the real issue was as to the alteration or not and the question of damages on both sides. The judge relates the other facts.</p>

<p>See the evidence for a case where the proof was held to be wholly insufficient to convict the accused, who was present, of any participation in the homicide.</p> <p>Where there was no evidence from which a conspiracy might be inferred, and the facts tended to prove that the homicide was the result of a sudden conflict, murder is not proved.</p> <p>The confessions of a co-defendant, given under torture, that he aided the killing, and his subsequent plea of guilty of murder in the second degree, prove nothing against those who do not confess.</p>

<p>Article 612 of the Penal Code reads as follows: “Where a defendant accused of murder seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the offense, unless it be shown that at the time of the homicide the person killed by some act then done manifested an intention to execute the threat so made. In every instance where proof of threats has been made it shall be competent to introduce evidence of the general character of the deceased. Such evidence shall extend only to an inquiry as to whether the deceased was a man of violent or dangerous character, or a man of kind and inoffensive disposition, or whether he was such a person as might reasonably be expected to execute a threat made.” (Paschal’s Dig., Art. 2270, Note 672.) The court below held, that there must be a predicate proved, which establishes that at the time of the homicide the deceased must have done some act manifesting an intention to carry the supposed threats into execution, and that such acts were questions of law for the court, and not of fact for the jury. This was error.</p> <p>Whether or not there be any evidence is a question for the judge; its sufficiency for the purpose relied on is for the jury.</p> <p>The whole object of proving threats is to ascertain the mind of the prisoner at the very moment of the commission of the homicide; every circumstance which tends to prove this is important, because a murder is a matter of intent, and cannot exist without malice.</p> <p>Whether or not the threats are sufficient to establish reasonable fear is a question for the jury. (Rector v. The People, 19 Wend., 589; Howell v. Georgia, 5 Ga, 54.)</p> <p>To explain the circumstances which surround the parties it would seem that things antecedent may be proved.</p> <p>In civil cases the court may review the whole record and affirm the judgment if the whole facts warrant it; but in criminal cases the denial of any legal right is sufficient cause of reversal.</p> <p>The effect of the ruling in this case was to say that the circumstances surrounding the parties developed on the trial were not sufficient to extenuate or justify notwithstanding the threats. But this was a question of fact for the jury, to be responded to under the charge of the court.</p> <p>All we decide is, that under the circumstances the appellant was entitled to evidence of threats against himself by the deceased, and whether there were any acts done by the deceased at the time of the killing which extenuate or justify is a question of fact for the jury; and it follows as a sequence that the character of the deceased may be proved. (Paschal’s Dig., Art. 2270.)</p> <p>Lindsay, J., dissented. He insisted that article 2270 introduced no new rule of evidence, but that if the threats can be established it makes the homicide justifiable, whereas at common law it was manslaughter.</p> <p>The judge is the exclusive judge as to the admissibility of evidence. In criminal cases the jury are the exclusive judges of the facts, but not of the law. (Paschal’s Dig., Art. 3058.)</p> <p>Under article 2270 the accused may prove threats. The language is not imperative. When the evidence is admitted, the jury must determine whether the threats were made, and were they communicated to the prisoner. But before they are admitted the court must determine whether, in view of all the acts done at the time of the homicide, there were facts which superinduced the legal necessity or judicial propriety of permitting the accused to introduce proof of threats.</p> <p>Justification is a deduction of law from the facts. Threats alone cannot constitute it. And there could be no justification, unless the deceased, at the time of the homicide, was manifesting, by a positive act then done, an intention to execute the threats.</p> <p>This court should not for light cause revise the judicial discretion of the inferior court.</p>

The case was tried before Hon. John 0. West, a special judge chosen by the parties. The appellant had been very abusive to Napoleon Varnell, a youth about his own age, in the morning. The insults were apparently without provocation. There was evidence, however, that the deceased bandied epithets with him. About 3 o’clock the deceased renewed the conversation, and demanded to know what he meant by insulting language. They came together, and accused dropped his pistol.

Error from Ellis. The case was tried before Hon. John J. Good, one of the district judges. In July, 1861, D. G. Ransom executed his note to J. T. Alexander, for $1,553 80.

The case was tried before Hon. W. T. G-. Weaver, one of the district judges. The facts are sufficiently set forth in the opinion of the court.

Error from Travis. The case was tried before Hon. John Ireland, one of the district judges. On the 80th January, 1860, the legislature incorporated the “Air-Line Railroad Company,” for constructing a railroad from Brenham to Austin, Texas. The act provided for a board of commissioners to procure stock subscriptions. These commissioners elected George W. Glasscock their president.

The case was tried before Hon. Hardin Hart, one of the district judges. The appellant was tried and convicted upon a charge of theft of a mule, the property of Andrew Wetsel.

Error from Ellis. The case was tried before Hon. John J. Good, one of the district judges. The only point was as to the error of the court in not quashing the service of the sheriff, on the ground that he returned that he served the defendant with a copy, when it was not a copy. The motion was really to contradict the return, by exhibiting the copy served, without affidavit that it was not a copy.

The case was tried before Hon. John Gregg, one of the district judges. The Galindo eleven-league grant, issued on the 19th March, 1833, upon a concession to Galindo dated 13th July, 1830, was older than the colonist grant to Bowman, under which the plaintiffs claimed, and if the eleven-league grant was valid, the plaintiff had no right to recover.

The case was tried before Hon. Thomas J. Devine, one of the district judges. The proceeding was by motion against Henry, sheriff, under the 10th section of the execution law.

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

The case was tried before Hon. W. T. G-. Weaver, one of the district judges. This suit was brought by the appellee, plaintiff1 in the court below, to recover a tract of fifteen acres of land, which, was a part of the augmentation of two-thirds of a league patented to the appellee.

The case was tried before Hon. John Ireland, one of the district judges. The facts are stated in the opinion of the court.

The case was tried before Hon. J. J. Thornton, one of the district judges. The appellant was indicted for and convicted of an assault with a six-shooter, shooting at and wounding one Jose Maria Chavis, with intent said Chavis to kill and murder. The proof was that the parties had a difficulty on Sunday, when Chavis threatened the life of the accused and cut him with a knife. Chavis repeated the threat.

The ease was tried before Hon. George H. Hookah, one of the district judges. Cocker had gone to a well on the Salado, in Bexar county, accompanied by his son, a youth eleven years old, to water their stock. While they were at it, the appellant, Jones, accompanied by several others, came with their stock for the same purpose. Some dispute arose about the precedence in watering. Cocker was drinking, and brought his bottle and asked Jones to drink with him.

The ease was tried before Hon. Benjamin F. Heal, one of the district judges. The only fact on which the case was decided is sufficiently stated in the opinion of the court.

The case was tried before Hon. J. J. Thornton, one of the district judges. These cases, like several others found in the volumes of this Reporter, in coming ages, will be referred to as a chapter in the history of great events. Bead in connection with Bishop v. Jones & Petty, 28 Tex., 294; the Sequestration Cases, 30 Tex., 688; the Stay-Law Cases, Jones v. McMahan & Gilbert, 30 Tex., 719; the great case of Texas v. White & Chiles, 25 Tex.

The case was tried before Hon. Chables L. Cleveland, one of the district judges. In the record is found an affidavit for a continuance, to get witnesses to prove words of aggravation on the part of the person assaulted. But no diligence had been used, nor was there any bill of exceptions to the overruling the application. The record showed that in discharge of the fine and costs the appellant tendered Confederate treasury notes, new issue.

The case was tried before Hon. James Love, judge of the criminal court for the counties of Harris and Galveston.

The ease was tried before Hon. ¡N. H. Davis, one of the district judges. Black and a number of others were indicted for stealing cotton. The indictments were quashed, on the ground that H. B. Munnerlyn was not a sufficient description of the person injured. The state appealed.

The case was tried before Hon. Wesley Ogden, one of the district judges, The defendants were indicted for assault with intent to kill and murder.

The ease was tried before Hon. Wesley Ogden, one of the district judges. The question was upon the sufficiency of the hail bond taken by the sheriff and the power of that officer to receive it and return it to the court.

The case was tried before Hon. George H. Hoonan, one of the district judges. Goodside, having been convicted of illegally branding a horse, appealed to the -Supreme court.

<p>Appeal from Cooke. The case was tried before Hon. Hardin Hart, one of the district judges.</p> <p>The applicant was indicted for the murder of William Cloud. The case having been continued by operation of law, the applicant applied to the court to be bailed, which application was refused, and he appealed. The evidence showed that the deceased, Cloud, had a correspondence with the applicant, in which deceased charged applicant with seducing his wife, and stated that the difficulty must be settled; indeed stated that they both could not remain in the same place, and advised him to leave; said he would take no undue advantage. He seemed to expect some action of the Masonic lodge. They were both Masons. The last and most threatening letter was on the day of the killing. The note of Moshy was not produced. Mosby armed himself with three pistols and a double-barreled gun, and seemed to be lying in wait at Bostick’s grocery. Bostick was his brother-in-law. Cloud was returning from his store, about 9 o’clock at night, by his usual path. As he passed the grocery Mosby fired on him with his gun two shots, and discharged" one ball froto a six-shooter. Cloud was proved to have a pistol, which he always wore. Bostick’s evidence was that he put his hand to his side to- get his pistol, and that it fell on the ground from the scabbard. This was not sustained by the other witnesses. Mosby put his defense on the ground that his life had been threatened. The letters of Cloud showed a determined purpose, upon the alternative that the applicant did not leave the neighborhood.</p>

The case was tried before Hon. I. B. McFarland, one of the district judges. The defendant was indicted for stealing “ a certain sorrel horse,” &e. The judge charged the jury to determine from the evidence whether the animal stolen was a horse or not. The jury returned a verdict of guilty, and sentenced the defendant to five years’ imprisonment in the penitentiary. The witnesses all swore that the animal was a horse, but that he had been gelded.

The ease was tried before Hon. Isaac B. McFarland, one of the district judges. The applicant was indicted for murder in Fayette county. Upon motion of the accused the case was continued', and he moved for bail, which motion was overruled, and he appealed. The evidence used at the examining court and on the motion was in the record. It is substantially as stated by the court.

<p>By the acts of 25th February and 7th December, 1863, the estray laws were suspended “ during the war, and until six months after a treaty of peace shall be concluded.” (Paschal’s Dig., Arts. 3701, 3702.) [See the Estray Cases, 28 Tex., 632, and 30 Tex., 515.]</p> <p>The court judicially knows when the war ceased in Texas. The formal surrender of the belligerent force in this state took place on the 28th of May, 1865. The six months had not elapsed on the 15th of September, 1865, when this offense of “taking up ” and “using” ah estray is alleged to have been committed.</p> <p>Notwithstanding the law of estraying was suspended, the penal statute against “ taking up ’’ and “ using ” an estray, coming within the meaning of an estray, was not suspended and held in abeyance along with the methods of proceeding provided for estraying. -</p> <p>The charge of the court must be in writing if the defendant object to its being verbal. (Paschal’s Dig., Art. 3067, Note 747.)</p> <p>The judge is not allowed to express any opinion in his charge as to the weight • of the evidence. (Paschal’s Dig., Art. 3059, Note 744.)</p>

The case was tried before Hon. Elisha Basse, one of the district judges. On the 31st of March, 1868, the appellee was indicted in the district court of Cameron county for fornication. On the 4th of April the defendant filed a motion to quash the indictment, upon the ground that it did not charge the defendant with an offense known to the law.

The case was tried before Hon. Elisha Basse, one of the district judges. Louis Benavides and Rafael Benavides were indicted, for that they murdered Julio Ruiz, on the 29th March, 1868. Louis Benavides was alone put upon his trial, upon the plea of not guilty. Julio Ruiz lived with his sister, who was connected by marriage (sister-in-law) with the accused. They were all living in peace and harmony.

The case was tried before Hon. William E. Payle, judge of the criminal court for Galveston and Harris counties. As there was no statement of facts or bill of exceptions, it is only necessary to state that the indictment charged the defendant with breaking and entering the banking-house of William B. Sorley, and stealing the goods and money of E. H. Cuny. There was no motion to quash or in arrest of judgment.

The case was tried before Hon. ¡Nathaniel H. ¡Davis, one of the district judges. The appellee was charged with playing at a game with cards in a public house in the town of Huntsville. A demurrer to the indictment was sustained, because of the vagueness and generality in describing the house where it was alleged the playing took place.

<p>Where a note was payable “in specie,” or for a larger amount in “United States currency,” and the judgment was rendered for the smaller amount “in specie,” it was error, and the judgment was ordered to be reformed.</p> <p>This court has decided the legal-tender-act to be constitutional, and hence any judgment having a tendency to impair, impeach, or set aside the validity of this act would be, pro tanto, erroneous. (Shaw v. Trunsler, 30 Tex., 391.)</p> <p>The words “specie” in the judgment might be regarded as surplusage; yet as the word is calculated to mislead, the judgment ought to be reformed. The case of Windisch v. Gussett, 30 Tex., 744, is reconcilable with this principle.</p>

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

Error from Harris. The case was tried before Hon, Benjamin Shropshire, one of the district judges. The suit was upon a note. The petition was filed 25th ¡November, 1861. Citations were issued 17th ¡November, 1865, and served next day upon ¡Riorden. Riorden and Hoffman appeared 27th November, 1865, and filed demurrer. Mr. Masterson filed a demurrer and pleas for defendants, which were sustained on the ground of variance, and the plaintiff took a non-suit.

Error from Harris. The case was tried before Hon. Benjamin Shropshire, one of the district judges. The suit was on two notes, each for $300, dated July 1, 1859, with interest at twelve per cent, from date. The judgment was rendered May 15, 1867, for $1,276 86. The defendant assigned for error, that the “ interest was compounded.” The exact excess seems to have been $110 20. The defendant had pleaded, but withdrew his plea.

Error from Harris. The case was tried before Hon. Benjamin Shropshire, one of the district judges. The suit was by John Fromme against Schroeder upon a note. The defendant pleaded a substantial defense. “ By agreement” the judgment was rendered. Fromme having died, judgment was revived in the name of his widow, under the statute. She afterwards married Bode. Schroeder denied that he consented to this judgment, but said that it was rendered without his knowledge.

Error from Harris. The ease was tried before Hon. Behjamih Shropshire, one of the district judges. The facts are sufficiently indicated in the opinion and in the syllabus. It was simply a defense not proved.

Error from Victoria. The case was tried before Hon. Wesley Ogden, one of the district judges. This suit was brought in the court below by Patterson against Rogéis & Oliver, for money had and received by them for plaintiff’s use. Rogers did not answer.

The case was tried before Hon. ¡Nathaniel H. Davis, one of the district judges. It is enough to say that the appellee recovered a judgment of $400 against appellant for an assault and battery. The facts were few. The appellee had choked an old man, and, while trying to renew the assault, the appellant interfered, and said, “Fight a man,” or, “Fight me,” or words to that effect.

The case was tried before Hon. 2L H. Davis, one of the district judges.

Error from De Witt. The case was tried before Hon. Wesley Ogden, one of the district judges. The case was brought by certiorari from the couniy court to the district court. The administrator had collected sundry debts in Confederate money. He had been unable to dispose of $361 90 of this currency, and he claimed that he could have collected in nothing else, and therefore asked to be credited with it.

<p>In calculating interest, the court followed the rule of adding interest until the first payment to the principal, and deducting the payment from the amount thus produced; and, if the balance exceeded $100, the district court had jurisdiction.</p>

<p>Appeal from Cameron. The ease was tried before Hon. Elisha Basse, one of the district judges.</p> <p>The suit was instituted on the 11th day of August, 1867, against J. W. Wexel, as indorser on a note, which reads as follows:</p> <p>“Twelve months after date, I promise to pay J. W. Wexel or order five hundred dollars, for value received. .</p> <p>Bush Platt.</p> <p>“March 23, 1866.”</p> <p>The indorsement was as follows :</p> <p>“I assign the within note to Cameron, Grier & Co., for value received of them, waiving all demand and notice, in law or equity, this 30th day of March, 1866.</p> <p>“ J. W. Wexel.”</p> <p>The defendant in the court below filed a general demurrer, 1. Because suit was not brought against Bush Pratt, the maker; 2. Because the Christian names of the persons composing the firm of Cameron, Grier & Co. were not stated. The court sustained the exceptions of defendant, and allowed plaintiffs to amend their petition, alleging the joint indebtedness of Pratt with Wexel, and averring that Pratt, the maker of the note, was not a resident of the State of Texas.</p> <p>The defendant, Wexel, filed a general demurrer to the original and amended petition, 1. Because the petition did not show where the note with the indorsement was made; and, 2. Because to the assignment of said note there was no internal-revenue stamp affixed, as required by law.</p> <p>The plaintiffs having dismissed as to Pratt, not served, the case was submitted to the court; and, the note being offered in evidence, it was obj ected to by the defendant, upon the ground that the indorsement constituted a waiver of protest, notice, and demand, and that there was no internal-revenue stamp affixed, as required by law. The court overruled the objection, and gave judgment for plaintiffs for the principal and interest found due upon the note; from which judgment the defendant appealed, and assigned the several rulings as error.</p>

Error from Colorado. The case was tried before Hon. Benjamin Shropshire, one of the district judges. The note was declared on as lost, but a copy was annexed, with an affidavit of its loss.

<p>Appeal from Cameron. The case was tried before Hon. Elisha Basse, one of the district judges.</p> <p>Upon the plea to the jurisdiction, the defendant proved a non est upon the original citation, which was directed to the sheriff of Cameron county, and service on the citation addressed to the sheriff of Nueces county. He also proved his homestead and domicil of his family in that county for twenty years.</p> <p>The defendant proved that he had “ lived off and on in Cameron county since 1859; ” that during that period he had once heen elected as city and once as county surveyor; that he had been a soldier in the Confederate army, and at the “break up,” in 1865, he had gone to Mexico and joined Maximilian’s army; that upon the downfall of Maximilian, in 1866, he returned, and was elected city surveyor, which office he held three months, and then returned to his family in Nueces county. The suit was instituted 26th September, 1866. *</p> <p>The issue was submitted to the court, which found the plea for the plaintiff, and rendered judgment for the amount of the note in his favor.</p>

Error from Lavaca. The case was tried before Hon. Samuel A. White, one of the district judges.

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

Error from Harris. The ease was tried before Hon. Peter W. Gray, one of the district judges. The suit was upon five notes and a mortgage given to secure them. Upon the plea of the defendant, the jury found that the plaintiff’s intestate had agreed to extend the time of payment of the notes for ten years. They also found certain payments which were applied to the plaintiff’s credit, and the defendant was discharged until the expiration of the ten years.

Error from Gonzales. The case was tried before Hon. J. J. Holt, one of the district judges. The suit was upon a bond to secure the building of a court-house, according to contract, plan, and specifications. The work was to be done according to certain specifications, and the payments were to be made upon the certificates of Payne of his approval of the quality of the work; but it was not specified that, should there be a failure, Payne should certify or assess the damages.

Error from De Witt. The case was tried before Hon. J. J. Holt, one of the district judges. This was a suit in the district court of De Witt county, filed March 11, 1866, by Pleasants, administrator on a note for negroes belonging to his intestate, sold under the order of the probate court, in November, 1862; personal security and a lien on the property sold were ordered by the court. The note was given December 18, 1862.

Error from Trinity. The ease was tried before Hon. Samuel A. Wilson, one of the district judges. The plaintiff declared upon a note payable to George Reese or bearer. The defendant, Teagarden, pleaded that Chandler, the joint promisor, was only security on the note, and that Reese, the original payee, was largely indebted to him, Teagarden, on an account which he exhibited: “ Geo. Reese, in account with 0.

The case was tried before Hon. Isaac B. McFarland, one of the district judges. It was one of those fact suits, enough of whose history is given by the court.

The case was tried before Hon. Wesley Ogden, one of the'district judges. The judgment in favor of Mitchell v. Bass was rendered 25th October, 1866; alias execution issued 21st of May, 1868; the original execution had been levied upon eleven hundred and seven acres of land 5th March, 1868; land sold for $51. The judgments of Jones were obtained 13th April, 1866; but they were levied upon other lands, and not upon the eleven hundred and seven acres.

Error from De Witt. The ease was tried before Hon. J. J. Holt, one of the district judges.

Error from Gonzales. The case was tried before Hon. J. J. Holt, one of the district judges. The writ was directed to the sheriff of Gonzales county. The judgment was by default. The defendant below, among other things, assigned for error, that no legal writ had been served on him.

Error from Gonzales. The case was tried before Hon. J. J. Holt, one of the district judges.

Error from Colorado. The case was tried before Hon. George W. Smith, one of the district judges. There was neither bill of exceptions, demurrer to the evidence, nor statement of facts. The case was tried before the judge without a jury; hence, of course, there were no instructions. But there was a demurrer overruled, and the useless recitation, that the defendant excepted to the rendering judgment for the plaintiff.

Error from De Witt. The ease was tried before Hon. Wesley Ogden, one of the district judges.

Error from Colorado. The case was tried before Hon. George W. Smith, one of the district judges. The facts are sufficiently stated in the opinion of the court.

The case was tried before Hon. Benjamin Shropshire, one of the district judges. The petition averred that the plaintiff was “ owner of the property,” and that the city authorities passed the “fire ordinance,” and forced him to desist from repairing and occupying his property. A hill of exceptions showed that the judge who tried the cause without a jury refused to permit proof that the house and lot were the separate property of the plaintiff’s wife.

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

Errors from Robertson. The cases were tried before Hon. R. S. Gould, one of the district judges. The facts in these cases were about as follow: The defendants in error were indebted to the plaintiff in sundry large amounts^ secured hy promissory notes. Among other forms of madness which the rebel cause assumed was the almost universal proclamation of martial law, from Richmond to the Rio Grande, hy President Davis, hy commanding generals, and sergeants of militia.

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

<p>The act of 2d February, 1860, reads as follows: “The homestead in a town or city, exempt from forced sale, is hereby declared to be the lot or lots occupied or destined as a family residence, not to exceed in value $2,000 at the time of their destination as a homestead; nor shall the subsequent increase in the value of the homestead, by reason of improvements or otherwise, subject the homestead to forced sale." (Paschal’s Dig., Art. 3928.) [This section was re-enacted 10th February, 1866. Paschal’s Dig., 2d ed., Art. 3802a.] But this statute, which thus enlarges the value of the town or city homestead, is, pro tanto, nugatory.</p> <p>The constitution intended to limit the country homestead to the quantity of two hundred acres, without regard to the value of the land or improvements; the city or town homestead is limited in value to $2,000, including improvements, and the legislature had no power to enlarge it.</p>

• The case was tried béfore Hon. N. H. Davis, one of the district judges. The plaintiff, a married woman, sued for .the homestead, which the defendant had purchased from the husband over three years before the commencement of the suit. The wife had not joined in the conveyance.

These appeals were from, several different counties, viz: Colorado, Washington, and Wharton, and the cases were tried before Hons. Benjamin Shropshire, George W. Smith, and John A. Buckholts, district judges. The notes all fell due on or about the 1st day of January, 1862. In the case of Glenn & Campbell v. Foote, the note matured August 1, 1862; and in this case the maker and one indorser made no defense, and judgment went against them by default.