Volume 32 — Texas Reports

Tried below before the Hon. J. B. Williamson. On exceptions of the defendant for want of jurisdiction, the suit was dismissed by the court below. The character of the proceeding and the facts are sufficiently indicated in the opinion of the court.

Tried below before the Hon. J. JB. Williamson For all practical purposes, the opinion of the court contains a sufficient statement of the facts of the case, so that there seems to be no occasion to detail the particulars of the twenty-seven judgments against the railroad company which were involved in the proceedings below.

<p>Appeal from Bed ¡River. Tried below before the Hon. Winston Banks.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

Tried below before the Hon. Samuel L. Earle. This suit was brought to the February term, 1862, of the District Court of Houston county, by George F. Alford, as administrator de bonis non of the estate of George G. Alford, deceased, against Joseph II. Inman, a citizen of Trinity county, and Thales McDonald, a citizen of McLennan county.

Tried below before the Hon. Samuel L. Earle. This suit was brought on the 7th of November, 1865, by S. P. Donley against John A. Tindall and S. E. Campbell. The cause of action was a promissory note, as follows: “ $5000. On or before the 25th day of December next, we or either of us promise to pay J. II. Brittain, or bearer, the sum of five thousand dollars, value received.

<p>1— -To a suit on a note for $201, the only defense was that the note was payable in Confederate money. The evidence as to this defense was conflicting, and the plaintiff obtained verdict and judgment for $81. Held, that the verdict and judgment were erroneous in any point of view: for, if the note was payable in Confederate money no suit could he maintained on it; and if payable in lawful money, the verdict and judgment should have-been for the principal of the note with interest.</p> <p>2— But the plaintiff being an administrator, and the note being due him in his fiduciary capacity, for a consideration moving from the estate under his charge, he had no authority to take a note payable in anything hut lawful money. The judgment is therefore reversed, reformed, and rendered for the principal and interest of the note.</p>

<p>Appeal from Rusk. Tried below before the Hon. J. B. Williamson.</p> <p>At the Spring term (1868) of the District Court of Rusk county, the appellant and one Harris Robinson, otherwise called Pad Robinson, were separately indicted and tried for the murder of William R. D. Ward. Both of the accused were convicted of murder in the first degree.</p> <p>The case was one of unusual atrocity. The deceased and his friend and companion, Col. Ely, arrived at the town of Henderson, in Busk county, on the evening of April 1st, 1868, on an excursion through the country for the purpose of buying cotton. They stayed over night at the hotel in the town, and hired a hack and horses of the proprietor for four days, proposing to proceed towards Mount Enterprise in pursuance of their business. On arriving at Henderson, they made a deposit in the safe of a business man of the place, of a shot-bag and satchel containing a considerable amount of coin, which they received again in the morning before leaving. Their business, their possession of a large amount of money, and the route they proposed to take, became known before their departure. They left Henderson about nine o’clock on the morning of the 2d of April, with the hack and horses, but took no driver with them. They stopped the same day and got dinner at Mr. Josephus Clark’s, some nine miles from Mount Enterprise, and about two o’clock in the afternoon proceeded on their journey. A short distance from Mr. Clark’s, Mr. Ely was found, sitting against a tree, badly wounded, by two shots in the back, of which he subsequently died. He had managed to walk nearly half a mile from where the crime was perpetrated. He sent the persons who found him to search for Ward. They found Ward lying dead on the ground, nearly a mile from where Ely was found, the horses having run away with the hack, and Ward in it, when the shots were fired. Ward was also shot in the back, with but one bullet, apparently from a navy six-shooter.</p> <p>The shot-bag and satchel were found broken open and rifled of their contents.</p> <p>There, was a large amount of circumstantial evidence introduced at the trials in the District Court, tending very strongly to the identification of the accused as the assassins. In view of the opinion of this court it is not deemed necessary to detail it. Indeed, if this evidence had left doubts as to the guilty parties, the voluntary vaunts of Poe, made before his arrest, and the deliberate confession of Robinson, made while under arrest, placed their guilt beyond all doubt.</p> <p>On the trials below, counsel for the defendants tendered instructions with reference to murder in the second degree, but which the. court refused to give to the jury.</p> <p>The charge to the jury, commended by this court in the opinion, was the charge given in the case against Poe, which was as follows:</p> <p>“ In this case you should carefully consider all the evidence before you, and if you are satisfied therefrom that the defendant, Willis H. Poe, any time within one year before the finding of the indictment in this case, willfully, deliberately, and with premeditated purpose and formed design to kill, did shoot and kill William R. D. Ward, as charged in the indictment, you will find the defendant guilty; otherwise, you will not.</p> <p>“ The evidence before you is circumstantial, but if it points to the guilt of the defendant with such certainty as to exclude from your minds any other conclusion, and if you find as charged above, you must convict; otherwise, you must find the defendant not guilty.</p> <p>“You will find your verdict in this form: ‘We the jury find the defendant,-, as charged in the indictment.’ If you find the defendant guilty as charged above, you will find him guilty of murder in the first degree, there being no evidence to reduce the offense below that degree.”</p> <p>Exceptions were taken on the trials below to the charges given by the court, and to its refusal to give instructions with reference to the second degree of murder.</p> <p>New trials being refused, an appeal was taken in each case.</p> <p>The opinion of this court, which here follows, is that delivered in Poe’s case. A short opinion was also delivered in Robinson’s, but it merely refers to the one now printed for the grounds on which the judgments below are affirmed on both appeals.</p>

Tried below before the lion. A. J. Evans. Dennis Eelson and Joseph Young, the appellants, were jointly indicted at the Spring term, 1869, of the District Court for Falls county, for the murder of Franklin Wallace—• Eelson being charged with the actual perpetration of the act, and Young as an aider and abettor.

Tried below before the Hon. Samuel L. Earle. The indictment charged that the defendant “ on the eighteenth day of March, one thousand eight hundred and sixty-eight, in the said county of Cherokee, an assault did make in and upon the person of one W. H. Yoakum, with unlawful violence, with intent then and there, wilfully, feloniously, and of his malice aforethought, to kill and murder him, the said W. H. Yoakum, and with unlawful violence did then and there beat, bruise,…

Tried below before the lion. Winston Banks. The indictment charged that on the 23d of June, 1868, “ in the county of Wood,-in the State of Texas, with force and arms, one D. L. Horton, late of said county, without lawful authority, and with intent to defraud, willfully, feloniously, and falsely did make a certain false instrument in writing, purporting to be the act of A. D. Renshaw; which said false instrument is as follows, that is to say: ' For value received, on or…

Tried below before tlie TIon. Samuel L. Earle. At the Fall term (1866) of the District Court of Cherokee county, the appellant was indicted for malicious mischief, alleged to consist in unlawfully and wilfully shooting a mare, the property of James Long, with the intent to injure him, the said James Long. The date of the offense, as alleged in the indictment, was the loth of May, 1866.

Error from Rusk. Tried below before the Hon. J. B. Williamson. When this suit was originally instituted, in 1851, Thomas 0. Loyd and wife were made defendants. Hollingsworth intervened at a subsequent period. The opinion discloses all other facts necessary to be noticed.

Tried below before tlie Hon. Samuel L. Earle. The appellant and one Henry Mitchell were jointly indicted at the Fall term (1868) of the District Court of Cherokee County, for the murder of W. E. Hartless, the husband of the appellant. The death was charged to have been inflicted with a stick and a pocket-knife. At the same term the accused appeared,' pleaded not guilty and obtained a severance.

Tried below before the Hon. Samuel L. Earle. The appellee was indicted for the theft of 8160 in coin and $60 in currency, the property of B. II. Denson. The indictment was quashed on his motion, and the District Attorney appealed on behalf of the State.

Tried below before the Hon. Winston Banks. The appellant was indicted, tried and convicted of unlawfully cutting trees, the property of another; and was fined in the sum of sixteen dollars. No motion to dismiss the appeal appears in the record, from which it is inferable either that the motion was made ore tenus or that the Supreme Court took cognizance of the defect without motion.

Tried below before the Hon. Samuel L. Earle. Simpson was indicted for an assault upon David Garrott and Mary Garrott, with intent to murder David Garrott. Defendant moved to quash, because the indictment charged_ no offense known to the law, and because the offense was not charged in plain and intelligible words. Motion sustained, and the State appealed.

Tried below before the Hon. Samuel L. Earle. The indictment charged that the defendant, on the 10th of August, 1868, in the county of Anderson, “did then and there take up and use a gelding, an animal coming within the meaning of an estray, without first complying with the laws regulating estrays, said animal being then and there of the value of fifty dollars,” etc. The defendant filed numerous exceptions to the indictment, and among them assigned that the age, sex, color,…

Tried below before the Hon. J. B. Williamson, on writ of habeas cor_pus. The facts sufficiently appear in the opinion of the court.

Tried below before the Hon. Samuel L. Earle. The indictment charged the appellee with having, by violence to one Ben Bates, and by putting him in fear of bodily injimy, taken from his person “ one horse of the value of forty dollars, the property of said Bates.” The defendant excepted to this description of the horse as too vague and indefinite. The court below sustained the exception, but entered no further judgment. The State appealed.

<p>1—On a trial for taking up and using an estray, without first complying with the laws regulating estrays, the State has only to prove that the animal was running at large without a known owner, and that the accused took it up and used it. The burden of proof is then thrown on the accused, to show his compliance with the laws regulating estrays.</p>

Tried below before the Hon. A. J. Evans. Appellant was indicted for the theft of a lady’s cloak, valued at twenty-five dollars, the property of E. A. Sturgis, a merchant at Waco. The cloak was taken from Mr. Sturgis’ store at an indefinite time in the autumn of 1868. The proof of its having been stolen by some one was full and positive.

Tried below before the Hon. A. J. Evans. The appellant was indicted, tried and convicted at the February term (1869) of the District Court of McLennan county, of the murder of John Johnson. The facts of the homicide and the evidence at the trial are clearly stated in the opinion, so far as it is material to state them.

These are two appeals from the county of Wood, in both of which the appellant had been convicted below for violence to his wife.

Tried below before the Hon. A. J. Evans. The indictment alleged that the appellant, on a certain day of October, 1868, with force, etc., “ did then and there unlawfully, fraudulently and feloniously take, steal, and carry away from the possession of Pleasant Nicholls, without his consent, and with intent to deprive the owner, Pleasant Hicholls, of the value of the same, and with intent to appropriate it to his own use and benefit, one bay gelding branded W. S., then and…

Tried below before Hon. A. J. Evans. The appellant was indicted for the theft of a mare, the property of T. G. Lucky. By the evidence it appeared that the name was 0. 0. Lucky, and there was no proof that it was ever otherwise called or written, or that the owner of the property ever was called or known by the name of T. 0. Lucky.

Error from Rusk. Tried below before the Hon. C. A. Frazier. The facts are sufficiently indicated in the opinion of the court.

Tried below before the Hon. C. A. Frazier. This is an old case, remaining on the docket of this court since 1861. From the opinion of the court and the argument of counsel, the facts are easily deduced.

Tried below before the Hon. J. B. Williamson. The facts are sufficiently stated in the opinion. Nothing in the record shows that the executrix ever executed any bond as such, unless that be inferred from an allegation in the petition that letters testamentary were granted to her. The suit was not brought upon any bond, as might, perhaps, be supposed from some portions of the opinion.

Tried below before the Hon. J. B. Williamson. McDonough sued Yansickle on an instrument in the following form: “ One month after date I promise to pay Ben. A. Yansickle, or bearer, one first class sulky, made in Henderson, worth seventy-five dollars, and forty dollars in cash. “ A. K. Yansickle.” The plaintiff introduced no evidence but the instrument itself.

Tried below before the Hon. Winston Banks. This action was instituted on the 2d of April, 1866, by the appellee, Roberts, against Maloney, the appellant, for three thousand dollars, laid as damages for wrongs done to the person of the plaintiff, and for five hundred dollars as the value of his property, alleged to have been wrongfully taken by the defendant.

Tried below before the Hon. Samuel L Earle. Suit by the appellee, Monday, against II. G. McDonald, Daniel Dailey, and F. II. Craddock, on a note for $141 00. After the suit was filed, the court house was burned, and the original papers in this cause, including the note sued on, were destroyed in the fire. At the trial at the September term, 1868, the attorney of the plaintiff was permitted, over objection of the defendants, to testify to the destruction of the papers.

Tried below before the Hon. J. B. Williamson. There is no occasion to state the facts more particularly than they are indicated in the opinion.

Tried below before the Hon. Samuel L. Earle. Suit by the appellee against the appellant, as administrator of Jesse Duren, deceased, on two notes, amounting to about $1900, secured by mortgage on real estate described in the petition. Prayer for foreclosure and general relief.

Tried below before the Hon. Samuel L. Earle. This suit was originally instituted in the county of Van Zandt, in 1857, but in 1863 the venue was changed to Smith county. The land in controversy was the headright league and labor of Thomas J. Shaw. The action was trespass to try title, brought by Sophia T. J. Peevy, and her husband, W. D. Peevy, against Catherine Gilleland and William M. Hurt.

The indictment charged “ that Samuel Stephens, late of the county of Smith, on the thirteenth day of September, A. D. 1868, did, in the said county of Smith, fraudulently take from the possession of William H. Pate one silver watch of the value of two dollars and fifty cents, the said watch being then and there deposited with the said William IT.

The indictment charged “ that Charles Prim, late of the county of Smith, on the twentieth day of March, in the year 1868, did, in the said county of Smith, fraudulently take from the possession of W. T. McAfee, one horse of the value of $150, said horse being the corporeal personal property of the said W. T. McAfee, and without his consent, with intent to deprive the owner of the value of said horse, and to appropriate him to the use of the said Charles Prim, against the…

The indictment charged that “ John Robertson, late of the county of Smith, on the twenty-ninth day of March, in the year of our Lord one thousand eight hundred and sixty-eight, in the said county of Smith, with force and arms did feloniously break and enter the dwelling house of Frank Robertson, the said Frank Robertson then and there occupying and living in said house as a dwelling house.

Tried below before the Hon. J. B. Williamson. The appellant was indicted and convicted of an aggravated assault on one Tabitha Leslie, and his punishment was assessed by the jury at a fine of two hundred dollars. The opinion indicates all the facts necessary.

The indictment charged Joseph P. Smith and Mary Jane Butler with living and cohabiting together in fornication, alleging that they were both unmarried. The comt below quashed the indictment, on exceptions of defendant that it charged no offense against the laws of the State.

Error from Red Riyer. Tried below before the Hon. Winston Banks. There was an express warranty that the negroes in question were slaves for life, and on such warranty the plaintiff below based his right to recover.

<p>1— A person who bought land while it was subject to the lien of a recorded. judgment was chargeable with constructive notice of such lien; and such a purchaser, in 1864, was also chargeable with notice of the laws then in force suspending the collection of debts by execution until six months after the close of the war, or twelve months after a treaty of peace.</p> <p>2— By order of Provisional Governor Hamilton, and by Ordinance of the Convention of 1866, and by Act of the Legislature of 1866, the collection of debts by execution continued to be suspended until this court, by a judgment rendered in February, 1868, (Jones v. McMahan, 80 Tex., 719,) declared the unconstitutionality of the stay law of 1866.</p> <p>8—Though a judgment creditor might be chargeable with negligence in not having his judgment re-transcribedy>efore its lien expired, yet a purchaser who bought land of the judgment debtor while it was subject to the lien of the judgment, and who thereby placed himself in the attitude of the debtor himself, can not avail himself of such negligence of the creditor.</p> <p>4—This court does not affect ignorance of the historical act of secession, and it recognizes the impracticabilty of executing the process of the United. States Courts after that act and down to the close of the war.</p> <p>o—So, also, this court takes judicial cognizance that the war was not officially proclaimed at an end by the President of the United States until the 26th of August, 1866.</p> <p>6—A levy in February, 1861, of an execution emanating from a judgment of a United States Court, created a lien which subsisted, it seems, without sale or further process, until the issuance of another execution, in May, 1867; and a person who, in 1864, purchased the land levied on was chargeable at the time of his purchase with constructive notice of the levy and its lien, and could only acquire title subject thereto.</p> <p>7—A person who bought land in 1864, with constructive notice of such a lien, assumed, with respect to the land, the exact position of his vendor, the judgment debtor, and can not claim that the land has become exonerated of the incumbrance, by the failure of the judgment creditor to have the judgment re-inscribed before its lien expired. Had he bought the land after the lien had lapsed for want of a new registration of the judgment, he might have occupied a different attitude.</p>

Tried below before the Hon. Thomas H. Stribling. This suit was brought by the appellant against the appellee, to the Spring term, (1868,) of the District Court of Bexar county. The facts are indicated in the opinion.

<p>1— The exclusion of evidence which, if introduced, could only have established facts which were admitted in the pleadings of the opposing party, could work no prejuduce to the party who offered it; and, therefore, can not entitle him to a reversal of judgment.</p> <p>2— When, under our statute, a defendant is interrogated by the plaintiff, he has a right to state other facts tending to his defense, and closely connected with the fact on which he is interrogated, and such other facts have as much effect as his answer to the question itself; and a denial of such other facts by the plaintiff, in an amended petition, can not impair or invalidate their force and effect as evidence.</p>

Error from Bell. Tried below' before the Hon. Thomas Harrison. The defendant in error described himself in his petition as administrator de bonis non of the estate of John ITonchins, deceased, and sued on a note made by Albert Tobler and Abner Kuykendall to E. S. Knowdes, administrator of the estate of John Houehins, deceased, for $525, dated December 2d, 1862, for the hire of two slaves of the estate for the year 1863.

Tried below before the Hon. John Ireland. The facts of the case, so far as they are involved in the rulings of this court, are sufficiently stated in the opinion.

<p>1— See the opinion in this case on the subject of the degree of certainty requisite in making descriptive allegations in an action of trespass de Eonis asportaiis.</p> <p>2— The petition charged the defendants with carrying away “forty-six head of cattle, three yoke of work oxen, three American mares,” and certain other live stock and articles described by number and kind, together with “all the farming utensils, household and kitchen furniture belonging to petitioner,” and laid the aggregate value of the whole property at •$2000. Held, that the petition did not contain a " full and clear statement of the cause of action,” and that an exception to it for insufficiency should have been sustained.</p> <p>3— An averment that the plaintiff had labored under mental disability and temporary insanity was sufficient, if sustained by the proof, to prevent - the statute of limitation from running against him so long as such disability subsisted.</p> <p>4.—A married woman, during the insanity of her husband, is the head of the family, and has a legal right to dispose of so much of the community property as may he necessary to the support of herself and their children; and if there be no community property, she has the right, to the same extent, to dispose of her husband’s separate property.</p> <p>5—The husband, on recovering his faculties, can not recover against the agents of the wife the value of such property, disposed of by them under the wife’s authority for the support of the family during the insanity of the husband, unless the agents unnecessarily squandered the property.</p>

<p>1— The liability of sureties is matter of strict law, and can not he extended by implication or intendment.</p> <p>2— It was error for the court below, in deciding a demurrer to the petition, to determine on the admissibility of the plaintiff’s evidence, which was; a matter not presented by the demurrer.</p>

<p>1— There are few principles of law better settled than, that which prohibits the admission in evidence of the declarations of a party toa sale, made after the sale has been completed, and in the absence of the >>ther party, against whom they are sought to he used; and this principle is not affected by the fact that confidential relations and a family ;onnection existed between the person whose declarations are in qnestioi and the party against whom they are offered.</p> <p>2— The above ruling is not incompatible with anything decided in Garrahy v. Bayley & Co., 2oth Tex., supplement, 294.</p>

<p>1—When the maker and. the indorser of a note have been sued in the same action, if the maker dies during the pendency of the suit, the suit abates as to him, and it is not necessary that his administrator be made a party defendant, although his estate remains liable for the debt.</p> <p>3— In such case the plaintiff may proceed to judgment against the indorser alone, and the case is not within the inhibition of Art. 1449 of Paschal’s Digest, which provides that no judgment shall he rendered against an indorser unless, at the same time, judgment he also rendered against the principal, except in cases where the principal resides beyond the limits of the State, or is insolvent.</p> <p>8—A statute must he so construed as to give effect, if possible, to each and all of its provisions.</p> <p>4— A motion to set aside a judgment by default must show that essential injustice has been done the defendant, and that he has a meritorious defense.</p> <p>5— Mere technical defenses are entitled to no indulgence. The rules of practice will not be relaxed in their favor. '</p> <p>(i—It is matter of discretion in the court below whether it will entertain a motion for a new trial which was entered after the lapse of two days after judgment was rendered, and its exercise of that discretion will not be revised by this court.</p>

<p>1—It is well settled that a corporation can exercise no other powers than those-clearly delegated in the act of incorporation, or arising, by necessary - implication, from such delegated powers.</p> <p>3—An ordinance of a town, which is not warranted by its charter, is void, and can furnish no justification to persons acting under its authority.</p> <p>3— A particular trade may constitute a nuisance, when carried on in a populous neighborhood; but the buildings in which it is conducted are not nuisances of themselves, nor liable to be demolished by way of abating the nuisance created by their misuse.</p> <p>4— The property in a house so misused is protected by the constitution from summary sale or demolition hy authority of an incorporation, although the corporation is empowered by charter to remove nuisances.</p> <p>5—Where, as in this case, the nuisance was caused not hy the building itself, but by the uses to which it was put, the demolition or sale of the building was not the necessary or proper mode of abating the nuisance.</p>

Error from Ellis. Tried below before the Hon. H. M. Burford. The opinion sufficiently indicates the facts. The xvrit of error was sued out in 1861, for the purpose of reversing the foreclosure, because the plaintiff in error had not executed the mortgage in the manner prescribed by the statute—a purpose rendered futile by the abolition of slavery.

Error from Dallas. Tried, below before the Hon. A. B. Horton.

Error from Grayson. Tried below before the Hon. W. T G. Weaver. This suit was brought by Heilbroner in Hay, 1866, for the purpose of enjoining a judgment for $1125, obtained against Mm by Douglass, and also for general relief.

Tried below before the Hon. N. M. Burford. The material facts of this ease are clearly stated in the opinion of the court.

<p>Error from Guadalupe. Tried below before James F. Miller, Esq., special judge.</p> <p>The facts are sufficiently indicated in the opinion.</p>

Tried below before the Hon. A. B. Horton. The only witness testified that he went into a house where the defendant kept drugs for sale, and told him he wanted “ a good dram; ” that the “ defendant fixed him up a dram and he drank it,” and afterwards handed the defendant a half dollar, and received from him a quarter back. Hothing in the transcript showed what the dram was composed of.

Tried below before the Hon. J. J. Thornton. The appellant was defendant in the court below to a suit brought by the appellees on an open account. By an amended petition it was alleged that Goodman was the sole owner of the accounts sued on. There was judgment below against appellant for $ff> 25.

Cross-Appeal from Travis. Tried below before the Hon. J. J. Thornton. On the 5th of January, 1855, W. B. Cannon, the intestate of the defendants, made his two notes for $1000 and $10, respectively, payable to order of Samuel Lawler, and secured them by a mortgage on 1500 acres of the headlight league of William Cannon.

Error from Caldwell. Tried below before the Hon. J. J. Thornton. The facts are sufficiently indicated in the opinion of the court.

Tried below before the Hon. A. J. Evans. Ward & Co., the appellants, sued Bledsoe & Clarkson, the appellees, who were a mercantile firm of Falls county, on an alleged indebtedness of $293é, balance due on account. The defendants pleaded in reconvention, and the jury returned a verdict in their favor for $1972 50.

<p>Appeal from Bexar. Tried below before the Hon. Thomas-II. Stribling.</p> <p>The opinion of the court indicates the facts sufficiently.</p>

Tried below before the Hon. A. J. Evans. The appellees, Powell and sundry others, sued out an injunction against the mayor and other corporate authorities of the city of Waco, to restrain them from enforcing the town ordinance known as the “ hog law,” against the hogs of the plaintiffs, allowed to go at large in the streets, and some of which had been seized by the city marshal in conformity with the directions of the ordinance.

<p>Error from Bastrop. Tried below before the Hon. David Sheets.</p> <p>The State instituted two suits in the District Court of Bastrop county against George Allen, and his sureties, on two official bonds given by him as assessor and collector of Bastrop county. Consent judgments, amounting in the two cases to fourteen hundred dollars, were rendered in favor of the State on an alleged indebtedness, as shown by the comptroller’s statements, of some seven thousand dollars, besides. license taxes alleged to have been collected.</p> <p>The grounds on which the rulings of this court are placed,. obviate any necessity of giving details of the eases.</p> <p>The opinion here printed was rendered in one of the cases. The other was reversed and remanded for the same reasons.</p>

Tried below before the ITon. David Sheeks. In November, 1867, the appellants sued the appellee as a member of the. firm of Dimon & Crocheron, on two notes for $704 each, dated February 24th, 1860, and due respectively in three and four months after date. The notes were signed “ Dimon & Crocheron, in liquidation.” The petition alleged that Dimon was dead.

Tried below before the Hon. A. B. Horton. The jury found a verdict of guilty against the appellant, and assessed his fine at fifty dollars. Ho other judgment appears in the record.

Tried below before the Hon. A. B. Horton. Jopling was plaintiff below, Cook & Lester being the makers of the note sued on, and Turner & Daggett, the indorsers to the plaintiff

Tried below before the Hon. Thomas H. Stribliug. One Christian Schleyer and his wife, on the 26th of February, 1857, made their note for $500, payable to Otto Frederick, the appellee, one year after date, and also executed to him a mortgage on real estate in the city of San Antonio, Bexar county, to secure payment of the note.

Error from Collin. Tried below before the Hon. Hardin Hart. Thomas, the defendant in error, brought this suit to the Fall term (1866) of the District Court of Collin County, on a note for $450, executed by Frances T. Beck. and G-. H. Fitzlmgh, dated April 23d, 1863, and payable to the plaintiff one day after date.

Tried below before the lion. A. J. Evans. The appellee, Louisa Frederick, brought this suit on the 10th of September, 1868, in the District Court of McLennan county. She alleged in her petition that, on the 9th of October, I860, Charles A. Hamilton and his wife, 31. 31.

Tried below before the lion. A. J. Evans. M. C. Fraim brought this action to the Spring term (1869) of the District Court of McLennan county, against J. H. Caldwell and Julius Griesenback, for three small parcels of land in the vicinity of Waco, comprised in what is known as the Harris place, and also as the Hamilton place.

<p>1— A citation in error is fatally defective when it does not require the defendant in error to appear before the Supreme Court at any designated term.</p> <p>2— When the return of the sheriff on a citation fads to show that a copy of the petition in error was delivered to the defendant in error, the service is fatally defective.</p> <p>3— These are statutory requirements, with which this court can not dispense, and which are essential to its jurisdiction.</p>

<p>1—Where the field notes of a survey called for a fixed and marked natural object, and also, in the same call, for the line of another survey, the former is the controlling call; and especially so when the line called for is itself of uncertain locality.</p> <p>3—In a suit about boundaries, the jury found that the “ old league line ” was the true line, but did not find which of the three lines in dispute was the “ old league line.” JBeld, that the verdict was void for uncertainty.</p>

Tried below before the Hon. Hardin Hart. There appears to be no occasion to detail the facts more particularly than they are indicated in the opinion. The case came to this court by appeal from the judgment of the District Court, dismissing a certiorari taken by Mitchell to proceedings in the Probate Court on the settlement of the estate of J. M. Miller, deceased, of which Mitchell was administrator.

Tried below before the lion. T. II. Stribling. On November 14,1859, Sweet made his note for §6500, with two sureties, payable to Samuel Ritcliie twelve mouths after date, with interest. On the 39th of July, 1863, Ritchie received from Sweet Confederate notes to the amount due, and entered satisfaction of the promissory note upon its back, surrendering it to Sweet at the same time.

Error from Bastrop. Tried below before the Hon. J. J. Thornton. This suit was brought in the District Court of Bastrop county on the 16tli of February, 1857, by It. J. Townes, Robert Mills, and David G. Mills, against Uriah Gould and Ann Eliza Gould, his wife, and Edward and James McCarty, defendants. Townes died during the pendency of the suit, and C. S. West, his executor, became a party in his stead.

<p>Appeal from Denton. Tried below' before the Hon. W. T. G. Weaver.</p> <p>The facts are clearly stated in the opinion of the court.</p>

Tried below before the Hon. A. J. Evans. In his showing for a first continuance the defendant deposed that by one George Thompson, a witness absent without his consent, he coidd prove that “ he (defendant) did not take, steal or carry away the horse alleged to have been stolen in the indictment in this cause, and that said witness saw this defendant trade for said horse.” The court below overruled the application, and the witness was convicted on the evidence of three…

Tried below before the Hon. A. J. Evans. The opinion of the court clearly discloses the character of this case. At the trial in the District Court, J. T. Flint, witness for the plaintiff, proved that in the latter part of May, 1865, just before the surrender of the armies of the so-called Confederate States, he met defendants, Mills and -wife, about seven miles south of Belton, in Bell county, traveling westward in a buggy.

Error from McLennan. Tried below before M. A. Long, Esq., special judge. The opinion of the court states such of the facts as are involved in the decision. Morgan & Co., the plaintiffs in error, were the claimants of the property as against the appellees, who attached the cotton as the property of J. M. Smith, the defendant in the attachment. The cause was tried at the December, term, 1867, when the following instructions were given to the jury by the court below': “ 1.

<p>Appeal from Bandera. Tried below before the Hon. G. H. Noonan.</p> <p>The opinion indicates the facts.</p>

Error from Bastrop. Tried below before the Hon. David Sheeks. Suit on a warranty of soundness of a slave, instituted in 1861, which came to trial in February, 1869, and resulted in a verdict for Lane, the plaintiff in error, who was defendant below. Judgment, however, was not rendered on the verdict, and at the next succeeding term Lane moved for judgment final, ■nuncpro tunc. An order was entered overruling the motion. The writ of error was sued out to this order.

Error from Johnson. Tried below before the Hon. H. M. Burford. There is no occasion to state the facts further than they are indicated in the opinion of the court.

<p>Appeal from McLennan. Tried below before the Hon. A. J. Evans.</p> <p>The appellant was indicted and convicted of the theft of a gelding.</p>

<p>Appeal from Lampasas. Tried below before the Hon. A. J. Evans.</p> <p>The opinion states the case.</p>

<p>1—In view of the prohibition contained in the 3d Article of the Penal Code, (Paschal’s Digest, Art. 1605), it is held that Article 399 of the same Code does not so define the “ crime against nature,” or sodomy, as to make it punishable in this State. (Justices Hamilton and Caldwell dissenting.)</p>

Tried below before the Hon. Hardin Hart. This record presents a somewhat complicated case, but a a more minute statement of the facts than that given in the opinion would not elucidate the rulings of the court. The brief for the appellee on his motion for rehearing did not reach the hands of the reporter, who is therefore unable to give the cases cited in it, and referred to by the court in refusing the motion.

<p>Appeal from Guadalupe. Tried below before the Hon. J. J. Thornton.</p> <p>The opinion sufficiently indicates the facts.</p>

Tried below before the Hon. M. B. Walker. The appellant was convicted of passing off a forged promissory note, knowing it to be forged, and obtaining money and merchandise in consideration of it. The Attorney General moved to dismiss the appeal, because no judgment or sentence was entered upon the verdict convicting the appellant and assessing his punishment at two years’ hard labor in the penitentiary.

<p>Error from Guadalupe. Tried below before the Hon. J. J. Thornton.</p> <p>The petition referred to the notes sued on as “ part of this petition.” The other facts are fully stated in the opinion.</p>

Error from Guadalupe. Tried below before the Hon. J. J. Thornton. The opinion sufficiently discloses the facts so far as they affect the rulings made. The petition referred to the bill of sale, as part of the petition, in the usual phraseology.

Tried below before the. Hon. W. P. Bacon. The indictment was for the theft of six hogs. Being found guilty, his punishment was assessed by the jury at two years in the penitentiary.

Tried below before the Hon. J. J. Thornton. This suit was instituted by the appellees in August, 1868, on an open account for $186i£<Pu. contracted in 1858, 1859 and 1860, and alleged to be due from the appellant in his capacity as administrator of C. Thompson, deceased. The defense relied on was the statute of limitations.

Tried below before the Hon. A. W. Terrell. Bothing hut questions of pure law being adjudicated in this case, the particular facts attending the litigation below need not be stated.

Error from Bexar. Tried below before the Hon. Thomas H. Stribling. This suit was brought to the Fall term (1866) of the District Court of Bexar county; and was tried at the Fall term, 1868, resulting in judgment for the plaintiff, Lane, who is defendant in error.

Tried below before the Hon. George E. Scott. This was a trial of the right of property in fifteen bales of cotton, part of the crop of the year 1867, raised on the plantation belonging to the estate of F. E. Fenriee, deceased, of which the appellant, Mathews, was administrator. On the 14th of December, 1867, a writ of sequestration was sued out by Mathews, and the cotton was seized thereunder.

Error from Colorado. Tried below before the Hon. J. B. McFarland. The material facts of the case will be found in the.opinion ■of the court. The original plaintiff, J. J. Ballard, died pending the litigation, when Ellis, plaintiff in error, became his administrator.

Error from Galveston. Tried below before the Hon. George R. Scott. The opinion of the court discloses all facts of any consequence.

<p>1—A homestead already acquired may be enlarged or increased to the maximum allowed by law, and the addition becomes part of the homestead and is exempt from execution ; and it was error to charge a jury to the contrary.</p>

<p>1— To a suit by a guardian on a note made to him as guardian, it is no ■ answer to set up the fact that the plaintiff had ceased to be such guardian by reason.of his former wards having attained their majority or married.</p> <p>2— The legal title to the note being in the plaintiff as guardian, suit was well brought in his name and fiduciary capacity, notwithstanding his guardianship may have lapsed.</p> <p>3— If the defendants had cause to distrust the authority of the plaintiff to collect the money due on the note, their proper course was to bring the money into court and require the plaintiff and his former wards to inter-plead.</p> <p>4— It was not error to refuse a continuance asked for the purpose of making parties of the former wards of the plaintiff, when the only defense relied on was that the plaintiff’s guardianship, and his right to sue on the note made to him as guardian, had ceased by reason of his wards having married and attained their majority.</p>

<p>1—Legal tender notes are equivalent, dollar for dollar, to gold and silver coin in discharge of a note for a specified number of dollars, “ payable in gold coin, or the equivalent thereof in United States legal tender notes.”</p> <p>3—The case of Bronson v. Bodes (7 Wallace, U. S. Beports, 339,) considered ; and in view of the facts of that case and of the principles on which it was decided, it is held not to be in conflict with the conclusions of this court in the present case.</p>

Tried below before the Hon. Peter W. Gray. This cause was tried in the court below at the Spring term, 1858. The general character of the litigation is indicated in the opinion of this court. The plaintiff, Meuleyj recovered judgment below. On the trial, he offered in evidence a transcript of the judgment of the Nueces District Court, which was the source from which he derived his title to the land in controversy.

<p>1—On the same overt act the accused was charged in two separate indictments, one being for assault with intent to kill, and the other for assault with intent to rob. The jury found him guilty of the assault with intent to kill; whereupon the other indictment was submitted by agreement to the same jury, and they returned on it a verdict of acquittal, with the explanation that this charge had been considered on the trial of the indictment for assault with intent to kill, of which they had convicted the accused. The evidence would have warranted a conviction on the charge of which the accused was thus acquitted; but it did not establish an assault with intent to kill, of which he had been convicted. Held, that notwithstanding the accused was manifestly guilty of a high crime, this improper conviction must be set aside; and as the accused had been acquitted of the only offense established by the evidence, the case is dismissed.</p>

<p>I—In a suit for the foreclosure of a mortgage on real estate, it being apparent on the face of the record that the defendants resided, and the land ■ was situate, in a different county than that in which the suit was brought, this court, although no errors were assigned, takes cognizance of the want of jurisdiction in the court below, and dismisses the cause, but without prejudice to a new action in the proper forum.</p>

Tried below before the Hon. George B. Scott. The opinion of this court gives a succinct hut sufficient statement of such of the facts as affect the rulings made. The war and the consequent disorganization of the courts account for the great delays in the course of the litigation in this, as in many other cases.

<p>Error from Colorado. Tried below before the Hon. J. B. McFarland.</p> <p>The opinion indicates the material facts.</p>

Tried below before the Hon. 27. H. Davis. The opinion is referred to for the most material facts. ' The appellee was plaintiff below, and recovered judgment for some $450. A new trial being refused, the defendant appealed..

<p>1— An indictment which, giving time and venue, charged that the accused “ unlawfully did bet at a faro bank, the said faro bank being then and there kept and exhibited for the purpose of gaming,” is sufficiently certain.</p> <p>2— An indictment need not be more specific than the law under which it is framed.</p> <p>3— Nothing more need be charged in an indictment than it is necessary to prove in order to secure a conviction.</p> <p>4— The plain and simple rule prescribed in our Code, (Paschal’s Digest, Art. 2863,) that " the offense must be set forth in plain and intelligible words, comprises the best guidance to the criminal pleader.</p>

<p>Appeal from Limstone. Tried below before the Hon. N. H. Davis.</p> <p>The facts appear sufficiently in the opinion of the court.</p>

Tried below before the Hon. M. Hart Davis. A former appeal having been dismissed in this court because the recognizance did not recite any offense known to the laws of the State, the defendants, by leave obtained from the District Court, gave a new recognizance there, nunc pro tuno, in proper form, and brought up this case on a new transcript.

Tried below before the Hon. W. B. Fayle, Judge of the Criminal Court of the county of Harris. In the Criminal Court of the county of Harris, at a special term held in August, 1869, the appellant was indicted and tried for theft.

<p>1— An amendment may set up a new cause of action, or a title acquired after suit brought: provided, such amendment does no prejudice to the rights of the other party, and that all costs to the time of amending be paid, and that the amendment he not allowed to relate back to the commencement of the suit.</p> <p>2— The necessity for these restraints upon the right to set up such new title or cause of action by way of amendment is apparent; and this court will not suffer them to be disregarded.</p> <p>o—Bringing suits into court by installments, and serving every necessity by some new title or new cause of action, should not be tolerated in a correct system of practice.</p>

<p>1—By the proclamation of Provisional Governor Hamilton, the courts of this State were open for the assertion of rights in the month of August or September, 1865, and suits were authorized to he prosecuted in all the District Courts at the Fall term of that year, with only a restriction on the issuance of executions.</p> <p>8—The holder of a note due January 1st, 1868, brought suit in April, 1866, against an indorser of the note, without giving any reason why the suit was not sooner brought. Held, that the statutory diligence to fix the indorser’s liability by suit is wanting. The action should have been brought to the Fall term, I860; and the failure to bring it to that term, or to assign some valid reason for not doing so, operates a release to the defendant.</p>

Error from Grimes. Tried below before the Hon. N. Hart Davis. This suit was brought by the plaintiff in error in September, I860, on a note for $4500, dated January 5, 1860, and due on the 1st of January, 1861. Sundry payments on the note, made in 1861 and 1862, were credited in the petition. The defendants, appellees in this court, pleaded that the note was given for the purchase money of certain designated negroes, who' were warranted by the plaintiff to be slaves for life.

<p>1—One of the sureties on the error bond having died, the defendant in error dismissed as to him and asked an affirmance of the judgment below. There being no assignment of errors, it is so ordered.</p>

<p>1—Though in strict accuracy of language it may be true that the trustee of a fraudulent and void assignment does not hold under it the effects attempted to be thus assigned, or the funds arising out of such effects, yet he holds such effects or funds in his own wrong, and the law makes him the trustee of an implied trust for the benefit of the creditors of the assignor; and the effects or funds in the hands of the trustee can be reached either by the process of garnishment or by a creditor’s bill.</p> <p>3—A judgment creditor who, by process of garnishment, seized such effects or funds, was entitled to have the whole of them applied to his demand, to the exclusion of other creditors who were not in a position to pursue the funds or effects.</p>

<p>1— The defendant in an action of trespass to try title having at the first trial relied upon one title, he should not have been permitted, ata second trial granted him on appeal to this court, to have set up a new and different title. The rights of the parties were fixed when the demise was laid.</p> <p>2— Guardians and tutors of minors, according to the civil law, had power, under the direction of the proper court, to convey the estates of their wards.</p> <p>8—There must be Some presumptions in favor of judicial acts. Hence in this ease it is to be presumed that a judge of the first instance, co-operating in 1835 with a guardian in selling land of a minor, was acting with authority; and that the person recognized in his judicial proceedings as the guardian of the minor was the guardian.</p> <p>4— This court will not reverse judgments of the District Courts for minor errors, when no substantial injustice has been done.</p> <p>5— The case of Hamilton v. Menifee, 11 Texas K., 718, cited and referred to as decisive of the validity and locality of the grant in question.</p>

<p>1—-A purchaser of land with warranty of title, being sued by an indorsee of a note given for the purchase money, pleaded as a defense that there was a mistake as to the land which was the subject matter of the trade, and that the plaintiff was privy to the trade and knew of the mistake. It appearing that the defendant went into possession at the time of the purchase, and still remains in possession, and there being no allegation of fraud and no evidence that the plaintiff knew of any mistake, if there was any, it is held that the defense was not maintainable.</p> <p>%—To allow sueh a defense would be equivalent to allowing a purchaser of land with warranty of title to sue and recover on the covenant before covenant broken, and before eviction.</p>

<p>1— Though the acceptor of a draft who accepts for the accommodation of the drawer, may be only a surety as to the drawer, yet as to the holder he is the principal debtor and primarily liable, even though the holder received the draft and acceptance with full knowledge of the accommodation character of the transaction.</p> <p>2— An extension of time of payment granted by the holder to the acceptor is nothing more than an indulgence of a debtor by his creditor, and can not operate a release of the acceptor from his liability ; and it is immaterial that the extension was procured by the drawer from the holder by the payment of a valuable consideration. Such an extension would raise no equities, even in favor of the acceptor as against the holder.</p> <p>3— The holder of such an acceptance is not bound, in order to recover against the acceptor, to bring his suit to the first term of court after the maturity of the draft, or to the second term, showing cause for not suing to the first. Such statutory diligence is only requisite to fix the liability of drawers or indorsers of bills, or of indorsers of notes; but the acceptor of a bill, being liable to the holder in any event, is not within the purview of the enactment.</p> <p>4— An acceptor of a draft, who accepted for the accommodation of the drawer, has the right, however, under Article 4783, Paschal’s Digest, to notify and require the holder to bring suit forthwith upon its maturity; and should the holder fail to do so, equity would interpose and relieve the acceptor.</p> <p>5— This court takes cognizance of the fact that in January, 1865, the revenue offices of the United States were not in operation in Texas; and a draft then drawn is not invalidated as an instrument of evidence, because it was not stamped when made.</p> <p>6— On a draft for a certain number of “dollars in specie,” it was error to render a judgment for “ coin.” The judgment should have been for “dollars,” so as to be payable in any legal tender.</p> <p>7— The case of-, Wallace,-, referred to, and considered as relevant only to contracts in coin entered into before, and not since the passage of the Legal Tender act of Congress.</p> <p>8—A judgment erroneously rendered for “ coin ” by the court helow, when it should have been rendered for dollars, will not be remanded to the court below, but this court will render the proper judgment.</p>

Tried below before the Hon. T. 0. Barden.' Under the jurisdiction conferred on the County Courts by the constitution and laws of 1866, this suit was commenced in the County Court of Fayette, and from that court to the District Court by appeal. . As the material facts are clearly indicated in the opinion, and as the rulings turn upon the construction of statutes, it is not necessary to detail the evidence in the record.

<p>1—H. leased a plantation to T. for the year, on a written agreement that the latter should pay one-sixth of the cotton to he grown by way of rent, and should, at gathering time, put the rent cotton in pens on the premises for H.; and if they should disagree at gathering time about the division so made, each should haul his cotton to the gin (which was on different premises), where a division should he made in accordance with the agreement. Held, that the agreement did not preclude H., the landlord, from suing out his distress warrant, when he found that the tenant was removing his cotton from the premises, with a view to evading a settlement according to the terms of the agreement.</p>

Tried below before tbe Hon. Edmund J. Davis. Peter Dowd, tbe appellee, brought this action of trespass to try title, to tbe Spring term, 1857, against P. Belden and Henry A. Gilpin, tbe appellants. The material facts are clearly stated in the opinion of the court, but in order to bring out more fully the information derived by tbe defendants from Haynes, their vendor, and from other sources, it seems advisable to extract from tbe evidence at the trial below.

Error from Harris. Tried below before the Hon. George R. Scott. This suit was brought to the Fall term (1867) of the District Court of Harris county. Its character and purpose is clearly stated in the opinion of the court. Hearne, plaintiff below, obtained verdict and had judgment for $208 56, at the Spring term, 1869.

<p>1— An executor or administrator can not, in his fiduciary capacity, maintain a suit in the courts of a different State than that in which his letters testAmentary or of administration were granted.</p> <p>2— To acquire the right of suing in a different State than that in which his original letters were granted, the executor or administrator must first obtain letters testamentary or of administration from the proper authority within such different State, on his complying with the requirements of the local law, devised for the protection of local creditors of the estate, if any there he.</p> <p>3— The case of Hall v. Harrison, 31 Miss. Rep., 337, distinguished from this case, and shown to he no exception to the above rule.</p>

<p>Error from Harris. Tried below before the Hon. George R. Scott.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>Error from Chambers. Tried below before the Hon. Samuel A. Willson.</p> <p>The only fact of any significance is stated in the opinion.</p>

Error from Colorado. Tried below before the Hon. J. B. McFarland. This suit was brought by the county of Colorado, as plaintiff, against Dewees, the appellant, as defendant.

Error from Fayette. Tried below before the Hon. J. B. McFarland. Scherer, the plaintiff below, sued Chandler as maker, and one Daniels as indorser of a promissory note, describing the latter in the original petition as J. JV. Daniels, and citations so designating them issued for both.

<p>Error from Victoria. Tried below before the Hon. Fielding Jones.</p> <p>The opinion of the court discloses the facts.</p>

Tried below before the Hon. E. Basse. Suit for divorce, brought on March 13,1869, by the appellee against her husband, the appellant. In her original petition the plaintiff stated that she was married to the defendant on the 29th of November. 1865, in the county of Cameron, State of Texas.

Tried below before the Hon. E. Basse. This was a proceeding, by motion, filed by Isaac Harman, in the District Court of Cameron county, April 1st, 1869. It alleged that, in January, 1861, R. J. Lawler & Co. commenced an attachment suit in the same court against E. Karpelos, and Manuel Trevino & Co., also commenced an attachment suit against E. Karpelos, under which a levy was made on certain goods.

Tried below before the Hon. W. R. Fayle. The appellant was indicted for an assault with intent to kill and murder B. Rush Plumly. He was found guilty of an assault only, and adjudged to pay a fine of $100; whereupon, being refused a new trial, he appealed. The details of the difficulty might prove interesting if not edifying, but are not deemed necessary to elucidate the opinion.

Tried below before the Hon. W. R. Fayle. The appellant was indicted in the Criminal. Court of the county of Galveston, at its July term, 1869, for the publication of a libel against B. Bush Plumly. The matter charged as a libel was a letter to one F. W. Bead, in the following terms: “ July 13th, 1868. “ Mr. F. W. Bead : “ Dear Sir—I enclose you a letter to Louis Bourgoise; give it to him yourself, and soon.

Error from the Criminal Court of Harris county. Tried below before the Hon. Wm. R. Eayle.

Tried below before the Hon. J. B. Hurd. This was an appeal by Haverty and his sureties from a final judgment.on a forfeited bail bond. The material facts appear in the opinion of the court, and are discussed with greater detail by counsel for the appellants—wherefore, there is no occasion to repeat them here.

Tried below before the Hon. Wesley Ogden. The appellant was indicted for the theft of a gray stallion, the property of F. F. Woods. At the trial, Woods was the only witness for the State.

Tried below before the Hon. Wesley Ogden. The appellant was indicted and convicted of an aggravated assault, and his punishment was assessed at a fine of one hundred and fifty dollars. Being refused a new trial, h'e appealed.

Tried below before the Hon. Wesley Ogden. Indictment for theft of a pistol, worth $25. Appellant was convicted, and his punishment assessed by the jury at two years in the penitentiary. He appealed, being refused a new trial. The rulings do not call for a detail of the evidence, which was very contradictory.

<p>Appeal from Lavaca. Tried below before the Hon. Wesley Ogden.</p> <p>The opinion of the court states the material facts.</p>

Tried below before the Hon. W. R. Fayle. At the March term, (1869) of the Criminal Court of Galveston county, Leroy Cotton, the appellant, and Henry Cotton, his brother, were jointly indicted for the murder of John B. Lockman, on the 11th day of January, A. D. 1869. A severance was asked by the accused and allowed by the court, and the State elected to proceed first with the trial of the appellant, Leroy Cotton.

<p>1— A hail bond, which was taken before indictment, and which in the recital; part designates the charge against the prisoner as an “ assault with intent to murder,” and in the subsequent part of the condition as an “assault with intent to kill,” sufficiently describes an offense against the laws of this State, to-wit: the offense of “ assault.” The superadded words, “ with intent,” etc., may he regarded as surplusage, and do not vitiate the bond; nor will such a hail bond be held invalid because the prisoner, after giving the bail, was indicted, not for a simple assault, but for an assault with intent to kill and murder,</p> <p>2— The rulings in Foster v. The State (27 Tex., 236), requiring the description of the offense in a bail bond to correspond exactly with that charged in the indictment, must be understood as applicable and limited to bail bonds and recognizances taken after indictment found.</p> <p>3— In bail bonds or recognizances taken before indictment found, all that should be required in this respect is, that they describe in plain language some offense known to the law.</p> <p>4— The fact that no forfeiture was taken on a bail bond at the first term when default was made is a circumstance of no legal consequence, and can not. in any way avail the obligors in the bond.</p> <p>5— Scire facias on a forfeited bail bond or recognizance is not in any sense a criminal proceeding; it is to all intents a civil suit.</p>

Tried below before the Hon. Wesley Ogden. From the statement of facts, it appears in evidence that the defendant altered the brand openly and publicly, claiming that the animal was his own property, and that the brand which he altered had been wrongfully put upon it.

Tried below before the Hon. T. 0 Barden. The case brought up by the appellant was a conviction for maliciously marking a cow, without the consent of the owner; but the recognizance given on his appeal from the District Court gave no further description of the offense than “ illegal marking.”

<p>Error from DeWitt. Tried below before the Hon. S. A. White.</p> <p>The opinion states the only facts relevant to the rulings.</p>

Error from Wharton. Tried below before the Hon. James E. Sheppard. There is no occasion to detail the facts further than they are disclosed in the opinion of the court.

<p>Appeal from Brazoria. Tried below before the Hon. George W. Smith.</p> <p>In view of the rulings of this court, it is not deemed necessary to give a more particular statement of the facts than is contained in the opinion.</p>

Tried below before the Hon. J. B. McFarland. This was a suit by the appellant to enjoin the appellees, who were the officers of the County Court, from proceeding to enforce, by execution, the judgments for costs, amounting to between fifty and sixty dollars, which had been rendered by the County Court against the appellant, without process or notice to him, as he alleged.

Error from Brazoria. Tried below before the Hon. D. Shropshire. The notes sued on were dated January 4th, 1860, and payable, respectively, on the 1st of March, 1862 and 1863, with interest at ten per cent, per annum from and after date.

Error from Freestone. Tried below before the Hon. B. S. 'Gould. The original suit in the District Court was between W. U. Hall, as plaintiff, and II. H. & H. W. Hall, partners, sometimes called Hall & Hall, and sometimes Hall & Brother, defendants. The plaintiff in error, Graves, came in as interpleader under the circumstances stated in the opinion of this court, to which reference is made for such other facts as are material.

Error from Washington. Tried below before the Hon. James E. Sheppard. In August, 1866, Young, as the administrator of the estate of J. H. Hurt, deceased, brought this suit against W. C. Slade, W. G. Wilkins and 0. T. Hoff, on a note in the following terms: “ $239 00. Brenham, Dec. 2d, 1862. “ Twelve months after date we, or either of us, promise to pay J. B. Heed, executor of Jas.

Eerok from Harris. Tried below before the Hon. George B. Scott. Wood, plaintiff in error, brought this suit in November, 1861, on a bill of exchange for $2,500, drawn by J. B. Morris on Mcllhenny, Willis & Brother, and by them accepted. The bill was dated April 14, 1860, and was drawn by Morris, payable to his own order eighteen months after its date. The original petition alleged the indorsement by Morris before maturity of the bill.

Tried below before the Hon. George R. Scott. This is a suit brought in the District Court of Harris county, on the 31st day of January, 1861, by Mary E. Clarke and her husband, Robert Clarke.

Tried below before the Hon. George R. Scott. Judging by the calibre of the transcript of this cause, which contains over three hundred pages, this case excited no ordinary degree of interest in the court below; and this conjecture is greatly confirmed by the zeal, care, pertinacity and ability which characterizes the discussion of it in the briefs of counsel.

Tried below before the Hon. J. B. Carpenter. The opinion of the court supplies a clear statement of the material facts. The appellee was plaintiff below. The defendants were J. B. Bevoe, Gr. O. Street and one landmark, operating under the style of Bevoe & Co. Their operations for oil on Padre Island were conducted in 1866 and 1867, and this suit was brought in March of the latter year.

Error from Galveston. Tried below before the Hon. James E. Shepard. The opinion of the court discloses the material facts of the case. With reference to the construction placed by this case on Art. 223, Paselial’s Digest, overruling Rhine v. Hart, 27 Texas, 94, it may be remarked that there is another case, Brooks v. Breeding, in this volume to the same effect.

Error from Harris. Tried below before .the Hon. George R. Scott. This suit was brought in August, 1867, by John Merkel, Anton Merkel, and two married sisters with their husbands, to recover damages from the Houston and Texas Central Railway Company, for constructing their road through and across the plaintiffs’ block of ground in Houston.

Error from Washington. Tried below before the Hon. James E. Shepard. The character of this suit is disclosed in the opinion of the court. At the trial, in April, 1867, the plaintiff introduced the note and proved the presentation of the claim to the defendants sometime in January or February, 1866. The suit was brought March 20th, 1866.

Tried below before the Hon.N. Hart Davis. There is no statement of facts in the transcript, but the ‘opinion states all that are material to the rulings made.

<p>Appeal from Walker. Tried below before the Hon. N. Hart Davis.</p> <p>The material facts are apparent on the face of the opinion.</p>

Error from Colorado. Tried below before the Hon. Benjamin Shropshire. The fasts material to the rulings are stated in the opinion.. The defendants in the court below were Charles Kesler, maker of the note sued on, J. R. Brooks, the payee, who indorsed it in blank to J. R. Carlton, who indorsed it in blank to the defendant in error, plaintiff below. Brooks and Carlton, the indorsers, prosecute the writ of error.

Tried below before the Hon. Wesley Ogden. This is the third appearance of this cause in the Supreme Oourt. The two former appeals are reported in 24th Texas,. 639, and 27th Texas, 584. The note sued on was for $75 33, and was made on the 6th of September, 1852. The same evidence adduced by plaintiff on the former trials was again introduced at the present one.

Tried below before the Hon. W. R. Fayle. The indictment charged tinu tappellant, on the 15th of January, 1869, was employed as agent oí «7. ¿7 2-inKAever & R. Yan Slyke, and, as such agent, was entrusted to receive moneys, goods, wares and merchandise to transport in the charge of him, the appellant, from the city of Galveston to the city of Houston, and that on the day and year aforesaid he received and took into his possession two hundred pieces of gold, each of the…

Tried below before the Hon. Wesley Ogden. The indictment charged that the betting was done in the town of Xndianola, in Calhoun county, but gave no more spe•cific description of the place. The description of the alleged -offense is fully set forth in the head-note. Being found guilty, the fine was assessed by the jury at $100', •and judgment was rendered accordingly against the defendant.

Error from DeWitt. Tried below before the Hon. J. J. Holt. In February, 1867, Mrs. Cunningham sued Jacobs on a note for $880, made by him to her in September, 1864. The original petition was drawn as though the plaintiff was a feme sole. Jacobs pleaded in abatement that the plaintiff was a married woman, being the wife of Samuel Cunningham, who was a resident of DeWitt county, and within the jurisdiction of the court.

Error from Goliad. Tried below before Hon. J. J. Holt. This suit was instituted 30th June, 1856, by Maria Josefa Galan against Pryor Lea, to try title for a piece of land within the town of Goliad, and for damages. May 8th, 1857, defendant, Lea, answered, not guilty of the trespass. November 4th, 1857, the common council of the town of Goliad interposed and became a defendant, as landlord or owner of the premises, and answered as follows: 1. Not guilty. 2.

Tried below before Hon George W. Smith. A full history of this case would present a case of considerable complication. The material facts are either expressly stated or clearly implied in the opinion of the court.

<p>1— An heir of an intestate brought suit in the District Court against the sureties of the administrator, alleging as breach of their bond that the administrator had received assets and had left the State of Texas without settling up his accounts as administrator. But the petition further showed that there were debts still outstanding against the estate. Held, that a general demurrer to the petition was correctly sustained.</p> <p>2— The sureties of an administrator are primarily liable to creditors of the estate, or to an administrator de bonis non for the benefit of creditors; and so long as there are creditors, the sureties are not liable to the heirs or distributees in an action on the bond.</p> <p>3— In the state of facts presented by the petition in this case, the heir should have become administrator de bonis non, and in that capacity have proceeded upon the bond of the original administrator.</p>

Error from Gonzales. Tried below before the Hon. Wesley Ogden. The facts are briefly but sufficiently stated in the opinion. Taylor, McElroy & Co., the creditors of Kent, who were secured by his deed of trust to Harwood, came in as interveners below.