Volume 33 — Texas Reports

<p>Appeal from Goliad. Tried- below before the -Hon. Wesley Ogden.</p> <p>This was a scire facias against bail. Indictment for assault with intent to murder was found against the principal in August, 1868, and the bail bond was executed in October, 1868, before the clerk of the District Court, who certified his approval of it Over 'his official signature. Answer to the scire facias alleged the facts succinctly but fully set forth in the first head note. Exceptions to the answer were filed by the State, and were sustained by the court, and judgment final rendered against the defendants, who moved for a new trial and in arrest of judgment, and appealed in consequence of their motions being overruled.</p>

<p>This case is a motion of the character indicated in the opinion of the court. The affidavits or other papers, filed by Kincheloe, the appellee, in support of his motion, have not come to the hands of the Reporter. In view of the ground, however, on which the motion is overruled, the particular state of facts is of no significanee—as no state of facts, it seems, could empower the court to revire a judgment of affirmance on certificate, which had been vacated at a previous term.</p>

<p>1. Suit by indorsee of a promissory note against maker and indorser, brought to the third term of court after maturity of the note ; the indorsement being in blank and no averment in the petition of the time when it was made. Judgment taken by default, and writ of error pursued by the indorser on the assignment that more than two terms of the court had elapsed after indorsement and before suit. Held, that as the allegations of the petition must he taken as true by reason of the default, and as the petition alleges an indebtedness by the indorser as well as the maker, which could only be true if the suit was brought in due time, the judgment must be affirmed.</p> <p>2. On the facts and pleadings indicated above, the presumption that the blank indorsement was made at the date of the note, will not be allowed in this . court after judgment by default in the court below ; this court must indulge the contrary presumption, that the indorsement was made subsequent to the date of the note, and that suit was brought in due time to fix the indorser’s liability. If the fact was otherwise, the remedy of the indorser was not by recourse to this court, where the question cannot be mooted under such circumstances, but by motion or bill of review in the court below.</p> <p>3. The allegation in the petition that the mdorser “ was indebted ” to the plaintiff is held m this case to be a virtual averment' that the indorsement was made at a time to he available to the plaintiff in support oí this action, and the default is an admission by the indorser of the truth of the averment.</p>

<p>Appeal from Nueces. Tried below before tbe Hon. J. B. Hurd.</p> <p>The material facts of the case are briefly but clearly stated in the opinion of the court.</p> <p>William Headen, one of the appellees, intervened in the suit, and claimed the land under title derived through the deed of trust executed by Richardson & Co. to N. O. Vineyard as trustee for J. W. Vineyard. The court below excluded this deed when first offered in evidence for the reason that the affidavit of the subscribing witness did not show by what particular person the deed was signed with the firm name of “Richardson & Co.” The intervenor then called the same subscribing witness, who testified that the deed was. signed by- Richardson, and on this proof the deed was admitted over the further objection that as it was signed with the firm name it was a nullity. The plaintiffs excepted.</p> <p>No personal service was obtained upon Richardson, nor did he make any appearance in the case. The jury found that the plaintiffs were entitled to their debt and interest from the defendants, Richardson & Co., but that the land attached was the property of Vineyard, when the writ of attachment was executed on it, and afterwards became the property of the intervenor, Headen.</p> <p>The court thereupon rendered a general judgment for the plaintiffs against Moore, the other partner of Richardson & Co., with execution against the partnership property or Moore’s property; but dissolved the attachment and adjudged the land to Headen, the intervenor.</p> <p>Baldwin & Co., the plaintiffs, asked a new trial, but it was refused and they appealed.</p>

Tried below before the Hon. Wesley ■Ogden. The appellant was indicted for the theft of some six hundred dollars, gold and silver coin, the property of Amasa Turner. He was found guiltyby a jury, who assessed his punishment at seven years in the penitentiary. Being refused.a new trial, he appealed. The case was one of circumstantial evidence only. No witness •saw the prisoner take the money.

The transcript from the district court, in this case, has not reached the hands of the Beporter. The facts; however, are very fully, and doubtless very fairly, stated in the argument of counsel.

Tried below before tbe Hon. O. B, Sabin. The appellee, as administrator of J. O. Marrast, deceased, brought this suit against tbe appellant, to recover some $650, principal, money paid out and advanced for the defendant by the plaintiff's intestate, in 1859 and 1860. The suit was commenced in April,, 1867. Other Sets appear in the opinion. There being judgment against the defendant below, he appealed.

<p>1. A recognizance is not defective in form because it binds the party to appear “from day to day,” as well as from term to term. The phrase “ from day to day ” may be treated as surplusage, or it may be regarded as proper for the reason that the term of a court is but one day in legal contemplation.</p> <p>2. The true date of a recognizance was the fourth of April, 1867 ; but the scire facias recited that it was entered into at the Pall term, 1867. Held, that the recital, though incorrect, was unnecessary; and hence the error was immaterial. Nothing more was necessary than to give notice to the defendants of what had been done respecting the conditional judgment, and requiring them to appear and show cause why it should not be made final. (Horn v. The State, 3 Texas, 190, cited and approved.)</p> <p>3. This court dissents from the opinion in the case of The State v. Cox, 25 Texas, 404, in so far as it treats a scire facias on a recognizance or bail ' bond as a petition. A scire facias is the precept of the court, notifying the defendant of the conditional judgment, and commanding him to appear and show cause why it,should not be made final. No petition is necessary.</p> <p>4. Non-essential errors in a scire facias may be disregarded, or the court should order them to be amended when the defendant has appeared, and put him to the defenses allowed in Article 2884 of Paschal’s Digest.</p>

Tried below before the Hon. B. Basse. The recognizance was in the penalty of $300, whereas it was referred to in the scire facias as being for $500. The condition of the recognizance was the same in terms as that in the other case against the same appellee, reported ante 53, though the offenses charged were not the same.

Error from Robertson. Tried below before the Hon. JST. H. Davis. So far as the facts of tbis case are material to the illustration of the rulings of this court, they are clearly stated in the opinion and indicated in the syllabus.

<p>1. An indictment for disturbing public worship charged that the accused, on a day certain, “ in the county aforesaid, at the church in H., unlawfully and wilfully did disturb a congregation then and there assembled for religions worship, and conducting themselves in a lawful manner,” contrary to the form of the statute, etc. Held, that the indictment was sufficient, as it followed the statute; it was not necessary to aver the particular acts of disturbance imputed to the accused.</p>

Tried below before tbe Hon. Wesley Ogden. - The facts are shown in the opinion of the court, so far as pertinent to the rulings. A rehearing was asked and refused.

Error from Goliad. Tried below before the Hon. Wesley Ogden, The nature and material facts of this long contested litigation will be found in the report of the case in 26 Tex. R, 516, when it was before this court on a former appeal. The suit was originally brought in 1858, and the first trial of it in the court below was had in 1858, when the plaintiffs, Sevier- and wife, recovered judgment for nine-tenths of the league of land in controversy.

Appear from Victoria. Tried below before the Hon. J. J. Holt, special judge. This was an action of trespass to. try title, ia which the appellant, Peck, was plaintiff.

<p>Appeal from Navarro. Tried below before the Hon. N. Hart Davis.</p> <p>The appellant was plaintiff in the court below and brought this suit in October, 1862, against Elijah Jefifers (who died during its rogress) and his wife, the appellee, to recover a tract of land in ro county, the homestead of the defendants. The plaintiff derived his title hy purchase at a trust sale, made by virtue of a deed of trust, executed by Jeffers and wife on the twenty-fifth of October, 1859, to secure Jeptha H. Sessions and Robert R, Jackson in a judgment debt of some $1100 against Elijah Jeffers alone. Sessions was made the trustee and was empowered to sell, on default of payment, on or before August 35, 1860. The property was offered for sale by Sessions, as trustee, on the fifth day of March, 1861, when Mrs. Jeffers forbade the sale and gave notice that the deed was procured from her by fraud. The land was struck off to a bidder at $800, but the sale was left unconsummated by reason of differences between the bidder and the trustee.</p> <p>A second sale was had on the twentieth of April, 1861, and Westbrooks, the plaintiff, became the purchaser at the sum of $1895, and received a conveyance from the trustee. Mrs. Jeffers forbade this sale also. Westbrooks was the uncle of Sessions and the father-in-law of Jackson, and very intimate with both. This, with the .facts stated in the opinion, suffices to show the character of the case.</p> <p>Mrs. Jeffers filed an answer under oath, setting forth fraudulent and false promises and representations made to her by Sessions and Jackson, to induce her to join her’ husband in executing the deed of trust. The case came to a trial in March, 1867, when the jury returned a verdict for the defendants, and they had judgment ; but a new trial was then granted to the plaintiff.</p> <p>In March, 1868, the second trial was had, resulting also in verdict and judgment for the defendants. In its progress the defendants offered the deposition of one McElroy, to prove the false representations and promises alleged in Mrs. Jeffers’s answer. The plaintiff objected that she could not go behind her acknowledgment of the deed to prove that it was procured by fraud-The court sustained the objection and excluded the deposition.</p> <p>There is a very considerable volume of evidence in the record, but in view of the rulings by this court there is no occasion to detail it.</p> <p>A new trial being refused to the plaintiff, he appealed.</p>

Tried below before the Hon. George W. Smith. The material facts of this case are clearly stated in the opinion of .the court. The cause was submitted to a jury, who returned a verdict for the plaintiff. A new trial being refused, the defendants appealed.

<p>1. Article 1471, Paschal’s Digest, disallowing a motion lor a'new trial after amotion in arrest of judgment, was repealed by the enactment of’the Code of Criminal Procedure, so far as criminal causes were concerned. Hence, the case of The State v. Mann, 13 Texas, 62, has ceased to be authority to the effect that a motion for a new trial in a criminal cause cannot be heard after a motion in arrest of judgment. As the law now stands, it was error to refuse to entertain a motion for a new trial in a criminal cause, because a motion in arrest had been previously made and overruled.</p> <p>2. Appellant was indicted for swindling, under Article 2426, Pasebal’s Digest. The facts were, briefly, that appellant applied to purchase goods on credit from a merchant, stating that she lived with a planter, and had cotton in bis possession, out of which she would pay for the goods. The merchant refused to sell her the goods except on an order from the planter, whereupon she went out and soon returned with an order purporting to have been signed by tbe planter, but alleged to be a forgery. On presentation of tbe order the goads were wrapped up and placed on the counter for her, hut before they passed into' her manual possession the fraud was discovered, and the merchant replaced the goods on his shelves. The evidence was clear to the effect that the sale was agreed to by the merchant solely upon the credit of the supposed order, and in no degree upon the representations of the appellant. Held, that the indictment should not have been for swindling, hut lor attempting to pass a forged instrument, knowing it to be a forgery, as provided for m Article 2103.</p> <p>. 3. Indictment for swindling a firm styled B., K. & Co.; the evidence showed the style of the firm to be B. & K. Held, that there was a fatal vaiiance between the allegation and the proof, and the court below should have instructed the jury to acquit on account of it.</p>

<p>1. A citation tested by a deputy clerk in his own name, as deputy clerk, and pretermitting the name of his principal, is void ; and judgment taken by default on such a citation will be set asido by this court on writ of error.</p> <p>2. Article ’496 of Paschal’s Digest does not empower deputy clerks to test writs otherwise than as prescribed in Article 1431, to-wit; in the name of the clerk.</p>

Error from Colorado. Tried below before the Hon. I. B.' McFarland.- In 1860, the Buffalo Bayou, Brazos and Colorado Railroad Company surveyed the track of their road across the land of Matthews, the defendant in error. The parties failing to agree on the compensation to be paid Matthews by the company, the latter called for a commission of citizens, as - provided by law, to assess the amount.

Error from Austin. Tried below before tbe Hon. I. B. McFarland. ■' The defendants in error, administrators of E. ¡8. Buck, deceased,, were the plaintiffs below. Held: otherwise, and he excepted. The verdict was as follows: “We, the jury, find fcr plaintiff’ balance due on notes, with ten per cent. int. from maturity,” and judgment was thereupon rendered for the amount of the notes and interest, deducting the credits noted'on them.

■ Error .from Montgomery. Tried below before the Hon. John E. Kennard. ... The note and mortgage sued on were made February 7, I860, for the.sum .of. $3860.. .The stay laws of 1863 were set up by way of. abatement,of the suit; but.on exceptions to the answer by the. plaintiff, it was held insufficient. Judgment was then taken for want .of further apswer.

Tried below before the Hon. J. J. Holt. ' In October, 1866, the appellant brought this suit against H. S. Parker as the acceptor, and T. N. Waul as the drawer of a certain bill, order or draft as follows: iC $1860.

Tried below before the Hon. H. G. Pedigo. The indictment charged that the appellee, ‘‘ on the twentieth day of August, in the year of our Lord one thousand eight hundred and sixty-six, in the county of Jefferson aforesaid, did then and there wrongfully, unlawfully, wilfully, fraudulently and feloniously take, steal and carry away one certain hog, of the value of six dollars, of the corporeal personal property of one Jacob Van Wormer, from the possession of the said Jacob Van…

Error from Fayette. Tried below before the Hon. George W. Smith. Zapp, defendant in error, was administrator of the estate of Mary Craig, deceased, and in that capacity sued Homuth for $100, rent of a house and certain lots in the town of LaGrange. The justice rendered judgment for the plaintiff, and Homuth sued out a certiorari to the District Court, where he defeated the plaintiff on the merits so far as the claim for rent went.

<p>Error from Burleson. Tried below before tbe Hon. It. E. B. Baylor.</p> <p>Tbe opinion is referred to for all facts of significance.</p>

Error from Cameron. Tried below before the Hon. E. Dougherty. The facts are sufficiently stated in the opinion of the court.

Error from Fort Bend. Tried below before the Hon. I. B. McFarland. The. plaintiffs in error, Mary Cain and her husband, J. J. Cain, were sued below on a note purporting to have been made by “Mary Cheney by W. T. Heal,” for the sum of $185. Mrs. Cain was a Mrs. Cheney, previous to her marriage to Cain. She pleaded 'non est factum, under oath. Mack, the plaintiff, was allowed to prove by parol evidence that Heal was duly authorized by Mrs. Cheney to sign her name to the note.

Tried below before the Hon. I. B. McFarland. The instrument proved up by the appellant against the estate of Reese is called a “ note ” in the opinion of the court, hut was in the form of a due bill. The appellee.

Tried below before tbe Hon. O. B. Sabin.- Tbe opinion of tbe court gives a clear statement of the material facts of this case. In tbe court below tbe plaintiff, Rice, obtained a general verdict in his favor, whereon the court swarded him judgment with writ of possession for tbe lots. Failing to get a new trial the defendant appealed.

<p>1. Administrators of a deceased lunatic obtained in the probate court (as organized in 1866) a decree for money against a former guardian oí the lunatic’s property ; and afterwards, but within two years, they brought, suit in the district court on the guardian's bond to recover the amount of the decree from the guardian and his sureties. - The defendants answered that the decree was rendered without any appearance or answer by the guardian ; that the guardian was not indebted to the estate; that the decree was based on Confederate money collected by the guardian from an insolvent debtor of the lunatic; and that the guardian was entitled to credits not allowed him in the decree ; and they filed a transcript-of the proceedings of the probate court, and prayed that its decree be revised and corrected. Held, that tips line of defense was competent, the two years allowed by Article 3922, Paschal’s Digest, for the revision by the district court of the probate court’s decree being unexpired, and it being immaterial in what manner the appearance of the parties was obtained in the district court.</p> <p>2. A policy pervades our whole system of jurisprudence, which requires parties to settle all their controversies in a single suit, if practicable. (By Morrill, Chief Justice, citing Haggerty v. Scott, 10 Texas, 525 ; Ponton v. Bellows, 22 Texas, 681; and Henderson v. Morrill, 12 Texas, 3.)</p> <p>3. The defense above indicated was a direet and not a mere collateral attack upon the decree of the probaie court. (By Denison, Justice.)</p> <p>4. The Constitution cf 1868 and Article 3922, Paschal’s Digest, conferred on ■ the district court a general control and original as well as appellate jurisdiction over all matters for settling the accounts of guardians, etc.; and it was immaterial in wliat manner, and whether by writ or otherwise, a transcript of a probate court’s proceedings in such a matter was brought beiore a district court. ■ (By Denison, Justice.)</p>

<p>1. It is not absolutely necessary to obtain formal leave of court to amend a petition, unless the amendment Twill operate a continuance of the cause; in which latter case the leave must be obtained and spread upon the record.</p> <p>2. The court below having taken action on an amendment which did not operate a continuance, it will be presumed by this court that leave to file the amendment was duly obtained.</p> <p>3. With regard to amendments, the discretion of this court will only be exorcised to prevent surprise upon parties.</p> <p>4. The ends of justice are always best attained by having the pleadings to disclose, fully and accurately, the facts relied upon by each of the parties litigant.</p> <p>5. Plaintiff sued as on a note extant, of whieh he set forth a copy in his petition. Defendant appeared and pleaded to the original petition. Plaintiff recovered judgment; -but thereupon defendant made oath that since judgment he had discovered that the note exhibited m the petition was uot the note executed by him, but only a copy of it, and a new trial was granted and the cause continued. At the next term the plaintiff, without formal leave of court, and without further service on or notice to the defendant, amended his petition and alleged that the original note was lost; that the copy exhibited was a true copy of it, and that he was ready to indemnify defendant against liability on the original. Defendant took no notice of this amendment, and plaintiff .recovered judgment on the case made by it. Defendant prosecutes error, assigning that the amendment set up a new cause of action, and he was entitled to new service, etc. Held, that the amendment did not set up a new cause of action, hut only proposed to establish by different proof than the original note itself the same cause of action relied on'in the original petition; that the defendant, being already in eourfc, was not entitled to new service or further notice, but was hound to take cognizance of the amendment; and that in this ease the defendant having himself obtained the new trial, it is especially to he presumed that he took cognizance of every step in the case, being bound to be present and attend to bis new trial.</p>

Tried below before the Hon. E. Basse. Callaghan brought suit May 80, 1867, as a member of the late mercantile firm of C. Callaghan & Co., alleging that on December 24, 1864, in Matamoras one J. Y. Dortigue, being indebted to C. Callaghan & Co. $832 73 in gold and silver coin, at their instance and request, paid over to Erhard the sum of $832 73 in gold and silver coin to the credit of C. Callaghan & Co. and for their use and benefit, -which said sum the said Erhard promised…

Error from Colorado. Tried below before the Hon. I. B. McFarland. The material facts appear in the opinion of the court, but it is proper to add that the plaintiff in error was only the surety upon the recognizance of one Green, the party charged with the “larceny of a filly.”

Error from Colorado. Tried below before the Horn I. B. Me-Ear land. There being no statement of facts in the transcript, reference is made to the argument of counsel, and to the opinion of the court.

<p>Appeal from Harris. • Tried below before the Hon, George R. Scott. ’ ....</p> <p>The material facts are sufficiently stated in the opinion.</p>

<p>1. No safe-conclusion can be deduced from circumstantial evidence,-if it.be left reasonable to suppose that the circumstances themselves did not transpire.</p> <p>2. On a trial of the right of property levied on, the court below charged the jury that the plaintiff might prove his' case either by'direct evidence1 or “ by circumstantial evidence,—that is, by the proof of Such facte as Will naturally lead the mind- to that -conclusion, and will exclude any other reasonable inference.” Held, that the charge is not necessarily to be understood as requiring the plaintiff to make, out his case by circumstantial evidence of ’ so Conclusive a chat-actor as to admit of no reasona- • ble c'obclüsión to the -CCntrafy; ánd the Charge appearing to have worked ,. no. prejudiCc-tO the appellant, it is not to be error. .</p>

Error from Brazos. Tried below before the Hon. J. E. Shepard. S. O. Brasher, administrator of the estate of John Millican, deceased, brought this suit to the Spring'term, 1881, of the District Court for Brazos county. It was an action on a note for $1967, dated April 19, 1860, due January 1,1861, and executed by E. Norwood, W. J. Millican, E. B. Dawson, Sarah V. Dawson and N. C. Millican to • Brashe-t, as administrator of John Millican.

<p>1. A w’ll purporting to make plenary disposition of community real estate can operate only upon the half interest belonging to the testator, and cannot affect the interest of the other conjugal partner. .</p> <p>2. By the law of forced heirship, in force in Texas until repealed on the twenty-fourth of January, 1856, (Paschal’s Digest, Art. 3868.) a father could'not, by last will- and testament, alienate from his children more than one-fourth of his estate.</p> <p>3. See the opinion in this case for an application of the foregoing principles in a case of partition.</p>

<p>1. The statutes of this State (Paschal’s Digest, Article 4789) declare indorsers of promissory notes to be only sureties ior the maker, even after judgment.</p> <p>2. On a judgment against the maker and an indorser of a promissory note, the plaintiff sued out execution and obtained a levy on land of the maker. But on the day of sale the plaintiff postponed the sale of the land, and afterwards, when the maker of the-note had become insolvent, he sought a levy on property of the indorser. Held, that the indorser was discharged, and was entitled to have relief by injunction of the judgment and execution.</p>

<p>Appeal from Polk. Tried below before tbe Hon. Samuel A. Willson.</p> <p>Tbe state of facts is substantially shown in the opinion of the court.</p>

Tried below before tbe Hon. C. B. Sabin. In April, 1864, Converse, plaintiff below, beld a note against one Lewis, which was payable in cotton. Muter Miller, the intestate of the appellee,. was then a clerk in the office of W. J. Hutchins, Chief of the Cotton Bureau of the Confederate States.

This action was brought by the administratrix pf the estate of W. W. Ferrill, deceased, against the executors of the last will and testament of John Mooney, deceased.

<p>Appeal from Fort Bend. Tried below before the Hon. I. B, McFarland.</p> <p>Owens, the appellant, was plaintiff in the court below, and brought this action to recover an amount due him as manager or overseer of a plantation in Fort Bend county, belonging to Mason and William Briscoe. The services rendered by Owens were rendered under a contract of employment entered into by him with Mitchell as guardian of the Briscoes during their minority. The suit was against Mitchell and the Briscoes, with allegations that Mitchell was insolvent, and that the services were proper and necessary for care of the property of the Briscoes,</p> <p>The Briscoes demurred on the ground that they were.improperly joined in the suit, and that the petition showed an individual liability of their co-defendant Mitchell, and a contract on which they were not liable.</p> <p>The court below sustained the demurrer, and dismissed the cause as to the Briscoes. The plaintiff excepted and gave notice of appeal.</p>

<p>Appeal from Galveston. Tried below before the Hon. George E. Scott.</p> <p>J. O. Jones was held in custody by the sheriff of Galveston county, under a commitment from the mayor’s court of the city, for refusing to pay a fine adjudged against him for violating a city ordinance, respecting the inspection of a lot of shingles.</p> <p>He sued out a writ of habeas corpus, returnable before Judge Scott, who held the ordinance to be invalid, and consequently discharged Jones from custody. This case was an attempt to bring that decision of the judge before the Supreme Court by an appeal, and a petition and bond for writ of error also appear in the transcript.</p>

Tried below before the Hon. W. R. Eayle. At the July term, 1869, the grand jury .returned an indictment against the appellant, charging that he, “ fraudulently and feloniously devising and intending to cheat, wrong and defraud one Regina Schneider of her goods, moneys, chattels and property, unlawfully, knowingly, designedly and feloniously did falsely pretend to the said Regina Schneider that one cow and calf, then and there in the possession of her, the said Regina…

Tried below before the Hon. Wesley Ogden. Peck, tbe appellant, brought this suit against McKellar and wife to try title to a tract of land in Gonzales county. Tbe defendants claimed two hundred acres of the land as their homestead.

Tried below before the Hon. E. A. Palmer. Mary Corley died in 1847, leaving four children, who were her heirs, and also legatees under her will. Alexander MeCown was appointed-administrator of her estate, with the'will annexed.

Tried below before the Hon. Samuel Dodge. The appellant was indicted and found guilty of the theft of two valises of clothing from the Fannin House, in Houston. R. L. Anderson, the proprietor of the hotel, was the principal witness for the State.

Appear from Fort Bend.' This is an appeal taken from a decree of the court below, dissolving an injunction obtained by Edmonson against execution of a judgment against him and others, in favor of the appellee as administrator de bonis non of the estate of E. B. Bradley, deceased.

Tried below before the Hon. J. J. Holt. The facts of this case will be found in 26 Texas Reports, 372, in the report upon a former trial by this court.

Tried below before the Hon. W. ft. Fayle. The appellant was tried at the March term, 1869, for the mur-. der of Edward W. Kemp, and was found guilty of manslaughter. The jury assessed his punishment at five years in the penitentiary. He moved for a new trial on the grounds substantially disclosed in the opinion, and which, he alleged, had not come to his knowledge until after his trial. The motion was overruled, and he appealed.

<p>Error from Washington. Tried below before the Hon. B. Shropshire.</p> <p>The opinion states the material facts of the case.</p>

<p>Appeal from Nueces. Tried below before the Hon. J. B. Carpenter. ></p> <p>The facts appear in the opinion.</p>

<p>Appeal from Fayette. Tried below before tbe Hon. I. B, McFarland.</p> <p>The opinipn of the court states such of the facts as are deemed material.</p>

Tried below before tbe Hon. J. B. Hurd. The character and material facts of this case are clearly disclosed in the opinion of the court.

<p>1. Courts of probate being of special and limited jurisdiction, and created by local laws, there is no presumption of law to sustain their judgments and decrees, and their records must show an explicit and special finding of all material facts necessary to their jurisdiction and to the validity of their findings.</p> <p>2. In a suit in our courts upon a judgment of another State, rendered in an action in personam, the defendant may prove that in such action no process was served upon him, notwithstanding that the record shows - . proper process duly returned “ executed ” upon him ; and if such proof be made by the defendant, the suit cannot be maintained. (Norwood v. Cobb, 15 Texas, 500, cited and approved.)</p> <p>3. If' the record of a judgment shows that it was rendered without service of process and without an appearance of the defendant, or if that fact can be shown without contradicting the recitals of the record, the judgment ' will be treated as void in any other State, notwithstanding the constitutional provision respecting the faith and credit to be given to the judgments of the several States.</p> <p>4. The record of a void judgment cannot be made to serve as evidence of collateral facts, for such a record does not import verity.</p> <p>5. When a party is to be pursued in this State for defalcation, or waste of an estate administered by him in some other State, the proper course is to institute suit on his bond, alleging breach and all necessary facts— upon proving which there need be no difficulty in recovering judgment. But a judgment ot a probate court of the other State, rendered against him upon publication only, will not suffice either 'as a cause of action, or ns .evidence of .the breach of' his bind.</p>

. Error from Colorado. Tried below before the Hon. I. B. McFarland. This caso presents questions of importance, both as principles of law and as matters ■ of practice. The most material facts are clearly stated in the opinion of the majority of the court, delivered by Mr. Justice Lindsay; but in viéw of the dissenting opinion of Mr. Justice Denison, it is proper to relate certain other matters not adverted to in the opinion of the majority. .

<p>1. In defense to an action on notes made in 1862, it was pleaded that they were payable in Confederate money, and that the consideration had failed. A demurrer to tliS=e pleas being interposed," tbe court below sustained it, struck out the pleas, and directed the jury to return their verdict lor the amount of the notes. Held, to be erroneous; inasmuch as the demurrer admitted the truth of the matters alleged in the pleas, the judgment should have been for the makers of the note; and this court not only reverses the judgment below, but dismisses the.case.</p>

Erbob from Colorado. Tried below before tbe Hon. I. B. McFarland.1 Jones was plaintiff below and brought this action for an alleged indebtedness of $926, incurred to him by Robson under a written agreement, which is set ont in tbe petition,, but which need not be particularly described.

<p>1. Parties claiming to be heirs to an escheated estate brought a suit for it against the State Treasurer, in the district court of the county where the estate was administered. That court changed the venue to an adjoining county. The district court of the adjoining county remanded ,the ease to the county wherein it was instituted, on the ground that there was no authority of law for a change of venue in this character of oase, and from this ruling the plaintiffs appealed. Held, that the order remanding the cause was only interlocutory, and no appeal from it would lie.</p>

Tried below before the Hon. J. B. Williamson. This unfortunate appellant was convicted under three separate indictments for keeping a gaming table for the purpose of gaming, and was mulct in a fine of twenty-five dollars for each conviction. It not appearing that be profited in any respect, be naturally appealed.

Tried below before the Hon. J. B. Williamson. A recognizance was entered into by the appellee and sureties, but it named no offense, and merely alluded to a “criminal accusation” pending against him. The indictment was an attempt to charge him with an assault with intent to murder. On motion it was quashed, and hence the appeal sought by the State.

<p>Appeal from Gillespie. Tried below before the Hon. M. B. Walker.</p> <p>The opinion states the case as fully as necessary.</p>

<p>1. An indictment for unlawfully branding a steer charged that the animal was the property of Joseph R., whereas the evidence proved that it belonged to Napoleon R. Held, that the variance is fatal, and the conviction is set aside and cause dismissed.</p>

Tried below before the Hon. Thos. M. Paschal. The appellant, on the faith of his representation that B. F. Ficklin owed him $100 or more, borrowed five dollars from one Weber, with whom he was boarding for the time being. Ficklin told Weber that he owed the appellant nothing, and on being so informed Weber had the appellant arrested for swindling. The appellant then went with Weber and the officer to see Ficklin, and still claimed to be entitled to $100 or more from him.

ppeal from Davis. Tried below before the Hon. O'. T. Garland The charge of the court below was to the effect that evidence of the killing of any animal of the horse kind would -support the indictment. The charge asked by the defendant, but refused by the court, was the converse of that given to the jury. The defendant was found guilty, and a fine of one hundred and eighty dollars was assessed against him.

<p>1. On an indictment for an assault with intent to murder, the jury returned a verdict of “ guilty of aggravated assault,” and assessed a fine of $250 as the penalty; and there was judgment below in accordance with the verdict. The defendant, relying on Slaughter v. The State, 24 Texas, 410, moved in arrest, on the ground that the verdict did not support the judgment; and the same ground is relied on in this court. Held, that the verdict in this case is special, not general, and the case cited does not apply—wherefore the judgment below is affirmed.</p>

Tried below before the Hon. O. T. Garland. The material facts are sufficiently indicated in the opinion and the head notes.

Tried below before the Hon. Samuel L. Earle. The Suit was on a note for “ seventeen hundred and fifty dolla-rs,” dated November 24,1863, and due one day after date. The maker of the note, and the original defendant in the action, was John L. Lobdéll, but he died during the pendency of the suit, and R. Engledow, his .administrator, was made defendant in his stead.

Error from Houston. Tried below before the Hon. Samuel L. Earle.

<p>No papers pertaining to this ease have reached the Reporter, ex-eept the opinion of the court.</p>

Tried below before the Hon. Samuel L. Earle. The defendants in this action were R. T. P. Allen, H. V. Hamilton, D. B. Martin, James C. Curtis, W. W. Ross, Howard Allen, J. P. Border, Joseph K. Davidson, M. S. Morris and C. C. Francis.

Tried below before the Hon. Samuel L. Earle. The appellee commenced this suit for a divorce from his wife, the appellant, in March, 1869. The parties had not then been married a year. He was the survivor of two previous wives, by each of whom he had children living. She was a widow, with one child.

Error from Rusk. Tried below before tbe Hon. C. A. Frazer. The action was trespass to try title. Failing to connect with Martin, the defendants relied upon his claim and possession as an outstanding title under a presumed grant, prior and superior to the plaintiff’s. There was a verdict by jury for the defendants, judgment accordingly, and a new trial refused.

<p>Appeal from Johnson. Tried below before the Hon. John J. «Good.</p> <p>.On the twenty-fourth of February, 1866, this action of trespass to try title was instituted by the county of Milam against Rachel P. Robertson and nine other defendants, who were in possession of different parcels of a league of land in Johnson county, patented on ithe tenth of October, 1860, to Milam county as part of her school lands. The plaintiff prayed judgment for the land and for fifteen thousand dollars damages for timber, &c. By amendment the plaintiff alleged that the defendants, at the time they settled «on fthe land, had actual notice of its prior appropriation by her.</p> <p>The defendants pleaded a general denial and not guilty, and further alleged that the plaintiff’s survey was made long before the passage of the act of February 10, 1852 (Paschal, Art. 4562), and that the field notes thereof were not returned to the ■General Land Office on or before the thirty-first of August, 1853; that the plaintiff’s patent was therefore null and void, was obtained illegally, and was fraudulently issued by the Commissioner of the General Land Offiee, contrary to law and to the injury of the defendants. Five of the defendants filed other and special (answers, setting up pre-emption titles to the parcels claimed by them, A plea of limitation was also filed by the defendants, but no attention seems to have been paid to it in the further progress of the cause. The defendants charged that the plaintiff’s patent was a cloud upon their title, and prayed that it he removed and they be quieted in their possession, etc.</p> <p>The plaintiff denied the allegations of the defendants. And on this state of the pleadings the cause came to a trial at the April term, 1867, of the District Court of Johnson county.</p> <p>There was no particular, contest over the facts of the case. The pre-emptors went into possession in the year 1855, and it appeared that they took all requisite steps to perfect their claims, provided the land Was subject to be taken up by them.</p> <p>The jury found ia favor of the pre-emption titles, and for the plaintiff the remainder of the league.' The judgment of the court below quieted the possession of the defendants’ claiming under the pre-emptions, and gave the plaintiff a writ of possession for the remainder of the league. The plaintiff moved for a new trial, but it was refused, and the county appealed.</p> <p>One of the defendants, against whom there was judgment below, also brings up the case by writ of error.</p> <p>Such other facts as are pertinent to the rulings made by this court are stated an the opinion.</p>

Tried below before the JEIon. Samuel L. Earle. This suit was originally brought before a justice of the peace, by Cooper, the appellant, to recover some ten or twelve dollars subscribed by McCrimmin to the building of the bridge. Though not adverted to in the opinion, otherwise than by a quotation, this case was before this court on a former appeal, and will be found reported in 27 Texas, 113.

Tried below before the Hon. J. B. Williamson. The facts relevant to the single question decided are sufficiently stated in the opinion of the court.

Tried below before tbe Hon. J. B. Williamson. John Robertson died in tbe year 1868, and Pbilleo, tbe appellee, was appointed administrator of bis estate. Tbe appellants were creditors of tbe estate, but did not present tbeir claim to the administrator, duly probated, within one year from the issuance of tbe letters of administration. The record is voluminous and full of matters of account, but it is not necessary to state them in detail.

Error from Nacogdoches. Tried below before the Hon. Samuel L. Earle. ■ The material facts are stated in the opinion of the court.

Tried below before the Hon. Samuel L. Earle. This suit was in the nature of an action of trover, and was brought by Taliaferro to the Spring term, 1866, of Houston District Court, to recover of Cundiff the value of twenty-two bales of cotton, alleged to have been the property of the plaintiff, and to have been taken and converted by the defendant to his own use.

<p>1. The possession which, under our statutes of limitation (Paschal’s Digest, Article 4624), gives to a naked possessor full property in six hundred •and forty acres of land must be continuous for the full period of ten year*; and it seems that the naked possessor must actually reside upon the land, and not merely cultivate it for ten consecutive years.</p>

<p>Appeal from Bell. Tried below before the Hon. A. J. Evans.</p> <p>The opinion of the-Court discloses as much of the evidence as is necessary.</p>

Tried below before N. H. Wilson, Esq., sitting as special judge by agreement of parties, the judge of the court having been of counsel. The opinion of the court recites all of the facts which are deemed material in elucidation of the principles decided. The appellees were citizens and residents of Louisiana, as also was Outhbertson, the appellant’s intestate.

<p>1. An application for a new trial, made at a term subsequent to that at which judgment was rendered, is in the nature of a bill in equity, and is not governed by the statutory provisions relating to new trials.</p> <p>2. When judgment has been rendered against a defendant, and at a subsequent term he applies for a new trial, alleging a meritorious defense, and showing that he was debarred from establishing it by reason of accident, fraud, mistake, or other circumstance not imputable to his own fault or neglect, the application should he granted, even though only á primo, facie case of injustice is made apparent in the application.</p> <p>3. The assurance of the district judge, to a defendant in a civil suit, that no civil business would be transacted at that term, warranted the defendant in believing that no action would be taken in his cause, and excused his neglect of his defense at that term; and this, in connection with a prima facie showing of a good defense, entitled him at the next term' to have a new trial of the cause, which, notwithstanding the judge’s assurance, had been adjudged against him by default at the first term. But, had the assurance been made by any one other than the judge of the court, it would not have availed the applicant.</p>

Error from Wood. Tried below before the Hon. M. D. Ector. The petition alleged a hiring of slaves by the appellant from the appellee, and an indebtedness of two hundred dollars resulting therefrom; but nowhere averred or implied that any written evidence of the indebtedness had ever existed.

Error from Davis. Tried below before tbe Eon. E. P. Mabry. The returns held to be insufficient are stated in the head note.

Error from Lamar. Tried below before tbe Hon, Winston Banks. This suit was on a probated note, rejected by the plaintiff in error.

Tried below before the Hon. J. B. Williamson.' The appellees, grocery merchants in New Orleans, brought this suit against Wm. Steadham and the appellant Adkins, alleging that they were former partners in trade, doing business in Marshall under the style of Wm. Steadham & Co. The petition alleged that Steadham’s residence was unknown, and no process was issued for him. Adkins filed an answer under oath, denying that he was ever a partner with Steadham.

Tried below before the Hon. J. B. Williamson. The opinion indicates the facts. More specifically stated, however, they are that the note sued on was for $250, executed by the appellant to the appellee on the sixth of December, 1866. Three five cent revenue stamps were placed on it, with a written inscription upon them as follows: “O. J. T. to John Duncan, Dec. 6,-1866,” part of which was on each stamp.

Tried below before the Hon. Winston Bants. This was an injunction suit, in which the appellant was the-plaintiff. In his petition he represented that on the first day of [February, 1869, a judgment for costs was rendered in his favor by John II. Fowler, a justice of the peace, in a suit wherein the appellee was plaintiff and he, appellant, was defendant, which suit was then tried by a jury.

<p>Appeal from the Criminal Court of the city of San Antonio. Tried below before the Hon. V. P. Yan Antwerp.</p> <p>This was one of one hundred and seventy-five criminal causes transferred from the District Court Court of Bexar county to the Criminal Court of San Antonio by Special Orders 213, Headquarters of the Fifth Military District, State of Texas, dated at Austin, September 10,1869.</p> <p>The motion to quash set forth various causes, viz.: that the indictment did not allege that the defendant knew the purpose for which the house was to be used; that it did not state to whom the defendant gave permission to exhibit a monte hank; that it was not signed by the foreman of the grand jury; that it did not describe the house, and was too vague and uncertain to enable the defendant to plead any judgment thereon in bar of another prosecution.</p> <p>The motion being sustained, the State appealed.</p>

<p>X. Enactments of the Legislatures of this State, while it adhered to the so- , called Confederate States, are entitled to respect and enforcement, when they were not in violation oí the Constitution or laws of the United States, but were intended solely to promote the good order and well being oi society—as, for instance, the act of December 16, 1863, increasing the penalties on keeping gaming tables, etc. (Paschal’s Digest, Article 2047, et seq.)</p> <p>2. Arguments to show that a fine imposed by a statute is unconscionable in amount should he addressed to the Legislature. They cannot he considered by the courts.</p>

<p>1. The overruling of a motion to quaBh an indictment is not a judgment from which an appeal to this court cau be taken, wherefore the cause is-remanded to be prosecuted to final judgment.</p>

Tried below before the Hon. J. B. Williamson. The deed out of which this controversy arose is as follows: “ The State oe Texas, 'County oe Harrison.—Know • all men by these presents, that, I, Albert Gr.

Error from Rusk. Tried below before the Hon. J. B. Williamson. ■ The opinion clearly1 indicates the general character of the suit.

Tried below before tbe Hon. J. B. Williamson. G. G. Gregg, the appellee’s intestate, made four mortgages in tbe year 1867, on the same property. The appellant held the eldest of the four, and his was executed February 20, 1867. The second was to H. Y. Hall, on May 20, 1867the third to J. Y. Collin, on July 19, 1867; and the.last to W. W. Nesbit, on the second of August, 1867.

Tried below before tbe Hon. J. B. Williamson. The character of this case is indicated in the opinion of the court. The excluded deposition of Anderson, designated in the opinion as the bailee of the note, does not affirm that Reed, the payee, expressly empowered him to receive Confederate money.

Tried below before the Hon. J. B. Williamson. This suit was an action of trespass to try title and for damages to a tract of land in Shelby county known as the Stephen Holmes survey. The petition was filed in December, 1869, by the appellee and one Caroline E. Edgeworth as co-plaintiffs. Presley, the defendant, appeared and answered at the Fall term, 1863. At the Spring term, 1869, the appellee amended and asked leave to prosecute the suit in her own name.

Tried below before tbe Hon. M. B. Walker. The appellant was indicted at the October term, 1869, of the Criminal Court of the city of San Antonio, for burglariously entering a house and stealing therefrom a pair of gaiters, a shawl and twelve yards of merino. He made an application for a change of the venue, based on affidavits that so great a prejudice had been excited against him that he could not get a fair trial in Bexar county.

Tried below before the IIou. Samuel L. Earle. The appellant was administrator of John Tindal, deceased, who was administrator of the estate of Alexander McMillan, deceased, John Tindal made a final settlement of McMillan’s estate in 1859. The present suit was brought in 1860, in the district court, to revise that final settlement, and also sundry particular •allowances to Tindal as administrator, made by orders of the pro-hate court as early as 1856.

Tried below before the Hon. J. B. Williamson. The facts in the ease are clearly but fully condensed iu the opinion of the court. The suit was originally against Leve alone, but Erais came in as landlord of Love, and was made a party defendant.

Tried below before the Hon. J. B. Williamson. The indictment- contained two counts, in the first of which the ■appellant was charged with the murder of George Woodlin, on the first of August, 1868, by the means of a pistol. The second count charged the same ofionse by means of a bowie knife. The evidence proved that both weapons were employed by the defendant.

Tried below before the Hon. Winston Banks. The special facts of this case are not involved in the decision, which is based altogether upon the disability of the plaintiff to maintain the action.

<p>Appeal from Smith. Tried below before the Hon. Samuel L. Earle.</p> <p>The opinion indicates all facts involved in the rulings.</p>

Error from San Augustine. Tried below before the Hon. A. W. O. Hicks. This suit was instituted as long ago as 1850, and was before this court in 1857, on an appeal from a former judgment. It will be found reported in 19 Texas, 522, where, in connection with the opinion here reported, all the material facts may be found.

Error from Panola. Tried below before the Hon. J. B. Williamson. This suit was brought in 1856, by Matthew Brinson, the testator of the plaintiff in error, against James Heffner, who was the administrator of Joshua T. Gill, who in his lifetime was engaged in the business of locating lands for other persons.

Tried below before the Hon. Samuel L. Earle. ' • Article 475,-of the Penal Code, (Paschal’s Digest, Art. 2187,) ’ provides that “ any attempt to commit a battery, or any threatening gesture showing in itsplf, or by words accompanying it, an immediate intention, coupled with an ability, to commit a battery, is an assault.” The appellant was indicted for an aggravated assault and battery upon Newton Roberts.

Tried bolow before the Hon. J. B. Williamson. The leading facts of this case are stated in the opinion. Mark Stroud and Wiley Harris were plaintiffs below, and the judgment was in their favor. ' They claimed under a sheriff’s deed to themselves, based upon an execution sale of the land under a levy made upon it as the property of A. O. Whatley. The sale was made under executions emanating from two judgments, one of which was in favor of T. J. Trammell and Mark Stroud.

Tried below before, tbe Hon. George R. Scott. Robert 0.'Myers, George W. Hardy and David Myers are tbe appellants in this case. At' tbe Spring term, 1870, of tbe Dis.trict Court of Brazos county, they were .jointly indicted for the .murder of William H. Millican, alleged to have been committed on- tbe sixth of February, 1870.

Tried below before the Hon. A. B. Norton. No occasion is apparent to detail the facts more particularly than as stated in the opinion.

<p>1. In Article 3830, Paschal’s Digest, relating to official extortion, two offenses are comprised; the first of which is the charging of other fees, and the second the charging of higher or greater fees, than those prescribed by the statute.</p> <p>2. An indictment accused a county clerk of demanding “ fees greater than were or are allowed by lawand then, by way of specification, alleged that che fees charged were for certain orders for which no fees were allowed by law. Held, that the indictment was properly quashed, as the specified acts constituted a different offense than that charged.</p>

■ Appeal from San Saba. Tried below before lb3.Hon. E. H. Yod tress. This ease was adjudicated in the court below at the Fall term, 1860. As it elicits a decision by this court of an important question in the law respecting appropriations of the public lands, and one not previously and expressly determined, it is deemed well to present a full report of it. The action was trespass to try title, and Conner, the appellee, was the plaintiff below.

Tried helow before the Hon. Samuel Dodge. At the February term, 1870, of the Criminal Court of Harris county, an indictment was found and returned against Jake Johnson, John Jemison, Dock Wheeler, and Jules Mitchell, for the murder of B. W. Loveland, on the first of December, 1869.

Tried below before Hon. J. B. Williamson. This was an action of trespass to try title, instituted as long ago as 1845 by A. Sydney Johnston against D. Shaw. In 1847, Barbara C. and James F. Timmins, as executors of the' last will and testament of Thomas Timmins, deceased, under whom Shaw held possession as a tenant, made themselves parties defendant.

Heard below by the Hon. Henry Maney. The appellant was indicted at the October term, 1870, of the Gonzales District Court, for the murder of Solomon Deutscb, on or about the third of December, 1867: Being in custody of the appellee, who was sheriff of the county, be sued out a writ of habeas corpus returnable to the court then in session.

<p>1. The act of 1866, providing for appeals from justices’courts to the district, courts, does not repeal Article 1503 of Paschal’s Digest, by which executors and administrators are exonerated from giving cost and appeal bonds. The requirement of the act of 1866, that a bond shall be given, etc., is fully satisfied by the bond given by executors and administrators for the execution of their trusts.</p>

<p>Appeal from Eayette, Tried below before the Hon. T. G. Barden.</p> <p>No further statement of the case is necessary than that given in the opinion of the court.</p>

<p>1. No appeal in a criminal cause can be entertained by this court .unless there has been a compliance with the provisions of tho third section, article fifth, of the Constitution, requiring that a transcript of the record be presented within sixty days after the trial, to a judge ot this court, for his inspection and allowance of an appeal. Non-compliance with this requirement was not cured by order of this court, made after the expiration of the sixty days, and directing the transcript to be filed in ■ the clerk’s office.</p>

<p>1. In an action on notes, the defendant’s counsel had prepared a meritorious answer and had handed it to the clerk of the district court; but before it was marked filed, the same counsel withdrew it for the purpose of filling certain unimportant blanks in it. On default day, a-storm prevailing and the defendant’s counsel being in bad health, he was not present in court when the case was called; but the clerk apprised the ■court of the preparation and temporary withdrawal of the answer, and an attorney present proposed to file aii answer instanter for the absent counsel. But the court, at the. instance of plaintiff’s counsel, directed a judgment by default with writ of inquiry; at which stage of the case the defendant’s counsel appeared, and without objection by the court or the opposite party, placed his answer on file. Under direction of the court., howeyer, the writ of inquiry was executed, and judgment final rendered for the prmcipal.and interest of the notes. On the same day the defendant’s cou.nscl moved to set aside the verdict and judgment, and on the next day amended the motion and accompanied it with affi- . . davBs setting forth merits and the tacts in extenso; but the motion was overruled, and the defendant prosecutes error. Held, that the district court erred in entering the judgment by default; and that the answer should, under the circumstances, have been regarded as on file from the time it was in the hands of the clerk. Held jmther, that even if the default was properly entered, it was error, under the circumstances, to refuse to set aside the judgment and try the case, iipon the meritorious defenses alleged in the answer.</p> <p>3. Though questions of this character rest to a great degree in the discretion' . of the district courts, yet their exercise of that discretion must be held subject to revision in this court.</p>

Tried below before the Hon. J. B. Williamson. This ease manifestly.appears to be the result of family difficulties. The defendant was the son-in-law of 'W. F. Ball, the father of Taylor Ball, who was alleged in the indictment to be the owner ’ of the premises. The land had belonged to W. F. Ball, and with bis consent and assistance the defendant -built and occupied the bouse for some two years.

<p>Error from Sabine. Tried below before the Hon. J. B. Williamson.</p> <p>The facts are stated in the opinion.</p>

Tried below before the Hon. Samuel L. Earle. There is no necessity-to detail the facts of this case farther than they are stated in the opinion of the court. The pleadings in behalf of- Wynn, the defendant, v^ere filed- in his-name, but were sworn to by one of his attorneys. ■

<p>1. In an action on a written obligation, it was error to allow the defendant, . without any plea in abatement, to adduce evidence to the jury m disproof of the plaintiff’s right to sue.</p> <p>2. In a suit by an assignee of a written obligation for a quantity of corn, the court below, disregarding objections by the plaintiif, allowed the defendant to prove certain ex parle statements made after the date of the obligation, by the obligee, who was not a party to the action. Held, that this also was error.</p> <p>S. But it being pleaded by the defendant that the money paid for the corn contracted was Confederate treasury notes, which were worthless and issued contrary to law, and there being in the record ample legal evidence to sustain this defense, the errors above indicated become immaterial, and the judgment below in favor of the defendant will not be disturbed.</p>

Tried below before the Hon. James M. Maxey. The certificates of purchase, on which this action was founded, were in the following terms : “Republic oe Texas, Liberty County, No. 38.—This certificate entitles the bearer to one share in the town of Natchez, situated on the Neches river at the place formerly called Town Bluff, consisting of five lots which may be drawn to the number of this certificate, for which a good and sufficient warranty deed will be given in twelve…

<p>1. In an action on a contract, the defendant pleaded in abatement that at the time the suit was brought he was a resident citizen of a different county in this State than that in which the suit was instituted, and that he was not subject to he sued in the latter county. The plaintiff thereupon amended, and alleged that at the commencement of the suit the defendant was a transient person, having no fixed domicile known to the plaintiff; hut no allegation was made to repel the legal presumption that the defendant’s residence could have been ascertained by proper inquiry. Held, that the district court, on this state of the pleadings, should not have retained jurisdiction of the case.</p> <p>2, It was error to render judgment in favor of a plaintiff when his petition-disclosed the fact that the debt sued for was contracted to be paid in Confederate money. No species of relief will be given by the courtB of this State upon contracts of this character, whether they have been executed or remain executory.</p>

<p>1. The language of the statute (Paschal’s Digest, Art. 228,) requiring pleas impeaching the consideration of sealed instruments to be under oath, is plain and unequivocal, and the courts cannot create exceptions to its requirements; and this court has by repeated decisions settled that they are imperative and must be obeyed. Therefore, notwithstanding that a sealed instrument, shows upon its face that there was no consideration to make it binding in law, that defense must be asserted by a plea supported by affidavit, as required by the statute referred to, and is not available by means of a demurrer or exception.</p> <p>3. On the trial of an action on a bond which obligated the defendant to save the plaintiff harmless against a note executed by the plaintiff to a third party, who had sued plaintiff on the note, it was not error to allow the plaintiff to put in evidence the record of the suit against him, in connection with proof that he he had paid off the note</p>

<p>1. In the absence of any covenant to the contrary, the consideration of a note given for future occupation of a house does not fail if, before the expiration of the lease, the house be destroyed by fire, r:sulting from the act of God or of an incendiary ; though it is admitted that m the apparently analagous case of a hiring of a slave, who died before the expiration of the term, the different rule of the civil law was applied in Townsend v. Hill, 18 Texas, 428.</p> <p>2. The common law having been adopted by statute as the rule of decision iu this State, this court does not perceive how it can be ignored and conflicting principles of the civil law be applied, even though the latter possessed superior equity in the given case.</p> <p>3. Plaintiff sued defendant for fraud, alleging that the latter, in payment to plaintiff for a horse and buggy, transferred by delivery to plaintiff the promissory note of 0., which was then overdue, and represented to plaintiff that it was “ good,” but concealed from him the fact that O. had refused to pay it, and the further facts that it was given for six months iuture rent of a house which, by fire resulting from the act of God or of an incendiary, was destroyed about four months before the expiration ol the lease, whereby, it was alleged, the consideration pro tanto of the note had failed ; that plaintiff had presented the note to O. lor payment, but it was refused by 0., and plaintiff had tendered it back to defendant, demanding a rescission of the contract, but without avail. It was admitted by plaintiff that O. was solvent. Held, that the district • court did not.err in sustaining a general demurrer to the petition, inasmuch as its allegations, if true, do not raise a presumption of fraud against the defendant.</p> <p>4. Anote outstanding after maturity is already dishonored, and persons who take it are put upon inquiry as to defenses or equities which may exist against it.</p> <p>5. In the present ease as above outlined, the plaintiff, having never sued O. upon the note, cannot be assured of the untruth of the defendant’s representation that it was “ goodand he is therefore in the attitude of one who sues on covenants before covenant broken.</p>

Appeal on habeas corpus from Lamar. Heard below before the Hon. Hardin Hart. This record presents a somewhat peculiar case of homicide. The opinion of this court sums up the conclusions from the evidence in a very clear manner, but it may be proper to develop the testimony more fully. The principal witness for the State was William H. Bridge, who was the only person, besides the prisoners, and Irvine, the deceased, who was present at any stage of the encounter.

<p>Appeal from Kaufman. Tried below before the Hen. John G. Scott.</p> <p>The facts are indicated in the opinion and the head notes.</p>

Error from Red River. Tried below before the Hon. Winston Banks. The facts are made sufficiently manifest by the opinion of the court.

<p>Appeal from Harrison. Tried below before the Hon J. B. Williamson.</p> <p>The facts are indicated in the head note's.</p>

Tried below before tbe Hon. G. H. Noonan. The appellant was indicted in November, 1869, and tried in May; 1870, for tbe murder of Henry Lobl, a youth about seventeen years of age. The verdict was manslaughter, with two years in the penitentiary.

<p>Error from Kaufman.</p> <p>The facts are apparent.</p>

Tried below before the Hon. Charles Soward. • The appellant was tried for the murder of John Marshall, who does not appear to have been a relative of the accused, though they were partners in a brewery at Jacksboro. The killing took place in the latter part of September, 1870. Some difficulty, it would appear, had previously existed between the deceased and the accused.

<p>Appeal from Wood. Tried below before the Hon. Z. Horton. The facts are sufficiently disclosed in the opinion of the court.</p>

<p>Appeal from Harrison. Tried below before the Hon. J. B. Williamson.</p> <p>Reference is made to the opinion for the facts.</p>

Tried below before the Hon. Samuel L. Earle. This is an appeal from a determination of the court below of a writ of habeas corpus. The appellant, together with Gus Moseley, was charged with the murder of Duff Williams. They severed in their defenses. In the appellant’s case the jury failed to agree, and finally were discharged by the court helow, without the consent of the appellant or his counsel.

Tried below before the Hon. Samuel L: Earle. The note sued on was payable to James G-.

<p>3. In an attachment suit wherein the defendant reconvened for damages on account of the wrongful suing out of the attachment, it was error to ■ instruct the jury that the affidavit for the attachment was evidence of the alleged causes upon which the attachment was sued out.</p>

Error from Tarrant. Tried below before tbe Hon. A. B. Norton. The return on tbe citation in error commenced “came to band,” etc., and was signed “ O. JB. Murphy, deputy sheriff.” The other facts consist of omissions, and are clearly stated in tbe opinion of tbe court.

<p>Error from Parker. Tried below before the Hon! H. M. Burford.</p>

<p>1. Notice of appeal in the court below is a condition precedent to the jurisdiction of this court; and the record must show'affirmativeiy that such notice was given, or this court cannot take jurisdiction. (Paschal’s Digest, Articles 1510, 3190.)</p>

Tried below before tbe Hon. A. B. Norton. Tbe evidence is believed to be fully and accurately epitomized in tbe bead note, and it is not deemed necessary to recapitulate tbe testimony of the half dozen witnesses examined. The jury ■assessed a fine of fifteen dollars and an hour’s imprisonment in tbe county jail, against tbe accused. He moved for a new trial, and on its refusal gave notice of appeal.

<p>Error from Fannin. Tried below before the Hon. Hardin Hart.</p> <p>The judgment was by default.</p>

Error from Harrison. ' The facts are sufficiently indicated in the opinion and the head' notes. The judgment enjoined was against one J. B. Foster as his individual debt, and he was one of the plaintiffs in this injunction suit; but he was only a plaintiff fro forma, being the hus^ band of J. V. Foster, one of the legatees of Sanders, the deceased partner .of Shephard.

Error from Johnson. Tried' below before the Hon. A. B. Horton. If the unsworn petition of Myers may be believed, he was a badly used man. He says that in June, 1865, Menifee sold him a wagon and harness, for which he, Myers, was to pay some one hundred and twenty-six bushels of wheat; for the value of which wheat Menifee subsequently obtained judgment against him in the county court, under the jurisdiction conferred on it by the Constitution of 1866.

Tried heloiy before the Hon. G. H, Noonan. The defendant found and took up the horse in Guadalupe county, a few hundred yards from the Comal county line. The jury found him guilty of theft, and assessed his punishment at seven years in the penitentiary. The evidence is fully indicated in the opinion of the court.

<p>1. An indictment was sufficiently certain and specific which, stating time and place, alleged that the defendant, “one bay horse of the value of one hundred dollars, not of his own property, but of the property of some other persou, to the grand jurors unknown, which said bay horse was then and there an estray, did take up and use, without first complying with the laws regulating estrays, contrary to. the statute,” etc.</p> <p>2. The defendant excepted to the indictment because it gave the initials only of his Christian name, without alleging that the name was unknown to the grand jurors. The exception itself did not state what-the Christian name was. Held, that it was error to sustain the exception and quash the indictment.</p>

<p>Appeal from Dallas. Tried below before the Hon. A. B. Norton.</p> <p>The facts are appai’ent.</p>

<p>Error from Dallas. Tried below before the Hon. A. B. Horton.</p> <p>The facts are stated in 'the opinion and the head note.</p>

<p>1. When there had been joint administrators on an estate, snit could not be maintained against one of them and tho sureties on the joint bond, no legal cause being shown for not joining tho other administrator; and in the present case, brought against one only of joint administrators, this eour'i not only reverses the judgment by default in favor of the plaintiff, hut dismisses the suit. (Paschal’s Digest, Art. 1449.)</p> <p>3. When an administrator and the sureties on his bond have been jointly sued, it is error to permit the plaintiff to dismiss as to the administrator and take judgment by default against the sureties.</p>

Tried' below before the- Hon. J. J. Good. This cause has been ably and persistently contested. The present is the third decision of it by this court, re-hearings having been obtained after the first and second determinations of it. Upon each trial of it, however, the result has been the same, although Mr. Justice Lindsay, upon the second hearing of the case, delivered an able dissenting opinion. Goldsmith, the appellant, was the plaintiff below.

Tried below before the Hon. C. T. Garland. The defendant was found guilty of theft from a house, and the jury awarded him four years in the penitentiary, but no judgment was rendered on the verdict, so far as appears by the transcript.

<p>1. It was error to permit a plaintiff to amend bis petition after he had taken judgment by default, and without having the default set aside.</p> <p>2. Citations are materially defective and wholly insufficient to authorize a judgment by default, unless they contain the names of each and every defendant in the cause.</p>

Tried below before the Hon. O. O. Binkley. The facts are sufficiently stated in the opinion of the court. The rulings here made comprise the principles which the refused charges, asked by the defendants, proposed for submission to the jul7-

Tried below before tbe Hon. A. B, Horton. The opinion of the court states all material facts. The abatement of the attachment was duly excepted to by the plaintiffs, who subsequently recovered judgment in personam against the defen- ' dant. There were three cases between these parties, but they presented the same state of facts, and were all disposed of by the present decision.

<p>Appeal from Balias. 'Tried below before the Hon. A. B. Norton.</p> <p>The opinion gives a clear statement of the material facts.</p>

Tried below before the Hon. E. P. Woods. , The character of this case and all material facts are disclosed in the opinion of the court.

Error from Colorado. Tried below before the Hon. L. Lindsay. The defendants in error were tbe plaintiffs in the court below. The action was trespass to try title to certain lots in the town of Columbus, which were claimed and held by tbe defendants, J. R. Brooks and James Carlton, under title from Reuben Bonds, to whom, in consideration .of three thousand dollars, Mrs. Stuteville, the tenant for life, bad assumed to make a conveyance in fee.

Tried below before the Hon. G. H Noonan. Crawford brought this suit on the twenty-sixth of July, 1869, on two promissory notes of the defendant, Bender, one for $209, made September 22, 1858, and due four months after date, and the other for $612, made September 7, 1859, due at ninety days. The statute of' limitations of four years was set up by exceptions to the petition.

Tried below before tbe Hon. Samuel L. Earle. Conrad Renn, a native of Germany, died at Rusk, in Cherokee county, on the twenty-fourth of December, 1864. On tbe seventeenth of tbe same month.be executed his last will and testament, attested by three subscribing witnesses. He bad no immediate family, but left brothers and one or more sisters, residents of Germany or elsewhere.

■ Appeal from Bowie. Tried below before the Elon. A. H. Latimer. .This was a suit instituted in January, 1867, by the appellants against Henry Roberts, to recover some thirty-one hundred dollars and interest, alleged to be due from the defendant, by a note given in 1865, for the purchase money of a tract of land bought by him in 1857, from the plaintiffs. An enforcement of the vendor’s lien was prayed for..

Tried below before the Hon. A. B. Norton. The head note, it is believed, presents fully, though much condensed, the allegations of the petition, so that'a reiteration of -the latter here would serve no useful purpose.

Error from Victoria. Tried below before tbe Eon. Wesley Ogden. The facts in this case will be found in the brief of counsel for the defendant in error, which is inserted at considerable length in view of the useful collocation of Texas authorities touching injunctions, which it contains.

Error from Dallas. Tried below before the Hon. A. B. Horton. The facts are substantially disclosed in the opinion of the court, The execution was issued in July, 1861, returnable to the then ensuing November term of the court.

Error from Jackson. Tried Below Before the Hon- Wesley Ogden. Suit ou a note for $500, made in 1862, by O. M. Flournoy and! James Devers, defendants below, to Marx and wife. The defense was that the note was for Confederate money, which, defense, the application for continuance alleged, could Be established by one R. S. Flournoy, a citizen of Jackson county, who was then confined By a serious wound so as to be disabled from attendance on the-court.

<p>Error from Karnes. Tried below before the Hon. B. E. Keal.</p> <p>The fact3 are indicated in the opinion of the court.</p>

Tried below before the Hon. George H. Noonan. After instructing the jury that “all property acquired during marriage is community property; and all community property is subject to the control of the husband so long as the marital relation subsists,” the court below charged them further, as follows: “ If, however, you believe from the testimony that Marie Leroux had control and exclusive possession of the articles described in the indictment; that she owned and claimed them…

Tried' below before the Hon. D. D. Claiborn. The material facts are disclosed in the opinion. Two years confinement in the penitentiary was the penalty assessed by the-jul7-

<p>Appeal from Wharton. Tried below before the Hon. I. B. McFarland.</p> <p>The facts are sufficiently shown in the opinion of the court.</p>

Tried below before the Hon. Wm, II. Russell. The character of this case is- clearly indicated in the opinion of the court and in the head notes.

Error from Karnes. Tried below before the Hon. J. B. Hurd. This case was before this court on a former occasion, but was disposed of then on a question of practice. (31 Texas, 366.), The facts are sufficiently disclosed in the opinion delivered on the present occasion.

Error from Victoria. Tried below before the Hon. Wesley Ogden. The material facts are stated in the opinion. The suit was originally instituted by Wheeler, but he died, and Davidson, the defendant iu error, became his administrator, 'and as such was made plaintiff in the court below.

Tried below before tbe Hon. T. H. Stribling. The judgment of the justice of the peace against tbe appellants as garnishees was rendered on April 17,1867. Their.petition for injunction was filed August 23,1867. Besides praying injunction it asked for a certiorari to the justice of the peace.

Error from Bexar. Tried below before the Hon. T. H. Stribling. The facts involved in the rulings are shown in the opinion.

<p>Appeal from Karnes. Tried below before the Hon. J. B. Carpenter.</p> <p>The facts of the case are clearly stated in tbe opinion of the court.</p>