Volume 34 — Texas Reports

Error from Bexar. Tried below; before the Hon, T. EL Strife-ling. This was a case of certiorari, brought by the city of San Antonio against Clements, who, in 1859, had recovered a judgment in a justice’s court against the city, upon interest coupons, amounting to some seventy dollars, detached from a bond for $1000, being part of $50,000 subscribed by the city to the stock of the San Antonio and Mexican Gulf Railroad Company, under the act of September 5, 1850.

Tried below before the Hon. T. C. Barden. Peticolas, as administrator of the estate of R. W. Montgomery, •deceased, brought this action in December, 1869, against Truman Phelps and Quincy Davidson, administrators of J. 0. Wheeler, deceased. The cause of action was a bill of exchange, dated Victoria, Texas, June 1,1860, for $1500, payable January 15,1861, and drawn by T. Phelps in favor of said Wheeler, by whom it was indorsed to Nelson Clements, who indorsed it in blank.

<p>1. By Article 1045, Paschal’s Digest, it is provided that no suit can be maintained against a county “ unless the claim upon which such suit is founded shall have first been presented to the county court for allowance, and such court shall have neglected or refused to audit or allow the same.” The presentation to the county court, thus required, is a condition precedent and indispensable to the right to sue the county; and the petition will be demurrable unless it avers such presentation and disallowance.</p> <p>3. In no other mode than by draft is a district judge authorized to direct the payment of money out of the county treasury. (Paschal’s Digest, article 3399.) An account of a sheriff for services and expenses at a term of the district court, although allowed and approved by the district judge, is no such certificate or warrant as would authorize the county treasurer to pay money out of the county treasury; and on the refusal of the county treasurer to pay such an account no right of action against the county would accrue.</p> <p>3. A sheriff’s account for expenses, etc., cannot be verified by his official certificate as sheriff, nor can he swear to it in his official capacity. It is an individual matter, and must be verified by Ms oath as an individual. ' (Paschal’s Digest, articles 3391, 3393.)</p>

Tried below before the Hon. A. B. Horton. The indictment was for the theft of a mule. The defendant applied for a eontinuancé, which being refused by the court he refused to plead or announce for trial; whereupon a plea of not guilty was entered for him by order of the court, and the trial progressed. The jury found him guilty and assessed his punishment at fifteen years in the penitentiary.

<p>Appeal from Victoria, Tried Below Before the; Hon. Wesley Ogden,</p>

<p>Plaintiff brought suit on a promissory note in the county court (as organized under the Constitution of 1866), but judgment was there rendered against him, and he failed to perfect his appeal to the district court. Petitioning for a certiorari, he alleged that Ihe note was just and unpaid, and represented that he was not present at the trial in the county court, on account of feeble health, old age, and his residence in are-mote portion of the county; that a letter from his attorney advising him of the judgment of the county court had miscarried, and he had not otherwise heard of the judgment until too late to give the bond for appeal. Reid, that the petition disclosed all the diligence requisite under the circumstances, and there was no error in overruling the defendant’s motion to dismiss the certiorari. (Norris v. Rhodes, 25 Texas, 627, tcited by the court.)</p>

Triéd below before the Hon. George H. U,oonan. This case was decided in the court below at the October term, 1870. For all professional purposes the opinion of this court states the material facts. Should fuller information of the enterprise. which engendered the litigation be desired, it can be had in the report of the similar case to be found in 28 Texas, 19.

<p>Appeal from Harris. Tried below before the Hon. James ,'Masterson.</p> <p>The facts of the case are sufficiently stated in the opinion of •the court, where will also be found the former statutory provisions on which home of the -rulings ,are predicated.</p>

Tried below before the Hon. George H. Noonan. The indictment alleged that “Martin Bradley, on the thirteenth day of the month of June, in the year of our Lord one thousand eight hundred and seventy, in said county of Bexar, unlawfully, with intent to injure one P. C. Ankerman and one H. D. Bonnet, with force and arms in and upon the said P. 0.

Tried below before the Hon. W. K. Fayle. This appeal was from a judgment final on a forfeited bail bond entered into by the appellants on the twenty-eighth of November, 1867, before J. G. Tracy, recorder of the city of Houston. On appearing to the scire facias, the appellants alleged that Mr. Tracy was not recorder, and had no authority to take the bond— the implication being that his appointment to the .office by the military authority of the United States was not valid.

<p>1. The Revenue acts of August 15, 1870, (Pamphlet acts of 1870, 199, 201,1 have especial reference to the levy, assessment, and collection of taxes and have no relation whatever to the penal laws of the State.</p> <p>2. The revenue laws of August 15, 187Q, above referred to, require that persons engaged in the sale of spirituous liquors shall.first pay a certain tax and obtain a license, and that, if they neglect so to do, the sheriff shall eniorce the payment of the tax, with ten" per cent» to cover cost, etc. Held, that these provisions do not repeal nor conflict with article 2075, Paschal’s Digest, which is a penal enactment, declaring it an offense to retail liquors without license, and providing for the punishment thereof.</p> <p>¡X. On trial of an indictment for retailing without license, which laid the time of the offense as December 9,1870, the court below charged the jury that the fine was not less than one hundred nor more than two hundred dollars ; and the jury assessed the fine at one hundred dollars. Held, that the law charged by the court had been repealed by the act of 1868, and the penalty changed to not less than fifty nor more than two hundred and fifty dollars; and as the jury, if correctly instructed, might have assessed a less fine than they did, the judgment must bo reversed for the error indicated.</p>

<p>Plaintiff sued on .a written undertaking of the defendant to pay him two hundred dollars, on condition that the plaintiff would settle a certain ,lawsuit of a third party against the defendant, or ,on the alternative condition that the defendant should recover a judgment in the law suit which would free him of all damages and costs. Plaintiff alleged that the defendant had recovered a judgment in the suit, which freed him of all damages and costs. Held, that the instrument not being under seal, and not being a bill of exchange or promissory note, negotiable by indorsement or delivery, it was not such an instrument as implied a consideration ; and as no consideration was expressed on its faee, it was necessary for the plaintiff to aver and prove a good or valuable consideration in order to maintain his action. Had he averred and proved that he had settled the law suit, or that it was by his services that de- ' Pendant had recovered the judgment, then a cause of action would have been established ; but the mere recovery of the judgment by the defendant himself was no consideration for the promise to the plaintiff.</p>

<p>1. A trustee being about to sell land conveyed to him by a debtor in trust to pay debts, he was enjoined from selling by a third party, who claimed to be a prior incumbrancer. Held, that the injunction was one whereby the “ collection of money was enjoined,” within the meaning of article 3935, Paschal’s Digest.</p> <p>2. If an injunction improperly restrained the collection of money, the district court, on dissolving it, was bound to adjudge against the plaintiff the ten per cent, damages awarded by the statute above referred tp; and it is immaterial whether the injunction was granted on the prayer of the debtor, or upon that of a third party. The ruling to the contrary in Carlin v. Hudson, 12 Texas, 202, controverted and overruled.</p> <p>3. Though there may have been no necessity for submitting to a jury the question whether an injunction had been obtained for delay, yot the district court had the right to adopt that mode oi ascertaining that or any other fact pertinent to the case ; and the fact that it was obtained for delay being thus established, the amount of the damages was fixed by the statute.</p>

<p>1. In a controversy respecting boundaries, declarations of disinterested parties, since deceased, who were in a position to know the line, are competent evidence.</p> <p>2. Declarations of a former owner, since deceased, who, while in possession of and claiming the land, pointed out his corner and line to the deposing witness, are evidence of the boundary in behalf of parties claiming under him. See the opinion of the court for authorities in support of this proposition.</p>

Appeal-from Karnes. Tried below before the Hon. J. B. Hurd. This action was trespass to try title to two leagues of land situated on the east side of the San Antonio river, and now in the. connty. of Karnes, which had been granted to Victoriano Zepeda by the Mexican government. The plaintiffs were the heirs of Philip Dimmitt, deceased.

Appeal ■ from Harris. Tried below before the Hon. James Masterson. Held: designating certain directors; and the witness Shepherd was asked whether he was the owner of any of the bonds, and whether the suit had been brought at his request. The plaintiff objected to these questions on the ground of irrelevancy, and the court sustained the objection, to which the intervenor excepted.

<p>Under the previsions of the Code of Criminal Procedure, no person can be conyicted of crime upon the uncorroborated testimony of an accomplice. (Paschal’s Digest, article 3118.)</p>

Tried below before the Hon. I. B.. McFarland. On an indictment for the theft of a gelding, the defendant was convicted by the jury of “horse stealing,” and his punishment was assessed at five years in the penitentiary. The accused examined a witness as to his, the defendant’s, general character for honesty.

<p>On a trial for theft the State wholly failed to prove the time at which the offense was committed. " Held, that for this deficiency in the proof, the' ■ ■ judgment-must be reversed, and the cause remanded for a new trial.</p>

Tried below before the Hon. I. B. McFarland. ... ... ■ This was a case of malicious mischief, the appellant being prosecuted for shooting and wounding a certain cow, with intent to injure the owner, one Henry Dancy. In the justice’s court the appellant was fined six dollars and costs, amounting to some twenty dollars.

<p>No such offense is known to the criminal law of this State as “ shooting with intent to kill and morder.” A bail bond, therefore, conditioned for the appearance of a.party to answer such a charge, is bad, and should have' been quashed on motion of the obligors.</p>

'Appeal from lied River. . Tried below before the Hoü. Winston Banks. ; The petition for the certiorari, instead of entitling the case in ■the name of the nominal plaintiff, mentioned it as the ' suit of ■Clark, the usee, against the petitioner. Exhibits with the petition, however,' fully identified the suit mentioned with that set out in the transcript from the justice’s court.

<p>' "A married man and a colored woman, not his wife, lived together for a series of months, in the same room, wherein there was but one bed, and with no other attendant but a small child : Held to be strong evidence of cohabitation in adultery, and sufficient to warrant a verdict of conviction.</p>

The transcript of this cause, which was an action of trespass to try title, was brought up by appeal in 1861, but the appeal was not decided until October, 1869, when the judgment below was affirmed. This court was then composéd of five justices, two of whom had recused themselves in this case.

<p>Appeal from Fannin. Tried below before the Hon. W, H. Andrews.</p> <p>The facts of any significance are apparent. The recognizance contained no further description of the offense charged than that given in the head note.</p>

<p>Appeal from Johnson. Tried below before the Hon. Charles ■ So ward.</p>

<p>. 'Appeal from Brazoria. Tried below before the Hon. George E. Mann.</p> <p>Indictment for theft of a mare. There is no occasion to give particulars.</p>

<p>The courts of this State will admit a promissory note in evidence, although no revenue stamp has been placed upon it—leaving it to the United States to collect her own revenues, without assuming to regulate the law of evidence in the different States.</p>

<p>The ruling in Higgins v. The State, decided at this term (ante 137) reiterated, to-wit; that when, under section twelve of the act of August 13, 1870, an appeal has been taken , either in a civil or criminal cause, from a justice’s court to a district court, the judgment of the latter court is final, and no appeal lies to the Supreme Court.</p>

<p>Appeal from a recommitment ordered .by the Hon. I. N. Everett, on hearing of a writ of habeas corpus.</p>

Error from Harris. Tried below before the Hon. George B. Scott. The general character and outline of this case are sufficiently indicated in the opinion of the court. As the case, however, is somewhat peculiar in its facts, and as the questions involved are important and of frequent recurrence, it is deemed well to insert the able and interesting briefs of the respective parties at considerable length.

Tried below before the Hon. T. 0. Barden. The plaintiff Brown was killed shortly after the institution of this suit, and his administrator was made a party, and prosecuted the suit to trial. The property transferred by Brown to the Tylers consisted mostly of live stock. Brown prayed for and obtained an injunction, restraining the defendants from disposing of any of the property.

<p>Appeal from Fayette. Tried below before the Hon. I. B. MoFarland.</p>

<p>Appeal from Red River. Tried below before the Hon. Winston Banks.</p>

Tried below before the Hon. James E. Shepherd. The evidence alluded to in the opinion of the court was substantially as follows: M. Weir testified, for plaintiff, that in the spring of 1862, while Waller’s Battalion was camped near Cuney’s, witness heard J. Gr.

Tried below before the Hon. N. H, Davis. The facts of the case are clearly stated in the opinion of the court. The professional relation between the garnishee and his client appears to have been still subsisting. On the answer of the garnishee the court below dismissed the proceeding against him, and this is assigned as error.

<p>1. In his affidavit for a first'continuance, on account of absent witnesses, the defendant stated, by way of showing diligence, that he had subpcenas issued for the witnesses as soon as the indictment was found, and further that he had placed them in the hands of the sheriff, who had not returned them so as to enable defendant to state whether they had been served or not-; but the affidavit failed to state the date of the subpoenas, or the time when they were placed in the sheriff’s hands. The witnesses lived within the county, and defendant, having been on bail, could have gone after them himself. Reid, that the affidavit did not show the diligence required by the statute. It might be true in every respect, and yet it might also be true that the subpcenas, though issued as soon as the indictment was found, had been withheld from the sheriff until the case was. called fer trial.</p> <p>2. It is to be expected that in applying for a continuance a party will state the facts as strongly as possible in his own favor, and therefore presumption in his behalf cannot be indulged.</p> <p>3. With respect to a first continuance for want of an absent witness, however true it may be in civil causes, and to a certain extent in criminal ones, that if the application complies with the terms of' the statute, the court has no discretion to refuse it; yet this doctrine is not to be understood to deprive the court, in criminal causes, of the exercise of a sound discretion in determining the question of diligence, or in deciding upon the materiality of the facts alleged to be within the knowledge of the absent witness. The intimation to the contrary in Jenkins v. The State, 30 Texas, 444, is obiter dictum, and not recognized as law.</p> <p>4. The usual instruction respecting “ reasonable doubts” is warranted only in eases whore the evidence suggests a doubt; and even in that class of cases, unless the defendant asked the instruction and the court refused it, he has no cause to complain of its omission.</p>

Tried below before the Hon. I. B. McFarland. This was an injunction suit instituted by the appellee against James W. and Harriet A. Jenkins, and T. A. Baker, sheriff of Washington county, to restrain execution in favor of J. W. and H. A. Jenkins against one W. B. Lipscomb and petitioner McNeese, emanating from a delivery bond executed by Lipscomb as principal and McNeese as surety.

Tried below before the Hon. H. 0. Pedigo. This case, presents the record of a contest in the district court respecting the validity of two wills, executed by Hamilton Washington, the testator, one purporting to have been executed on the nineteenth of May, • 1860, and leaving his entire estate to his sister, Mrs. Mary H. Beazley, and the other executed on the sixth of June, 1868, by which he bequeathed pretty much all of his estate to Wm. B. Denson, the appellant.

Tried below before the Hon. ¿Fames Masterson. This litigation arose upon the following instrument: ' “ Oct. 9th, 1863. I this day sold to Samuel Fox ten bales of Oreen M. Woods’ cotton, to be baled by Green M. Woods, at 35 cents per pound. I also received 1000 dollars in Confederate money on the said cotton, the balance to be paid by Fox when the cotton is ginned and weighed. (Signed) “ Wm.

<p>1. When manifest error is apparent on the face of the record, and is admitted by the appellee, hip motion to dismiss the case for want of prosecution will not, it seems, be granted under ordinary circumstances.</p> <p>3. The 'rule that more damages cannot be recovered than are claimed by the plaintiff, applies to awards by appraisers, appointed under a railway charter to determine the compensation duo to owners of land taken by the company for its road.</p> <p>3. The charter of the Houston Tap and Brazoria Railway Company, passed in 1856, provides for the appointment by the district court of appraisers to determine the compensation due to owners of land taken by the company for its road, such appraisement to be reported to the court, and if confirmed, to be made a judgment thereof. Held, that this provision is not in conflict with the constitutional guarantee of trial by jury, or otlier constitutional provisions. (Railway Company v. Perris, 26Texas, 588, cited by the court, and approved.)</p>

Error from Yietoria. Tried belo-w before the- Hon. J. J, Holt. i This suit was instituted in Gro-liad county in 1861. but the venue-was changed to Yietoria. The evidence was voluminous, and the facts of quite a complicated character, not explicable without plats, etc. But in view of the rulings,- they are not important.

Tried below before the Hon. Samuel Dodge. The tallow factory in question was “ two or three miles west of Galveston,” according to the statement of facts; and was directly on the line of the Galveston, Houston and Henderson Railroad. Many witnesses were called on each' side. Their olfactories did not agree very well.

Error from Bexar. Tried belo-w before the Hon. Thomas H, gtribling. The somewhat peculiar features of the proceedings in error in this case are disclosed in the opinion of the court, and also in the head notes.

<p>Error from Fayette. Tried below before the Hon. T. C. Barden.</p>

.Tried below before íhe Hon. I. B. McFarland. The judgment of the district court appealed from was rendered against Swearingen as administrator of M. A. Drake’s estate, and recites that he accepted and gave notice of appeal.

<p>1. A plea of coverture, interposed to a petition on a contract, is a plea in abatement of the writ, and must, therefore, be verified by oath.</p> <p>2. To an action on a written contract the defendant pleaded that fraud was practised upon her by her own attorney, in substituting the contract sued on in place of a prior one between her and the plaintiff. Held, that this plea, being in substance a denial of the contract, was tantamount to a plea of non est factum, and as such it should have been verified by oath.</p> <p>3. To suit by a mechanic on a building contract, the defendant answered that she had the house built for a house of prostitution, and that plaintiff, when he undertook and erected the house, well knew such to be its destined use, contrary to good morals, etc. He'd, that the answer was frivolous—there being no allegation that the plaintiff was to be concerned or interested in the contemplated illegal uses of the building.</p> <p>4. Pending suit by a mechanic to enforce his statutory lien on a house erected by him for a lessee of a town lot, the landlord of the lessee removed the house to a different lot, claiming the right to take it for rents due him, and because it was a nuisance on the first site, anil alleging that his outlays in removing and refitting the house were a certain amount which should be" first refunded to him from the proceeds, in preference to any lien of the plaintiff. Held, that the court below correctly disregarded these pretenses of the landlord, who acted lis pendens, and must abide the result of the suit.</p>

Tried below before the Hon. A. B. Horton. W.. B. Hays, the appellee, was plaintiff in the court below.

<p>Neither the petition nor citation in error stated the residence of either the plaintiff or the defendant, and the citation was served on the defendant’s attorney, without any cause shown why the service was not on the defendant in error himself'. Held, that the service is defective, and is insufficient to confer jurisdiction on this court.</p>

Tried below before the Hon. George It. Scott. . The bequests of David Webster, out of which this litigation grew, will be found in the report of the case of Webster v. Heard, 32 Texas, 685, where are also stated the facts in connection with the -probate of the will. The property in controversy in this suit ,was seven lots in block 255 in Galveston.

<p>1. The defense of limitation cannot be interposed by general demurrer; but by a special demurrer, or by special .exceptions, it is available, when the petition itself shows the cause of action to bo barred.</p> <p>2. In 1850 a vendor of land executed his bond to make title to his vendee on the final payment, in three annual instalments, of the purchase money; 'and at the same time the vendor delivered possession of the land to the vendee, who thereafter held the actual and peaceable possession and enjoyment of the land until- suit brought by the vendor’s administratrix in 1866, for rescission of the contract and recovery of the land. Meld, that in the absence of proof to the contrary, the presumption would be legitimate that the vendee had fully paid the purchase money and was-entitled to an absolute deed. (Walker v. Emerson, 20 Texas, 707, and other cases, cited by the court.)</p> <p>3. In the case of Crawford v. Bender, decided at the present term, (33 Texas, 745,) this court has already fully recognized and sustained the provision in the Constitution of 1869, (article twelve, section forty-three,) whereby it is declared that the statutes of limitation were suspended during the period between January 28, 1861, and the adoption of this Constitution by the Congress of the United States,</p>

Appear from Colorado. Tried below before the Hon. L. Lindsay. In seventh Texas Reports, 259, will be found the ease of Howard v. Perry, involving the “ Hibbens title ” to the league of land referred to in the instrument sued on in this case.

Tried below before the Hon. L. Lindsay. Duer alleged that the damages occasioned to his plantation by the proposed road would amount to $2000, whereas only $120 had been awarded. As usual in such controversies, there were allegations of intermeddling and of improper influences; but the damages seemed to be the real grievance.

Error from Washington. Tried below before the Hem. H. E B. Baylor. This cause was tried in the court below in the Spring of 1859. and was brought to this court by writ of error during the same year.

Tried below before the Hon.- J. B. Williamson. The appellant was convicted of an aggravated assault, on an indictment for an assault with intent to murder.

Tried below before the Hon. George R. Scott. The appellee sued for $2500, proceeds of machinery consigned by him to appellant in the year 1859, and alleged to have been sold for account of plaintiff. The petitioner alleged that by two letters written to him on the third of July and the twelfth of September, 1860, by the defendant, the latter had acknowledged the sums of $1000 and $1500, to be due the plaintiff on account of the machinery.

<p>By an admission oí the correctness of an account, though accompanied with a claim that it had been paid, the burden, of proof is deroived on the debtor to establish payment.</p>

Tried 'below before the Hon. 'T. C. Barden. • A clear • though compendious statement -of the most important features and facts of this case will be found, in the opinion of the court. The items constituting the account of Donnell, the plaintiff, covered the series of years from 1858 down to 1866, both those years inclusive.

<p>Error from 'Colorado. Tried below before the -Hon. L. Lindsay.</p>

Tried below before the Hon. James Masterson. The facts of this case, so far as they are involved in the demurrer or necessary to an understanding of the opinion, are believed to be fully comprehended, though greatly condensed, in the head note— with the exception of the causes of demurrer assigned by the defendant. But as these causes are clearly disclosed in the arguments of the counsel, there is no occasion to insert them here.

<p>Appeal from El Paso» Tried' Below before John G. Atkinson, Esq., sitting as a special judge.</p> <p>The district judge, it appears, was disqualified, from some cause, from sitting in this case, and by consent' of the district attorney and the defendant, it was tried- by John G. Atkinson, Esq., as special judge.</p> <p>The defendant was a colored soldier, and was indicted for the-murder of a Mexican. The verdict was murder in the first degree.</p>

<p>Error from Travis. Tried below before the Hon. J. P. Richardson.</p> <p>Suit before a justice of the peace for the value of certain furniture, and for damages, brought by Page against the plaintiffs in error. The plaintiffs in errorr being cast in the justice’s court, took the case to the district court by writ of certiorari. The district court dismissed the certiorari, on motion of Page, the plaintiff. The defendants obtained a writ of error with the view of having the judgment of the district court revised by this court.</p>

Tried Below before the- Hon. Ji B. Williamson. The indictment was for an assault with intent to murder. The opinion of the court indicates the- facts disclosed by the record, so far as they have any pertinency to the rulings;

Error from Harris. Tried below before the Hon. George B. Scott. On the 30th of November, 1866, George Ball and others recovered in the Harris District Court a judgment against L. A. Bryan, for some $3200. No execution for the judgment debt issued until July 4, 1868, nearly twenty months after the rendition of the judgment. Botts became the purchaser of certain lots in Houston, at a sheriff’s sale made under the execution issued at the latter date.

Tried below before W. B. Brack, Esq., special judge. Moreland instituted this suit in March, 1868, against Robert Atchison and his wife and children, for the purpose of annulling a voluntary conveyance made to the latter by Atchison in the year 1858. The petition refers to a certain suit for debt, brought by Moreland against Atchison in 1855, and still pending when the conveyance was made.

. Appeal from Harris. Tried below before the Hon. James Masterson. In July, 1868, this action of trespass to try title to a lot in the city of Houston was instituted by Hudson, the appellant, against Mrs. ■ Wheeler, the appellee, who was the widow of Daniel (1.

<p>In 1866, the plaintiffs sued the defendant, alleging that, on the 30th of March, 1863, they had loaned him §21,000 in Confederate treasury notes, of the value of $2500 in lawful money; and that they had, at the same date, sold to him certain designated quantities of bagging and rope, worth $4300 in Confederate notes, then current and of the value of $2150 lawful money. At a subsequent term, the plaintiffs amended and ignored the Confederate note features of their original petition, but alleged that on the first of March, 1863, they had sold to the defendant the same quantities of bagging and rope, worth $2150 lawful money. No notice of this amendment was given to the defendant, and judgment against him was taken by default. Held, on error, that the original petition set up a cause of action on which no suit can be maintained; and that the amendment set up a new cause of action, on which it was error . to render judgment by default without service of copy or citation.</p>

Cross-appeals from Travis. Tried below before the Hon. J. J'. Thornton. This action was brought by PheIps-& Johnson against Zuschlag, in November, 1858, on five promissory notes, executed November 13, 1858, and aggregating $1202 25. The pleadings subsequent to the petition were numerous, voluminous and replete with repetition.

<p>1, The revenue laws of the United States were suspended in the insurgent States during the rebellion ; and in many if not all instances, the acts of citizens of the insurgent States, done in forced compliance with the authority temporarily dominant therein, must be held valid.</p> <p>8. A judgment rendered in 1869 in a suit brought in this State in 1863 is not erroneous because no United States revenue stamp was affixed to the petition or other pleading or process in the cause.</p>

Tried below before the Hon. J. P. Richardson. The opinion states the essential facts of the case. The evidence, however, further showed that Billingsly, Waller and McDonald, went to Moore’s office together, and Waller then directed Moore to pay the House & Co. debt out of the money which he, Moore, was to receive for Waller from G-lover; and Moore then promised to do so.

Tried below before the Hon. David Sheets. In an original and four amended petitions the appellants, who were plaintiffs below, set forth their cause of action against the defendant, Nancy, and the sureties on her administration bond.

Tried below before the Hon. A. J. ' Evans. The note sued on was for two hundred dollars, and was signed by W. H. Slane, W. T. Kemp and Samuel S. Looker. It was payable to the appellant, who sued Kemp and Looker on it to the Fall term; 1867, of ¿he district court.

<p>1. Parties aggrieved by rulings of the district court on questions of evidence must make the rulings matter of record by proper bills of exception, in order to entitle themselves to a revision of the rulings by this court. It does not suffice that the rulings were complained of in a motion for a new trial—no bill of exceptions having been taken.</p> <p>2. When part of a conversation is introduced as evidence, the party against whom it is offered is entitled to call out the entire conversation.</p> <p>3. The instrument sued on was" a certificate of a remarkable cure of the defendant’s eyes effected by the plaintiff’s assignor ; and it concluded with an equivocal acknowledgment of indebtedness to some doctor therefor. The defendant pleaded non est factum under oath, and also an unsworn denial of any indebtedness to the plaintiff. Held, that in such a case it was error to instruct the jury that the only issue before them was the genuineness of the defendant’s signature to the instrument. Por, though the unsworn denial of indebtedness may have been demurrable, yet it tendered an issue of fact which was accepted by the plaintiff’s omission to demur to it; and that issue imposed on the plaintiff more evidence than that of the execution of the instrument.</p>

Tried below before the Hon. J. B. Williamson. The affidavit respecting the interference of the officer in charge ' of the jury stated that he, the deputy sheriff and bailiff, “ came into the jury room while they were deliberating on their verdict, and said that they ought to send the defendant to the penitentiary; and when the jury would not agree to send the defendant to the penitentiary, he then said that they ought to fine him three hundred dollars and put him in jail for…

' Appeal from Hill. Trieu below before the Hon. F. P. Wood. The material facts, though stated only in a general way, are clearly disclosed in tiie opinion of the court, and a recital of them them in detail would serve no sensible purpose.

Tried below before, the: Hon. R. E.. B.. Baylor. The judgment below was rendered in I860-. The facts, so far as there is occasion to notice them) are clearly stated in the.opinion.

Error from Falls. Tried below before the Hon. A. J„ Evans. The rulings in this case are not of such a character as to require a more specific statement of the facts-than that indicated in, the opinion and the head notes.

<p>Appeal from Leon. Tried below before the Hon. John Gregg.</p> <p>The trial and judgment in the court below were had and rendered at the Spring term, 1860.</p> <p>The facts of the case, in so far as material, are stated in the opinion with great perspicuity.</p> <p>Verdict and judgment below for the defendant, and plaintiff appealed.</p>

Tried below before the Hon. J. J. Thornton. The following statement of the facts of the case is taken from the written argument of the appellant’s counsel, but its accuracy is not called in question by the other side, or in the opinion of the court; and it is believed that it is not only correct so far as it goes, but that nothing is omitted which materially affects its version of the case.

Tried below before the Hon. A. W. Terrell. The opinion relates to the question of jurisdiction only, and sufficiently states the facts bearing on that question.

Error from Williamson. The petition for the writ of error alleged that the two judgments referred to were “ to the same intent,” meaning probably that they were for the same debt.

<p>Error from Milam. Tried below before the Hon. R. E. B. Baylor.</p> <p>This cause was tried in the district court in the year 1860. The material facts are so clearly stated in the opinion of this court, that nothing remains to be added respecting them.</p> <p>A jury was waived in the court below, and the cause submitted to the court on the- facts as well as the law; and judgment was rendered for defendants, Burchard and others.</p>

<p>1. The consideration of a sealed covenant for the conveyance of land could only be denied by a sworn plea.</p> <p>2. A written contract under seal was entered into between W. of the one part, and S., an owner of certain land, of the other part, whereby W. agreed to aid S. to build up a town on the land; and S., in consideration of such aid, bound himself, whenever by their joint efforts enough of the land (or town lots) should be sold to realize to S. a sum equal to ten dollars per acre for the whole tract, to convey to W. one undivided fourth of the land remaining unsold. Suit for specific performance being brought against S., he demurred on the several grounds that the contract was without consideration—that it was without mutuality of obligation—and that it was void under the statute of Frauds. Held, that it was error to sustain the demurrer on any of these grounds.</p> <p>3. The suit for specific performance, above indicated, was brought against S. not only by W., but also by one Y., as a co-plaintiff—they alleging in their petition that W., with the knowledge and privity of S., contracted to convey to Y. one half of whatever interest he, W/, should acquire in the town, in consideration that Y. would contribute his services in building up the town, and would convey to W. a certain block of lots. Held, that V. was properly joined with W. as a party plaintiff.</p>

Error from De Witt. . Davidson, the defendant in error, was administrator of the estate of J. 0. Wheeler, deceased. He brought this suit to the Fall term, 1869, of the District Court of De Witt county, against the plaintiff in error as executor of John H. Slaughter, deceased. The cause of action was a note for $1329, executed by Slaughter to Wheeler on the sixth of March, 1861, on which considerable payments were subsequently made.

Tried below before the Hon. Wesley Ogden. This case was before this court upon a former occasion, and will be found in 26 Texas, 118, under the title of Holliday v. Cromwell. In that report and in the opinion of the court the facts will he found sufficiently indicated. Holliday was plaintiff, and claimed under the Sutherland title.

Tried below before the Hon. Í. W. Oliver. The only facts involved in the questions decided are clearly indicated in the opinion' of this court.

Error from Robertson. Tried below before the Hon. ÍT. Hart-Davis. This action was brought in January, 1868, by Hamman against. Lewis, in the County Court of Robertson county, then exercising; the civil jurisdiction conferred upon such courts* by the Constitution of 1866. Part of the' demand sued on was a note for seventy dollars, executed in 1861 to the plaintiff' and bis* then partner by the defendant and his then partner.

. Appeal from Harms. Tried below before the Hon.. George it. 'Seott. The subject matter of this well-contestbd ease was a tract of thirteen hundred acres of land in Harris county, conveyed by C. W. Buckley to King Holstein, by warranty deed of date March 8,1860, for the consideration of-three thousand five hundred dollars. This tract was part of a larger' tract, comprising fifteen hundred and fifty-five acres, conveyed to 0.

Tried below before the Hon. William Chambers. The following statement of the facts is taken from the brief filed for the appellant, and verified by the transcript: This suit was instituted by J. W. Smith, as administrator de bonis non of the estate of Ridley Robinson, deceased, on a note executed on the first day of January, A. D. 1863, by appellees, who were defendants below, and one R. S. Barnes, to J. C. Frazier, the preceding administrator of said estate.

Error from Guadalupe. Tried below before the Hon. J. J. Thorntoa. This suit was based on the third section of the act of 1841, Paschal’» Digest, article 3451. The petition of the wife, who was plaintiff below, alleged various acts of her husband toward her, as excesses, cruel treatment and outrages,” of an insupportable character.

Tried below before the Hon. Charles Soward. The indictment and conviction were for exhibiting a gaming table. The sum fixed by the court on the appeal was one hundred and fifty dollars; but the two sureties were bound in but seventy-five dollars each.

<p>1. In this appeal from a conviction for theft, though no errors were assigned, the judgment is reversed for error in the charge of the court below to the jury.</p> <p>2. Statements made by a prisoner while in custody cannot be used as evidence against him, unless they were made in the manner prescribed by the Code of Criminal Procedure. (Paschal’s Digest, article 8127.)</p>

Error from Bobertson. Tried below before the Hon. John Gregg. This suit was instituted in 1857, and was tried and determined by the district court at the fall term, 1859. The character of the suit and the facts of the case are sufficiently stated in the opinion of the court.

° Appeal from Gaudalupe. Tried Below Before the: Hon. J, J: Thornton; • The cause was tried in the district court in May; 18TO) The instruction to the jury was, that if “Outlaw has paid'the.ameiint of the note, or of the amount of money for which the note is; given, with interest thereon at twelve per cent, per annum, yon will find for the defendants; but if you believe such amount of money was mot paid, then you will find for the plaintiff such amount as may still remain…

<p>1. A delivery by A. of a note payable to him or bearer suffices of itself to . transfer the ownership, if made with that intention, and authorizes the transferree to bring suit in his own name against the maker; and as between A. and his transferree, such a transfer, when made,is an executed contract, and the consideration on which it was made is an immaterial question in a suit brought by the transferree against the maker. In such a suit, therefore, it was error to permit the maker to prove that the transfer was based upon Confederate money, and to instruct the jury that the plaintiff could not recover if Confederate money was the consideration which he paid for the note.</p> <p>2. The transferree of a note payable to bearer brought suit in his own name against the maker, who was allowed, over objections by the plaintiff, to prove by the original holder that when he sold the note to the plaintiff, the latter agreed that he would take Confederate money from the maker in payment of the note, provided payment should be made immediately on presentation. Meld, that the admission of this evidence was error, because the promise was on a condition never performed, and also because it was without any consideration to support it.</p> <p>3. In the absence of proof to the contrary, the law will presume that a transfer by delivery of a note drawn to bearer, and payable at a future day, was made before maturity of the note ; and, therefore, in such a case, the note would not, in the hands of the transferree, be subject to offsets held by the maker against the original payee.</p>

<p>1. The common law rule which required “ certainty to a certain intent in every particular ” is not in force in regard to indictments framed under the code of this State.</p> <p>2. Indictment charged that HI. did “ wilfully, fraudulently, and unlawfully steal, take, and carry away, from the possession of Z. J., without the consent of the said Z. J., and with the intent to deprive the said Z. J. of the value thereof, and to appropriate it to his said M.’s own use, one beef steer branded H and marked a crop and split in the left ear, and upper bit in right ear; the said beef steer being then and tu ere the property of some person whose name is unknown to the grand jury,” of the value, etc, etc. Defendant moved to quash, because the indictment does not charge the steer not to be the property of the defendant, nor that it was taken without the consent of the owner and with the intent to defraud. Held, that the indictment was sufficient, the objections to it frivolous, and the ruling of the court below erroneous in sustaining them.</p>

<p>1. The ease of Crawford v. Bender, 33 Texas, 745, cited as settling the effect of the constitutional suspension of the statutes of limitation from 1861 to the approval by Congress of the present Constitution of the State, March 30, 1870.</p> <p>2. On the 21st of May, 1861, R. and his wife, with a trustee for the latter, entered into written articles of separation, and by which a division of their principal community property was also made, with a covenant on the part of R. that he would divide the live stock and “ all other community property, when requested.” In 1865 R. procured a decree of divorce. On the twelfth of October, 1863, R. being then dead, his divorced wife sued his executor for her portion of the community funds on hand at the date of the separation, and also joined as defendants the commission merchants in whose hands such iunds were alleged to be. At the date of the separation there were more than $20,000 community funds in the merchants’ hands, but before R. died, he drew out all but some $1500. The plaintiif recovered judgment against the merchants for all of the latter sum, and against the executor for half of the balance of the funds on hand at the date oi the separation. Held, that the plaintiff was not barred by limitation, nor was there error in adjudging to her the entire sum remaining in the hands of the merchants, there appearing to be no debts outstanding against the community.</p>

<p>Error from Caldwell. Tried below before the Hon. J. J. Thornton.</p>

Error from Burnet. Tried below before the Hon. E. H. Vontress. The trial below was had at the October term, 1860. Nearly all of the material facts of this veteran case will be found in the two former reports of it, in 20 Texas, 111, and 24 Texas, 488. ■ On the last trial, however, some additional evidence was introcluced by the defendant, and as it is clearly collated in the arguments made in this court, a reference for it to them will suffice here.

<p>Appeal from Hopkins. Tried below before the Hon. W. H. Andrews.</p>

<p>1. On the death of the mother of an illegitimate child, the putative father is entitled to the guardianship. This r'ght is impliedly recognized by the statute of this State, article 3884, Pasclial’s Digest.</p> <p>S. The law should never receive such a construction as would tend to dry up the sources of natural affection. A child, though illegi tímate, should not be denied all claim to the protection and love of iti father ; nor should the lather be denied the privilege of assuming voluntarily his parental duties and responsibilities.</p>

<p>Appeal from Fort Bend. Tried below before the Hon. L. Lindsay.</p>

<p>Error from Leon. Tried below before the Hon. John Gregg.</p>

Tried below before the Hon. Henry Maney. The material charge in the indictment was, that the defendant, “ one certain cow, branded s t, of the value of ten dollars, of the goods and chattels of Mary Stanfield, then and there being, willfully, wantonly and maliciously did shoot and kill, against the peace and dignity of the State.” The defendant’s motion to quash was sustained by the court below and the State appealed.

<p>An “ assault with intent to kill ” is not an offense under our criminal law. A verdict, therefore, convicting a party of an “ assault with intent to kill ” is nugatory, and will not support a judgment founded thereon. Though the word “ murder ” may have been omitted from the verdict by mere inadvertence, yet it cannot be supplied by the court.</p>

<p>I. In proceeding by motion' against a sheriff and his sureties, the motion, stands in the place of a.potition. The proceeding is summary and quasi criminal, and the party plaintiff should be held to a strict compliance with the law. „</p> <p>■_ 2. A motion against a sheriff and the sureties on his bond failed to set out the bond, but merely averred that the persons designated as the sureties were such, and were liable as such. Held, that the motion is insufficient.</p> <p>3. Conclusions of law should not be pleaded, but the facts from which such conclusions may or may not be deduced.</p> <p>4. The liability of sureties is determinable by the nature of their undertaking ; and a proceeding against sureties should at least disclose sufficient of their undertaking to enable the court to judge of its nature.</p>

<p>In an action on a guardian’s bond, the court below instructed the jury that the plaintiffs having failed to read in evidence the bond of the guardian, or a copy thereof, no verdict could be returned against the guardian’s sureties. There was a general verdict for all the defendants, and judgment accordingly. Held, that there was no error in the charge, and the verdict does not appear to have been affected by it to the prejudice of the appellant.</p>

Tried below before' the Hon. Charles Soward. The evidence showed a quarrel between the appellant and one Stratton, and that appellant struck at Stratton with a double-barreled shot gun; but the conflict was stopped before any shots passed.

<p>1. The case of Johnson v. The State, 33 Texas, 570, cited, and the rulings therein approved, to the effect that the civil tribunals of the rebel States were recognized and never abrogated by the acts of Congress known as the reconstruction laws, and also by the military authorities of the United States ; and additional precedents and illustrations of these rulings are adduced m the present case.</p> <p>2. It was the intention of Congress that the reconstruction acts should remain in force in Texas until the State should fully resume the functions of a republican government under her own Constitution and laws.</p> <p>3. The courts organized by the provisional government established in Texas by the reconstruction acts, did not cease to have a legal existence after or in consequence of the adoption of the Constitution of 1869, or its acceptance in March, 1870, by the United States Congress. A district judge appointed by the provisional government continued, therefore, in office and fully invested with the judicial authority, after and notwithstanding the adoption and acceptance of" the Constitution of 1869, and until his successor was appointed and qualified.</p> <p>4. The writ of quo warranto, it seems, is the proper and only mode of questioning the official authority of a person exercising the judicial functions.</p> <p>5. The act of June 18,1870, assuming to validate the acts of district judges holding over by virtue of appointments received from the provisional government, was a work of supererogation. It may hav.e served to quiet doubts, but was unnecessary to impart authority to those functionaries.</p> <p>6. In vacation of the district court, the judge.not only dissolved an injunction but also dismissed the bill. Held, to be error to dismiss the bill in vacation of the court.</p>

Error from Williamson. Tried below before the Hon. E. H. Yontress. This case involved' the validity of the titles to the Austin city lots sold by the State under the condemnation of the site of the city. For all practical purposes the main facts of the case are sufficiently indicated in the opinion of the court.

Tried below before the Hon. Hardin Hart. This suit was brought by Lewis upon the following draft: “ $8529 85. “ San Antonio, Texas, May 2,1865. 11 Sixty days after sight pay to the order of Charles Lewis,'Esq., eighty-five hundred and twenty-nine 85-100 dollars, value received. and' charge the same to account of your obedient servants, “A. M. & C. 0.

<p>1. An indictment for unlawfully using an estray described the animal as “ a certain estray mule, then and .there being found, branded with a ■mule shoe on tho left shoulder, and the tip of the- right ear off, of the value of one hundred dollars.” Held, that the description is sufficient.</p> <p>3. In an indictment for unlawfully using .an .estray, the allegation that the animal was an estray is a sufficient averment that the ownership was unknown.</p>

Appeal, from Karnes. Tried below Before the- Hon. D. IX Claiborne. The appellant was indicted and convicted of driving from their accustomed range a mare and' colt, not his own, without the owner’s consent, and with intent to defraud the owner. The jury awarded him two years, service in the penitentiary.

Error from Victoria. Tried below before the Hon. Wesley Ogden. This case arose and was adjudicated in the lower courts previous to the adoption of the Constitution of 1869.

Tried below before the Hon. Charles Soward. One of the head notes condenses, but fully comprehends, the • testimony most unfavorable to the appellant. Some of the witnesses saw no attempt on his part to draw his pistol, and otherwise sustained his version of self defense against an apprehended assault upon himself. There ivas no proof that Stimpson, the assaultee, was an officer.

Tried below before the; Hon. J. W-0 liver. This action was commenced by attachment, in- which, the- appellee was the plaintiff and the appellant the defendant. The suit-was brought in March, 1870.

Tried below before the Hon. George H. Noonan. The opinion states the case. After its rendition, counsel for the appellee applied for a rehearing, and cited sundry authorities pertinent to the important questions of practice presented by the case.

Zandt. Tried below before the Hon. John H. Scott. The homicide was committed in Van Zandt county on the twenty-seventh of May, 1870. The defendant, Dorsey, and the deceased, Holt, appear to have been friends and frequent companions previous to the homicide. Ho particular provocation of either party by the other is disclosed in the evidence, which, on the whole, leaves a strong impression that most material facts in the case were not divulged at the trial.

Tried below before the Hon. W. E. Jones. A detail of the evidence in this ease is not necessary. Tn fact, the opinion of the court comprises all of it that seems to be involved in the rulings.

Tried below before the Hon. Henry Maney. At the March term, 1871, of the District Court for the county •of Guadalupe, the appellant was indicted for the murder of his little daughter, á child only about eleven months old. His trial was had at a subsequent day of the term, when the jury found him guilty of murder in the first degree, and sentence of death was passed upon him, but execution suspended to await the result of his appeal to this court.

Tried below before the Hon. J. P. Richardson, on writ of habeas corpus. The facts are stated clearly in the opinion of the court. The very scanty record of the proceedings in the mayor’s court does not show what was the character of the case on trial before that functionary.

Tried below before the Hon. W. H. Burkhart. The head note indicates the description of the property given in the indictment, and which, on exceptions of the defendant, was held insufficient by the court below. The State appealed. . .

Tried below before the Hon. W. H. Burkhart. The indictment alleged that the defendant traded off the animal “to Morgan Judd and Williams.” One ground of the motion to -quash was that the names of these persons were not stated with sufficient particularity. The other ground was that the offense was not charged in plain and intelligible words. The motion being sustained the State appealed.

<p>Appeal frqm Erath. Tried below before the Hon. A. EL Nortqn.</p>

<p>Appeal from Lamar. Tried kelow before the Hon. Hardin Hart.</p>

Appeae from Grimes. Tried below before the Hon. N. Hart Davis. This suit was a petition for an injunction to restrain the city of Navasota from enforcing against petitioner an ordinance of the town providing, for the removal of all obstructions from the streets and alleys. The suit was brought by Thomas C. Ashford in July, 1867; but he died, and Preston, his administrator, became plain- • tiff in his stead.

Appeal &om Grayson. Tried below before the Hen. Hardin Hart. Petition was filed July 4, 1868, by Kottwitz, alleging that in January, 1865, C. 0: Alexander died, leaving a will, and that Roberts and others qualified as exeeutors. That in July, 1865, A. M. Alexander died, and in. 'October, 1865, Josephine B. Alexander was-appointed executrix.

<p>.Appeal from Walker.</p> <p>, Neither the transcript' ©f this cause, nor the briefs, have reached the hands of the Reporter. The character of the case, however, is clearly disclosed by the opinion of the .court; -which indicates, also, the material facts. And if more minute information is desired, doubtless the .case of Bird v. Pace, .26 th Texas, 487, .may be 'relied on to furnish it.</p>