Volume 36 — Texas Reports

<p>Appeal from Galveston. Tried below before the Hon. George E. Scott.</p> <p>The facts are indicated in the opinion and the head-notes.</p>

<p>1. L. being arraigned on the 8th day of April, 1871, on an indictment for assault with intent to murder, pleaded guilty. The indictment contained no averment of a previous conviction for a like offense, but the court below permitted the State to introduce in evidence before the jury the record of a previous conviction for murder in the second degree, had on the 4th day of April, 1871; and the court instructed the jury that on the evidence of the record of the former conviction of murder, the same being an offense of like nature, they should assess the defendant’s punishment at seven years confinement in the penitentiary. Held, to be error. On the trial of an indictment, it is not competent, under Article 3468 of Paschal’s Digest, to introduce evidence of a former conviction for a like offense, unless the previous conviction be charged in the indictment. (Mr. Justice Ogden dissenting.)</p> <p>3. Article 2463 of Paschal’s Digest can apply only to cases in which the accused was convicted of the former offense previous to the commission of the offense on which his trial is being had. (Mr. Justice Ogden dissents.)</p> <p>3. Every circumstance constituting a statutory offense and affecting the degree of punishment must be alleged in the indictment.</p> <p>4. Murder and an assault witli intent to murder are not offenses of the “ same nature ” within the meaning of Article 2463, Paschal's Digest. Assault with intent to murder is a compound offense, consisting of two ingredients, first, the assault, and second, the intent to take life. Though the criminality of the intent gives x>eculiar aggravation to the offense, it is still an assault.</p> <p>5. See the separate opinion of Mr. Justice Walker, for his reasons for concurring in the opinion of the court.</p> <p>6. Mr. Justice Ogden dissents, on reasons stated in his opinion.</p>

<p>Appeal from an order of Hon. M. Priest, sitting as district judge in the county of Cherokee.</p> <p>There is no occasion for a statement of the facts.</p>

Tried below before the Hon. I. B. McFarland. The opinion of the court sufficiently indicates the material facts of this case.

<p>Appeal from Washington. Tried below before the Hon. I. B. McFarland.</p> <p>The opinion of the court is referred to for a statement of the case.</p>

Error from Colorado. Tried below before the Hon. Livingston Lindsay. The facts of this case are sufficiently indicated in the opinion of the court.

Tried below before the Hon. C. B. Sabin. The principal facts of the case are sufficiently stated in the opinion of the court. The court below instructed the jury that, if they believed the plaintiff loaned the money mentioned in the draft to Russell upon the strength of the authority to draw, they must find for plaintiff the amount of the draft and interest, and refused the following instructions asked by defendants: First.

Tried below before the Hon. L. Lindsay. This suit was brought by P. D. Turner, as guardian of the appellee, to the spring term, 1869, of the District Court. The appellee attained his majority, pending the case in the court below, and thereafter it proceeded to judgment in his own name.

Tried below before E. P. Hill, Esq., special judge, selected by the parties in consequence of the disqualification of the district judge, the Hon. James Masterson, who had been of counsel for the appellants.

Tried below before the Hon. James W. Henderson, special judge. The opinion of the court sufficiently states the facts of the case.

<p>1. A written obligation to pay a certain amount of money in a good cash note, becomes a monied demand by operation of law, on the failure of the obligor to give such a note as was described in the obligation. .</p> <p>2. It is error to admit evidence to vary the terms of a written contract.</p>

Error from Walker. Tried below before the Hon. J. it. Burnett. The principal facts are stated in the opinion. Reily was appointed the original administrator of Hanna, at the December term, 1867, of the probate court of Walker county; and the order for his removal was made on the 1st of- April, 1869. This latter order purports to have been made on the application of A. T. McKinney, and this application bore the file mark of April 1st, 1869.

Tried below before the Hon. L. Lindsay. In the opinion of the court and the first head-note, the facts of the case, though much condensed, are sufficiently stated. •

<p>1. The transcript of this case contained an entry as follows : “ Continued, by " general order of court, from October term, 1868, to February term, “ 1871; ” but as this entry is without date, or other indication of authority, this court regards it as a mere memorandum of the clerk of the court below, and not as part of the record of that court—being incredulous that any court would, by a single order, continue a case over for more than two years.</p> <p>2. The law of 1866, organizing the county courts with a civil jurisdiction (since abrogated), allowed appeals from those Courts to the District Courts, “ provided the party who intends to appeal shall give notice in " open court, after his motion for a new trial shall have been over- “ ruled by the court.” This proviso made the motion for a new trial, and also the notice, prerequisites to an appeal to the District Court; and when the record brought up to the District Court-, from the county court, failed to show that any motion was made in the county court for a new trial, the District Court did not err in dismissing the appeal on motion of the appellee.</p> <p>3. It is a general rule, that a party will not be heard in an appellate court until he has exhausted his remedies in the lower court.</p>

<p>Appeal from Fort Bend. Tried below before the Hon. L. Lindsay.</p> <p>So far as the facts are important, they are stated in the opinion.</p>

Tried below before the Hon. J. R. Burnett. Originally this was a suit brought by D. B. Morrell as plaintiff, against the appellee Atchison and others, as defendants. The appellant intervened, and the matters brought to this court spring from her intervention, and are stated in the opinion.

Tried below before the Hon. James Masterson. The relator, House, being summoned as a juror, insisted on his exemption as a member of the fire company. He introduced the charter of the company, and proved his membership. The district judge took a different view of the matter and held him to service—from which he appeals.

<p>1. In an action of trespass to try title and for damages, the defendant pleaded not guilty, and also set up title in himself and prayed judgment against the plaintiffs. On the trial, defendant proved that in 1861 he purchased the land from the duly authorized agent of the defendants, and gave his notes for the purchase money, in payment of which notes the agent afterwards accepted Confederate money, and pail the same to C., who was one of the plaintiffs’ vendors, but had not joined in the power of attorney to the agent. Plaintiffs demurred to this evidence. Held, that the evidence was at least legitimate to sustain the defense against being a trespasser, and it was therefore error to sustain the de- • murrer. It seems, however, that as C. was never bound by the sale to the defendant, his acceptance of the Confederate money was of no significance.</p> <p>2. By the Act of May 19th, 1871, objections to witnesses on the score of interest were abrogated.</p>

Tried below before the Hon. I. B. McFarland. The second head-note condenses the testimony of Claiborne, to which reference is made in the opinion. It also indicates the material facts of the case. A jury was waived in the court below, and the case was submitted to the judge.

<p>Indictment for carrying concealed weapons, laying time and place, charged, that the defendant “ did have about his person a certain pistol, known “ as a derringer, said pistol being then and there a weapon ; and the “ Said C. not being then and there an officer, either civil or military, in “ the discharge of his duties; against the peace ; ” etc. The defendant excepted to the indictment, because it did not charge that the said defendant did “ carry ” the weapon mentioned in said indictment. The court below sustained this exception ; which ruling is held to be error. To have a weapon upon the person is, in contemplation of law, to carry it.</p>

Tried below before the Hon. I. B. McFarland. The facts of the case are sufficiently indicated in the opinion of the court. In 31 Texas, 693, a former appeal in this case is reported, under the style of Sledge v. Stratton.

<p>Appeal from Hill. Tried before the Hon. F. P. Wood.</p> <p>The material facts are sufficiently indicated by the opinion.</p>

Error from Grimes. Tried below before the Hon. James It. Burnett. In the third head-note will be found, in a condensed form, the allegations contained in the amended answer of the defendant in the court below, to which the court below erroneously sustained the plaintiff's demurrer.

<p>1. Prosecutions depending wholly upon circumstantial evidence often demand a greater latitude for the presentation of such evidence than is allowable when direct and positive testimony is also relied upon.</p> <p>2. A conviction for murder in the first degree will not necessarily be set aside on account of errors committed by the court trying the case. The error must be material and to the prejudice of the defendant.</p> <p>3. It was error to exclude from the jury, on the trial of a murder case, the verdict of the coroner’s inquest, when the same was not impeached. The verdict should have been admitted, not as proof positive of the matters it contained, but as the opinion of the jury who held inquest over the body 'of the deceased; but this court will not reverse a case on account of such error, when it is evident that the admission of the verdict of the coroner’s inquest could not have affected the result of the case.</p>

Tried below before the Hon. Hardin Hart. The defendant was indicted in the District Court of Dallas county, under Article 2054 of Paschal’s Digest, for betting at faro. The case coming on to be tried, it was proved on the part of the State that sometime in the month of December, 1870, the defendant and one Henry Brown engaged in playing a game of faro—Brown dealing, and the defendant betting certain checks which among sporting men represented money.

<p>A judgment of a District Court in a case appealed to it from a justice’s court, cannot be brought before this court by writ of error, that being but another mode of appeal, which is prohibited by Section 12 of the Act of August 13th, 1870, organizing courts of justices of the peace and county courts, and defining their jurisdiction and duties.</p>

<p>1. Six months having elapsed from the mailing of the commission to take depositions, and no other timely effort having been made to procure the testimony, it was not error to overrule a motion for a continuance.</p> <p>2. An affidavit made by an attorney for a continuance, on account of the absence of a witness, should negative the supposition that there might be other witnesses known to his client, as well as to himself, by whom the same facts could be proved ; and it should state why the affidavit is not made by the party himself; and also that the party is not seeking to evade the requirements of law by procuring affiant to swear to a state of facts to which he himself could not swear.</p>

<p>1. YYhere parties had improperly joined as plaintiffs, in a suit on two different causes of action, it was not error to permit them to amend their petition by dropping one of the parties plaintiff, and withdrawing his cause of action. Such amendments, however, are subject to the supervision and control of the court, and should be granted only on just and equitable terms ; and if a party through ignorance or carelessness joins unnecessary parties, he should be taxed with all costs up to the time of amendment.</p> <p>2. In defense to a suit on a promissory note, the defendant put in a plea of set off in reconvention, alleging that the plaintiff was indebted to him in the sum of two hundred dollars for services rendered the estate of F., deceased, at the request of the plaintiff, who was administrator of the estate. Held to be a good defense, and that the court below erred in excluding evidence offered to establish the plea.</p> <p>3. An administrator who employs an attorney to transact business for the estate he represents, is personally responsible to the attorney for his services, there being no special contract; but the attorney has his choice to demand his compensation either of the administrator individually, or of the estate. (Caldwell v. Young & Morgan, 21 Texas, 800, cited by the court.)</p>

Tried below before the Hon. J. B. Williamson. The defense was in substance that the administrator de bonis non acted in good faith; that the personal security which he took was amply good at the time; but that, by reason of the war, emancipation, etc., it had since become worthless; that the administrator had tendered to the plaintiff the note he had taken for the loan. All this was admitted to be true.

<p>Appeal from Henderson. Tried below before the Hon. John G. Scott.</p> <p>The opinion states the case.</p>

Tried below before J. W. Pope, Esq., special judge. This case was a sequel to that of Watt v. White and others, reported in 33 Texas, 421, in which a history of the • litigation will be found. The present opinion sufficiently indicates the new features involved in the disposition now made of the matter.

Error from Rusk. Tried below before the Hon. J. B. Williamson. The only material facts are indicated in the opinion and head-notes.

Error from Comíales. Tried below before the Hon. Henry Haney. The head-note indicates the facts. The transcript contained an order of sale issued in the case on the judgment of the court below, and returned satisfied in full by the sheriff, with the plaintiff’s receipt for his principal and interest. By agreement of counsel in this court, it was admitted that the order of sale was issued at the instance of plaintiff’s attorneys.

Error from Navarro. Tried below before the Hon. F. P. Wood. The principal features of the case are clearly denoted by the opinion. The immediate purchaser at the sheriff’s sale, under which the defendants in error deraigned title, was the plaintiff in execution himself, and his bid was paid by credit on his execution ; but the sheriff’s deed to him recited a cash consideration in the usual form.

Error from Collin. Tried below before the Hon. W. H. Andrews. This case was tried below in 1870, before the revenue stamp questions were regarded as settled by this court. The defendant demurred to the plaintiff’s evidence, and the court below rendered judgment for the defendant; but the rulings of this court do not necessitate a detail of the matters proved.

<p>Appeal from Johnson. Tried below before the Hon. Charles Soward.</p> <p>There is no occasion for a statement of the facts.</p>

<p>Appeal from Hunt. Tried below before the Hon. W. H. Andrews.</p> <p>There is no occasion for a statement of the facts.</p>

Tried below before the Hon. C. T. Garland. Suit was instituted in the court below by Amzi Bradshaw, the appellant, against J. T. Apperson, J. H. Bullard, and G. P. Bullard, to recover the amount of three promissory notes given for merchandise in New York and transferred to appellant for collection. The notes are signed by J. H. Bullard as agent of J. T. Apperson. Thus it does not appear upon the face of the notes that the Bullards were liable.

Tried below before the Hon. W. H. Andrews. In the defense of a suit on a note for a balance of the purchase-money for a certain tract of land, the defendant in this case pleaded failure of consideration, in that the vendor had no right to convey the land and could not make a good or valid title to the same, as he had obligated himself to do; that suit had been instituted against the defendant for trespass upon the land; that, as the defendant was informed and believed, the…

Tried below before the Hon. Charles Soward. The instrument called a power of attorney in the head-note, was styled Articles of Partnership by the parties, as follows :— “ The State of Texas,) Articles of partnership made and “ County of Johnson, j entered into this 29th day of July, “ 1861, by and between James F. Turpin and Gr. W. Meadows, “ both of the county and State aforesaid, witnesseth: That “ whereas the said James F. Turpin and Gr.

Error from Johnson. Tried below before the Hon. Charles Soward. The facts are indicated in the opinion. The case cited in the opinion as Grant v. Law is believed to be the same as Grant v. Chambers, reported in 34 Texas.

<p>1. An alternative writ of mandamus sued out in vacation should be made returnable to the next term of the District Court, and it was error to make the writ returnable at chambers, and to hear and determine the case at chambers and grant the peremptory writ.</p> <p>2. It is not necessary that a rule should issue on the respondent, requiring him to appear and show cause why an alternative writ of mandamus should not issue against him. The alternative writ is itself in the nature of a rule to show cause why the peremptory writ should not issue.</p>

<p>Error from Tarrant. Tried below before the Hon. Hat. M. Burford.</p>

<p>1. A party will not be heard by this court, to object to pleadings he did not except to in the court below.</p> <p>2. In defense to a suit on a rental Contract for the year 1870, the defendant put in a plea in reconvention, alleging that he had been damaged in consequence of his cotton being unpicked on the 22d of January, 1871, when the plaintiff sued out his distress warrant and thereby prevented defendant from picking it, etc.; and the court below admitted evidence in support of this plea. Held, to be error; no evidence should have been permitted to go to the jury to prove damages sustained after the expiration of the rental year.</p> <p>3. The fences around rented premises being good at the time the lessee took possession, it was his business to keep them good during his term, and if he did not do so, he was responsible to his lessor for whatever damage the latter sustained by the neglect.</p> <p>4. The rental contract provided, that the lessee might clear, fence, and cultivate certain land, and for all extra clearing and fencing he was to be paid the customary price of labor. Held, that the lessee was authorized to make all necessary fencing to protect his crops, and if he neglected to do so he could not recover damages consequent upon such neglect.</p>

<p>Error from Navarro. Tried below before the Hon. F. P. Wood.</p> <p>There is no occasion for a statement of the facts.</p>

Tiled below before the Hon. C. T. Garland. The trespass consisted in the cutting of timber from land of the plaintiff by employed servants of the defendant. It is in proof on both sides that when the defendant sent his servants to cut the timber, he drew a map on the ground of his own land, adjoining that of the plaintiff, by way of instructing them where to cut the timber.

Tried below before the Hon. W. H. Andrews. This suit was originally brought by the appellants against the appellee in the justice’s court of precinct No. 6 of Hopkins county, on a medical account of eighty-four dollars. Judgment being rendered in favor of the defendant (appellee in this coprt), the case was appealed by the plaintiffs (appellants in this court) to the District Court of Hopkins county.

Tried below before the Hon. W. H. Andrews. The facts of the case are .sufficiently indicated in the opinion of the court.

Tried below before the Hon. Hardin Hart. The opinion details the material facts. The former hearing of this case is reported in 83 Texas, 725.

<p>1. On the 7th of March, 1861, judgment in personam and also a foreclosure decree were rendered on a note given for land. No execution on the judgment, or order of sale on the decree, was sued out until the 11th of January, 1869; nor had the judgment or decree ever been registered in the manner provided for by the Act of February 14th, 1860. (Paschal’s Digest, Article 3962.) Held, that the judgment and decree were not dormant in January, 1869.</p> <p>2. The Act of February 5th, 1841 (Paschal’s Digest, Article 4608), provided for revival of judgments on which execution had not issued within twelve months after their rendition; but this court has already held (in Scogin v. Perry, 32 Texas, 21) that the Act of November 9th, 1866, by providing that no judgment should become dormant unless ten years elapsed between executions, repealed so much of the Act of February 5th, 1841, as was inconsistent with it, and dispensed with the necessity of issuing any execution. And now it is held, that in like manner the first section of the Act of February 14th, 1860, prevented judgments from becoming dormant in less than ten years after rendition, although no execution had ever been issued.</p> <p>3. On the 7th of December, 1861, the first of the series of stay laws was enacted, and subsequently the inhibition of executions on judgments was continued by Ordinance of the Convention of 1866, and by Executive proclamations, until this court, in February, 1868, declared the stay laws unconstitutional. Held, that while these unconstitutional enactments were practically in force, laches cannot be imputed to a judgment credit- or by reason of the mere non-issuance of execution. (Cravans v. Wilson, 35 Texas, 52, cited by the court.)</p> <p>4 A judgment in personam and decree of foreclosure rendered in 1861, were constructive notice to parties who, in 1864 and 1866, purchased from or under the defendant, the land subjected to the decree. The rulings in Hargrove v. De Lisle, 32 Texas, 170, on the subject of constructive notice, are quoted with approval.</p> <p>5. The taking of collateral security for purchase-money of land, does not waive or impair an express lien on the land reserved in the sale.</p> <p>6. The second section of the Act of February 14th, 1860 (Paschal’s Digest, Article 3963), providing for registration of judgments, etc., had application to judgments in personam, but had no application to decrees for the enforcement of vendor’s liens already existing.</p> <p>7. When judgment in personam and decree for sale of land are recovered in the same suit on a purchase-money debt, the j udgment in pe/rsonam ascertains the amount due the plaintiff, and the decree subjects the property for the payment of the amount so ascertained.</p>

Tried below before the Hon.. W.. H,. Andrews. The suit was commenced against Atterbury in his lifetime, but he died before the trial below, and his administrators were made defendants in his stead. The principal facts are stated in the opinion, and the instrument sued on is set out in the head-note.

<p>1. Since the passage of the act of December 10th, 1863 (Paschal’s Digest, Article 1438), amendatory of the act of May 13th, 1846, a vendor’s lien may be enforced in the county in which the land lies, notwithstanding the defendant’s domicile be in a different county. A plea in abatement, therefore, in such an action, that defendant was a resident of a different county than that wherein the suit was brought and the land was situate, presented an immaterial issue, and might have been treated as a nullity.</p> <p>2. To. a suit brought in J. county to enforce a vendor’s lien on land lying therein, the defendant first pleaded to the merits, but afterwards, by leave of the court, withdrew his pleas to the merits, and pleaded in abatement that he was a resident of P. county, and not liable to be sued in the county of J. The issue thus presented was submitted to a jury, and verdict returned for the defendant; whereupon the court dismissed the plaintiff’s suit. Held, that - it was error to allow the plea to the jurisdiction after pleas to the merits had been filed ; that the insufficiency of the plea to the jurisdiction was not cured by the verdict, notwithstanding the plaintiff’s omission to except to it, or to move that it be struck out as a nullity; and that, as the pleas to the merits had been withdrawn, the plaintiff should have moved in the court below for judgment non obstante veredicto. As the case stood, his motion for a new trial should have been granted; and when that was overruled, his motion in arrest of judgment, should have prevailed.</p> <p>3. Verdicts cure defects of form, but not of substance, in pleadings.</p> <p>4. Though a party was entitled to judgment non obstante veredicto, this court will not feel obliged to enter such judgment, when the party omitted to move for it in the court below.</p>

<p>1. Service of a writ of error is insufficient, unless a copy of the petition in error was also served upon the defendant in error.</p> <p>2. Notwithstanding former rulings, it is an open question whether citation in error can be served after two years from the rendition of the judgment, provided the petition and bond were filed within that time.</p>

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

Tried below before the Hon. John Gr. Scott. Barnett was the plaintiff below, and recovered a judgment, from which Lloyd and the other defendants appealed. The opinion and the second head-note show the facts.

<p>Error from Denton. Tried below before the Hon. C. C. Binkley.</p> <p>No occasion for a statement of the facts.</p>

<p>1. In 1867 G. recovered judgment by default against R.; at the next term of the court, in February, 1868, R. moved the court to vacate the judgment rendered at the former term, which motion was sustained, and R. permitted to file an answer ; at a subsequent term of the court, in 1870, G. moved the court to dismiss the case and grant execution on the original judgment of 1867, which motion was sustained and the cause dismissed. Meld, that the proceedings subsequent to the rendition of the original judgment were all irregular and void. R.’s remedy was by original action to set aside and vacate the judgment of 1867.</p> <p>2. In this State a District Court may exercise a revisory power over its own judgments and decrees after the adjournment of the term at which the judgment or decree was rendered, but the power must be exercised upon an original proceeding, instituted specially for that purpose.</p> <p>3. A suit instituted for the purpose of vacating and setting aside a judgment of a former term of the court, must be brought in the ordinary form, with service on the opposite party, and the petition must, set out sufficient matter to have entitled the party to a new trial, if applied for at the term at which the judgment was rendered, and a sufficient legal excuse for not having then made the application.</p> <p>4. On the adjournment of a term of court in which there had been rendered a final judgment, the District Court lost all jurisdiction over the case, and any order made at a subsequent term, without some action by the parties in the nature of an original proceeding, would be coram non judiee, and consequently void.</p>

<p>1. In an indictment for playing at cards, under Article 409 of the Penal Code, it is not necessary to charge with whom the defendant played.</p> <p>2. The prosecution having proved the ownership of the house in which the gaming took place, as charged in the indictment, and that it was of that public character which brings it within the class of places where card-playing is prohibited, the State had made out this branch of its case, and it then devolved upon the defendant to establish his defense.</p>

<p>1. A joint indictment against two or more persons for gaming at cards, must charge the defendants with playing together.</p> <p>2. On the trial of an indictment for playing at cards in a house used for retailing spirituous liquors, it was proved that a portion of the house was rented for the purpose of retailing spirituous liquors, but that the room in which the playing took place was rented by another party, and was disconnected from the room where the liquor was sold. Held, that a conviction was not warranted by the evidence.</p>

<p>It was not error for the court helow to call the attention of the jury to the fact that there was other evidence in a felony case tending to corroborate the evidence of the State, which consisted in the testimony of an accomplice ; but leaving the jury to give the evidence such weight as they saw fit to ascribe to it.</p>

<p>Appeal from Milam. Tried below before the Hon. J. M. Onins.</p> <p>There is no occasion for a statement of the facts.</p>

Tried below before.the Hon. John G. Scott. This suit was trespass to try title to a league of land in Freestone county, where the suit was first brought, but from which it was removed to Anderson county by change of venue. The original petition was filed in Freestone, November 28th, 1861, and the venue changed to Anderson at the fall term, 1864, of the Freestone District Court. The plaintiffs, originally, were Maria Smith and Louisiana Smith, a minor.

<p>Parties convicted of offenses and appealing to this court must give such recognizances as substantially comply with the form prescribed in the Act of May 26th, 1871, amendatory of Article 263 of the Code of Criminal Procedure.</p>

. Appeal from Johnson. Tried below before the Hon. Charles Soward. This suit was instituted in the District Court of Johnson county, on a draft drawn by the defendant on Alford & Veal, of Galveston, Texas, for the sum of six hundred dollars and thirty-three cents, payable to the plaintiff.

<p>1. After trespass to try title had been brought by plaintiffs against defendant and others, one B., the brother of defendant, gave his own note for the purchase-money of the part of the land which she was sued for, and took the plaintiffs’ title bond in the defendant’s name, conditioned to make good title to her on payment of B.’s note, and reciting the pendency of the suit, and stipulating that it should be dismissed as against her, and that if plaintiffs should fail to establish by decree of court the grant under which they themselves claimed, and to make good and warranty title to the defendant, then both bond and note to be void, etc. Held, that in the absence of proof showing that defendant either authorized, adopted, or ratified this contract between B. and the plaintiffs, or showing that she claimed under the title bond, it was error to hold her thereby to be estopped from setting up adverse title and pleading limitation against the plaintiffs. Held further, that without such proof the bond and note were not competent evidence against defendant for any purpose whatever.</p> <p>2. It was error to permit a deed to be proved by certified copy, without accounting for the original.</p> <p>3. A copy of a deed, duly certified by a county clerk as a copy from his record of deeds, failed to show any acknowledgment of the original by the makers, or any proof of the execution of the original, but the court below allowed the clerk to be sworn and to prove that the original had been duly acknowledged by the makers, and admitted the copy as evidence. Held, error.</p> <p>4. It was error to admit as evidence an administrator’s deed for land, without proof that the maker was administrator, and without proof of confirmation of his sale—the deed not reciting confirmation.</p> <p>5. That the survey of a colonist’s head-right was dated only two days before the closing of the Land Offices, in November, 1835, and that the title issued thereon was dated “ the-day of November, 1835 ” (not showing the day of the month), are circumstances which cast .suspicion on the validity of the title, and call for explanation.</p>

<p>Appeal from Johnson. Tried below before the Hon. Charles Soward.</p> <p>The opinion states substantially the material facts.</p>

Tried below before the Hon. J. P. Richardson. The note of Sappington and Owings had been indorsed to the appellant as collateral security for indebtedness due him from the indorser. So far as the facts are relevant to the rulings of this court, they are sufficiently indicated in the opinion and in the head-notes.

Tried below before the Hon. J. J. Thornton. The defendant, Morrill, pleaded a general denial of the matters alleged in the motion. Other facts appear in the opinion.

<p>An appeal bond executed in a case adjudicated in the County Court, as organized under the Constitution of 1866, described the suit as having been brought to the August term, 1868, whereas the record showed no suit between the parties brought to that term, but one brought to the preceding June term. And the bond failed to designate in what county the suit was brought or the judgment rendered, otherwise than by the marginal caption of “The State of Texas, County of B.” Held, that the District Court did not err in dismissing the appeal for want of a sufficient appeal bond. The marginal caption is understood to indicate the county where the bond was executed, and not that in which the suit was brought or the judgment rendered.</p>

Tried below before the Hon. J. P. Richardson. Suit by the appellee against the appellant for a certain horse, which the latter claimed to have bought at an estray sale. The opinion discloses other facts.

<p>Appeal from Lamar. Tried below before the Hon. A. H. Latimer.</p> <p>The opinion states the material facts.</p>

<p>Appeal from Smith. Tried below before the Hon. Z. Horton.</p> <p>There appears to be no occasion to detail the case.</p>

<p>1. A continuance for want of testimony will not be grafted upon the affidavit of an attorney, when no reason is shown why the affidavit was not made by the party litigant himself.</p> <p>2. In an action of escheat, under Articles 3663, ’4, and ’5 of Paschal’s Digest, the defendant set up a claim for improvements made in good faith. Held, that in actions of escheat no claim for improvements can be allowed; such claims can be allowed only in actions of trespass to try title.</p> <p>3. The declaration in an action of escheat alleged that there was no person supposed to be concerned in the land; publication was made of the action, and one B. appeared and answered, and, after answering, he put in a motion to quash the citation. Held, that the motion to quash must be regarded as a plea in abatement, and comes too late after a plea to the merits, which waives any irregularities in the service.</p> <p>4. The appellant asked the court below to instruct the jury, that, from the nature of the grant (it being for a league), they were to presume that H., the grantee, was a married man ; and, if a married man, the presumption was that he had children; and if he had children, the next presumption was that they, being younger than the father, survived him; and that upon these presumptions the State was to take upon herself the onus of proving the death of the children before the suit was brought. Held, that the court did not err in refusing these instructions. Countervailing presumptions, arising from the facts of the case, are suggested in the opinion of the court.</p>

<p>Appeal from Guadalupe. Tried below before the Hon. Henry Haney.</p> <p>There is no occasion for a statement of the facts.</p>

<p>Appeal from De Witt. Tried below before the Hon. Henry Maney.</p> <p>The case is sufficiently disclosed by the opinion.</p>

Tried below before the Hon. J. E. Burnett. This was an injunction suit, brought by Nixon and his wife, who sued both as legatees and as administrators de bonis non,, with the will annexed, of Thomas Carothers, deceased. The allowance of the claim was made by the original administrator, who had been removed by the probate court.

<p>Error from Marion. Tried below before the Hon. J. D. McAdoo.</p> <p>The case is substantially indicated by the opinion of the court.</p>

Tried below before the Hon. J. M. Onins. The defendant was indicted in the District Court of Washington county for bribery.

<p>A partnership indebtedness by open account is not extinguished by a note executed for the same debt, by one of the partners, after the dissolution of the partnership; and therefore a recovery may be had upon the account, notwithstanding «the execution of such a note.</p>

<p>Appeal from Harris. Tried below before the Hon. James Masterson.</p> <p>The opinion indicates such of the facts as are material in view of the rulings made.</p>

Tried below before the Hon. Henry Maney. The opinion of the court and the head-notes state the material facts. The entire indorsement was “ pay to A. 'P. Luekett or “ order four hundred dollars in stock, out of this note. March “ 18th, 1861. W. Gr. Kelley but the note, being overdue, was treated as a money demand.

Tried below before the Hon. I. B. McFarland. The opinion and head-note exhibit the facts of the case, which was submitted to the court below on an agreed statement. The judgment below was against the appellants and C. Ennis, surviving partner of Ennis & Co.; but Ennis did not join in the appeal.

Tried below before the Hon. J. P. Osterhout. On empaneling a jury to try this case, one McCune was empaneled as a member of the jury, and the defendant objected to him on the ground that he had stated, on his examination touching his qualifications as a juror, that he had formed a conclusion as to the guilt or innocence of the defendant from hearsay, and that it would require testimony to remove the conclusion, when he would be able to decide according to the law and…

<p>Error from Lavaca.</p> <p>Nothing but the opinion of the. court has reached the hands of the reporter.</p>

Tried below before the Hon. J. W. Oliver. The rulings being merely on questions of practice in this court, there is no occasion of any further statement of the facts than that given in the head-note.

<p>Appeal from Coryell. Tried below before the Hon. J. P. Osterhout.</p> <p>There is no occasion for a statement of the facts.</p>

<p>Appeal from Karnes. Tried below before the Hon. Daniel D. Claiborne.</p> <p>There is no occasion for a statement of the facts.</p>

<p>Appeal from Webb. Tried below before the Hon. Wm. H. Bussell.</p>

<p>An indictment for theft purported to have been found in February, 1870, and charged the theft to have been committed in November, 1870. The district attorney suggested that by clerical error the indictment misstated the term of the court at which it was found, which was in truth the February term, 1871, and therefore asked leave to amend the indictment accordingly. The court refused leave to amend, and quashed the indictment. Held, that the error was not in matter of form, but of substance, and therefore not amendable.</p>

<p>An indictment for assault with intent to murder, giving venue and time, charged that one “P. in and upon one S. did make an assault, with in- “ tent him the said S. feloniously and of his malice aforethought, to " kill and murder.” Held, that this indictment contains every necessary averment, and it was error in the District Court to quash it.</p>

Tried below before the Hon. J. P, Bichardson. The defendant was indicted by the grand jury of Bastrop county for the murder of William Ward, and the venue changed to Travis county.

<p>' Appeal from Matagorda. Tried below before the Hon. William H. Burkhart.</p> <p>There is no occasion for a statement of the facts.</p>

<p>Appeal from Freestone. Tried below before the Hon. J. B. Rector.</p> <p>There is no occasion for a statement of the facts.</p>

<p>Appeal from Atascosa. Tried below before the Hon. Daniel D. Claiborne.</p> <p>There is no occasion for a statement of the facts.</p>

<p>1. On the trial of an indictment for failing to report cattle slaughtered for market, underact of November 13, 1866, Chapter 179, the State adduced no proof fixing the offense upon the defendant, and it was proved on the part of the defendant that he did not kill, or assist in killing, the animal as charged, and had no knowledge of the killing. Held, that under these facts it was error in the court below to charge the jury, that if they believed the defendant killed the beef for market, or authorized it it to be done, and that he failed to exhibit the hide for inspection, etc., they should find him guilty.</p> <p>2. The court below instructed the jury, that if they believed that the accused and one J. were partners in butchering beeves for market, then they would inquire if the firm failed to exhibit the hide, and make report with bill of sale, as required by the statute. If they had so failed, then the jury would find the defendant guilty as charged. This is held to be error, because it assumes that the defendant killed the animal, as charged in the indictment.</p>

<p>Appeal from Bexar. Tried below before the Hon. George H. hfoonan.</p> <p>The opinion of the court sufficiently indicates the facts of the case.</p>

<p>On the trial of an indictment for gaming in the cabin of a steamboat, the evidence failed to prove whether the boat was in B. or in G. county when the gaming took place ; but the court below instructed the jury in substance, to find the defendant guilty if they believed from the evidence that the boat, on the trip where the gaming was done, commenced or terminated its voyage in the county of B. Held, to be error. The venue must be proved as laid.</p>

<p>Appeal from Williamson. Tried below, before the Hon. William Lewis.</p> <p>There is no occasion for a statement of the facts.</p>

Tried below before the Hon. A. H. Latimer. This case being called for trial, defendant moved the court to postpone the hearing of the case until a later day of the term, to enable him to procure the attendance of a witness by whom he expected to prove that certain money, found upon the person of the accused at the time of his arrest, was given him by the witness in exchange for currency.

<p>Appeal from McLennan. Tried below before the Hon. J. W. Oliver.</p> <p>There is no occasion for a statement of facts.</p>

<p>Appeal from Robertson. Tried below before the Hon. J. B. Rector.</p> <p>There is no occasion for a statement of the facts.</p>

<p>1. Article 3421, Paschal’s Digest, declares, in substance, that if any clerk or other person therein named shall embezzle or misapply, or convert to his own use, without the consent of his principal, any money or other property of such principal or employer, which shall have come into his possession, or shall be under his control, by virtue of such office, agency, or employment, he shall be punished as prescribed for theft; and Article 2385 declares that if the defendant had the lawful possession of the property, yet, if he obtained the same through any false pretext, or with intent to deprive the owner thereof, etc., the offense of theft shall be complete. The accused was a clerk in a store, and was left at night in charge of the store. On the first night after his employment as clerk, he carried off from the store a quantity of money and goods, and the next day was apprehended, while leaving the country, some distance from the place where the act was committed, and the money and goods were found-upon him. Held, that the facts of this case establish every constituent of theft under the above statutory provisions.</p> <p>2. A clerk in a mercantile house has a qualified and limited possession of the-goods as to strangers, but as against his principal or employer he has-neither the possession nor the right of possession.</p>

<p>1. Confessions made while under arrest, and induced by promises or threats, cannot be used against the party making them.; and it is a presumption of law that the influence of the threats or promises continued to operate, until such a period as rebutting proof clearly shows that it had ceased to operate.</p> <p>2. The clear purport and intent of Article 3127, Paschal’s Digest, is, that the confession of a defendant shall not be used in evidence against him, unless it he made to appear that at the time the confession was made, it was voluntarily made, after having been cautioned that it might be used against him ; that the caution must immediately precede the confession, and also that after the caution the confession was voluntary.</p> <p>3. See this case for confessions held not to be voluntary.</p>

<p>Appeal from Erath. Tried below before the Hon. J. P. Osterhout.</p> <p>There is no occasion for a statement of the facts.</p>

Tried below before the Hon. E. B. Turner. The defendants in this case were jointly indicted by the grand jury of Williamson county for the murder of Thomas Gardiner. At the March term, of the court, 1872, the defendants applied for and obtained a severance.

<p>1. In order to constitute the crime of larceny, the taking of the property must be with the felonious intent of permanently depriving the owner of his property.</p> <p>3. See this case for evidence held to be insufficient to establish a felonious intent.</p>

<p>1. An indictment against a road overseer, giving time and plgrce, charged that the accused failed to keep in good repair the public" road leading from S., in the county of Q-., to L., in the county of W., and that said road, especially between the residences of J. and C., in said county of Gr., was then and there not in good repair, and that the said M. was then and there the lawfully appointed road overseer of said county of Gh, against the peace, etc. Held to he defective, in that it contained no averment clearly and definitely showing, that the defendant was hound hy law to keep the road in repair. The indictment should have charged that the road was of the first class, or that it was a road that the defendant was hound hy law to keep in repair, or that it was a road which the County Court had ordered him to keep in repair.</p> <p>2. Road overseers are not hound, under Section 4 of Chapter 31 of the laws of 1870, to keep in repair such roads as are not provided for in Section 1 of that act, and for which they have no funds in their hands.</p>

<p>When a jury find merely that an attachment was wrongfully sued out, they are not warranted in allowing defendant’s attorneys fees as part of the damages. But had the finding been that the attachment was sued out maliciously and without probable cause, such fees would have been allowable as part of the defendant’s damages.</p>

Tried below before the Hon. J. P. Richardson. The Houston and Great Northern Railroad Company was chartered by the Legislature of Texas on the 22d of October, 1866. The incorporators were T. M. Bagby, M. D. Ector, J. M. Maxey, JVL H. Bonner, G. G. Gregg, C. G. Young, and fifteen other persons.

Tried below before the Hon. L. Lindsay. The case is sufficiently indicated in the opinions and the headnote. It will be seen that two opinions are reported, a rehearing having been allowed on motion of the appellants.

Tried below before the Hon. L. Lindsay. The transcript of this case is quite voluminous, and a full account of its contents would be necessary to a complete history of the cause. The legal question, however, decided by this court turns upon the insufficiency of the plaintiff’s petition, by reason of omissions, which are clearly indicated in the opinion and the head-note. Mercer’s will exonerated his executrix and estate from the control of the probate court.

<p>John Rutledge and one P., were sureties on a bond. The bond was forfeited, and a scire facias was issued and placed in the hands of the sheriff, who made return of service on the defendant John Rutledge. Aparty named John Rutledge appeared and pleaded non est factum. The court below refused to allow him to impeach the judgment nisi, by his plea of non est factum, without first showing that he was the person on whom the scire facias was served; and as he failed to do this, judgment absolute was rendered. Held not to be error; the record shows a good and valid judgment against John Rutledge, and if the execution issues against the wrong person, his remedy is by injunction.</p>

Error from Calhoun. Tried below before the Hon. Fielding Jones. This important and interesting cause was originally instituted in the District Court of Cameron county, on April 14th, 1854; but subsequently the venue was changed to Nueces county, and .still later from thence to Calhoun, where it was tried at the December term, 1858, and resulted in verdict and judgment in favor of the plaintiffs, Elisha Basse and Robert H. Herd.

Tried below before the Hon. J. W. Oliver. The opinion of the court gives a lucid statement of the material facts of the case.

Error from Marion. Tried below before the Hon. James L. Gray. The only fact involved in the ruling of this court is that the attachment bond was without seal or scroll. The defendants in error were plaintiffs below. The opinion first rendered in these cases has not reached the reporter; but is obviously of no consequence.

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

Tried below before the Hon. C. C. Binkley. The opinion of the court sufficiently indicates the material facts of the case.

Error from Fayette. Tried below before the Hon. D. C. Barden. The opinion states the leading facts. The plaintiff below sought a recovery against the defendant, not only as executor, but also in his individual capacity as a guarantor. The court below held him liable in the latter character.

Tried below before tlie Hon. J. P. Richardson. The opinion discloses the character of this case, and states the material facts.

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

Tried below before the Hon. J. B. Williamson. The facts of the case are sufficiently stated in the opinion of the court.

Error from Fayette. Tried below before the Hon. I. B. McFarland. This case was before this court on a former occasion, and is reported in 32 Texas, 535, where the character of the case and material facts are stated.

Tried below before the Hon. Henry Haney. The appellant, it appears, was appointed by the Governor, on the 1st of October, 1870, to the office of county treasurer of Caldwell county, then vacant by reason of the death of one Dorris, the previous incumbent.

<p>Appeal from Fort Bend.</p> <p>The opinion of the court and the brief for the appellants are the only papers pertaining to this case which have come to the reporter’s hands. The material facts, however, appear to be fully stated in the opinion.</p>

Tried below before the Hon. J. P. Richardson. Appellants in this case sought to enjoin the collection of the “ one per cent, school tax ” levied by the Board of Education of Travis county. The District Court dissolved the preliminary injunction granted to the plaintiffs, and dismissed their bill, from which judgment this appeal is prosecuted.

<p>Error from Sabine. Tried below before the Hon. M. W. Wheeler.</p> <p>The opinion of the court clearly states the case.</p>

Tried below before the Hon. J. P. Richardson. This suit was instituted by Headley Polk, the appellee, on the 30tli of Hovember, 1867, against C. W. Whitis, the appellant.

<p>Appeal from Harris. Tried below before the Hon. James Master son.</p> <p>The opinion sufficiently indicates the facts.</p>

<p>1. The case of House v. Soder, ante p. 629, cited, and the rulings therein approved, to the effect that a common carrier of cotton from the interior of Texas to points on the Texas side of the Eio Grande, during the civil war, is not precluded from recovering freight-money therefor, by reason of any illegality in his contract, or by reason of the default of the, owner in failing to have a person at the place of consignment authorized to receive the cotton—in consequence of which default the cotton was never delivered by the carrier, but was seized by the military authorities of the United States, and lost to the owner.</p> <p>2. In a suit for freight-money on cotton hauled to Brownsville during the civil war, the defendant, in order to raise a presumption that the plaintiff was engaged in an illegal exportation of the cotton, was allowed by the court below to prove a custom then prevalent of running cotton from Brownsville across the Eio Grande into Mexico. Held, that this was erroneous ; fraud cannot be presumed, nor be proved by evidence of a custom.</p> <p>3. A common carrier is bound to reasonable expedition, in the absence of any stipulation as to time. Unreasonable delay renders him liable for actual and legitimate damages, resulting therefrom, but not for hypothetical damages, nor for any supposed loss incurred in an illegal traffic.</p> <p>4 If an owner of cotton, during the civil war, forwarded it by a common carrier to the Eio Grande, for the illegal purpose of evading the blockade and revenue laws of the United States, and of exporting the cotton to Mexico, and attempted to hurry the carrier along so as to escape the United States authorities and effect his purpose, the carrier was under no obligation to make dispatch in aid of the owner’s objects.</p>

<p>Appeal from Busk. Tried below before the Hon. J. B. Williamson.</p> <p>There is no occasion for a statement of the facts.</p>

<p>1. The right to a change of venue is not a Constitutional right, but a legal right, secured upon certain conditions, and the court to which the application is made is to determine whether or not those conditions exist. (Cotton v. The State, 32 Texas, 614, cited by the court.)</p> <p>2. The State’s witness loaned Ms gun and ammunition to B., who declared his intention to kill M. After B. had started to where the killing took place, witness pursued him and tried to get the gun away. After the killing he went to a house where the accused was and told him that he had better get away from there as there were some people a short, distance off coming in the direction of the house. Held, that the witness must be regarded as an accessory after the fact, and in the light of an accomplice; but as there was other evidence in this case corroborating the testimony of this witness, the court declines to disturb the judgment of the court below.</p>

The writ was sought in this case to compel the Comptroller of Public Accounts to countersign and register certain State bonds.

Tried below before the Hon. C. C. Binkley. The first that was known of this difficulty, the defendant and one Lawson were quarreling near Newberry’s store, in the town of Montague. Lawson retreated, and while he was retreating, the defendant snapped one or two caps on a six-shooter, which missed fire. The parties then separated; Lawson went to his boarding-house, and defendant went off and got another pistol, and returned to the place where the difficulty commenced.

<p>1. An indictment for theft of a heef steer, laying time and place, charged «that the defendant “ did fraudulently steal, take, and carry away from the possession of W. one heef steer, of the value of fourteen dollars, “ the property of the said W., without the consent of the owner, and “ with the intent to deprive,” &c. Held, that the indictment sufficiently describes the property, and it was not error in the court below to overrule the defendant’s motion to quash.</p> <p>2. This court has repeatedly decided that it will not revise a judgment of a lower court when there is evidence to support the judgment.</p>

<p>1. Indictment, after laying time and place, charged that the accused “ did “ then and there unlawfully, feloniously, and with his malice afore- “ thought, in and upon T. C. make an assault, with the intent then and " there him, the said T. G., unlawfully, feloniously, and with'hismalice “ aforethought, to kill and murder, against,” &c. Held, that the indictment sufficiently charged the offense, and it was not error to overrule a motion to quash on account of uncertainty, etc.</p> <p>2. On trial of an indictment with intent to murder, the accused may be acquitted of that ofíense and convicted of aggravated assault, assault and battery, or simple assault. (Article 498, Criminal Code; Paschal's Digest, Article 2160.)</p>

<p>Appeal from Anderson. Tried below before the Hon. Jno. G. Scott.</p> <p>The charging part of the indictment is copied literally, in the head note.</p>

Tried below before the Hon. J. M. Onins. The appellant brought this action in the District Court of the county of Brazos, alleging in his petition that on or about a certain day his wagon and team, and servant, were run over and greatly injured by the defendant’s locomotive, at the intersection of the track and of one of the streets of the town of Bryan, in Brazos county.

Tried below before the Hon. J. M. Onins. The material facts are stated in the head-note as definitely as they appear in the record.

<p>Appeal from McLennan. Tried below before the Hon. J. W. Oliver.</p> <p>The opinion states the material facts.</p>

Error from Guadalupe. Tried below before the Hon. Henry Maney. This suit was trespass to try title, brought by Ireland against one B. E. Saunders, who was in possession of the property in controversy, a town lot in Seguin. Saunders occupied the lot as tenant of Sprague, who was the purchaser at the sale in 1866, and who was admitted as a defendant.

Error from Robertson. The record of this case is very voluminous, comprising numerous exhibits and affidavits filed with the pleadings of both parties. It appears that on the 25th of March, 1869, the present defendants in error instituted trespass to try title against one Hash and a number of other persons, who were occupying the land as tenants of Hough and Oonnoly, the plaintiffs in error, who reside in Massachusetts and New York.

Tried below before the Hon. Wm. Chambers. So far as the facts are involved in the rulings, they are indicated in the opinion of the court.

<p>Appeal from Washington. Tried below before the Hon. I. B. McFarland.</p> <p>There is no occasion for a statement of the facts.</p>

Tried below before the Hon. A. Gr. Perry. The facts of .this case are sufficiently indicated in the opinions of the court, one of which, it will be seen, was rendered on a re-hearing.

Tried below before the Hon. J. B. Williamson. The indictment was returned into the District Court on the 30th of August, 1871. It charged the appellant with having sold spirituous liquors in less quantity than a quart, “ without first obtaining license therefor.” The case went to a jury on the defendant’s plea of not guilty, and he was convicted.

Error from Fayette. Tried below before the Hon. James H. Bell. The facts of this case, so far as they are involved in the rulings, are sufficiently stated in the head-note. Able arguments were filed in this court on the question whether the probate court had jurisdiction, in 1850, to grant a second administration on the estate of the decedent, D. C. Barrett, who died in May, 1838. Space, however, can only be afforded for the authorities relied on by the respective counsel.

<p>Appeal from Smith. Tried below before the Hon. Z. Norton.</p> <p>There is no occasion for a statement of the facts.</p>

<p>1. It is not competent to render a judgment for coin in an action for unliquidated damages.</p> <p>2. A principal who neither authorizes or ratifies a willful trespass committed by his agent, is not liable therefor.</p> <p>3. The Constitution of this State, wherein it recognizes justices of the peace as ex officio notaries public, does not abolish the ofidce of notary public as created by the act of 1846. (Paschal’s Digest, Article 4687.)</p>

Tried below before the Hon. Henry Haney. In this case a jury was waived in the court below, and the facts as Well as the law were submitted to the court. The material facts will be found in the opinion. Very able arguments were filed by counsel for the appellant and for the appellee, and the reporter regrets the want of space to preserve them in this report.

Error from De Witt. Tried below before the Hon. Henry Haney. The facts of the case are sufficiently indicated in the opinion of the court.

<p>1. If two-tliirds of the purchase-money for property used as a homestead had been paid previous to the death of a married woman, her issue were entitled in equity to an interest of one-half of two-tliirds of the property, by virtue of the law of descent and distribution; and if, after her death, the remainder of the purchase-money was paid out of means belonging to the community estate, and the deed was taken in the name of the surviving husband, then he would hold one-half of the property ill trust for the children; and all purchasers with notice of the trust, would take no title as against the beneficiaries.</p> <p>2. The homestead of a family cannot be sold without the consent of the wife, except for the payment of the purchase-money; but, after the death of the wife, the surviving husband has a right, which the heirs cannot defeat, to change the homestead of his family; and when the homestead is so changed, the abandoned place is subject to the same law as other property, and if it he community property, and he sold for the payment of community debts, the purchaser takes a good title.</p> <p>3. When a married woman dies intestate, her community interest descends alike to all her children, whether hy the same or hy several husbands.</p>

<p>Error from Guadalupe. Tried below before the Hon. Henry Maney.</p> <p>There is no occasion for a statement, of the facts.</p>

<p>A landlord entered into a written rental contract with several freedmen, for the cultivation of a farm, for the year 1868, for which the freedmen were to receive one-half of the crops raised thereon. The contract provided that upon final settlement “ the parties were to take their separate “ shares in possession.” Held, that the contract was properly regarded as a contract with each, and each freedman was entitled to sue in his individual capacity for a breach of the same.</p>

<p>Appeal from Bastrop. Tried below before the Hon. J. P. Richardson.</p> <p>The opinion of the court sufficiently indicates the facts of the case.</p>

<p>A claimant of property which had been levied on as the property of another cannot assert his title to the property by a simple unsworn proceeding without bond, denominated by him an intervention in the original suit. He must proceed according to the Statute, Paschal’s Digest, Article 5310, by making oath in writing to his claim of the property, and by executing bond as prescribed in the act.</p>

Tried below before the Hon. A. P. McCormick. It will be observed that two opinions were rendered in this case—one being on motion of the Attorney-General for a rehearing. The facts of the case are disclosed in the opinions.

<p>Appeal from Limestone, from an order of the Hon J. W. Oliver.</p> <p>No occasion for a statement of the facts.</p>

<p>Appeal from Henderson. Tried below before the Hon. J. G. Scott.</p> <p>There is no occasion for a statement of the facts.</p>