Volume 37 — Texas Reports

<p>1. On the hearing of a motion to admit to bail after indictment found, if the testimony of the witnesses who testified before the grand jury fails to make out a case that would require the refusal of bail, it should be granted ; unless the State produces other evidence which shows that the party is not entitled to bail.</p> <p>2. It is error to refuse to admit a party to bail, upon the statement of a district attorney that he has other evidence which he will not disclose for fear of weakening the State’s case.</p>

Tried below before the Hon. J. J. Thornton. This action was brought by Ernst and F. Blumberg against C. Mauer in the District Court of Guadalupe county, on the 3d of December, 1866. The petition was in the form of trespass to try title, though the suit was in substance for the correction of mistake and rectification of boundaries. Both plaintiffs and the defendant were purchasers from A. Swift, who, on the 26th of September, 1853, conveyed by deed to 0.

Tried below before the Hon. J. J. Thornton. The material facts of the case are indicated in the opinion of the court and the head-notes. Able arguments were filed in this court by the counsel of both parties, but they are addressed mostly to questions of fact. A rehearing was applied for, but not allowed.

Tried below before the Hon. J. B. Williamson. The main facts of the case are indicated in the opinion of the court. The account sued on was originally contracted with the firm of Swartz, Lister & Co., who, on dissolution, transferred it to E. Swartz, one of the firm. He afterwards became a voluntary bankrupt; and at his assignee’s sale of the assets H. Swartz purchased the accounts, including the one sued on.

Error from Coryell. Tried below before the Hon. J. P. Osterhout. The material facts are indicated in the opinion and the headnote.

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

<p>1. A power of attorney to sell “ claims and effects ” cannot be construed to authorize the sale of land or real estate.</p> <p>2. In an action of trespass to try title, the plaintiff, to establish the authority of the agent to convey the land in controversy, offered in evidence a power of attorney from one W. to the agent, to sell all the claims and effects of the said W. in this State. Held, as the power of attorney did •not authorize the sale of land, it .was not error to exclude from the jury both.the power of attorney and the deed executed under it—there being no evidence of a subsequent ratification of it by the principal.</p>

Error from McLennan. Tried below before the Hon. A. J. Evans. The opinion and the head-notes state the case. A motion for a rehearing was made and ably urged by counsel for the defendant in error, and elicited the second opinion.

Tried below before the Hon. J. B. Rector. The note sued on was made by S. M. Horton and W. H. Horton to one Wilson, and at the time it was made, Orson McDaniel indorsed it in blank. Wilson immediately transferred and delivered the note to one Donaldson, who placed it in the hands of Weir, an attorney, for collection.

<p>Appeal from Caldwell. Tried below before the Hon. Henry Maney.</p>

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

<p>Appeal from Robertson. Tried below before the Hon. J. B. Rector.</p>

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

<p>Appeal from Milam. Tried below before the Hon J. M. Onins.</p> <p>The facts of the case are sufficiently stated in the opinion of the court.</p>

<p>1. It is now the well-established doctrine that when a transaction is tainted by illegality, no legal or equitable rights can result from it. And it is immaterial whether the illegality be part of the cause of action, or be merely introductory to it; if the plaintiff requires any aid from the illegal transaction, in order to make out his case, he cannot maintain the suit.</p> <p>2. Plaintiff alleged the sale to the defendants of a stock of cattle, to be paid for by them in Confederate States bonds, and he alleged the illegality of the transaction and the worthlessness of the bonds, and sought judgment for the value of the cattle. Held, that the action cannot be maintained. The fact that the plaintiff himself renounces the illegal contract, cannot entitle him to recover on a transaction void for illegality, and in which he was in pwi'i delicto with the defendants.</p> <p>3. This court adheres to its decisions that executory contracts based upon Confederate money, cannot be enforced. It holds that no pretense of force or necessity can vindicate such contracts, and recognizes no analogy between the condition of the people of the so-called Confederate States and that of a people temporarily subjected to the authority of a foreign power, and compelled to submit to its exactions.</p> <p>4. If a person of unsound mind was fraudulently induced to part with property for a Confederate money consideration, relief would be afforded him by the courts; but his recovery would be measured by the value of the property, and not that of the Confederate money.</p>

Tried below before the Hon. L. Lindsay. This suit was instituted in 1867 by William Alley, against the administrator of T. W. Harris, deceased, to foreclose a vendor’s lien on lots 4 and 5, Block 9, in the town of Columbus. Alley died pending the suit, and Rosenfield, his administrator, became plaintiff in his stead. The suit was necessitated by the probate judge having disapproved the lien claimed by Alley.

Tried below before the Hon. J. W. Oliver. It appears that early in the year 1867, Differ, the plaintiff, was merchandising in Brenham, when the defendant, Johnson, sued out an attachment against Sawyer & Baker, and caused it to be levied on the goods of the plaintiff, who, being unable to replevy the goods, brought a suit against Johnson and the officer who made the levy.

<p>1. When no constituent member of a family remains, the homestead exemption ceases to exist, and the property becomes subject to the debts .of the last owner, notwithstanding he left children or other descendants who were not members of his family at the time of his death. (Hoffman v. Neuhaus, 30 Texas, 633; and Sossaman v. Powell, 21 Texas, 664, cited with approval by the court.)</p> <p>2. A constable of a city; town, or village, is, it seems, a constable of the county, within the meaning of the act of November 12th, 1866, and as such is competent to make service of legal process. (Acts of 1866, page 199.)</p>

<p>On a judgment of a justice of the peace, rendered in 1861, execution was sued out in 1869, and was levied on the property of the defendant in execution. On the justice’s docket an entry appeared, dated in 1864, to the effect that the judgment was then paid in Confederate money. After the levy in 1869, the defendant in the execution obtained an injunction from the district judge, upon petition alleging the payment in Confederate money, dormancy, etc. The plaintiff in execution answered that the Confederate money payment was illegal and void, and that the debt was unpaid and subsisting; and prayed that his judgment, if dormant, be revived, etc. Held, that the District Court did not err in perpetuating the injunction. It had no jurisdiction to revive the dormant judgment of a justice of the peace ; and in the absence of allegation and proof by the plaintiff in execution, that the Confederate money payment was without his authority or consent, the injunction was also properly sustained on the ground of payment.</p>

<p>The clerk of the District Court from which an appeal is taken to the Supreme Court, is not competent to become a surety on the appeal bond. It is not reasonable to suppose that the statute intends to authorize the clerk to approve and accept himself as surety for other parties.</p>

<p>1. A bankrupt’s discharge cannot be impeached in a State court for any of the causes which would have prevented the United States District Court from granting the discharge.</p> <p>2. To a suit on a debt provable in bankruptcy the defendant pleaded his discharge in bankruptcy, obtained by him in the United States District Court on his petition filed therein subsequent to the institution of this suit. The plaintiff replied that the discharge was fraudulently obtained by the defendant, because the defendant, previous to and in contemplation of his bankruptcy, and in fraud of his creditors and of his assignee, transferred to his children and concealed certain property which he should have scheduled and surrendered to his assignee, etc. Held, that exceptions were correctly sustained to this replication of the plaintiff. The matters alleged by him to invalidate the discharge were cognizable exclusively in the United States court which had granted the discharge.</p>

Tried below before the Hon. C. B. Sabin. The material facts are stated in the opinion of the court. McNeil and wife both died previous to the adoption of the Constitution of 1869, and while the value of an urban homestead was limited to two thousand dollars.

Error from Busk. Tried below before the Hon. J. B. Williamson. This ease is the sequel of Little v. Birdwell, 21 Texas, 597, and 27 Texas, 688, and shows what has ultimately gone with the subject-matter of that protracted litigation. A full history of the entire matter will be found in the volumes just referred to. The present plaintiff below, Gary, was the administrator de bonis non of Richard J. Ball’s estate, suing in the interest of Ball’s heirs.

Error from Red River. Tried below before the Hon. R. H. Taylor. The facts of the case are sufficiently stated in the opinion of the court.

<p>The revisory power of the Supreme Court is confined to the judgments and decrees of inferior tribunals, and it has no power over its own judgments or decrees after the close of the term at which they were rendered, except for the correction of clerical errors, mistakes or defects of form, or matters necessary to carry out the jurisdiction of the court, or to vacate a void judgment. Therefore, when a second appeal is substantially no more than an application for a rehearing of the questions determined on the first appeal, this court will not revise its former rulings at a previous term.</p>

Tried below before the Hon. A. H. Latimer. This suit was instituted in the District Court of Lamar county by James T. Francis, the father and next friend of Sarah E. Francis, a minor, against F. M. Payne, a practicing physician, to recover damages for certain injuries to his daughter, occasioned by the unskillfulness of the defendant as a physician.

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

Tried below before the Hon. A. H. Latimer. The opinion of the court and the head-notes state the facts as definitely as they are disclosed in the transcript. In the court below the appellee obtained verdict and judgment against the appellant, who was the plaintiff, for nearly a .thousand dollars.

<p>In April, 1860, R. and his wife duly executed a deed of trust upon their homestead, to secure indorsers on their notes. In 1863, R. died insolvent, and his wife subsequently died insolvent in 1866. Soon after the death of the latter, their son, who was then of full age, left thp property and never afterwards resided upon it; and in 1867, two daughters, the only other children of R. and wife, married, and acquired other homes. The indorsers paid the notes, and brought this suit against the children and heirs of R. and wife, to enforce the deed of trust. Held, that the plaintiffs are entitled to have the trust enforced, the property sold, and to reimbursement out of its proceeds. As the defendants did not remain together as a family, nor continue to occupy the property as a homestead, they can only take it subject to the incumbrance of the deed of trust. Had they been minors, remaining together and occupying the property as a homestead, or if a surviving widow, the head of a family, was the party defendant, the question presented would, be a different one.</p>

<p>Appeal from Harris. Tried below before the Hon. James Masterson.</p> <p>The facts are sufficiently indicated in the opinion of the court.</p>

Error from De Witt. Tried below before the Hon. Henry Haney. The court indicates, in the opinion, such of the facts as it deems material.

<p>A surviving husband may, after the death of his wife, dispose of his community interest in the homestead, regardless of the children of the marriage ; and it is immaterial that the property has continued to be the homestead after the death of the wife, and that the children of the marriage are minors. A purchaser from such surviving husband becomes a tenant in common with the children who inherited their mother’s community interest; and the right of such purchaser to a partition of the property cannot be postponed until the children become of age, or acquire homesteads of their own. But the purchaser may abstain from requiring a partition, and proceed for half of the rents and profits.</p>

Tried below before the Hon. J. J. Thornton. This case is the latest development of that protracted litigation, which first cropped out in Jones v. Garza, 11 Texas, 186, and re-appeared in Jones v. Muisbach, 26 Texas, 235. Those cases and the opinion in the present case disclose all facts of materiality.

<p>On the trial of a criminal case, the only witness in behalf of the State testified without being sworn. After the argument of the case had closed, defendant’s counsel asked the court to instruct the j ury that they should acquit, as there was no evidence before them. The court, refused the instruction, and allowed the witness to be recalled and sworn, and to testify again. Held, that the court erred both in refusing the instruction asked by defendant, and in permitting the witness to testify after the argument of the case had closed.</p>

<p>1. In a suit on a forfeited bail bond, the sureties, being served with scire facias, appeared at the next term of the court, and filed their answer, setting forth reasons why judgment final should not be rendered against them. On motion of the district attorney their answer was stricken out because it was not sworn to, and judgment final was rendered against them. Held, to be error. The statutes of this State do not require that an answer to a scire facias upon a forfeited bail bond should in any case be sworn to.</p> <p>3. The law prescribing the manner of taking forfeitures of recognizances and bail bonds requires that the names of the defendant and his sureties be distinctly called at the court-house door; and it will not suffice to call the name of the defendant alone.</p>

Error from Guadalupe. Tried below before the Hon. J. J. Thornton. The opinion of the court sufficiently indicates the material facts of the case.

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

<p>Appeal from Travis. Tried below before the Hon. J. P. Richardson.</p> <p>The judgment in favor of Stone against J. H. Walker and wife was in the ordinary form, first running as a judgment in personam, and then decreeing a sale of the land ; but according a general execution for any deficit which might remain after the sale of the land.</p> <p>J. H. Walker’s testimony was offered by the appellant to prove that the deed of trust was delivered, when made, to the appellant, who was one of the beneficiaries; and also to prove the bonajides of the deed.</p> <p>The other material facts are stated in the opinion and the head-notes.</p>

<p>1. A tenant in common of real estate may establish upon such lands his homestead, without prejudice to his co-tenants ; and on partition, equity will allot to such improving tenant his homestead, whenever that can be done without injury to the other owners.</p> <p>2. In 1863, W. and his wife occupied as their homestead two hundred acres of community land, which adjoined a six hundred acre tract belonging to W. as his separate property ; and in the summer of that year they sold both tracts to F., who then paid them in negro property, and to whom they then delivered possession of both tracts. By permission of F., however, they moved into a small cabin on the six hundred acre tract, and occupied it until the summer or fall of the next year, but both of them repeatedly explaining to other persons that it was only a temporary habitation until they could complete a home they were building on another tract, which was owned by W. in common with his brothers, and to which new home they did remove, and occupied it as a homestead until the death of W. in 1871. Title to the two tracts was not made to F. until some three months after the contract of sale, when W. and wife duly executed to him their joint conveyance of the two hundred acre tract, and W. his separate conveyance of the six hundred tract. In 1865, W. sued F. for a rescission of the contract, in consequence of the emancipation of the negroes; and in 1867, pending the suit, W.’s wife intervened and claimed a homestead of two hundred acres out of the "six hundred acre tract, which, after the death of her husband, was adjudged her in the District Court. Held, that W. and wife never acquired a homestead on the six hundred acre tract; their occupancy of that tract was but a tenancy at the will of F. But they did acquire a homestead on the land owned by W. in common with his brothers.</p> <p>3. The usual warranty on the sale of slaves, that they were “ slaves for'life,” was not broken by the abolition of slavery.</p>

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

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

<p>Appear from Bastrop. Tried below before the Hon. J. P. Richardson.</p> <p>The facts of the case are stated in the opinion of the court.</p>

<p>1. In 1863, S. sold to D. several tracts of land, taking D.’s note for part of the purchase-money, and executing to D. a bond for title. After maturity of the note, S. brought suit upon it in personam against D., who pleaded a partial failure of the consideration of the note, admitting his possession of all the land, but alleging that S. had no title to some of the tracts, though without designating which of the tracts, or their extent or value. S. thereupon amended his petition, and admitted that the note was for the purchase-money of the land, and tendered into court a deed to D. for all the lands, alleging it to constitute a perfect title; and he prayed that his vendor’s lien he enforced. D. demurred to the petition as amended, on the ground that it contained admissions to the effect that S. did not have title to all of the tracts at the time he instituted this suit. The overruling of the demurrer is assigned for error. Reid, that there was no error in- the ruling, as the pleadings of the plaintiff contain no such admission. But even if the plaintiff had admitted all of the allegations made in the defendant’s answer, he would still have heen entitled to maintain the suit. The consideration of the note might have failed in part, and yet the plaintiS he entitled to a judgment.</p> <p>2. The ruling in Chambers v. Bonner, 33 Texas, 511, approved, to the effect that nothing but proof of a positive agreement by parties to a promissory note payable in “ dollars,” that it should he payable in Confederate money, will authorize a jury to find that it was payable in that illegal currency. The presumption is, that such a note is payable in lawful money.</p>

Tried below before the Hon. Fielding Jones. The present is the fifth appearance of this veteran case in the Supreme Court. The former appeals are reported in 11 Texas, 556; 15 Texas, 500; 20 Texas, 588; and 24 Texas, 551; and to these reports reference is made for the facts of the case, including the pleadings of the parties and the former rulings of this court.

Tried below before the Hon. John B. Rector. The material facts of the case are sufficiently stated in the opinion of the court.

Tried below before the Hon. J. P. Osterhout. The material facts are disclosed in the opinion of the court and the head-notes. The court below ruled that the defenses of limitation and stale demand were frustrated by the constitutional provision suspending limitation from January 28th, 1861, to the acceptance of the Constitution by Congress in 1870.

<p>Appeal from Bexar. Tried below before the Hon. George H. Noonan.</p> <p>There is no occasion for a statement of the facts.</p>

<p>The petition in an action upon a promissory note, charged that the defendants “ made and delivered to petitioner the note hereto attached as a “ part hereof, marked Exhibit A.” The note contained the usual promise to pay, for a valuable consideration, and was exhibited as a part of the petition. Meld, that the petition sufficiently alleged an indebtedness and a promise to pay.</p>

Error from De Witt. Tried below before the Hon. Henry Maney. The appellee was the son and representative of a partner in a firm styled Lane & Cage, which was engaged in traffic during the Confederate war. Samuel W. Lane was a member of the firm, and, he having died in the fall of 1865, the appellant, his widow, became his representative as surviving conjugal partner.

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

Tried below before the Hon. D. D. Claiborne. The question of evidence referred to in the opinion of the court, arose upon instructions asked and refused in the court below.

<p>When the principal in a replevy hond is a non-resident of the State and insolvent, it is competent to sue his sureties on the hond without joining him as a party defendant in the suit.</p>

<p>1. There is nothing in Chapter 65 of the Acts of 1870 incompatible with Article 3393 of Paschal’s Digest, which allows a party on trial before a j ustice of the peace to waive his constitutional right of trial by jury.</p> <p>3. The overruling of a motion for a new trial is a. prerequisite to an appeal from a judgment of a justice of the peace to the District Court.</p> <p>3. Section 17 of Article 5 of the Constitution gives justices of the peace jurisdiction over all offenses of a lower grade than felony, and aggravated assault is included within this class.</p> <p>4. The District Court might have allowed the appellant to prosecute the appeal notwithstanding it was improperly taken, if no objection thereto was interposed.</p> <p>5. Judgments of the District Courts rendered in cases appealed from justices’ courts are final, and a further appeal to the Supreme Court is not allowable.</p>

<p>1. The sureties upon a recognizance conditioned for the appearance of their principal at the next term of court, to answer to a criminal charge, cannot come into court and question the sufficiency of the indictment without prodiicing the body of their principal.</p> <p>2. A plea that the defendant is sued by the wrong name is in the nature of a plea in abatement, and should be sworn to. The plea should also set out the true name of the defendant, so that an alias writ can be run against him. The error is clerical and amendable.</p> <p>3. It was error for the court below to quash a recognizance, because in the body of it the defendant was described by a wrong Christian name, there being no denial that he was the person who bound himself in the recognizance. In such cases the court, on being satisfied that the right man is before it, should hold him to his obligation without regard to his appellation.</p> <p>4 Johnson v. The State, 33 Texas, 670, cited with with approval.</p>

Tried below before the Hon. George H. Noonan. The opinion of the court indicates the most material facts. The business of the parties was the shipment of cattle from Texas to Hew Orleans, in 1866. The settlement relied upon in the amended petition took place in July of that year. The suit was commenced in the spring of 1867, and the amended petition filed in November, 1870.

<p>1. In an action for rent it is competent for the defendant to plead, by way of reconvention, a breach of the plaintiff’s covenant to repair.</p> <p>3. A plea in reconvention is in the nature of a cross bill asking equitable relief, and it must aver matter which would be good in an original bill, or would constitute a good cause of action.</p> <p>3. All matters may be pleaded by way of reconvention which are necessarily connected with the main action, or are incidental to the same. (Walcott v. Hendrick, 6 Texas, 418, cited by the court.)</p>

Tried below before the Hon. William Lewis. The leading facts of the case are stated in the opinion of the court. The jury found generally for the plaintiff, and assessed her damages at seventy-five dollars. The court below rendered judgment against Fleming for that amount, and then proceeded to recite that all the parties were interested in the water of the stream for irrigation purposes, and to enjoin Fleming from taking or diverting more than three-sevenths of its waters.

<p>Appeal from Lamar. Tried below before the Hon. R. H. Taylor.</p> <p>The opinion of the court sufficiently states the facts of- the ease.</p>

<p>1. A note made in 1864 is not void because it was made payable “ six months “ after the ratification of a treaty of peace between the Confederate “ States and the United States.” The termination of the war was the real event which fixed the time at which such a note became payable, and the contract was not vitiated by the stipulation.</p> <p>2. The holder of a promissory note purchased land, and in part payment therefor transferred the note to his vendor by indorsement in blank. Held, that by the indorsement the purchaser made the note his own obligation, and the vendor had a lien on the land to secure its amount, unless there was an agreement to the contrary.</p>

Tried below before the Hon. J. M. Onins. A succinct but clear and comprehensive statement of the material facts will be found in the opinion of the court. The appellants, B. F. Ackerman and James Ferguson, were plaintiffs in the court below.

Tried below before the Hon. Daniel D. Claiborne. The defendant, J. J. Oneal, was arrested by the sheriff of Karnes county by virtue of a capias issued from the office of the clerk of the District Court of Karnes county, upon an indictment charging him with the theft of a gelding. The bail bond was conditioned for the appearance of Oneal at the next term of the District Court, to answer to an indictment for the theft of a horse.

Error from Karnes. Tried below before the Hon. D. D. Claiborne. The material transactions between the parties are indicated in the opinion of the court and in the head-notes. The district judge, in certifying to the statement of facts, set forth that it was made out in his own hand-writing, and had been filed by him with the clerk at the preceding term, when the cause was tried, but that by inadvertence he failed to sign it at that time; wherefore he signs it nunc pro tunc.

<p>Appeal from Smith. Tried below before the Hon. Z. Norton.</p>

<p>In an indictment for assault and battery, it is not sufficient to charge that the defendant did use unlawful violence upon the person of another. The gravamen of the offense is the injury and the intent to injure, and the fact that the law will presume the intent when the injury is proved, does not dispense with the necessity of alleging the intent in the indictment.</p>

<p>1. M. and 0. being partners, and as such involved in debt, M., on the 2d of June, 1870, conveyed certain lands to G., by a deed absolute in form, and purporting a present cash consideration. Two days afterwards, C. executed an instrument obligating himself, after payment of all debts against the firm, to secure to M.'s wife all property conveyed by M. to him, or so much thereof as should be left after payment of the debts. C. subsequently sold the lands to B., and M. and wife sue C. and B. for the lands. Held, that if M.’s conveyance was for the purpose of discharging the firm debts, C. was bound to apply the property to that purpose alone ; and if C. sold the entire property to B. for the purpose of paying those debts, although a portion of the property would have sufficed, and there was no collusion or fraud imputable to B., then B. acquired a good title. But if C. sold the property after the firm debts had been paid, or for any other purpose than the payment of them, and B. bought it with notice of the equities of M/s wife, then the latter has the same rights against B. as she had against C.</p> <p>2. A discretion pertains to the District Courts, to prevent counsel from unnecessarily consuming time in discussing law authorities in the progress of the trial. No inflexible rule can be laid down on this subject; it must be regulated by the courtesy always due from the bench to the bar, and by the frequent necessity that the former shall avail itself of all sources of information.</p> <p>3. A conversation between two defendants, in the absence of the plaintiffs, was not competent evidence against the plaintiffs,</p>

Error from Calhoun. Tried below before the Hon. T. C. Barden. This suit was brought by Fannie Schmullen against Henry B. Miller, as sheriff of. Calhoun county, for the seizure of certain goods, wares, and merchandise, claiming damages in the sum of five thousand dollars. The case was tried at the May Term, 1871; verdict and judgment for three thousand five hundred dollars for plaintiff; motion for a new trial overruled, and the case brought to this court on writ of error.

Error from Anderson. Tried below before the Hon. John G. Scott. The opinion states all facts now material. The former appeal is fully reported in 33 Texas, 760.

<p>Appeal from Wharton. Tried below before the Hon. Wm. H. Burkhart.</p>

<p>Error from Lavaca. Tried below before the Hon. W. H. Burkhart.</p>

<p>1. It is well settled that if natural or well-known artificial objects, called for in a deed or patent, be inconsistent with the courses and distances called for, the latter must be disregarded.</p> <p>2. To establish boundaries, monuments and lines marked upon the ground may be identified by parol evidence. The common understanding of the neighboring community, as to the identity of such monuments and lines, is competent evidence; and the declarations of deceased persons, possessed of information on the subject, are admissible to fix the locality of corners and lines of a survey. So also it'was competent to prove that the corner in dispute had been recognized or pointed out by the adverse party as the true corner; and if it be proved that a common line between contiguous proprietors had been mutually recognized and established by them, they will be bound and concluded by it, though it be not the true original line.</p> <p>3. One party litigant having read such .parts of an original survey as concurred with his patent, it was not error to permit the adverse party to introduce the entire survey for the purpose of contradicting or explaining the patent.</p>

<p>1. A guarantor can be held, liable only to the extent of Ms guaranty. Therefore, if a party promises to accept or indorse for another,- there must be a demand upon him for his acceptance or indorsement before he can be made liable in any manner.</p> <p>3. By letter to a mercantile firm at New Orleans, M. introduced one R. as a party desiring to purchase goods, concluding as follows : "Any favor “ you may show in introducing him to the different houses, so that “ he may be able to fill his orders, will be highly appreciated by him, “ and will be indorsed by me, if necessary, for the amount of his pur- “ chases.” Held, that the letter imported no more than a promise to indorse for R., in case the indorsement should be necessary to enable R. to make his purchases ; and when the merchants sold goods to R., and took his individual note for their amount, payable at six months, without calling on M. for his indorsement, or notifying him at all, until about the time R.’s note fell due, the presumption is that the goods were sold on the individual credit of R., irrespective of M.’s letter. Six months were not a reasonable time within which M.’s liability as a guarantor could be fixed by notice.</p> <p>8. A guarantor for a future credit to be extended to another, is entitled to notice that his guaranty has been accepted or acted upon ; and such notice must be given him within a reasonable time, so as to enable Mm to secure and protect himself against the principal debtor.</p>

Tried below before the Hon. G. H. Noonan. The opinion of the court sufficiently indicates the facts involved in the rulings.

<p>1. Defendant, a resident of G. county, was sued in L. county, to which, for judicial purposes, the unorganized county of M. was attached. The cause of action was a money demand alleged to be payable in M. county; and uncontradicted testimony so proved it. Held, that defendant’s plea to the jurisdiction of the court was correctly overruled.</p> <p>2. Deposition of a male witness was taken by plaintiff in the county where the suit was pending, and was objected to on that ground. But an affidavit of the plaintiff for a continuance disclosed the fact that the witness resided in a different county, which, being unorganized, was attached for judicial purposes to the county where the suit was pending. Held, that the objection was properly overruled, and the deposition correctly admitted.</p>

<p>Error from Cameron. Tried below before the Hon. W. H. Russell.</p>

Tried below before the Hon. J. P. Richardson. A full account of the parties, pleadings, proceedings, and facts of this case would require a lengthy, detailed statement. Such a statement, however, is not called for to explain the rulings made in the opinion. In the head-notes and the opinion will be found all the facts at all pertinent to the rulings.

<p>1. In 1860 the parties litigant filed a written agreement, that the venue should be changed and the cause be tried by the judge below, without a jury. Subsequently, material changes were made in respect of parties to the suit. The cause came to trial in 1871, and defendants demanded a jury; but their previous agreement was enforced against them, and the cause was tried by the judge. Held, that, under the circumstances, the agreement should not have been considered binding, and a jury should have been allowed.</p> <p>2. Suit for land in B. county was there brought, but the venue was changed to H. county, and there a new party was permitted to intervene as a plaintiff, claiming part of the land. The defendants pleaded want of jurisdiction in the court of H. county, to entertain the intervention, alleging that the land lay in a different county, and that the intervention was an original action so far as the interveners were concerned. Held, that the plea should have been sustained, and the intervention dismissed.</p> <p>3. Several owners of distinct parcels of an entire tract of land cannot, even under our liberal practice, maintain a single joint suit for the recovery of the entire tract. Each should sue for his respective parcel.</p> <p>4. Suit for land was brought in 1855, by parties who deraigned title under an alleged grant made in 1807. Defendants, claiming under patents from the State, based on locations made in 1846, impeached the grant-on the ground that it was never anything but an imperfect or inchoate grant. At the trial the plaintiffs, over objection by the defendants, were permitted to prove declarations of the grantee asserting ownership of the lands, and also allowed to put in evidence the will of the grantee, who died in 1814, and who, in her will, asserted ownership, and made a disposition of the land. Held, that the objections of the defendants, on the general ground of incompetency, were well taken; and it was error to overrule them, and to admit the declarations and the will as evidence to support the alleged grant.</p> <p>5. An inchoate or incipient title is imperfect, and requires some additional exercise of the granting power before the fee will pass. Such an imperfect title does not imply ownership, either against the sovereign or against individuals.</p> <p>6. An imperfect title, which emanated from a former government, and was never recognized by the existing one, forms no foundation for an action, and can have no standing in our courts.</p> <p>7. The doctrine of presumption of grants being involved in this case, the. former decisions of this court are reviewed and considered; and the rulings in Herndon v. Casiano, 7 Texas, 323; Paul v. Perez, 7 Texas, 339, and others of the earlier cases, on this important question, are regarded as having been materially changed or modified by the later decisions in Taylor v. Watkins, 26 Texas, 688; Biencourt v. Parker, 27 Texas, 558, and other cases.</p> <p>8. In 1807, the Governor of Goahuila and Texas made to Donna P. D. a concession of land, under which a survey was made, and an act of possession executed to her. But the concession required the grantee to appear before the Intendente of San Luis Potosí, and obtain from him a confirmation of her title. There being no evidence of such a confirmation by the Intendente, the plaintiffs, who claim under the concession, invoke a presumption of such confirmation, by virtue of the lapse of time, and of such possession as they were able to prove. See the opinion for the reasons why such presumption cannot be indulged, and for the general principles controlling the presumption of grants from the governments which preceded the Eepublic.</p> <p>9. The ten years’ statute of limitation cannot confer title as against the government; nor does it begin to run as between individuals, until the title of the government has been divested.</p>

Tried below before the Hon. E. B. Turner. The case is substantially stated in the opinion of the court. A jury was waived in the court below, and the cause was tried by the judge.

<p>1. Judgment by District Court, November 18th, 1869. On the next day a motion for a new trial was made, and overruled. On the 26th of the same month another motion for a new trial was made and sustained, and the cause continued. In March, 1871, the court, of its own motion, set aside the order of the 26th of November, 1869, granting a new trial, and dismissed the cause. Held to be error. The District Court can reconsider or reverse its rulings during the term at which they were made, but not thereafter.</p> <p>2. The District Court may entertain and allow a new trial after having previously, but at the same term, disallowed such a motion.</p> <p>3. The discretion of District Courts in granting new trials will not be revised by this court.</p>

<p>B. sold a piece of land to 9., and, to secure payment for the same, took a mortgage on two slaves, who were emancipated before the debt was paid. Held, that the mortgage of the slaves did not pass the property in them, and tlieir loss as property fell upon 9., on their emancipation; but by taking a mortgage upon the slaves, B. waived his vendor’s lien upon the land.</p>

<p>Appeal from Bexar. Tried below before the Hon. George H. Hoonan.</p> <p>There is no occasion for a statement of the facts.</p>

Error from Wharton. Tried below before the Hon. T. C. Barden. This suit was instituted upon a promissory note executed by M. S. Stith, B. Mills, and D. G. Mills, to J. H. Dennis and j. D. Whitten, and indorsed by Dennis and Whitten to the plaintiff.

Error from Matagorda. Tried below before the Hon. William H. Burkhart. This is a suit brought against Caroline Jones, Executrix of the estate of George D. Jones, and Asa Stratton, Jr., executor de bonis non of the estate of Albert C. Jones, on a mercantile account against the partnership of George D. and Albert C. Jones.

Tried below before the Hon. George H. Noonan. The facts of the case are sufficiently stated in the opinion of the court.

Error from Bexar. Tried below before the Hon. Thomas H. Stribling. The opinion and the head-notes indicate the character of the suit and the most material of the facts. Locklin was the tenant of Mrs. Matilda Allen, his co-defendant. He disclaimed any interest, and the defense was made by her. T. J. Allen, to whom reference is made in the opinion, was the last husband of Mrs. Allen. The Zarza grant, under which Hoxey, the plaintiff, claimed, was made October 17th, 1833.

Tried below before the Hon. J. M. Onins. The material facts of the case are sufficiently stated in the opinion of the court.

<p>Appeal from Panola. Tried below before the Hon. M. W. Wheeler.</p> <p>The facts of the case are sufficiently stated in the opinion of the court.</p>

<p>1. This court will not revise the order of a lower court overruling a motion for a continuance, unless the point has been saved by a bill of exceptions.</p> <p>2. A bill of exceptions for overruling a motion for a 'continuance based upon an affidavit should in general set out the affidavit upon which the motion was based.</p>

<p>Appeal from Titus. Tried below before the Hon. J. D. McAdoo.</p> <p>The opinion of the court sufficiently states the facts of the case. _</p>

<p>Appeal from Walker. Tried below before the Hon. J. R. Burnett.</p> <p>There is no occasion for a statement of the facts.</p>

<p>Appeal from Walker. Tried below before the Hon. J. B. Burnett.</p> <p>The material facts of the case are sufficiently stated in the head-notes and opinion of the court.</p>

<p>1. Defendant in trespass to try title pleaded the general denial and not guilty. Plaintiffs deraigned their title from one R, and then, to make out their case, offered certain conveyances to show that the defendant also claimed under R ; but defendant disclaimed any title from or under R, and objected to the introduction of the conveyances offered by the plaintiffs. Held, that it was error to overrule the defendant’s objections and admit the conveyances.</p> <p>2. In trespass to try title, the possession of the defendant gives him the right against the plaintiff, until the latter shows a sufficient title.</p>

Tried below before the Hon. J. D. McAdoo. The opinion gives the allegations of the petition. The exceptions assigned both multifariousness and misjoinder of defendants.

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

<p>Appeal from Houston. Tried below before the Hon. L. W. Cooper.</p> <p>The facts of the case are stated in the opinion and headnote.</p>

<p>When it appears in a suit on a forfeited hail bond, that the bond is in every respect in compliance with the statute, this court will not go behind the bond to inquire into the sufficiency or insufficiency of the indictment, or whether it charged the same offense described in the bond; nor can extrinsic evidence be introduced by the sureties on the bond to prove its insufficiency to support a judgment of forfeiture; but a bond which does not, upon its face, bind the accused to appear before some particular court, at some specified time and place, is utterly void, and any action had under it is a mere nullity.</p>

Tried below before the Hon. H. W. Wheeler. The appellant was indicted by the grand jury of Shelby county for carrying a pistol. On the trial of the case he pleaded a previous prosecution and acquittal for the same offense, before a justice of the peace. The court below overruled the plea, and on trial the defendant was convicted.

<p>Appeal from Houston. Tried below before the Hon. Leroy W. Cooper.</p> <p>There is no occasion for a statement of the facts.</p>

Tried below before the Hon. J. B. Williamson. The opinion indicates the character of the case. The so-called confessions were not of so conclusive or definite a nature as to render a recital of them useful; and the testimony respecting the conduct of Campbell, the officer, was more suggestive than demonstrative of duress. Able briefs on the merits of the case were filed both for the appellant and for the State.

<p>1. In capital cases, a copy of the indictment and a list of the special venire must be furnished to the accused at least one day before he is put upon trial; and, unless he has waived his rights in.these respects, it is error to proceed with the. trial when he has not been furnished with such copy and list.</p> <p>2. It is error to refuse a defendant in a criminal prosecution the privilege of recalling a State’s witness, for the purpose of laying a predicate for the introduction of evidence to prove that he had made 'contradictory state- ■ ments.</p> <p>3. A party does not make a witness his own by merely recalling him for the purpose of cross-examination ; but by propounding questions touching matters not called out in the examination in chief, he makes the witness his own.</p> <p>4. Article 3133 of Paschal’s Digest does not prohibit a party from attacking the testimony of his own witness, in any manner except by proving the bad character of the witness.</p>

Tried below before the Hon. Sam. Dodge. The defendants were indicted by the grand jury of Galveston county, for the murder of Green Butler.

Appeals from Austin and Marion. There is no occasion to state the facts of these cases. De Forrest v. Miller is the case designated as No. 1287 in the opinion. The only brief which has reached the reporter is that of—

<p>1. A notary’s certificate to a married woman’s conveyance recited that she appeared before him, ‘ * and acknowledged herself party to the annexed deed “ of trust, and, being examined and apart from her husband, acknowl- “ edged that she signed, sealed, and delivered the same, for the purposes “ and considerations therein expressed, and that she wished not to retract “ it.” Reid, that this certificate is defective and worthless. It fails to show that the wife was examined separate and apart from the husband, or by whom she was examined; and though all its recitals be admitted, she may never have acknowledged to the notary her willingness to sign the instrument. (Paschal’s Digest, Article 1003.)</p> <p>2. In the absence of promissory notes secured by the deed of trust for the enforcement of which this suit was brought, and without allegation of their loss, it was error to permit the plaintiff to prove their contents by parol evidence.</p>

Tried below before the Hon. J. D. McAdoo. The opinion states the material facts. The defendant, Jones, claimed no interest in the land, and his charter made no provision to compensate the owners of it.

Tried below before the Hon. J. H. Everett. The facts of the case are sufficiently indicated by the head-notes and opinion.

<p>Appeal from Cherokee. Tried below before the Hon. L. W. Cooper.</p> <p>The material facts are indicated in the opinion of the court.</p>

Tried below before the Hon. John G. Scott. This suit was brought by the appellants as heirs of J. B. Jordan, deceased, against A. T. Gardner and A. B. Johnson, sureties on the administration bond of T. 0. Andrews, deceased. In 1859, Andrews administered on the estate of J. B. Jordan, and in 1867 he died, without having closed the administration. The facts upon which this suit is predicated' are sufficiently implied in the head-notes and the opinion of the court.

<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>

<p>Indictment for theft from a house charged that the defendant did " felo- “ niously take, steal, and carry away from the smoke-house, and from “ the possession of the owner thereof, four middlings of bacon, of the “ value of twenty-five dollars, the property of S. S.” Held, that the indictment sufficiently charged the taking from a house, and from the possession of the owner.</p>

<p>Appeal from Liberty, Tried below before the Hon. William Chambers.</p>

<p>1. In divorce cases, notwithstanding the petitioner’s allegations are sufficient, and that the jury has found them to he true, the District Court is empowered, in the exercise of a sound discretion, to refuse the decree ; but this discretion is subject to revision by the Supreme Court, both upon the law and the facts of the case.</p> <p>2. The Supreme Court, deeming that on the facts of this case- a divorce should have been decreed by the District Court, renders the decree itself, without remanding the cause.</p>

Tried below before the Hon. L. W. Cooper. The ease of Cooper v. McCrimmin, 33 Texas, 383, together with the opinion and the head-note in the present case, furnishes all the facts of any significance. , A preliminary injunction was granted, but was dissolved on final hearing, with judgment for Cooper, from which McCrimmin appeals.

Tried below before the Hon. William Chambers. The land in controversy was a tract of one hundred and sixty acres, and consequently the homestead exemption comprised the entire tract. The other facts are sufficiently indicated by the opinion of the court.

<p>Since 1866 there has been no authority for bringing to this court a civil cause which originated in a justice’s court.</p>

<p>1. When there is no assignment of errors and no brief for either party, this court is justified ordinarily in dismissing the appeal, for want of prosecution. But there being material error apparent on the face of the present record, that practice is not applied.</p> <p>2. On a note for less than one hundred dollars, the plaintiff sued in the District Court, alleging that the note was given for the purchase-money of land, and therefore he prayed enforcement of the vendor’s lien. But, at the trial of the cause, all the evidence concurred in proving that the consideration of the note was not purchase-money of land. Held, that the court below should have instructed the j ury that there could be no vendor’s lien, and, on verdict in accordance with such instruction, the cause should have been dismissed for want of jurisdiction in the District Court.</p>

<p>1. An attachment issued before the execution of the attachment bond is fatally defective, and should be quashed on motion of the defendant.</p> <p>2. A motion to quash an attachment was overruled because it was not made until after the parties had announced ready for trial.' Held, error.</p> <p>8. A writ of attachment having been issued without petition, affidavit, or bond, it was error, at the return term of the writ, to permit the petition, affidavit and bond to be then filed, nuno pro tuno.</p> <p>4. Defendant in attachment reconvened for damages thereby occasioned to his mercantile credit at home and in the Eastern cities where he usually bought his goods. The court below ruled that he must confine his proof to the damages occasioned to his credit where he lived and conducted his business, and excluded his evidence offered to prove damage to his credit in the cities where he obtained his goods. Sold, error.</p> <p>5. To justify the suing out of an attachment on the affidavit of the attorney of the plaintiff, the mere belief of the attorney does not suffice. The grounds alleged must be actually substantiated.</p>

<p>A judgment rendered in 1866 by a mayor exercising the civil jurisdiction of a justice of the peace was appealed by aertiorwi to the District Court in the same year, and in 1872 judgment by that court was rendered against the defendant, who appealed to this court. Held, that under the 12th Section of the Act of August 13th, 1870, the judgment of the District Court is final, and therefore the appellee's motion to dismiss the appeal is sustained.</p>

Tried below before the Hon. T. C. Barden. The first appearance of this cage in the Supreme Court is reported in 26 Texas, 188. The cause being then remanded, the defendants obtained leave to sever in their defenses, and thenceforth two suits were substantially prosecuted by the plaintiff. The conclusion of one of them is reported in 34 Texas, 463, under the name of Cromwell v. Holliday. The present is the other branch of the litigation.

<p>1. A purchaser of land, who is in default of payment of the purchase-money, cannot dispute his vendor’s title, when sued hy the latter for possession of the land.</p> <p>2- A vendor of land whose purchase-money has not been fully paid in accordance with the terms of sale, may recover the land from the vendee, by an action of trespass to try title; but the vendee, it seems, may defeat the action by tendering the unpaid purchase-money.</p>

<p>1. Indictment under Article 2351, Paschal’s Digest, charged that the defendant “ did unlawfully and feloniously, without the consent of the owner, “ carry away certain timber from the land of A.” Meld, not to sufficiently charge the offense—“ unlawfully ” not being equivalent with “ knowingly.”</p> <p>2. To constitute the offense described in Article 2351, Paschal’s Digest, it is necessary that the trespass should be knowingly committed.</p>

Tried below before the Hon. J. D. McAdoo. Defendant was indicted by the grand jury of Marion county for aggravated assault. On the trial of the case, it appeared that the defendant had purchased a certain house at sheriff’s sale, and on going to the premises with his wife for the purpose of taking possession, he was met at the gate by the occupant, who, it seems, had rented the house from the defendant in execution, and was denied admittance.

<p>In an action against two parties jointly, separate citations were issued against each, and the citations did not contain the names of both of the defendants ; one of them was returned with the foil owing indorsement: “ Exe- “ cuted by serving N. B. with a copy of this writ and the accompanying “copy of plaintiffs petition.” Seld, that both the citation and return were fatally defective—the citation, in not containing the names of all the parties to the suit, and the return, in not complying with Article 5121, Paschal’s Digest, regulating the manner of making service and return; and therefore the court below had no such jurisdiction as to authorize a judgment by default; and this defect is not cured by the dismissal as to the other party in the court below.</p>

Tried below before the Hon. William Chambers. The head-notes and opinion of the court sufficiently indicate the facts of the ease.

Tried below before the Hon. A. H. Latimer. The facts are indicated in the opinion of the court, but more fully stated in the argument for the appellant.

<p>Appeal from Liberty. Tried below before the Hon. Wm. Chambers.</p> <p>There is no occasion for a statement of the facts.</p>

<p>Appeal from Anderson. Tried below before the Hon. John G. Scott.</p>

Tried below before the Hon. J. D. McAdoo. In the opinion of the court and the arguments of counsel will be found a full statement of the facts of this interesting case.

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

<p>Appeal from Ellis. Tried below before the Hon. Hardin Hart.</p> <p>The opinion of the court sufficiently states the facts of the case.</p>

Tried below before the Hon. Hardin Hart. Defendant was tried before the mayor’s court in the town of Waxahachie for carrying a knife on or about his person, in violation of Section 1 of the act of April 12th, 1871. The trial resulted in a conviction of the defendant, and a fine of fifty dollars was imposed against him ; from this judgment he appealed to the District Court of Ellis county, and he was also convicted in that court and fined twenty-five dollars.

<p>An information filed under Article 2090 of Paschal’s Digest, for obstructing a public street, charged the appellee with fencing.up and obstructing a common street in the town of B., known as T. street. The court below, of its own motion, quashed the information because it did not allege that B. was an incorporated town. Held, error. It is not necessary that the street or road obstructed should be in an incorporated town. All that is necessary is, that it be a street or road which has been dedicated to public use or established by law.</p>

<p>1. In 1853 defendant settled on public land, and in 1855 he received for it a quit-claim deed from one YY., in whom no title was shown. Defendant placed the deed on record in 1855, and remained in possession of the land until 1870, when he was sued for it by the plaintiff, who derived title under a patent issued in 1861, on a file and survey made in 1860. Defendant relied on the limitation of five years. Held, that no statute of limitation ran in defendant’s favor until the State parted with her title by the patent; but after the issuance of the patent, limitation may have run in his favor, although his deed was a quit-claim from a party devoid of any title, and notwithstanding the deed was recorded while the land was still public domain.</p> <p>2. Suits for title or possession of real estate are “ civil suits ” within the meaning of the 43d Section of Article 12 of the Constitution of 1869, which declares that “the statutes of limitation of civil suits were sus- “ pended by the so-called act of secession of the 28th of January, 1861, “ and shall be considered as suspended within this State until the accept- “ anee of this Constitution by the United States Congress.”</p> <p>3. A defendant who put improvements on public laud is not entitled to compensation for them from a plaintiff who subsequently acquired title from the State, and this, notwithstanding the defendant, soon after settling on the land, received a quit-claim deed for it from a party who had no title.</p>

Tried below before the Hon. James Masterson. A lucid statement of the case is given in the opinion of the court. The action was indorsed as a suit of trespass to try title and for damages ; but the petition set out specifically the facts on which the plaintiffs asserted their title, and it prayed for partition as well as the usual relief. Benjamin Richey, their father, was made a co-defendant with his vendees, but died pending the litigation in the court below.

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

Error from Nueces. Tried below before the Hon. Thomas J. Devine. This cause antedates'the civil war. It seems to have been continued in the Supreme Court for the purpose of making parties. The opinion states the material facts.

<p>See the opinion in this case for strictures on instructions which were not authorized by the evidence, and which were calculated to mislead the jury; in consequence of which it is held that the court below erred in overruling appellant’s motion for a new trial.</p>

<p>A new defendant was impleaded by an amended petition, and lie acknowledged service of it, but there was no service on him of a copy of the original petition, which' set forth the gravamen of the plaintiff’s case. Held, that it was error to render judgment against him by default.</p>

Tried below before the Hon. R. H. Taylor. The material facts are indicated in the second head-note. The defense was set up by an amended answer, which, on motion of the plaintiffs, was stricken out by the -court below. Verdict and judgment being rendered for the plaintiffs, the defendant moved for a new trial, and that being refused, he appeals and assigns for error the striking out of his amended answer.

Tried below before the Hon. John G. Scott. The case is stated in the opinion of the court. Appellants were defendants below. The action was trespass to try title and for partition.

<p>1. Plaintiff brought an ordinary action in personam on a promissory note, but afterwards, by an amended petition, set up a mortgage and prayed foreclosure. Held, that he was bound to serve the defendant with notice of the amended petition.</p> <p>2. Being sued ón a note, the defendant answered that he had made payments to the plaintiff’s attorney, who held the note for collection. Plaintiff excepted, because the answer did not aver that plaintiff had authorized his attorney to receive other payment than money ; and the court below sustained the exception. Held, error.</p> <p>3. Defendant, being sued on a note, answered that he had given plaintiff a mortgage on certain land, to secure the note ; that plaintiff placed both note and mortgage in an attorney’s 'hands for collection ; that, by payments to the attorney, and by offsets, defendant had fully satisfied the debt, and plaintiff’s attorney had surrendered to him the mortgage. Plaintiff excepted, because the answer did not aver that the mortgage was surrendered by the plaintiff himself, or that he had authorized his attorney to surrender it. Held, error to sustain the exception.</p> <p>4. Exceptions to defendant’s answer being sustained in the court below, he asked leave to amend. The court below granted the leave, but on condition that the amendment be filed instanter. This was error, to the prejudice of defendant.</p>

Tried below before the Hon. John G. Scott. The leading facts are stated in the opinion of the court. The amount of attorney’s fees was six hundred dollars.

<p>A bill of review will not lie in the courts of this State, when based on matters of fact, or on error in law apparent on the face of the record. The remedy in such cases is by appeal or by writ of error. Seguin ®. Maverick, 34 Texas, 536, and Yturri v. McLeod, 36 Texas, 87, cited and approved.</p>

Tried below before the Hon. John G. Scott. Appellees were plaintiffs in the court below. P. McDannell, M. McCarty, and James Neil constituted their firm of James Neil & Co. McDannell made the affidavit, and instituted the attachment proceedings by which the suit was commenced against Quinn, Murphy & Neil, the defendants.

<p>1. Suit on a joint and several promissory note was brought against appellant and two other makers of it. Appellant pleaded that he and one of his co-defendants were sureties for the third defendant. The court below allowed the plaintiff to dismiss as to the alleged principal and co-surety, without averring that they were dead, insolvent, or beyond the jurisdiction; after which, judgment was recovered against appellant. Held, error to allow the dismissal.</p> <p>2. A petition on a promissory note should aver the making and execution of the note, as well as the ownership of it.</p>

Tried below before the Hon. I. B. McFarland. The substance of the plea in reconvention is shpwn by the opinion and the head-note.

Error from Harrison. Tried below before the Hon. J. B. Williamson. At the June term, 1871, Goyne recovered judgment against Coleman and one Whaley, for over seven thousand dollars, being the principal and interest of their note, executed in December, 1865, and due in 1867.

<p>In 1862, T. furnished Confederate money to E., to be invested by the latter in wool, of which E. was to have one-third for his trouble. The wool was purchased by E., and a third person was selected to divide it between him and T. ; but in making the division, this third person, by miscalculation, made a mistake of several hundred pounds to T.’s prejudice. E. died, and his administrators were sued by T. for the value of the wool still due the latter. Meld, that the court below erred by instructing the jury, in effect, that if the wool was bought with Confederate money, the plaintiff was not entitled to recover. Whether it was bought with Confederate money was an immaterial inquiry, which should not have affected the case.</p>

Tried below, before the Hon. It. H. Taylor. The head-notes and opinion of the court sufficiently indicate the facts of the case.

Tried below before the Hon. Livingston Lindsay. This was an action of trespass to try title, instituted by the appellee against the appellant. Both parties derive title through ¡Robert ¡Robson. Jones, the appellee, derives his title as follows: In September, 1868, he obtained a judgment in the District Court of Colorado county, against Robert Robson, for the sum of one thousand seven hundred and seventy-eight dollars.

Tried below before the Hon. Livingston Lindsay. This suit was brought by J. Gr. Bell and W. S. Wright, the appellants, as guardians of the minor children of Horace and Lucy Cross, deceased, to recover from the appellee one-half of the community homestead of Horace and Lucy Cross, sold to appellee by Horace Cross after the death of his wife.

Error from Anderson. Tried below before the Hon. J. G. Scott. The opinion of the court sufficiently states the facts of the case.

<p>Error from Palo Pinto. Tried below before the Hon. Charles Soward,</p> <p>There is no occasion for a statement of the facts.</p>

Tried below before the Hon. James Masterson. In 1858, Diedrich Germer made a verbal gift of the land in controversy to his step-son, Frederick Lohff, who immediately moved on the premises with his wife, the appellant, built a dwelling-house, and made other improvements of a permanent character. In 1859, Frederick Lohff died, leaving an infant son.

Tried below before the Hon. Livingston Lindsay. In 1856, John O. Whitfield sold the land in controversy to Sarah S. Iiirby; the land was to he paid for in three installments. In 1860, S. S. Kirby, having paid part of the purchase-money, executed her promissory note to Whitfield for the balance due on the land.

Tried below before the Hon. John G. Scott. This suit was commenced by the appellants in the District Court of Kaufman county, against the appellee, who was county treasurer of Kaufman county, to recover one hundred and fifty dollars, collected of them by the defendant, as occupation tax imposed by the act of 1866, amendatory of the act of 1856, prescribing an occupation tax for the sale of liquor in quantities less than a quart.

Tried below before the Hon. Livingston Lindsay. The head-note and opinion of the court sufficiently indicate the facts of the case.

Tried below before the Hon. Francis P. Wood. Defendant was indicted by the grand jury of Navarro county for altering' the following instrument of writing; “2 “hides, $4^^: Sitman.” The indictment charged that by virtue of this instrument of writing the accused was authorized to''demand and receive of W. Q-.

Tried below before the Hon. J. P. Osterhout. Defendant was indicted by the grand jury of Erath county for the theft of a cow, and on the trial in the court below, was convicted of driving cattle not his own, and without the consent of the owner, out of their accustomed range. Defendant moved in arrest of judgment, on the ground that the conviction was of a different offense than that mentioned in the indictment; and the motion being overruled, defendant appealed.

<p>1. In an action to recover possession of property, and for a decree of title, based upon a conditional deed, it is necessary that the petition should aver a performance of the condition; and if it fails to do so, it shows no cause of action, and is demurrable.</p> <p>2. In construing an ambiguous instrument, all its parts should be taken together, and the intent and purpose of the parties, when thus deduced from the entire instrument, must govern each clause when considered separately. (See this case for an illustration of this principle.)</p> <p>3. In a suit by an administrator to recover possession of certain premises deeded to his intestate by deed of gift, he set forth the deed, in which it was recited that “ the property hereby conveyed shall be used for the “ purposes of a homestead, and not otherwise,” * * the donee “ to “ have and to hold the same conditioned as aforesaid for the uses and “ purposes of a homestead. It being intended as an advance to our “ said daughter, and to be used by her and her husband for a home- “ stead; and the same is not an estate in property, to be transferred to “ another during the life of our said daughter.” Held, that the deed was conditional upon the occupancy of the property by the donee and her husband as a homestead during her life, and it was necessary that such occupancy should have been averred in the petition.</p>

<p>1. See this case for facts held insufficient to establish a dedication of a homestead.</p> <p>2. When the terms of a public sale are specific or restricted, the crier is not bound to notice a bid which is coupled with different terms or conditions.</p> <p>3. At an administrator’s sale for cash, a creditor offered a bid, explaining that he would pay in cash the overplus above the amount of his demand against the estate. The administrator took no notice of the bid, but struck off the property to a bidder for a much less sum. The court below instructed the jury, that if the creditor bid at all his bid was absolute and could be enforced ; and that the administrator was bound to cry the bid. Held, that this instruction was erroneous.</p> <p>4. On the death of a widower, leaving minor children, they are entitled not only to the homestead, but also to the other property exempt from forced sale, or to an allowance in lieu thereof, when the estate has not the property in kind.</p>

Tried below before the Hon. R. H. Taylor. The facts of the case are sufficiently stated in the head-notes and opinion of the court.

Error from Austin. Tried below before the Hon. L. Lindsay. The material facts are indicated in the opinion and the first head-note.

Error from Washington. Tried below before the Hon. J. M. Onins. The opinion of the court sufficiently indicates the facts of the case.

Tried below before the Hon. John G-. Scott. The opinion of the court discloses the general character of the case. The litigation had its origin in the clause of the will quoted in the first head-note. While it is true that there were other trusts and duties involved in the execution of the will, it does not appear that the sale of the property in question was necessary to their execution.

<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>

Error from Colorado. Tried below before the Hon. Livingston Lindsay. The head-note and opinion of the court sufficiently indicate the material facts of the case.

Tried below before the Hon. A. H. Latimer. This suit was instituted by the appellant against the appellee, in the form of an action of trespass to try title. On the 19 th of October, 1871, judgment was rendered in favor of the defendant, and on the 9th of JSTovember, 1871, some three weeks after the rendition of the judgment, the plaintiff filed a motion for a new trial in behalf of one Randolph Baily, who, it seems, had purchased the land pendente lite.

<p>Error from Fayette. 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. I. B. McFarland. In this case both parties deraign title under Stephens (the original grantee) to different tracts of land, parts of a league situate in Washington county, the plaintiff' (appellant) holding under the oldest conveyance from Stephens. The question involved is as to the location of the western line of the tract conveyed by Stephens to Elisha Boberts, the plaintiff’s vendor. This conveyance bears date June 13th, 1834.

Tried below before the Hon. L. Lindsay. The opinion and the second head-note disclose the material facts. R. L. & B. W. Breeding were the judgment creditors, and were co-defendants and appellants with the sheriff.

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

Error from Washington. Tried below before the Hon. I. B. McFarland. This was an action to enforce a vendor’s lien on the lot mentioned in the opinion of the court.

<p>Appeal from Caldwell. Tried below before the Hon. Henry Haney.</p>

<p>1. Being sued on his warranty of title to a city lot, defendant pleaded that plaintiff had sold part of the lot and received payment for it; wherefore defendant reconvened for the amount thus received by plaintiff. The plaintiff moved to strike out the plea because it was irrelevant, and because defendant did not claim to have ever had title to the lot. Held, that the motion to strike out was correctly sustained.</p> <p>:2, In a suit against a guardian, founded on a breach of a warranty of title made by the ancestor of defendant’s wards, the plaintiff alleged that defendant, as guardian, had received from such ancestor’s estate property worth twenty thousand dollars. Defendant excepted, because plaintiff had not described the property nor alleged it to be liable to forced sale. Held, that it was not error to overrule these exceptions.</p> <p>8. Vendor of real estate for cash warranted the title, and vendee, being evicted by paramount title, sued vendor on his warranty. Held, that plaintiff was entitled to recover his purchase-money with interest from date of his purchase, and not merely from date of his eviction.</p> <p>4. Being sued on a warranty of title to real estate, the defendant asked the court to instruct the jury, that plaintiff could not recover unless he had proved that defendant was a party to, or had notice of the suit whereby the plaintiff had been evicted, or else had proved that the evictor’s title was paramount. Held, that this instruction was properly refused ; if plaintiff had proved that he was evicted by judgment of a court of competent jurisdiction, he was entitled to recover in this suit.</p> <p>5. Being sued in the District Court as guardian of minors, defendant waived citation and accepted service. Held, that this gave the court full j urisdiction over the minors, and their estate in the defendant’s hands; and that the subsequent attainment of their majority by the wards, pendente lite, did not oust the jurisdiction—the wards not having made themselves parties after their majority, and the defendant not having averred or proved that he had ceased to be guardian, or that the estate had passed out of his hands</p>

Tried below before the Hon. W. H. Burkhart. John C. Clark, whose estate was the subject-matter of this litigation, died at his home in Wharton county in the year 1862. He left a large estate, consisting of lands, slaves, and personal assets, the aggregate value of which, at the time of his death, approximated half a million .of dollars.

<p>1. The science of surgery has not yet established rules by which can be determined, with certainty, the direction which a bullet will take after entering a human body. See the opinion in this case for a discussion of the deflections to which such missiles are subject.</p> <p>3. The accused being on trial for murder, and there being no witness to the killing, the principal was his own statements of the afllair. He said that the killing was done by the accidental discharge of his pistol, and illustrated the manner and angle at which he held his pistol at the moment. To discredit this statement and show design, the prosecution introduced witnesses to the direction pursued by the bullet after it entered the deceased’s head, and who testified that the pistol could not have been held as stated by the accused. On this testimony, accompanied with evidence of the frivolous and profane conduct of the accused soon after the killing, he was convicted of murder in the first degree, and his motion for a new trial was overruled by the court below. Meld, that such evidence was of too indeterminate a nature to exclude reasonable doubt of the guilt of the accused; and therefore it was error to refuse a new trial.</p>

<p>Error from Washington. Tried below before the Hon. I. B. McFarland.</p>

<p>Caveat emptor applies to all purchases at administrators’ sales ; and to an action upon a promissory note executed in consideration of a purchase at an administrator’s sale, it is no defense that the title to the property for which the note was given has failed.</p>

<p>In 1840 the Congress of the Republic, by special Act, authorized the emancipation of P. M., a negro, and allowed him to remain in the Republic, with his property. At that time, and until his death, in 1863, he and a | female slave cohabited as man and wife. In 1863 he executed a written instrument whereby he empowered a white man to “ attend to all “ of my business during my life, and to attend to the renting, or selling “ of my present homestead, after my death,” and directed that the proceeds of the property, when sold, should he paid-to his (so-called) wife, and, on her death, “ he exhausted for the benefit of my children,” who were themselves slaves. After the death of P. M., and in 1863, the white .man sold and conveyed the property to the defendant, for Confederate money—the jury finding that defendant knew that his vendor was acting as trustee for the so-called wife of P. M., and their issue, by whom, in 1871, this suit was brought to recover the property. Meld, that the instrument executed by P. M., in 1868, created a trust in favor of the plaintiffs, and though the trust was inoperative so long as they remained slaves, yet, after their emancipation, it was valid and enforceable in their favor. Meld further, that the trustee’s sale for Confederate' money was illegal, and the defendant took the property burdened with the trust id favor of the plaintiffs.</p>

Tried below before the Hon. James Masterson. The appellant sued out a writ of habeas corpus in the court below, against the appellees, for the purpose of obtaining the custody of his minor daughter, 0. Estelle McKinney. In 1860, the appellant intermarried with Martha Noble, the daughter of appellee W. Noble, and sister of appellee W. T. Noble.

The record in this case has not reached the hands of the reporter. This report is made from the opinion of the court alone.

<p>1. A book containing transcribed items of an account, taken from the book containing the original entries, cannot be used as evidence of the account.</p> <p>8. A witness testifying as to the correctness of an account, though required to testify of his own knowledge, may, for the purpose of refreshing his memory, refes to a book containing transcribed items of the account.</p>