Volume 38 — Texas Reports

Tried below before the Hon. A. P. McCormick. On April 27, 1869, W. B. Morris & Co., appellees, brought suit against the appellant, upon an account, as follows: “ Galveston, Texas, Sept. —, 1869. “ Mr. William Platzer, “To Morris & Co., Dr. 2 m shingles, @ $6.00........................... $12 00 3000 feet ast. lumber, @ $25..................... 75 00 500 feet w. boards, @ $25....................... 12 50 Drayage...................................... 5 00 $104 50 “Messrs.

Tried below before the Hon. C. B. Sabin. A general demurrer to appellant’s petition-was sustained in the court below, from which an appeal was taken. The character of the petition is sufficiently stated in the opinion.

Tried below before the Hon. L. Lindsay. To the Spring Term of the District Court, 1866, R. C. Campbell brought suit against Mrs. M. J. Hannay, maker, and R. B. Hannay and A. Groesbeck, endorsers of a promissory note, of date twenty-eighth of January, 1861. The defendant, Mrs. M. J. Hannay, pleaded failure of consideration.

Tried below before tlie Hon. A. P. McCormick. Suit was brought by appellees against Brooks, who is charged with having held himself out to them as the principal in the purchase of cotton, and having signed the draft given in part payment of said purchase in his own name. A. Sessums & Co. were also sued as subsequently discovered principals, and charged with the execution of the draft by Brooks as their agent in the terms of the statute.

Tried below before the Hon. James Masterson. Suit brought to recover on a note alleged to have been executed for brick and other materials furnished in improving real estate in the city of Houston claimed as the separate property of appellant. The pleadings are quite voluminous, to which various exceptions were taken, which it is unnecessary, in view of the opinion, to notice in full.

<p>Appeal from Montgomery.</p> <p>A careful statement of each case will be found in the opinion.</p>

Error from Galveston. Tried below before the Hon. A. P. McCormick. Suit originally brought by J. H. Brower & Co. against C. F. Jenny to' recover a debt due the former. On the twenty-third of January, 1869, plaintiff sued out a writ of attachment, which was levied on the property in controversy.

<p>George W. Honey, on the eighteenth day of July, 1872, filed in this court his petition, under oath, against B. Graham, B. J. Davis el als., praying for a scire facias to the parties named, commanding them to appear and show cause why they should not be held in contempt of this court. Petitioner alleged that on the sixth of July, 1872, a judgment was rendered in the District Court of Travis county, in a proceeding in which G. W. Honey was plaintiff, and E. J. Davis el als. were defendants, which was made a part of his petition. That judgment, among other things, declared, “that the plaintiff, George W. Honey, is not the Treasurer of the State of Texas; but, on the contrary, that on the twenty-seventh day of May, A. D. 1872, the defendant, B. Graham, became, has since continued to be, and is, the Treasurer of the State of Texas.’’ The judgment provided, “that in case the said plaintiff shall take a non-suspensive appeal, and shall first deliver to said B. Graham all the keys, together with all the secrets of the combinations of the locks of the safes and vaults of the Treasury of the State of Texas, which are the property of said State, and should rightfully be in the exclusive possession and control of said B. Graham, as the Treasurer thereof; that upon its being proven by said B. Graham, to the satisfaction of the clerk of this court, that said plaintiff has so done, he shall be permitted to take and perfect a non-suspensine appeal, upon his executing a bond with securities, to be-approved by said clerk, in double the amount of the costs, etc. But if said plaintiff shall desire to take a suspensive appeal, and without delivering up said keys, etc., then and in that event the bond to be given by him is fixed in double the amount of the funds in gold and in United States legal tender notes of the State, proved by the commissioner in this cause to be in the Treasury; and. double the amount of the two checks of E. Bremond, together with double the value of the keys, safes, vaults and combinations aforesaid, to be ascertained on proof, to the satisfaction of the clerk; and in case he fail to execute said bond, he be not allowed a suspensive appeal,” etc.</p> <p>The petition alleged that within twenty days after the judgment was rendered, Honey, on the seventeenth of July, 1873, filed with the clerk a suspensive appeal bond in the sum of $450,000, the amount fixed by the clerk, and which was approved. That he has perfected his appeal, and has used due diligence to have the transcript prepared. That said suit was brought to recover possession of the office of Treasurer, and of the safes, vaults, etc., pertaining to the office, which he alleged had been illegally seized by B. J. Davis, Governor of Texas, and by him held by military force. That petitioner claimed said office by election of the people, and B. Graham by appointment from the Governor. That since executing his appeal bond the said Graham and others, acting under authority of B. J. Davis, Governor, have gone into the Treasury building, seized the property belonging to the Treasury, and were attempting by force to open the vaults and safes. That if the books, and papers, and money, belonging to the Treasury, are seized and held by the respondents, it will be impossible for plaintiff to make settlement with the Comptroller, as required by law; and that B. Graham, E. J. Davis et ais. are, by reason of the acts charged, in contempt of the jurisdiction of the Supreme Court; wherefore he applied for scire facias, etc.</p> <p>On the nineteenth of July, 1873, the respondents answered, alleging the appointment of B. Graham and his commission as Treasurer of Texas on the twenty-seventh day of May, 1873 ; that he had taken the oath and executed the official bond required by law ; that at the date of his appointment that office was vacant by the voluntary abandonment of it by the plaintiff; that prior to that time the plaintiff vacated the office of State Treasurer and left the State of Texas, without permission from the Legislature or the head of the executive department.</p> <p>That respondent Grraham has been in actual possession of the State Treasury building, with its rooms, furniture, safes and vaults, since the twenty-seventh day of May, 1872. That since the judgment of the District Court declaring respondent Grraham Treasurer, Honey, on the tenth day of July, 1872, executed a non-suspensive appeal bond in double the amount of costs incurred in said proceeding ; that respondent afterwards applied to said Honey, under the authority of said judgment, to deliver to him the keys, together with the secrets of the combinations of the locks to the Treasury vaults and safes, which he refused to deliver.</p> <p>That on the fifteenth day of July, 1872, respondent, though in possession of the office of State Treasurer, with the safes and vaults of the office, being unable to obtain access to the public funds, applied for and obtained from the Judge of the Twenty-seventh Judicial District a mandatory injunction, commanding, enjoining and restraining the said Honey from longer withholding, from the possession of respondent Grraham, any of the keys to the safes and vaults of the Treasury of Texas, and from longer withholding from the knowledge of respondent the secrets of the combinations of the locks to the said safes and vaults. ,</p> <p>The fiat of the judge required the sheriff of Travis county to make prompt return in writing, filed with the clerk, on the day of service of said writ concerning the action of said Honey, in obedience to or disregard of said writ, and concluded as follows, viz: “Should said Honey refuse or fail to obey promptly the above mandate, or should he not be found, that notice of the same may be served on him, then the petitioner (who is hereby recognized as custodian of the Treasury of the State of Texas, and charged with performing the duties of State Treasurer, pending litigation for the office) shall take such steps, and use such means, as may be necessary to obtain access to the interior of the safes and vaults of the Treasury of the State of Texas, even to the destruction of the locks and secrets of the combinations of the same, should it be necessary. To accomplish which, if needed, he will call on the Governor of Texas for assistance.”</p> <p>Respondent Graham admitted that he had attempted to break the locks of the safes and vaults, to the end that the public business might be resumed ; but averred that the same was done in pursuance of the order of the district judge, which Honey had refused to obey. Respondent filed with his answer a motion asking for such order from the Supreme Court as would compel Honey to comply with the fiat of the district judge.</p>

Tried below before the Hon. J. M. Onins. Suit on a promissory note executed by Eke appellant, W. H. Tucker, for $450. • ' - The defense was that the note was executed upon the basis of Confederate money, and that by the express agreement of the parties it was to be discharged in such Confederate States bills. The testimony was conflicting.

Tried below] before the Hon. S. B. Newcomb. Suit brought by the appellant, which, after several amendments of petition, was an action for the possession of real property leased by appellant to appellee, and for rent! due according to the terms of the lease.

Tried below before the Hon. J. P. Richardson. This was a criminal prosecution instituted in the court of the Mayor of Bastrop for a violation of an ordinance of that town. Burch was fined in the Mayor’s court $75, and appealed to the District Court. On motion the appeal was dismissed for want of sufficient bond. To this action an exception was taken and an appeal attempted to this court.

Tried below before the Eon. F. P. Wood. Suit by appellee filed January 19,1872, to recover 1280 acres of land known as the headright of Jos. Young, deceased, lying in Navarro county. The appellants attempted to deraign title through a deed made by Asa Wheeler, administrator of the estate of Joseph Young, deceased, to Charles Bigelow, the purchaser at administrator’s sale.

Tried below before the Hon. James Masterson. The appellee sued for the entire contract price of two hundred tons of prairie hay, at $22.50 coin per ton, alleged by him to have been cut and stacked in fulfillment of his contract, and tendered for delivery to appellant’s agent and by him refused, and which was never received or used by appellant. The contract will be found copied at length in the opinion of the court.

Tried below before the Hon. James Masterson. This case was before this court at a former term, and will be found reported in 35 Texas, 323. It was then remanded for trial, reversing the decision of the court below, which sustained appellant’s special demurrer to appellees’ petition on the ground that no title to the land could vest in the plaintiffs by the death of their ancestor in 1853, under the laws then in force, because of the alien-age of their ancestor and themselves.

<p>An administrator who is himself a creditor of the estate he represents, cannot charge the estate, on payment of his own debt, the five per cent, commission allowed to administrators by law for paying out money to-the creditors.</p>

Tried below before the Hon. J. P. Osterhout. Indictment for driving cattle from their accustomed range without the consent of the owner. The record does not disclose the character of the testimony which the District Attorney was permitted to introduce after the argument had begun. The facts on which the conviction was obtained are substantially stated in the opinion.

<p>A bail bond which describes A. B. as principal “ conditioned, that whereas an indictment has been preferred against A. B.,”ete., “now if the above bounden--shall make his personal appearance at the next term,” etc., if in other respects good, is not vitiated by the failure to insert the name of A. B. after the word “bounden,” but may be enforced as the bond of A. B.</p>

Tried below before the Hon. W. H. Andrews. Appellant filed his petition in the court below upon two judgments rendered by a justice of the peace against Nathaniel Hine on the sixth day of October, 1861. Executions were stayed by appellee, as surety, within ten days ; the aggregate amount of the judgments exceeded one hundred dollars.

Tried below before the Hon. James Master son. • ■ Suit brought by the State of Texas, suing for the benefit of the school fund of the school district of the county of Harris, to recover the amount claimed to be due on an assessment of ^ of one per cent., for the year 1871, for the purpose of building school houses and maintaining schools in said school district. The defenses relied on in the-court below were: 1.

Tried below before the Hon. James R. Burnett. In September, 1865, appellant sued appellee, with Syddleton Smith and Gr. W. Turvin, for $1500, claimed to be due on a note. He procured an attachment against the property of defendants, and had the same levied on the-property mentioned in the opinion.

Tried below before the Hon. A. H. Latimer. Suit was filed by appellant against appellee to the November term, 1870. Service was had and judgment by default; writ of inquiry executed and final judgment rendered November 27, 1870, for appellant. A motion for new trial was filed and amended at same term, but not acted upon by the court.

Tried below before the Hon. Charles Soward. J. R. McKenzie, executor of Wm. Balch, sued Abernathy & Jenkins and J. F. Stroop on a written obligation as follows, attached to a bill of lumber: “Forty days after date we promise to deliver to Wm.

Tried below before the Hon. G. E. Mann. This is a suit by appellee against McMahan & Gilbert and Morgan McMories for the one-half the proceeds of sale of fifty-eight bales of cotton consigned to McMahan & Gilbert and by them sold. The intervenors claimed the whole of the consignment, less the necessary expenses and charges.

Tried below before the Hon. W. H. Andrews. On the ninth of May, 1870, Milton Gregg filed his suit against W. C. English in trespass to try title to six hundred and forty acres, the headright of plaintiff.

Tried below before the Hon. A. P. McCormick. On the twentieth of June, 1871, Crews brought suit against Adriance, as administrator of the estate of Patton, in the District Court of Brazoria, for the recovery of the sum of $2672.35, alleged to be due him for services rendered the estate of Patton as overseer for the years 1861 to 1865 inclusive, and interest.

Tried below before the Hon. L. Lindsey. This suit was brought at the Spring Term, 1869, of the District Court of Fort Bend county, by T. W. House against R. Gr. Kyle and A. Sessums, executors of W. J. Kyle, upon two open accounts and a note; the accounts being for goods sold to Kyle to enable him to carry on his farm in Port Bend county.

Tried below before the Hon. W. H. Andrews. This was an action of trespass to try title, brought in the District Court of Fannin1 county, by appellant’s intestate, John R. Woolfork, February, 1868. Plaintiff died before trial, and his surviving wife, minor heirs and administrator made themselves parties. At the May term, 1872, defendant obtained judgment for the land in controversy, and plaintiffs appealed to the Supreme Court.

<p>1. Proof that the parents emigrated to Texas, and lived together as man and wife, is sufficient to establish the heirship of the children of the parties until the contrary is proven.</p> <p>2. A judgment will not be reversed, though the charge be erroneous, unless it appears that the verdict was affected by such erroneous charge.</p>

<p>Appeal from Goliad. Tried below before the Hon. Daniel D. Claiborne.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

Tried below before the Hon. I. B. McFarland. The defendant was indicted at the November term, 1870, of the District Court of Fayette county, for the theft of two oxen, of the value of twenty dollars each. The jury found the defendant guilty, and assessed a fine of one hundred dollars, and imprisonment in the county jail for twelve months.

Tried below before the Hon. R. H. Taylor. The defendant was indicted at the November term of the District Court of Lamar county, for unlawfully carrying a pistol. J. J. Vessels, witness for the State, testified that about July 4, 1872, he was riding along the public road, on horseback, when defendant drove up behind him in a buggy, in a swift trot, having in the buggy with him one James Smith.

Tried below before the Hon. ft. H. Taylor. At the November term, 1872, of the District Court of Lamar county, the defendant was convicted of an aggravated assault, and appealing to the Supreme Court, entered into recognizance as follows: “I, Thomas Maxwell, acknowledge myself bound to-pay the State of Texas the sum of.two hundred and fifty dollars, to be levied of my goods and chattels, lands and tenements; and I, Thomas Maxwell, as principal, and Sam.

Error from McLennan. Tried below before the Hon. J. W. Oliver.

Tried below before the Hon. T. C. Barden. This case is brought by appeal from a final judgment upon a forfeiture of a bail bond. On the eighteenth of September, 1871, a bill was passed by the Legislature, and sent to the Governor, creating the county of Aransas out of part of the county of Refugio. The Governor failing to approve, or return the bill, it became a law without his signature.

Guadalupe. Tried below before the Hon, Henry Maney. The defendant was tried for murder, and was convicted of murder in the second degree, with punishment fixed at fifteen years confinement in the penitentiary. A motion for a new trial was filed and overruled.

<p>1. In an indictment for obstructing a public road it is not necessary to allege the materiality of the obstruction or that the road had been laid off by the proper authorities as a public highway, nor to negative the right of the defendant to place the obstructions in the road.</p> <p>2. These are matters of defense or mitigation, and may be shown by the defendant.</p>

<p>Appeal from Leon. Tried below before the Hon. John B. Rector.</p> <p>The facts sufficiently appear in the opinion.</p>

Tried below before the Hon. J. M. Onins. This is a suit by R. M. Compton, executrix, as holder of a promissory note of date ninth of January, 1860, for §975, executed by King, Sledge & Co. to P. W. McNeese or bearer. The loss of the note was alleged. The .defendant, Sledge, plead payment in full. The testimony showed that J. D. Giddings, A. G. ompton (plaintiff’s testator), P. W. McNeese and Á.

<p>1. The statutes of Texas give to the surviving parent the guardianship of the children of the marriage.</p> <p>2. The mother, although divorced and having the custody of the children decreed her, cannot by will deprive the father of the guardianship of their persons upon her death.</p> <p>3. She can dispose of her property, and if she bequeath it to her children, she may, for their use, appoint a trustee to manage it against the rights of the father.</p>

Tried below before the Hon. J. P. Osterhout. On twelfth day of July, .1871, on trial upon the merits, the jury rendered a verdict in favor of the plaintiff. On the same day judgment was rendered in his favor. On 13th, the defendant filed his motion for a new trial, setting up several grounds. The motion was filed after the adjournment of the court, on the night of the 13th, and when the clerk was out of his office.

<p>Appeal from Williamson. Tried below before the Hon. E. B. Turner.</p> <p>The facts appear in the opinion of the court.</p>

<p>Appeal from Fannin. Tried below before the Hon. W. H. Andrews.</p> <p>The facts sufficiently appear in the opinion.</p>

Tried below before the Hon. J. P. Richardson. The only point noticed in this case is the action of the -court below upon the application by appellants, who were plaintiffs below, for a continuance.

<p>1. As at common law, so by the statutes of Texas, the lands of an intestate vest upon his death in his heirs, and they cannot be divested of title unless made parties.</p> <p>2. It was, therefore, error in a suit by an administrator to enforce the vendor’s lien, and which had been changed by the defendants in possession into an action to quiet title, to adjudicate title to the said defendant against the administrator without making the heirs parties.</p> <p>[Note. — This rule varied hy Section 22 of Chapter 73, approved May 27, 1873, allowing suits for land to he revived against the administrator and the proceedings to hind the keirs. — Refoetebs.]</p>

<p>Appeal from Marion. Tried below before the Hon. ' J. D. McAdoo.</p> <p>The facts appear in the opinion of the court.</p>

Error from Walker. Tried below before the Hon. J. R. Burnett. Suit instituted in the County Court of Walker county by the defendants in error against the plaintiff in error on the instrument set out in the opinion. Judgment went against the plaintiffs in that case, because the instrument was sued on as a moneyed demand, and the value of the cash note, which was the primary element of the promise, was not alleged and therefore not proven.

<p>1. The liability of an endorser on a promissory note falling due in 1862 or 1863 was fixed by the institution of suit in 1865, at the second term of the court held after the courts were opened by the proclamation of Provisional Governor Hamilton, and by showing good reason for not bringing the suit the term before.</p> <p>" 2. The liability of the endorser under such circumstances is not affected by the fact that the holder could have fixed his liability at an earlier day by demand, protest and notice.</p>

<p>Appeal from Fannin. Tried below before the Hon. W. H. Andrews.</p> <p>The evidence in this case shows that the sale was made by the sheriff, after the term to which the execution was returnable, but under a levy made before the term. HA writ of venditioni exponas was applied for.</p>

<p>A postnuptial obligation executed by the husband for the use of the wife, to pay money in consideration that the wife would live with him, cannot be enforced.</p>

Tried below before the Hon. James IJJasterson. The appellee obtained a verdict in the court below under the following instruction, viz.: * * * “If plaintiff and defendant,. both being negro slaves,' lived together during slavery after the manner of man and wife among slaves, but were not, after emancipation, married or agreed to marry, followed by actual marriage, then such previous cohabitation was not, under the law, legal marriage.

<p>Appeal from Harris. Tried below before the Hon. James Masterson.</p> <p>No briefs on file.</p>

<p>Appeal from Galveston. Tried below before the Hon. A. P. McCormick.</p> <p>Wallis, Landes & Co., plaintiffs in a suit against Oscar Sullivan, procured an attachment to be levied May 11,</p> <p>1869, on certain goods and merchandise in the sutler’s store of Sullivan & Green, to the extent of an alleged half interest therein, claimed by them to be in the defendant Sullivan. The undivided half value of the goods was shown by the sheriff’s return to amount to $951.99 — the whole amounting to $1903.98. On the ninth of December, 1867, J. S. T. Green filed his claim to the goods, “in his individual capacity, and as a partner of the said firm of Sullivan & Green,” together with the statutory affidavit and bond.</p> <p>Green dying, the case was continued from term to term until his administrator was made a party. Wallis, Landes & Co. joined issue with the claimant by their answer.</p> <p>A trial was had, resulting in a verdict for the plaintiffs, subjecting the property to the levy of the attachment.</p> <p>The cause was submitted to a jury under the following instruction, viz.: * * “It is incumbent on the claimant to show, from the state of the partnership account, that Sullivan would not be entitled to receive anything on the settlement of the partnership affairs, or not so much as claimed by plaintiffs, before he can defeat their levy in whole or in part. The settlement of Green and Sullivan of their partnership affairs, if made subsequently to the day of attachment, could not prejudice the rights of the plaintiffs on the attachments, their rights depending altogether upon the state of the partnership affairs at the date of levy of the attachment.”</p> <p>Verdict and judgment for plaintiffs. Error in the charge was relied on in motion for new trial.</p>

<p>1. The plaintiff suggested the death of anon-resident defendant and obtained an order for scire facias to his representative. The clerk afterwards issued citation to the defendant for publication, which was returned by the sheriff as “received on the eighteenth of September, 1871, and executed on the twentieth of September, 1871, by causing its publication,” etc. At a subsequent term the suggestion of death was corrected on ascertaining the defendant was still living. Held, that the court had acquired no jurisdiction over the defendant.</p> <p>2. Stock in a corporation is not subject to attachment.</p>

Tried below before the Hon. James Masterson. On June 13, 1871, appellee, Bunker, by his agent, purchased of Hoadley, the intervenor, a portable steam engine, No. 917, in Massachusetts, paid $1266.66 on the same, and gave his note for the balance, $2607.21, and they executed an agreement in substance that the engine was delivered to Bunker for use, but was to remain the property of Hoadley until the note was paid. This agreement was never recorded.

Tried below before the Hon. J. R. Burnett. The appellee filed an application in the District Court of Walker county on the eleventh day of July, 1871, alleging that he was the holder and owner of a note, executed by his intestate on the sixth day of August, A. D. 1856, to W. A. Leigh, for two thousand dollars, due on the first day of January, 1857; that said note was by said Leigh transferred to J. C. & S. R. Smith, and by them to appellee ; that said note was, after being…

Ebbob from Fort Bend. Tried below before the Hon. L. Lindsay. The two cases, numbered 1223 and 1224, constitute but proceedings in the same case. Suit was brought by the defendant in error, Bohannon, on two notes payable to him, one as guardian of Walter Jones, the other to him individually, both payable in Confederate bills of “the new issue,” and signed by Jesse Thompson, H. C. Thompson and John M. Weston.

Tried below before the Hon. A. H. Latimer. On the seventeenth day of September, 1863, Samuel Hancock and Wm. H. Shearon executed their note, for property purchased at an administrator’s sale, to W. B. Wright and L. Yates, administrators of the estate of John D. Thomas.

Tried below before the Hon. James Masterson. Suit by the appellees to recover $6000 gold on a policy of insurance (No. 12) upon a stock of goods in Waco, insured 13th of August, 1870. The goods were destroyed by fire on the eighth of April, 1871. The appellants’’ defense rested mainly on the ground that the appellees had procured other and additional insurance without the written consent of the appellants.

Error from Colorado. Tried below before the Hon. L. Lindsay.

<p>Appeal from Hood. Tried below before the Hbm. Charles Soward.</p> <p>The facts appear in the opinion- of the court.</p>

Tried below before the Hon. L. Lindsay. This was an action brought by appellee, Wm. Martin, «against J. P. Lyendecker, a former sheriff of Colorado «county, and the sureties on his official bond, Johan Ly-endecker and Wm. Freís. It was sought to recover the amount of a judgment, upon which execution had been ■issued, against one Gr.

Tried below before the Hon. A. P. McCormick. This suit was brought June 5, 1871, by ■the appellee against the appellants, on two promissory notes; one signed by N. Walsh, November 19, 1867, for five hundred dollars; and the other for three hundred dollars, executed December 24, 1867, by T. D. Gilbert. Plaintiff alleged the notes were given for borrowed money, to be used in the partnership business of Walsh & Gilbert.

<p>. Appeal from Harris. Tried below before the Hon. James Masterson.</p>

Tried below before the Hon. J. R. Burnett. On the sixth of April, 1867, .Col. Thomas Carothers executed his will, which was attested by E. B. Nixon, Primus Johnson and L. D. Cox. To each one of these witnesses the testator made bequests, referring to E. B. Nixon as “my niece, Emma Brisco, now Mrs. Nixon;’7 to Primus Johnson as “Primus,” and to L. D. Cox as “Lidy Smith.” These were all the legatees, except W. H. Smith, to whom a bequest was made.

Error from Freestone. Tried below before the Hon. John B. Rector.

Tried below before the Hon. James Masterson. The appellees brought suit on a promissory note executed by John R. Cook to Bede Johnson, for $4300, alleging ownership, and that the note was in part consideration for certain lands, described in the petition; that the lands were by Cook sold to appellants,'and that they had notice of the lien upon the land. The defendant pleaded general denial, and tona fide purchase, without notice.

<p>1. If property be delivered by the maker to the payee of a promissory note upon a written contract prescribing conditions by which the proceeds of said property are to be applied as a credit upon the note, such delivery at once goes to the credit of the note. The amount of credit is to be determined by the contract of delivery; and any subsequent misunderstanding as to the terms of such contract will not render the proceeds subject to garnishment at suit of another creditor.</p> <p>3 Telegrams communicating an ofEer and accepting the same, when acted on form a contract, governing the acts of the parties under the stipulations of the telegrams.</p>

Tried below before the Hon. C. C. Binkley. On the twenty-first of June, 1868, M. G. Bnsh brought his suit against O. H. McCormick & Bro., alleging that the defendants, on the first of January, 1860, through their general agent, John McKay, contracted with plaintiff to make him their agent for the counties of Grayson and Collin, Texas, for the sale of the defendants’, McCormick & Bro.’s, reapers and reapers and mowers, setting forth specially the terms of the contract, and…

The Frederick case was tried below before the Hon. J. J. Thornton. The Schultze case was 'tried below before the Hon. Henry Maney. The pleadings in the two cases are identical, except that the proceedings in Horton v. Brown were not pleaded in the Frederick case. The statement is given .from the record in the Schultze case, it being more perfect.

A day having been fixed in vacation by the Hon. Henry Maney to hear argument on a motion to dissolve injunctions issued to restrain the collection of the one per cent. school tax, a paper was, on the second of May, 1873, handed by one of the parties signing the same to the clerk of the District Court, but with no instructions to file, of which the following is a copy, the legal argument being omitted: “ John Ireland V. 1987 John F. Cordon.

Motion made in May, 1872, to set aside a judgment of this court rendered in March, 1855. The judgment was rendered in an action of -trespass to try title to land, brought in Refugio county by James Power, in 1849, against Cyrus W. Egery, Joseph F. Smith and Henry Smith. By change of venue the case was removed to Jackson county, where it was tried September 30, 1851, and judgment rendered for the plaintiff, Power, from which the defendants appealed.

<p>Appeal from Caldwell. Tried below before the Hon. Henry Maney.</p> <p>The facts appear in the opinion.</p>

Tried below before the Hon. James E. Burnett. Suit brought September, 1865, by D. B. Morrill, as holder and owner of a promissory note on James B. Pye for $1750, against appellee, alleging that it was given to secure so much of the purchase money for a certain tract of land described, which Pye had bought of Noble, and on which a vendor’s lien was retained to secure its payment.

<p>It is error in a judgment for plaintiff, in a suit of trespass to try title, to award a wilt of possession against persons other than defendants, who have entered upon the premises recovered, prior to the institution of the suit.</p>

<p>In the administration of an estate the probate court has jurisdiction to ascertain what is the homestead; yet the court has no Jurisdiction to order the sale of the homestead, nor would a purchaser at such sale take any right as against the minor children.</p>

<p>Appeal from. Walker. Tried below before the Hon. J. E. Burnett.</p> <p>The appellee, Mrs. Warner (then Shannon), with her then husband, D. W. Shannon, occupied the house and lot in controversy, as their homestead, in January, 1859, at which time Shannon abandoned his wife, and left for parts unknown. She continued to reside at the house until the spring of 1861, when she removed to Houston, Texas, where she pursued the occupation of a milliner, having rented the house to a tenant, and employed an agent to collect the rents that should become due thereon.</p> <p>The appellant, James McMillan, obtained a judgment against D. W. Shannon, on the twenty-seventh of July, 1861, for $65.89, and the house and lot were sold under execution, to satisfy this judgment, on the third of September, 1861, for the amount of the judgment and costs, to Haney McMillan, appellant and wife of the plaintiff in execution. F. D. Thornton, the agent of Mrs. Warner, attended the sale, and claimed the premises sold as the homestead of his principal.</p> <p>On the thirtieth of September, 1861, McMillan and wife brought an action of trespass to try title against Mrs. Warner’s, tenant, claiming title under the sheriff’s sale, which action she defended, claiming the house and lot as her homestead, and judgment was rendered in her favor on the twenty-ninth of October, 1862.</p> <p>The appellees intermarried in January, 1870. On the seventeenth of March, 1871, McMillan and wife brought their second action of trespass to try title, to which appellees objected, on the ground that the second suit was not brought within one year after the conclusion of the first action, which objection, being sustained by the District Court, was considered by this court at its last term, in the case of McMillan v. Warner, which was reversed and remanded.</p> <p>On August 1, 1873, verdict and judgment -were again rendered in favor of Mrs. Warner, from which judgment McMillan and wife prosecute their appeal to this court.</p>

<p>Appeal from Grimes. Tried below before the Hon. James R. Burnett.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

<p>Appeal from Grimes. Tried below before the Hon. James R. Burnett.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

Tried below before the Hon. Hardin. Hart. Suit by Peak and wife to enjoin T. 0. Jordan from selling under deed of trust certain town lots in Dallas, conveyed to him as trustee by Peak and wife, with power of sale to secure the payment of a note for $7643.55, due Leon & H. Blum.

<p>1. A city homestead of the maximum value cannot be increased by purchasing additional adjacent lots.</p> <p>2. Mor did the act of February 2, 1860, alter this rule.</p> <p>3. The increase in value protected by said act is that occasioned by the appreciation in value of the land, and by improvements made thereon.</p> <p>4. In computing the value of a city homestead, where.it is sought to extend its limits, the improvements must be included in the valuation.</p>

Tried below before the Hon. Creo. F. Noonan. James Dawson, executed Ms two notes, one of wMch matured on the fourteenth day of January, 1859, and the other on the first day of March, 1859. Suit was instituted on them, and property attached, February 21, 1861. Final judgment obtained April 1, 1868, and the property attached ordered to be sold. After the execution of the notes, Dawson conveyed, by deed of gift, to his mother, Sophie?

Tried below before the Hon. A. P. McCormick. In November, 1860, Charles R. Hughes sold to Edward Malone (the husband of Ann M. Malone and the father of the other appellants) a lot in the city of Galveston, with improvements thereon, for four thousand dollars — two thousand thereof cash, and two thousand in notes of the purchaser, at one and two years, secured by deed of trust executed to Stephen South wick and-Henry Van Burén. In 1865 Mrs. Wood was in possession of the…

Tried below before the Hon. A. P. McCormick. Joseph Franklin, appellee, brought this suit of trespass to try title against Henry W. Bentinck, April, 1870, for the recovery of certain lots in the city of Galveston. The defendant pleaded “not guilty,” limitations of five years under deed duly registered, and of ten years, both exclusive of the period between January 38, 1861, and September 3, 1866; also ten years non-entry, and outstanding title.

Tried below before the Hon. J. P. Osterkout. Indictment of Frank Holland for the murder of John Hayes. The conviction of the prisoner of murder in the first degree was obtained on circumstantial evidence alone. In 1861 John Hayes married Mary, the daughter of Dr. Wm. Edwards, of Erath county. A few weeks after the marriage Dr. Edwards received information that Hayes had a living wife in another State, and instituted prosecution.

Tried below before the Hon. L. Lindsay. The appellant was indicted for the murder of one Ted. Benjamin. The evidence shows that when appellant shot Benjamin, the latter was advancing upon him in an excited and angry manner, swearing he would have his revenge, and denouncing Brown as “a d — d rebel son-of-ab — h.” Ho weapon was in the hands of deceased, but an ax and handspike were within his reach when he was wounded by a pistol shot from appellant.

Tried below before the Hon. John Gr. Scott. This was a suit to enforce a mortgage. The relation of the several parties to the transaction appears in the complicated record, the outlines of which are as follows: On twenty-seventh of November, 1861, John T. Dechard as principal, and W. T. Lacy and John Gr. Stuart as sureties, executed three notes to Isaac S. Taylor, each for $833, due, respectively, in one, two and three years, with interest.

Tried below before > - tlon. Winston Banks. In 1867 appellant brought his action of trespass to try title against William B. Stout, to recover two tracks of land in Red River county. The land had been pu. chased by appellant at a sale made in 1866 by Ed. West ¡. u.-tee, under deeds of trust, one executed by Stout, and the other by Stout and his wife, Mrs. M. C. Stout, L- .880. Pending the suit, Stout died, and his ad mini unr- or, W. W. Walker, was made party.

Tried below before the Hon. A. H. Latimer. The appellee brought suit by attachment against appellants for the proceeds of two certain drafts, in February, 1861, placed in the hands of one John L. Williams, a .general agent' of appellees. Williams signed a receipt for the drafts as agent for appellants; and plaintiff claimed that the drafts were collected by appellants.

Error from Henderson. Tried below before the Hon. John D. Scott. On February 2,1871, plaintiffs in error brought trespass to try title for certain lots in Athens, against the defendant in error, Richardson, whose warrantor, Warren,, subsequently became party. On July 12, 1871, there was a trial had, with verdict and judgment for plaintiffs. The defendant, Richardson, on July 15, filed a motion for new trial.

<p>Appeal from Ellis. Tried below before the Hon. Hardin Hart. • '</p>

Error from. El Paso. Tried below before the Hon. W. P. Bacon. This case was formerly before the Supreme Court on writ of error, and is reported in 31 Texas, 304, to which reference is made for a statement of the case. It was dismissed by the Supreme Court in 1868, and on the eleventh of March, 1872, Hart again sued out writ of error.

Tried below before the Hon. S. B. Hewcomb. The appellant, on September 20, 1871, filed a petition for an injunction to restrain the collection of a judgment.

<p>1. It is error to take judgment against the wife after dismissing as to the husband.</p> <p>2. It is error to join the wife with the husband in a suit on a promissory note executed by the husband and wife jointly, without showing it was given for the benefit of the wife’s separate property.</p> <p>3. An adjudication of bankruptcy against a defendant ousts the jurisdiction of the State courts over the bankrupt and his estate.</p>

Error from Nueces. Tried below before the Hon, B. F. Neal. This was a suit by publication and attachment, brought by plaintiff in error against defendant in error, January 15, 1866, on an account for tools furnished defendant by plaintiff, in 1863, for the purpose of carrying on a partnership business between the parties, in the manufacture of tin ware, and for settlement of the partnership account.

<p>1. The 21st Section of the Act of October, 1866, prohibited appeals to the Supreme Court in cases appealed to the District Court from the County Court, in judgments less than two hundred dollars. The repeal of said act did not confer additional jurisdiction over cases pending in said courts.</p> <p>2. Appeal dismissed, it being from a judgment less than two hundred dollars, and in a case appealed from the County to the District Court.</p>

Tried below before the Hon. J. D. McAdoo. This suit was brought on fifteenth of September, 1870, by J. W. Fleming, to recover of the appellant a tract of land of fifty-two acres in Marion county. In December, 1862, the appellee entered into a contract with Annie E. Smedley, wife of John C. Smedley, for an exchange of lands; the appellee agreeing to convey the land sued for, for a tract of sixty-one acres then occupied and owned by John C. Smedley as a homestead.

Tried below before the Hon. John B. Hector. This suit was originally trespass to try title, brought by L. V. Greer against Joseph Cates. Cates, the tenant of Susan Vaughan, abandoned the land, and Greer took possession, and changed his action to a suit to remove clouds from his title, and for judgment quieting his title against Mrs. Vaughan’s claim.

<p>Error from Rusk. Tried below before the Hon. J. B. Williamson.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>Appeal from Angelina. Tried below before the Hon. L. W. Cooper.</p> <p>The facts appear in the opinion.</p>

Tried below before the Hon. J. B. Rector. The appellee brought suit in the District Court of Robertson county to the Spring Term, A. D. 1869, against Robert Porter, acting sheriff of said county, in trespass for the value of certain goods, drugs and merchandise, seized by said sheriff, by virtue of a writ of sequestration issued out of the District Court of Galveston county, commanding said sheriff to seize said goods, drugs and merchandise as the property of W. H. Dial.

Bexar. Tried below before the Hon. Geo. H. Noonan. The indictment charged that the defendant “unlawfully and knowingly did purchase two hides from one Dyonesio Flores, he, the said Mariano Garcia, then and there well knowing that said Dyonesio Flores had skinned and taken off said hides .of certain dead animals, to-wit, oxen; which said dead animals were not-the property of said Dyonesio Flores, but were the property of one Juan Estovan de los Santos, and that said Dyonesio…

Tried below before the Hon. J. B. Rector. October 21,1871, the district attorney filed an information against the appellant, Marks Wilson, charging “that Marks Wilson, a justice of the peace in and for the said county of Robertson, Precinct Ho. 1, duly commissioned and qualified in terms of the law, and by virtue of his said office of justice of the peace is a member of and presiding justice of the police court in and for said Robertson county, and is assessor of taxes for…

Tried below before the Hon. J. H. Banton. The appellant was indicted for taking up and using a “gelding,” an estray within the meaning of the statute regulating estrays. Appellant excepted to the indictment, alleging that a gelding was not an estray within the meaning of the statute, which was overruled by the court. To this the appellant excepted, and assigned for error the action of the court on his exception.

Tried below before the Hon. Wm. H. Russell. August 30, 1871, Pedro Gonzales, principal, and the appellees as sureties, executed a bail bond, the condition of which is as follows: “Now if the said Pedro Gonzales shall be and appear in person before the Hon. District, at the next regular term, to be held in Rio Grande City, in said county, on the third Monday in November,” etc. The securities filed exceptions to said bond, which were sustained, and the State appealed.

<p>1. It is not essential that the indictment should charge the offense in the precise language of the statute.</p> <p>3. Indictment charging defendant with driving live stock out of the instead of its accustomed range, TieU sufficient.</p>

The transcript does not show what judge sat in the court below. Jesse Butler was indicted for arson in Smith county, at the Spring term, 1861. At the same term he entered into recognizance in the sum of five thousand dollars. The case was continued until December, 1868, when he executed a bond in the sum of five hundred dollars.

<p>Error from Bexar. Tried below before the Hon. Greorge H. Noonan.</p> <p>This suit was originally instituted by appellants, soon after attaining their majority, for the purpose of revising the action of the probate court regarding the land in controversy, which was claimed by the heirs of J. C. Hall.</p> <p>The leading facts are: Thomas Newcomb, a widower and father of the appellants, re-married in 1847, making Eliza-his second wife. She bore him two children; one died an infant before the father; the other, born after the father’s death, died soon after. Thomas Newcomb died in the spring of 1849, in San Antonio.</p> <p>His widow, Eliza Newcomb, administeredC. A. Harper was her attorney, and J. L. Hewitt, Harper’s law partner, the chief justice of the county.</p> <p>The probate record, incorporated in the statement of facts, shows the following:</p> <p>The “McKnight title,” No. 18 of the inventory, containing one quarter of a league in Gfoliad county, on the San Antonio river .(the land in controversy), was appraised at $50. Harper, the attorney, was one of the appraisers.</p> <p>August, 1849, Mrs. Newcomb, by Harper, her attorney, filed a petition that a guardian be appointed for the three children (her own child and the two plaintiffs), and that her allowed shares of the estate under the Constitution, and also her one year’s maintenance and support, be set apart to her.</p> <p>August 30, 1849, the court decreed that the sum of one thousand dollars, out of the proceeds of said estate, be appropriated and set apart for the yearly maintenance of said Eliza Newcomb, and the children of said Thomas Newcomb, and said administratrix.</p> <p>November 28, 1849, the court decreed that the sum of two thousand dollars, secured to her by the Constitution, be set apart for the use and benefit of said widow and children, and that Mrs. Newcomb be permitted to receive in part payment of said allowance the lot or lots and buddings thereon, the “same being the residence of Thomas Newcomb.”</p> <p>January, 1850, the administratrix represented that a further sale of property was necessary to pay the main-</p> <p>tenance of petitioner and her children; and reporting on the condition of the estate with reference to the year’s maintenance and constitutional allowance, she reported to have taken from the inventory, at its appraised value, the following property:</p> <p>House and lot marked No. 2 in inventory, and</p> <p>.describedas three lots in “La Villita” (homestead....................................... $500 00</p> <p>A tract of land on the San Antonio river, known as the McKnight title, marked in inventory</p> <p>No. 18, and located upon by J. It; Tally..... 50 00</p> <p>A piano and money received by sales........... 316 50</p> <p>Being a total of............................... $866 50</p> <p>She then reported that she paid of said sum $607.78, leaving to her as paid on the allowances $358.72, claiming as still due her thereon $2741.28.</p> <p>She then prayed, among other things, that there should be set apart to her all she had chosen from the inventory, as specified in the account current, and which had not been previously set apart to her, and that certain other lands be sold.</p> <p>January 1,1850, the court set aside to her the piano and the No. 18 tract of land on the San Antonio river, appraised at $50 (the land in controversy), and ordered a sale of other lands, the proceeds to be applied to her maintenance and constitutional allowance.</p> <p>January 13, 1850, Mrs. Newcomb, through Harper, attorney, reported that she had sold the McKnight title, No. 18 of the inventory, at two hundred dollars; that she considered the sale necessary for her support; that it was the best sale she could make of it, and asked that the sale be approved.</p> <p>February 1, 1850, the court decreed that said sale of No. 18 be approved.</p> <p>No further action was had relative to the land in controversy.</p> <p>The other leading facts are :</p> <p>Thomas Newcomb having, in 1849, negotiated for a sale of the McKnight title land, No. 18 of the inventory, being one-fourth of a league, at $1.95 per acre, died without consummating the sale, Hall being in possession of the land.</p> <p>September 18, 1849, Mrs. Newcomb, in consideration of fifty dollars,"conveyed by deed the land No. 18, “having taken it from the inventory at its appraised value, as my separate property.”</p> <p>Said deed was acknowledged on January 18, 1850, before Judge Hewitt.</p> <p>January 18, 1850, Harper, in consideration of $300, by quit-claim deed conveyed the same property to J. C. Hall, describing it as “being all the interest of said estate in said tract of land, the same having been chosen by said widow from the inventory at its appraised value, and set apart to her by order of the Probate Court of Bexar county as her separate property.”</p> <p>It further appeared that Tally, by agreement with Thomas Newcomb, was to get $300 for his location, the balance to be paid by Hall, partly in money, partly in a slave valued at $600. It appears that Harper, in his arrangements with Hall, had assumed to settle with Tally, and had paid him, except $75. Harper likewise took the slave valued at $600, and received the money.</p> <p>It is left doubtful whether Mrs. Newcomb received anything; and if anything, whether $50 or $900.</p> <p>It was shown by the probate record, and by other testimony, that there was a homestead in the Newcomb estate, the same being the property referred to in the order of November 98,1849.</p> <p>There was a verdict and judgment for defendant.</p>

Tried below before the Hon. 0. 0. Binkley. It appears that in 1861 0. H. McCormick & Bro. were engaged in selling their reapers and reapers and mowers in Texas, and that they had a number of them in the hands of John McKay, as their agent, for the purpose of sale. It appears further that McKay had employed M. G. Bush as a sub-agent for McCormick & Bro. in said business.

<p>Appeal from Hood. Tried below before the Hon. Charles Soward.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

Tried below before the Hon. W. H. Andrews. This is an action upon a promissory note, executed by S. A. Roberts to E. M. Hudson, for fifteen hundred dollars.

Tried below before the Hon. J. D. McAdoo. This was an action of trespass to try title, brought November 6, 1868,o by the appellee and her husband against appellants. On sixteenth of March, 1871, plaintiff recovered judgment, and the court overruling the motion for a new trial, defendant appealed to the Supreme Court. The facts are sufficiently stated in the opinion of the court.

Tried below before the Hon. Charles Soward. Appellee, for use of J. B. Henderson, administrator of W. W. Cochran, brought suit against John Hitson, the appellant, on a note executed by Hitson and assigned to appellee, and by appellee mortgaged to the said Henderson. The defendant, on October 24,1872, answered, a general denial.

Error from Fort Bend. Tried below before the Hon. L. Lindsay. To the September term, 1868, appellant brought suit against Thomas W. Mitchell and Mason and Wm.

Tried below before the Hon. Hardin Hart. This appeal is from the judgment of the court on demurrer. The opinion discloses the character of the plea.

Tried below before the Hon. J. H. Banton. These were proceedings by habeas corpus, on the part of B. F. Hardin and George Poag, who were convicted at a special term of the District Court of McLennan county, held in July, 1873, and their punishment assessed at fine and imprisonment.

<p>1. The permission given by the law for one to bear arms ‘1 on his or her own premises, or at his or her own place of business,” will not authorize the carrying of deadly weapons in the woods while hunting stock.</p> <p>2. The “ place of business ” contemplated by the act has reference to some particular locality, appropriated exclusively to a local business ; such as the farm, the store, the shop, or dwelling place.</p> <p>3. Unless it appear affirmatively from the record that the jury was sworn on the trial in the court below, the judgment will be reversed.</p>

Tried below before the Hon. Sam. Dodge. The defendants were each separately indicted for keeping a house for the purpose of public prostitution. On the trial twenty witnesses testified to the reputation of the houses kept by the defendants; that it was bad, and had the general reputation of being kept as houses of public prostitution. Verdict of guilty, with fine of $100 in one case and $200 in the other. Motion for new trial overruled, and defendants appealed.

Error from Bell. Tried below before the Hon. J. P. Osterhout. This is a.suit upon an account, brought by H. J. & D. T. Chamberlain against Henry Boynton and-Cushing. The petition contained no bill of items, but referred to “an account herewith filed as a part of this petition, marked ‘ Exhibit A,’ with leave to refer thereto whenever and as often as necessary.” The petition was filed thirteenth of January, 1870.

Tried below before the Hon. Henry Maney. On the twentieth day of November, 1857, the appellee sold the land in controversy to P. A. and Martha R. Swan for the sum of $2525, which was evidenced by three promissory notes for $875 each, dated November 20,1857, and due at one, two and three years. Appellee and the Swans lived in Guadalupe county when the trade was made.

Error from Collin. Tried below before the Hon. W. H. Andrews. This was a suit by the defendants in error against the plaintiffs in error to quiet title to 640 acres of land. Ver diet and judgment for plaintiffs, and defendants prosecute writ of error. The facts are stated in the opinion.

Charles Soward. Suit instituted by the appellant, Mary T. Hardin, against the appellee, Milton A. Hardin, for partition of a tract of land situated in Hood county, granted to Milton A. Hardin on the fifth day of February, 1855.

Tried below before the Hon. Hardin Hart. The appellant was indicted for the murder of Jasper Brock. The evidence shows that the appellant, about half an kour before the homicide, attempted to borrow a pistol from two different parties. Immediately on meeting Brock appellant said, “ Brock, you have insulted my wife, and I will kill any d-d son-of-a-b-h who insults my wife,” and thereupon shot him, killing him instantly.

<p>Error from Hays. Tried below before the Hon. J. P. Eichardson.</p> <p>Suit on a promissory note payable to A. J. Hunter, and signed by the plaintiffs in error.</p> <p>The petition described the plaintiff as he was named in the note sued on, and in other respects was in usual form of petition on promissory note by the payee and against the makers.</p> <p>The sheriff’s return was as follows :</p> <p>“'Came to hand 26th March, 1872, and executed 30th April, 1872, by delivering to Joe F. Brown, in person, one of the defendants, a true and correct copy of this writ, together with the accompanying certified copy of plaintiff’s petition.</p> <p>“ J. B. Beowe", Sh’if Hays Co., Texas.”</p> <p>Judgment final by default was rendered for amount-due on the note.</p> <p>The defendants sued out a writ of error. The assigned errors are noticed in the opinion.</p>

<p>1. To authorize the sale of land under the Probate Act of 1840, the administrator was required to obtain an order for sale, clear and specific in terms; and such order should be strictly pursued to pass title to the purchaser.</p> <p>2. An order of the probate court under the act of 1840 for the sale of “so much land lying in Robertson county, and west of the Trinity river, as would pay the debts of the estate, amounting to about $1500 held, void for uncertainty.</p> <p>3. See this case for irregularities in a probate sale noticed in a collateral proceeding.</p> <p>4. That one of the links in the chain of title of the defendant in possession is a quit-claim deed, when his deed and that of his vendor are warranty deeds, does not prevent his recovery upon his plea of bona fide purchaser, upon proof of the other requisites of such defense.</p> <p>5. Where there was evidence introduced showing defects in proceedings which were requisite to the authority of the administrator to sell lands, the court, after instructing the jury that the law presumed everything legally necessary to have been done by the probate court, should have given the further charge that such presumption was overcome by facts which prove the contrary.</p> <p>6. Against a defendant in possession holding under a warranty deed from a vendor who also claimed under a deed with warranty, it is error to charge the jury that the recitals in a quit-claim deed (of a remote vendor) were evidence of a prior unregistered conveyance (not recited in the same), as if such prior conveyance had been duly recorded.</p> <p>7. The case of Burchard v. Rogers, 34 Texas, 441, limited.</p>

<p>Appeal from Wise. Tried below before the Hon. C. C. Binkley.</p> <p>This was a felony, and the opinion is confined to a discussion of the practice that should obtain in impanneling jurors, and especially in making challenges.</p> <p>The facts, so far as necessary, appear in the opinion.</p>

Tried below before' the Hon. Wm. H. Burkhart. The defendants, Albert Franks and Leve McHenry, were indicted by the grand jury, and the charge is that they “did willfully and unlawfully attempt to hinder Isaac Williams (he being a legally qualified elector) in the free exercise of the right of suffrage at the election then pending in the town of Halletsville, for a representative in the Congress of the United States from the Fourth Congressional District of the State of…

Error from Houston. Tried below before the Hon. Samuel L. Earle. Plaintiff in error was surety on the appearance bond of one Boss, charged with theft. Boss- failing to appear, his bail bond was forfeited, and proceedings had so that judgment final was rendered against plaintiff in error for $800 — from which he prosecutes a writ of error to this court. The proceedings are shown in the opinion of the court.

Tried below before the Hon. Hardin Hart. In June, 1872, the defendant was convicted of theft of a gelding. The indictment charged the ownership of the gelding in Seth Stadden.

Tried below before the Hon. A. P. McCormick. On the twentieth day of July, 1858, Mary E. Moore (appellee) and her husband, James W. Moore, executed and delivered to Eliza E. Brown (appellant) their note for $1100, due January 1, 1859, and secured its payment by deed of trust to Oscar Farish, executed in due form, of same date, conveying to him, in trust, lots 12,13 and 14, block 136, with improvements, in the city of Galveston, and two slaves.

Tried below before the Hon. Wm. H. Bussell. This case was before the Supreme Court at its Galveston Term, 1863. (26 Texas, 460.) To the former case we refer for statement, and to the ■opinion of the court.

Tried below before the Hon. Charles Soward. This was an action of trespass to try title for twenty-five acres of land, brought by appellant against Ben. Hix and Haney Page. Plaintiff alleged that Mrs. Page and one JohnP.