Volume 39 — Texas Reports

Tried below before the Hon. J. W. Oliver. On the thirtieth day of April, A. D. 1870, George W. Honey gave his bond and was duly qualified and commissioned as Treasurer of the State of Texas. He continued to discharge in person the duties of the office until the twenty-third of April, 1872, when with his family he left the State, saying to several persons that he would be gone six weeks. He left his chief clerk, Burns, in possession of the office.

Tried below before the Hon. 'Hardin Hart. This was a suit brought on a promissory note given by '.E. P. Bryan to Sarah E. Johnson for part of the purchase money for land, alleged in the petition to have been sold and conveyed by Mrs. Johnson and her husband, A. A. Johnson, to Bryan. A judgment was asked for the debt and a foreclosure of the vendor’s lien which was reserved in the deed.

Tried below before the Hon. John B. Rector. This was an action of trespass to try title, brought by Hamman, for a narrow strip of the Mary Peterson league, extending entirely across the league and containing 284 acres. Keigwin asserted title in himself under certain title bonds from John Peterson, son and sole heir of the grantee, ■ Mary Peterson.

Tried below before the Hon. 'Charles Soward. Exceptions were sustained to the indictment in this ■cause by the district judge, upon the ground that the charge was too vague and general. It described the property alleged to have been stolen as “one head of •neat cattle of the value of twelve dollars.”

Tried below before the Hon. W. H. Andrews. The indictment charged that James A. Crowder “unlawfully and knowingly kept a. house to be used and oc- • cupied for gambling.” Crowder excepted to the indictment, on the ground that it charged no offense known to -the law, which was sustained, and the State-appealed.

Tried below before the Hon. J. D. McAdoo. Peter Yepperson was fbund guilty of keeping a gaming table, called “pigeon-hole,” for the purpose of gaming,. in a public place, upon the following evidence: It was shown that the “pigeon-hole” table was licensed, and the exhibitor of the same usually charged for its use fifteen cents.

<p>1. A postnuptial contract will only be enforced when equitable in its terms, and its observance is demanded by the clearest principles of justice.</p> <p>2. See this case for circumstances under which a postnuptial contract will not be enforced.</p>

Tried below before the Hon. William H. Bussell. Alexander Oglesby, a United States soldier of African descent, was indicted in April, 1873, for false imprisonment of James Logan. It appears that Logan, with some companions, was, on the twenty-seventh of December, 1872, passing the guard-house within the garrison of Fort Brown, which is near the exterior fence adjoining the city of Brownsville.

<p>1. A suit was brought in the name of B. after his death, but no service procured on the defendants. At a subsequent term B.’s administrator was made a party plaintiff, and filed an amended petition, after which defendants were cited to answer the petition of the administrator., Held, that a plea in abatement, alleging the death of B. at the time of bringing the suit, was properly overruled; but the administrator should have been ruled to the payment of all costs before being permitted to carry on the suit.</p> <p>2. A trustee for minors, who placed claims due them in the hands of solvent attorneys in good professional standing for collection, but who were made bankrupt by the late war, and were unable to pay over the amount collected to the trustee, will not be held liable to account for the trust fund, if he acted in good faith and used ordinary diligence to secure the debt.</p> <p>8. When a trustee has acted with good faith in the exercise of p, fair discretion, and in the same manner he would ordinarily do in regard to his own property, he ought not to be held responsible for any losses accruing in the management of the trust property. ,</p>

Tried below before the' Hon. Geo. H. Hoonan. On the ninth of March, 1868, a judgment by default was rendered against one Beckman, in favor of the city of San Antonio. The petition of the city claimed a vendor’s lien on certain property, and the charge of the court submitted that claim to the jury. The jury not having found affirmatively as to the lien, the judgment was for money only, and not according to the prayer of the petition.

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

<p>Section 40 of the general provisions of the Constitution of Texas, which-provides that “ all sales of landed property made under decrees of court in this State shall be offered to bidders in lots of not less than ten nor more than forty acres, except in towns or cities, including sales for taxes,”—7wU, applicable only to sales for taxes, and sales under judgments and decrees in rem.</p>

<p>Appeal from Navarro. Tried below before the Hon. F. P. Wood.</p>

Tried below before the Hon. Wm. Chambers. Baldwin, who was a justice of the peace, was indicted at the February term, 1873, of the District Court of Liberty county, for failing to attend at the regular sessions of the county court of his county. The indictment was quashed upon the ground that the omission charged did', not constitute any offense-recognized by law.

Tried below before the Hon. Greo. H. Noonan. Suit brought by Placido Olivari, to recover a piece of ground in the city of San Antonio, and to cancel a deed of conveyance which he alleged he signed under duress, on the tenth of September, 1862.

<p>1. No proceedings hy which a citizen was deprived of his property during the late war, under the plea of alien enemy, by the Confederate authorities, will he validated hy the courts.</p> <p>2. Those who purchased at sales made hy Confederate receivers obtained thereby no title to real property, nor do those claiming under them with notice.</p> <p>3. The possession of persons claiming under such title is wrongful and tortious, and they will he held liable for rents and profits, and for any damage done to the property while in their possession.</p>

Tried below before the Hon. J. P. Richardson. • The cases of Johnson v. Wertzner and Johnson v. Cope were by agreement of counsel to abide the decision in Johnson v. Campbell. On the eighth of March, 1872, R. F. Campbell filed his petition to compel, by mandamus, John S. Johnson, treasurer of Bastrop county, to pay him $675.

Tried below before the Hon. Geo. H. Noonan. The third assignment referred to in the opinion was ■based on the refusal of the court to sustain the objection bo permitting the witness, N. O. Green, Confederate ^States receiver, to answer the following question, viz., What would the Vances have been subjectédto if they had refused to pay you ?”

<p>Appeal from Hunt. Tried below before the Hon. W. H. Andrews.</p> <p>This suit was brought by Philip H. Johnson and his wife, Hannah C. Johnson, against James A. Poag, to recover a house and lots which were bought with two promissory notes, the separate property of Mrs. Johnson, ¿and which were placed in the hands of Poag by her husband for collection. With them Poag bought the property in question, as agent and attorney of Johnson and. wife, and then rented it. Johnson and wife averred in., their petition that Poag continued to act as their agent, attorney, and tenant, up to the commencement of this suit. This the evidence established. Poag set up as a-defense that he had purchased the property from Johnson and wife, and that he had also purchased an outstanding title at sheriff’s sale under a judgment against one A. G. Pace et al. and in favor of M. H. Wright. To-this Johnson and wife, in their replication, answered that Pace had gone into bankruptcy and the judgment of M. H. Wright could not be enforced in the State courts, and they offered to deduct the amount paid by Poag from the- rents -due from him. Both parties deraigned title - through A. G. Pace. Verdict and judgment for Poag,. from which the Johnsons appealed.</p>

Tried below before the Hon. William H. Russell. Louis Brez was indicted for burglary, found guilty, and his punishment assessed at eight years imprisonment-in the penitentiary. On the trial, a paper which appeared to set forth a written confession by Brez of his guilt, was read to the jury. To its introduction as evidence objection was made.

Tried below before the Hon. T. C. Barden. John W. Tucker and wife brought suit against R. P. Carr to recover personal property, claimed as the separate property of Mrs. Tucker. Carr plead— 1. General denial. 2. That the property was community, and held by the defendant under a purchase from the husband, John W. Tucker. 3. That the defendant held the property under a purchase from both husband and wife by a power of attorney, authorizing one Jones to sell for them. 4.

Tried below before the Hon. J. P. Richardson. This was an action of trespass to try title, brought by Hampshire and wife. Floyd claimed the land as a purchaser from Phil. Claiborne, and alleged that Hampshire and wife, by contract in writing, agreed with Claiborne to convey to him the land in consideration of professional services rendered in a controversy about land of which this tract formed a part.

Tried below before the Hon. J. P. Richardson. This suit was begun on the eighteenth day of June, 1873, by Matilda Bell, as sole heir of Absolom Williams, against Elvira Warren, as the heir of John York, to quiet title to a half league of land in Bastrop county, Texas, granted to the heirs of Absolom Williams. The patent was issued to the half league in controversy on the fourteenth of June, 1848.

Tried below before the Hon. J. P. Richardson. This was a suit for debt brought by Leon & H. Blum against Ricks and one Banks, as partners. There was judgment against Banks, but that judgment was not before this court. Ricks pleaded his discharge in bankruptcy.

<p>1. An order drawn for money has not the attributes of commercial paper unless it be drawn on the personal credit of the drawer ; it has not the character of a bill of exchange if it be confined to a credit on a particular fund.</p> <p>2. An order directing a bank to pay over to the bearer a special deposit, which was not paid because the deposit had been withdrawn by the attorney of one of the parties, cannot be treated as a bill of exchange.</p>

<p>Appeal from San Jacinto. Tried below before the Hon. James R. Burnett.</p>

Tried below before the Hon. Geo. H. Noonan. James A. Gatlin was tried and found guilty on a charge of theft of a mule and saddle, alleged in the indictment to have been the property of Harry Musgrove.

<p>1. It is error for the District Court to disregard additional causes for a new trial discovered and alleged after the filing of the original motion, and after two days from the trial.</p> <p>2. In a cause taken by appeal from a justice’s court to the District Court, • and in which a motion for new trial has been overruled, an original bill for new trial may be entertained, and from the action of the court on such bill appeal lies to the Supreme Court.</p> <p>3. It would seem that a judgment obtained by fraud or false swearing would be invalid.</p> <p>4. Perjury not discovered in time to be shown in a motion for a new trial may be made available in a bill for that purpose.</p>

Tried below before the Hon. Francis P. Wood. Amelia J. Fuller brought suit against J. C. & T. F. Sparks, J. A. Foster and J. Shegog, for the value of three horses, alleged to have been unlawfully taken and disposed of by the defendants for their own use.

<p>1. When the testimony of the plaintifE or defendant, when considered separately, will warrant a verdict in favor of that party in whose favor that testimony was given, this court will rarely disturb a verdict upon the facts of the case.</p> <p>2. An agent cannot withdraw goods from a prescribed route of transportation, and retain charges thereon additional to the charges which would properly have been made upon the route prescribed by the contract by which he received the goods for shipment.</p>

<p>Appeal from Fannin. Tried Below before the Hon. W. H. Andrews.</p> <p>The facts are stated in the opinion.</p>

Error from Hood. Tried below before the Hon. Chas. Soward. Suit on a promissor)r note; defendant pleaded, non est factum, that since he signed the note it had been altered by inserting the words “in gold.” Exceptions were filed to the plea, but not acted on.

Tried below before the Hon. Jas. Masterson. Suit by the State against the Houston and Texas Central Bail way Company, through counsel employed by the sheriff of Harris county, to recover $20,250.01, claimed to be due for State and county taxes, including assessor’s fees for the year 1871, also ten per cent, interest thereon, from January 1, 1872, and $2025 as penalty for failing to pay promptly.

Tried below before the Hon. Daniel D. Claiborne. Blackburn was, by the verdict of a jury, found guilty of an aggravated assault, when tried under an indictment which charged “that George Blackburn and Henry Davidson * , * * unlawfully and maliciously upon the body of one Virginia Holt, a female, did make an assault, and with their fists and open hands her, the said Virginia Holt, did then and there beat, bruise, choke and wound, with the unlawful and malicious intent then…

<p>1. A justice of the peace may be indicted for failing to report to the District Court, as required by Article 3772, Pasch. Dig., the number of causes which have been tried and determined by him, with the disposition made of the same.</p> <p>2. Every neglect or failure to discharge a duty imposed by law on an officer of this State renders the officer guilty of a misdemeanor, and, if no other-punishment is specially prescribed for the omission of official duty, the-law affixes a punishment, not to exceed two hundred dollars.</p>

Tried below before the Hon. A. H. Latimer. This is an appeal from a judgment rendered in the administration of the estate of J. A. Houze, deceased, allowing his children a substituted allowance of $2000, in lieu of a homestead. The appeal is prosecuted by the executor, Wm. H. Alston, and by W. C. Dickerson, a creditor. The facts sufficiently appear in the opinion of the court.

Appeals from Washington. Tried below before the Hon. I. B. McFarland. These two cases, Nos. 735 and 736, grow out of the sainé subject matter and are in reality the same. In No. 735 suit was brought in the county court under the act of 1866, by D. 0. Smith, who alleges that he had been doing business under the name of D. C. Smith & Co., against W. C. Long, for an account.

Tried below before the Hon. Charles Soward. This was an action of trespass to try title, brought -in the District Court of Johnson county, November, 1870, by W. J. Hutchins against R. W. Lockett, to recover 300 acres of a 1360-acre tract of land bought by the plaintiff at the assignee’s sale of the bankrupt estate of James L. Farquhar.

Tried below before the Hon. Peter W. Gray. This suit was brought by Morgan against Darragh in December, 1857, in the District Court of Galveston' county, to recover a negro woman bought by him at the auction sale of E. L. TJfford, an auctioneer in the city of Galveston. Darragh appearing, filed his cross-petition alleging plaintiff had forcibly taken the negro from defendant, -and sequestrated the property, which was replevied by plaintiff.

<p>An indictment for selling intoxicating liquors to a minor of scholastic age is - defective when it fails to charge the defendant as being a dealer in in- - toxicating liquors.</p>

<p>Appeal from Houston. Tried below before the Hon. Leroy W. Cooper.</p> <p>This suit was brought September 24, 1870, by Joseph Rice, Jr., as administrator of the estate of Joseph Rice, Sen., his father, against the appellees, on a note for $1275, executed March'3, 1868, for purchase money of two tracts of land sold at administrator’s sale.</p> <p>Defendants pleaded failure of consideration and alleged fraud on the part of the administrator in making thé sale; and on the trial it appeared that in 1852 the land in question was owned and occupied by Clinton A. Rice and his wife Jane Rice, as a homestead. In 1857 Jane Rice brought suit for divorce, pending which W. H. Cundiff went to Clinton A. Rice, and Joseph Rice, Sen., stating that he had a claim against the land, and as they desired to deprive Jane Rice of her interest, it was agreed between them that suit should be brought in the Federal court at Tyler, and Cundiff permitted to take judgment by default, after which he would sell to R. P. Trabue, and Trabue’s attorney in fact, Wm. M. Taylor, would convey the land to Joseph Rice, Sen., which was accordingly done.</p> <p>At the death of Joseph Rice, Sen., the administrator, considering the land as the property of Clinton A. Rice, who was still in possession, delivered to him Trabue’s deed and such other evidences of title remaining in the possession of the deceased, nor was any notice taken of it either in the inventory or final distribution of the estate of Joseph Rice, Sen., between the heirs.</p> <p>On the death of Clinton A. Rice, and while he lay a corpse in his house, the plaintiff’s mother, Willie Rice, abstracted the title papers to the land from Clinton A. Rice’s effects, delivered them to the administrator of Joseph Rice, Sen., who made an additional inventory, and afterwards sold the land, at which sale defendant, Bur-net, became the purchaser.</p> <p>At March term, 1872, there was verdict and judgment for the defendants, and the court overruling the motion for new trial, plaintiff appealed to the Supreme Court.</p>

Tried below before the Hon. J. B. Williamson, without a jury. The facts appear in the opinion, but as the testimony of possession is not stated at length we give it entire.

<p>1. A surviving partner cannot convey a bill or promissory note of the firmi by endorsement.</p> <p>3. After the death of Brantly, of the firm of Brantly & Nations, appellants-drew their draft in favor of the firm. Nations, the survivor, endorsed it in the name of the firm and delivered it to the appellees in payment of a debt of the firm. Held, that such endorsement did not convey title-to the bill.</p> <p>8. (On rehearing.) If the use of a firm name as drawees and endorsers of a draft be merely fictitious, then the draft would have the same legal effect as if made payable to bearer.</p> <p>4. Where interrogatories are propounded to each of several plaintiffs by the-defendants, and only one of the plaintiffs answer them, it is error to admit such answers in evidence over objections by the defendants.</p>

<p>A violation of Section 14 of the act of May 22, 1871, is not punishable by indictment, but must be done by information in the form of a qui tarn action.</p>

<p>Appeal from Travis. Tried below before the Hon. 3. P. Richardson.</p>

Tried below before the Hon. Hardin Hart. This was a suit brought in 1868 by Wilson and wife against Mary M. Dunnovant et al., for the partition of a large amount of lands.

Tried below before the Hon. ■James Masterson. This suit was instituted by Mrs. Josephine Allen as executrix of the estate of her late husband, Ebenezer Allen, ■deceased, to recover $7500, with eight per cent, interest 'per annum from the thirtieth of June, 1864, upon the following obligation: “Agreement between Wm.

<p>Appeal from Fayette. Tried below before the Hon. I. B. McFarland.</p> <p>At the Fall term, 1868, of the Fayette District Court, John W. Gilliam brought trespass to try title against L. W. Alexander for the recovery of 277-¡~ acres of land in that county, and alleged to be part of five leagues of land granted to Henry Austin by the Mexican government. Gilliam claimed the 277£ acres by virtue of a deed from Henry Austin, Jr., dated April 18,1866, and alleged in his petition that he “held by a regular chain of transfer from the original grantee, Henry Austin;” that “ said L. W. Alexander, defendant, has made divers trespasses on said land, and is now in the illegal possession of same under some false and fraudulent claim, of the exact nature of which your petitioner is not advised, and withholds possession of same from your petitioner,” etc. The petition was endorsed, “this suit is for trespass to try title, as well as for damages.”</p> <p>In an amended petition (June 7, 1869) Gilliam made the original field notes of the survey of 277f acres conveyed to him by Henry Austin a part of his petition, as an “exhibit,” and alleged that this survey was made by Alexander, the defendant, and that the conveyance to him by Austin was made according to the field notes contained in that “exhibit.”</p> <p>Alexander'plead “ not guilty,” and a general denial.</p> <p>Plaintiff proved the grant to Henry Austin; that Henry Austin, Jr., was a son of the grantee, who left two daughters and another son; the deed from Henry Austin, Jr., to plaintiff, for the land described in the petition; that the deed to him was made from field notes made by the defendant, Alexander, as surveyorthat plaintiff had been in possession of the tract so deeded to him; the location, by reputation in the neighborhood and by subsequent surveys of the west .boundary of the Austin five-league grant; and that defendant was notified by plaintiff not to build within his lines.</p> <p>Defendant sought to show that the west line of the Austin grant was further east, and that he had located a certificate between the west line as claimed by him and as claimed by plaintiff, and that his improvements were situate on such vacancy.</p> <p>The judge submitted to the jury the location of the west line of the Austin grant, as follows :</p> <p>“This is an action of trespass to try title, and the defendant pleads not guilty. The defendant does not attempt, by evidence or otherwise, to show any outstanding title in himself. If, therefore, you believe, from the evidence, that the plaintiff was in actual possession at and before the entry of defendant, and that he entered with the knowledge of that fact, and that the plaintiff’s possession has been continuous, then, for the purposes of this suit, the title of the plaintiff is to be regarded as perfect to the land embraced in the field notes contained in the deed from Henry Austin to the plaintiff. The defense relied on, however, is, that the land in "controversy is not included in the Austin survey, and therefore not within the bounds of the tract conveyed by Henry Austin to the plaintiff; and this presents to the jury the single question of the true-location of the western boundary line of the Henry Austin five-league grant. If the land in controversy is included within the Austin survey, then the plaintiff is entitled to recover. If it is not included within the Austin survey, then he cannot recover. -</p> <p>“The jury will, therefore, determine from the evidence where the true western boundary line of the Austin survey is situated, according to the field notes set out in the grant from the government of Coahuila and Texas, and, if possible, they will ascertain the line actually run and marked by the surveyor as the western boundary line of said Austin survey. If you should believe from the evidence that the surveyor Borden, after having surveyed and run a line as the western boundary of said Austin survey, abandoned said line and actually run another line for the western boundary line of the said Austin survey, then it will be your duty to ascertain said line by the field notes set out in the grant to Austin, according to the following rules:</p> <p>“First. A call for natural objects governs and controls • all other calls.</p> <p>“Second. A call for artificial objects controls course and distance, and in this connection common fame or common reputation in the neighborhood as to the locality of the line before the commencement of the controversy is. admissible in evidence; so the lines of adjoining surveys,, though subsequently made, which call for this line, may be referred to, not as proof of the line in controversy, but as evidence of what was commonly received and recognized in the community at that time as the established line.</p> <p>“ Third: Should you be unable to determine the true locality of the line by any of the forgoing rules, then it must be determined by course and distance, as- set out in the field notes contained in the grant to Henry Austin.</p> <p>‘1 The jury will indicate by their verdict which line they believe, from the evidence, forms the true western boundary line of the Austin survey; and if the improvements, of the defendant are included within its limits, you will find for the plaintiff, and at the same time find such damages as you may believe the evidence shows the rent to-be reasonably worth from the time of entry of the defendant to the present tiihe.</p> <p>“ If you believe from the evidence'the improvements of the defendant are hot included within the Austin survey, you will find for the defendant.”</p> <p>The jury found a verdict as follows :</p> <p>“We, the jury, find for the plaintiff, and believe the line long admitted and established in the community should be regarded as the true western boundary line of the Austin survey. We find the improvements of the defendant, Alexander, inclosed within its limits, and assess the damages at 850 annually from the time of filing suit by plaintiff to the present time.”</p> <p>Judgment was rendered, and on appeal by defendant,</p> <p>Alexander, many errors were assigned, the court only discussing the two subjects, touching the title of plaintiff as received from a tenant in common, and prior actual possession of the whole tract.</p>

The case is clearly set out in the petition, which is set out below. Defendant demurred and pleaded a general denial. The statement of facts sustains the allegations in the-petition, but it did not appear that any protest was made-by Sydnor on payment of the taxes, nor was any seizure - of property or other compulsory process resorted to by the city authorities to collect the same.

Tried below before the Hon. Wm. Chambers. Appellee, Thomas R. Burford, brought trespass to try title against Joseph and Ben. Johnson, for sixty acres of land, part of the homestead of John McGraffey, deceased, and which land, in partition of said estate, had been set apart to Sarah McGraffey. Burford claimed by deed from Ben. Johnson to John Stamps; James O. Stamps, administrator of John Stamps, to E. F. Ewing, and from Ewing to plaintiff.

Tried below before the Hon Wesley Ogden. Baldridge et al. sued Cook, in Calhoun county, on February 29,1858.

Tried below before the Hon. Henry Maney. These were injunction cases to restrain the collection of seven-eighths of the one per cent, school tax, and five cents per hundred dollars frontier bond tax, and the five per cent, upon the assessment for justices’ commissions.

Tried below before the Hon. I. N. Everett. This action was brought by Temperance A. Cook to recover of the defendants, Frank Moore et al., a tract of land in Kerr county. The plaintiff’s title was derived from W. L. Haly, to whom the land had been patented. The deed of plaintiff from Haly was recorded in Bexar county, where the land was then situated, Kerr county having been subsequently organized.

Tried below before the Hon. J. R. Burnett. C. J. Borden recovered judgment in the District Court of Brazoria county on the eleventh of November, 1869, against appellee, F. Tillman, for $1056.76. Execution issued to Brazoria county, which was returned nulla tona.

Error from Collin. Tried below before T. C. Goodner, Esq., Special Judge. The plaintiffs in error held the land in controversy by regular chain of transfer from Langdon C. Searcy, the patentee. The certificate was issued- to Searcy by Commissioner Ward, under act of January 21, 1850, on account of-his immigration and settlement within Peters’ Colony, prior to the first day of July, 1848.

Tried below before the Hon. Henry Maney. ■ Otto Freidrich loaned money to George Appmann, taking as security a deed of trust on a tract of land, and stock of cattle, mules and horses. The money not being paid at maturity, a trustee was appointed to sell the property, and Bender, the defendant, having seen the property, proposed to Freidrich to buy, who then took the property for his debt and sold to Bender, Landa becoming surety.

<p>Appeal from Nueces. Tried below before the Hon. T. 0. Barden.</p> <p>On December 18, 1858, John Dix and wife, in consideration of $200 cash paid them by Charles Russell, the appellee, and of the affection they bore for his wife, Mary E. Russell, conveyed to Russell part of town-lots Nos. 10, 11 and 12, in block No. 7, beach of Corpus Christi—unimproved—in trust for the use and benefit of his said wife, jointly with Anna Moore, J. H. and John Russell, his children by former, and with Mary E. Russell, issue of the present marriage, and with children to be born of the same. Full power was given to Charles Eussell to sell, convey, mortgage or dispose of the lots, in any way that he might see fit, and to reinvest proceeds for benefit of the cestui que trust.</p> <p>During the year 1859, Bussell made improvements and built a homestead on the lots, expending thereon over §3000.</p> <p>He was then a member of the firm of J. B. Mitchell & Co., and overdrew his account with them to near that amount, thereby involving the firm so that they were unable to meet their liabilities.</p> <p>On the twenty-fifth of November, 1859, Eussell and wife, to secure to four certain creditors payment of four promissory notes of same date, aggregating $2000 principal, and drawn by Eussell, payable to their order in two years, conveyed said property, designated as their “late homestead,” to Walter Merriman, the appellant, in trust, with power to sell at any time for §3500, to pay and satisfy the notes, with interest, and to account for all excess to Bussell’s wife.</p> <p>This trust deed was executed and recorded according to law.</p> <p>After this act on the part of Eussell and wife, they removed from the premises and never returned to or occupied them.</p> <p>Mrs. Mary E. Russell died in Groliad, Texas, April 6, A. D. 1863. Chas. Eussell continued an charge of his family, residing in Brownsville, Texas, and Matamoros, Mexico, doing business with Messrs. Milmo & Co. Part of his family he sent to Europe to be educated. In the year 1869 or 1870, he died.</p> <p>In December, 1865, Walter Merriman, as trustee, brought suit in the District Court, "under the deed to him of November 25, 1859, to enforce the same, by foreclosure.</p> <p>John Dix, grandfather of one, and as next friend or as guardian of the children of Russell, intervened and opposed the execution of the trust, relying upon the terms of his deed to Russell, of December 18, 1858.</p> <p>At the June term of the court, A. D. 1871, D. K. Woodward, as executor of Charles Russell, deceased, and as husband of one of his heirs, Anna Moore Russell, made himself a party defendant.</p> <p>The property had been rented and rents received since 1859.up to the present time. The intervener, John Dix, or his wife, collected such rents since 1865, at the rate of thirty dollars coin per month.</p> <p>Merriman, in his pleadings, claimed that the consideration of the notes was money belonging to the creditors, and drawn, used and appropriated by Russell in the erection of the improvements on the lots; and that Russell had a right to secure his creditors by lien on the property. He asked a court of equity to aid him in the enforcement of his trust.</p> <p>A jury was waived and the cause submitted to the court. Judgment for intervénors; that plaintiff take nothing as to them; that the mortgage or trust deed sued on be set aside, annulled, and declared not to be a lien on the lots, and that title to them be vested in the interveners.</p> <p>Motion for new trial was overruled by the court, when plaintiff appealed.</p>

<p>Appeal from Harris. Tried below before the Hon. . James Masterson.</p> <p>This is an appeal from a decree perpetually enjoining ■- appellant from- collecting, an alleged assessment of school tax on personal property,, at the rate of ninety-five cents - on the hundred dollars.</p> <p>The petition, for injunction and amended petition present the following grounds : That appellee-is a corporation, acting as. a carrier of passengers and freights and the public- mails over a line- of roads, three hundred miles in length, from Houston toward Red River,, with a branch road to- the seat of government; and that as a part of the ¿•machinery of its railways-, its locomotives-, cars, rolling i stock, and all its. personal property of every kind is necessary and essential to the proper and safe performance *of its functions, as required by the- laws of the State; vfchat it. is- possessed of landed, property in Harris county, . and also-in other-counties, amply sufficient in value to pay all its lawful taxes, without interference with the personal property necessary for the operation of the railways ; that appellant, acting under color of his office as sheriff and ttax collector of Harris county, is wrongfully claiming to •collect of appellee, and from many other citizens and taxpayers of Harris county, a large special and pretended tax, called the school tax, at the rate of ninety-five cents 'On the one hundred dollars in value of all property; and that he is about to levy on the rolling stock or other personal property necessary for the operation of the road, without any warrant whatever for the collection thereof, •other than the order of the Board of Education before recited; that said pretended school tax is illegal and wrongful; first, because claimed to have been levied under the fifth section of an act of the Legislature, entitled “An act to organize and maintain a system of public schools in the ■State of Texas,” which purports to have been approved by the Governor on the 34th of April, A. D. 1871, while in fact said act had become a law by lapse of time from its presentation to the Governor, more than five days before the 33d of April, 1871, and was repealed by an act •of that date approved by the Governor, entitled “An act rto «give effect to the several provisions of the Constitution ■concerning taxes,” by the 8th Section of which a tax of <only one-eighth of one per cent, was levied and authorized to be assessed for the identical same school purposes' .as the former act; that if the former act had not been so ■repealed, yet that no such tax as that claimed had been levied, because said fifth section delegated power to a pretended board of school directors for Harris county to ■exercise that power which could only be constitutionally •exercised by the Legislature itself; and further, that no levy of such tax had. been made by any legally organized board of school directors under said act, because the provisions of that act for organizing school boards had not been complied with ; that the law required that supervisors of education for each judicial district should subdivide their respective counties into school districts, convenient for. the people, and appoint boards of directors for each subdivision or district so established; and that the directors so appointed for each district should have power to levy a tax not exceeding one per cent., which should be assessed on, property in their respective districts for school houses and schools; but that instead of subdividing Harris county into districts, as required, the supervisor had declared the whole of the county, including-the city of Houston, one entire school district, and had appointed a board of directors for the whole county, contrary to the law.</p> <p>That said board, in July, 1871, had proceeded to act, and exercise the power, and did resolve and decide that a tax of forty-five cents on the hundred dollars of property was sufficient; but afterwards, acting under instructions from the Board of Education of the State, or the-Superintendent of Education, had increased the rate to ninety-five cents, without other evidence of necessity therefor, and had made it payable in four quarterly installments—two in 1871 and two in 1872—thereby evading the purpose of the law and making two taxes for several years, instead of one for the year 1871, as authorized by the law ; and that all this was done for unlawful purposes by a combination and conspiracy between said Board of Education and the pretended board of school directors. Furthermore, that no actual assessment of the tax had ever been made by the assessing officer of the county, nor placed as a tax on any assessment roll -? nor had any such assessment roll been returned to the-Comptroller, nor made by his instructions; nor had any assessment roll of such tax been delivered or charged" to the sheriff, nor any other lawful warrant delivered to him to collect such a tax; but that he was proceeding to collect the same solely by virtue of the order of the Board of Education, and the general assessment roll for the State, which the facts show had not beem completed and made out until long after the pretended levy of this tax in July, 1871, and long after the time in which it was required by law to have been made; and that he had never given any bond to secure and account for this tax, and was wholly unable to respond in damages for the amount of the tax which he might so collect from appellee and other citizens of the county, because he is not possessed of sufficient property in value liable for such damages, or for the return of the taxes he might collect; and that the levy and collection of said unauthorized and illegal tax upon the personal property of appellee would cause it irreparable damage, by interfering with its railway operations, and to all other taxpayers interested.</p> <p>These were substantially the facts alleged, to which appellant demurred. The demurrer having been overruled, the trial was had on the answer. The evidence established the main facts, and the verdict of the jury was accord-' ingly found for appellee.</p>

Tried below before the Hon. I. N. Everett. This suit was brought by Denniston against Basse & Bro. in the District Court of Gillespie county, at the March term, A. D. 1871.

Tried below before the Hon. Q-eo. H. Noonan. This suit was brought on a promissory note, executed May 8, 1862, by E. Abat to A. C. Myers. Estelle T. Abat, the surviving widow and executrix of the will of E. Abat, administered the estate independent of the probate court. She afterwards married Louis Duval. Mrs. Estelle T. Duval died, and her surviving husband, Louis Duval, was made administrator, with the will annexed, and in that capacity filed an answer in the cause.

Tried below before the Hon. William Chambers. This was a suit by the State, brought October 21', 1871; against the administrator of Constance Le Ferue, to recover property escheated to the State. On the trial, the plaintiff recovered judgment for $600-against the administrator and the sureties on his bond, and the administrator alone undertook to appeal without giving bond.

Tried below before the-Hon J. J. Thornton. This suit was instituted by A. J. Fry in the District. Court of Guadalupe county, against P. B. Littlefield.. The defendant died, and his executrix was made a party defendant. The suit was upon an order drawn by E. D.. Terrell upon P. B. Littlefield, and by him accepted. Ho' answer was filed by Littlefield prior to his death, but his executrix filed a demurrer and exceptions, which were by the court sustained.

Ebrob from Bexar. Tried below before the Hon. Geo. H. ¡Noonan. This suit was brought by Bennett against Cantu. Bennett alleged that Cantu, as a common carrier, through Ms agent, Q. Rodriguez, on April 6, 1865, received from W. A. Bennett & Co., at Piedras Negras, in Mexico, a sum of $28,000 coin, to be delivered to W.' A. Bennett at San Antonio, Texas, and that Cantu had failed to deliver $24,000 thereof.

<p>Appeal from Bexar. Tried below before the Hon. Geo. H. Noonan.</p>

Tried below before the Hon, J. B. Williamson. H. C. Fitzpatrick brought suit on the twenty-eighth of . January, 1867, against Alexander Pope, for four thousand dollars gold coin, alleged to have been on deposit in the iron safe of Rene Fitzpatrick at his death ; alleging that Rene Fitzpatrick died about January, 1867; that-Pope was appointed his administrator, and took possession of said coin, after knowing plaintiff’s claim, and refused to return it on demand.

Tried below before the Hon. E. B. Turner. The court below granted and perpetuated an injunction against the levy of the one per cent, school house tax for the year 1872, being a levy for the second year. We give the opinion of the district judge for statement of the case, and it was also filed by appellee as their brief.

Tried below before the Hon. Jerome B. Carpenter. This case has been twice before the Supreme Court, and . reported in 21 Texas, 256, and 26 Texas, 677, to which reference is made for a statement of the case. This is an appeal from the third verdict and judgment in favor of the same party.

Tried below before the Hon. John B. Rector. This was a proceeding brought by D. H. Love to enjoin and set aside an award of arbitrators made upon matters of difference between him and C. S. Mitchell, for alleged mistake in matters of law and fact in the award of the arbitrators.

<p>1. Pending proceedings in bankruptcy, all proceedings against the bankrupt’s property under authority of a State court are void.</p> <p>2. A sale under execution issued out of the State court during the pendency of proceedings in bankruptcy of the judgment debtor passes no title.</p>

Tried below before the Hon. ¡N. W. Battle. This was an action of trespass to try title. Verdict and judgment for defendant, and plaintiff appealed.

Tried below before the Hon. James J. Thornton. This is the second time this case has been before the Supreme Court. (See the case of F. Smith and Wife v. Holliman, No. 3160, of the Supreme Court docket, decided October 26, 1868.) The suit was an action of trespass to try title,- brought by Smith and wife against Holliman in the District Court of Gruadalupe county, to recover a tract of land known as' “the Elm Spring tract,” which plaintiffs claimed as their homestead.

<p>1. A carriage, the only vehicle owned by defendant in execution, was exempt from forced sale by the statute of 1866..</p> <p>2. An injunction properly issued to prohibit the sale under execution of a carriage, it being shown that it was the only vehicle owned by defend- • ant in execution.</p>

Tried below before the Hon. Geo. H. Noonan. This suit was brought by Joaquina Glanton, against the appellant and N. A. Taylor, on a note for eight hundred dollars, executed June 6, 1860, and due twelve months after date. Before trial Glanton died, and the other appellees made • themselves parties. Smith and Taylor set up the plea that usurious interest was contracted for and paid by them to an amount sufficient to extinguish the note.

Appeal and Error from Leon. Tried below before the Hon. John B. Rector. J. H. C. Jones, guardian, etc., obtained a judgment in King and Queen county, Va., against A. M. Boulware, administrator of the estate of Leroy Boulware, deceased. There was property -of the deceased in Leon county, Texas, consisting of six tracts of 640 acres each.

Tried below before the Hon. Charles Soward. This suit was brought June 17, 1871, by Broussard & Co. against Collins & Campbell, on a note for $672, dated September 5, 1870. Attachment was issued same day and levied on the property of Collins & Campbell, including a stock of goods. At the August term, 1871, L. H. Gardner & Co. intervened, claiming the property levied on, by purchase from Collins & Campbell June 13, 1871.

Error from Comal. Tried below before the Hon. I. N. Everett. On the fourteenth of October, 1853, Andrew Neill entered into a contract of sale with R. H. Watson for eight hundred and seven acres of land in Guadalupe county, part of the Cody one-third of a league, which had been purchased by Neill at administrator’s sale of the estate of Michael Cody.

<p>1. A deputy sheriff, in making return of citation served by him, must state-for whom he acted as deputy.</p> <p>3. Judgment by default upon citation served by a deputy sheriff, the returnfailiñg to show for whom the deputy acted, reversed on error.</p> <p>3. Such return may be presumed to have been correct when drawn in question collaterally.</p>

Error from (ronzales. Tried below before the Hon. Henry Maney. This was a suit brought by defendant Peck, against McKellar and wife, to try the title to a tract of land in G-onzales. McKellar and wife disclaimed as to all the land except two hundred acres, which they claimed as their homestead, had it surveyed, and set it out in their answer by metes and bounds.

Tried below before .the Hon. Wm. H. Russell. Potter was indicted and convicted, upon an indictment charging “that Walter Potter * * on the twenty-fifth day of December, 1872,- in the county aforesaid, did then and there feloniously, willfully and fraudulently take, •steal and carry away from the house ’of. one Teófila Chares, then and there situated, and from the possession of her the said Teófila Chares, one certain trunk or chest, containing various articles of clothing,…

Tried below before the Hon. J. W. Oliver. Frazier was indicted for sodomy. Exceptions to the indictment were sustained, and the State appealed.

Error from Denton. Tried below before the Hon. C. C. Binkley. Early brought an action of trespass to try title in 1871, to recover 640 acres of land in Denton county, against Ross.

Tried below before the Hon. Geo. H. Noonan. Wm. Johnson alias David Wright was indicted for “ feloniously, fraudulently and unlawfully” stealing a saddle, the property of one Radford Sharp. The indictment failed to charge in terms that the property was taken without the consent of the owner. A motion was made to quash the indictment because of this defect, which was overruled, and this action of the court is assigned for error.

<p>No action will lie against an accommodation acceptor of a bill of exchange-in favor of one fpf whose accommodation the acceptance is made, unless the acceptor be placed in funds to meet the bill.</p>

Tried below before the Hon. T. C. Barden. On the second of September, 1872, A. Oliver and two hundred and twenty other taxpayers of Victoria county .-applied for and obtained an injunction restraining Carsner, sheriff of that county, from collecting one per cent. • on the assessed value of their property, for school purposes.

<p>"When the plea of part payment in a suit on note is so indefinite that it cannot be determined whether the pleader intended to set it up as a part payment of the mote, or a part payment of the original indebtedness before the execution of the note, no evidence should be admitted under the plea.</p>

Tried below before the Hon. John J. G-ood. At the Fall term, 1866, suit was brought by Russell, the-holder, against Dowell, the maker, and Robinson, endorser of a note dated fifteenth of June,'1865, and due September 1 following, for “four hundred dollars’ worth of merchantable flour.” Dowell died before trial, and his widow, Caroline Dow-ell, was made a party. - Robinson plead laches on the part of the plaintiff in not bringing suit at the first term of the court after ma -…

Ebbob from Fayette. Tried below before the Hon. T. C. Barden. This case was formerly before the Supreme Court, and reported in the 28th Volume of Texas Beports, page 393, to which reference is made for a statement of the case. The plaintiffs below again obtained judgment, and defendant, Ledyard, alone prosecutes writ of error to this court. The questions presented by the record were decided when the case was before the court on appeal.

Tried below before the Hon. Geo. H. Hoonan. The heirs of Philip Dimmitt, six in number, brought suit to the Fall term, 1868, of the District Court, to recover their several portions of a lot of ground in the city of San Antonio, known as the Dimmitt homestead, situated opposite Hat Louis’ old mill, on the San Antonio river, and bounded on the north by Villita street, running parallel with the river ; on the east by the Pajalache or Concepcion ditch ; on the south by a…

Tried below before the Hon. Wm. H. Russell. Canales originally brought his suit against the defendants, Stillman, Belden & Mussina, but by the non-residence of Mussina and the death of Belden, and the cause of action surviving against the defendant Stillman, he, by these circumstances, was left as the sole defendant.

Tried below before the Hon. Henry Mamey. This suit was brought by H. C. Pleasants, administrator of the estate of John York, deceased, to quiet the title to three hundred and eighty acres of land. Pleas-ants, under an order of the County Court of De Witt county, sold, in 1869, to James Ladd, a tract of land as ¡the property of the estate, believed at the time of sale to contain about two hundred acres. The land was bid for at public auction by the acre, and so paid for.

Tried below before the Hon. E. B. Turner. John R. Hubbard died in 1864, and in the same year his wife, Eliza Hubbard, obtained letters of administration. Several claims were presented within the year after her qualification as administratrix. .

<p>Appeal from Walker. Tried below before the Hon. J. R. Burnett.</p>

<p>The petition for writ of error should state the residence of the defendant in error, or that his residence is unknown.</p>

Tried below before the Hon. J. R. Burnett. This is a suit by Gibbs & Gibbs on the note of J. F. Rhodes and wife to them, dated sixteenth of October, 1866, due the first day of January, 1869, and to foreclose-a mortgage given by Rhodes, and wife on the day after the date of the note on certain lands of the, community, but mostly of the separate property of the wife, to secure-the payment of the debt, and another debt of the husband therein named, to which the wife was not a…

Tried below before the Hon. I. B. McFarland. On November 13, 1866, Emily Toland sued out a distress warrant against W. H. King, J. F. Toland and J. F. W. Toland, which was levied on twenty-seven bales of cotton. On November 16, 1866, W. H. King, with sureties P. H. Swearingen and J. J. Smith, replevied the cotton. At the February term, 1871, judgment was rendered against King, Toland and Toland for the amount of rent claimed and costs.

Tried below before the Hon. L. Lindsay. The material allegations of the bill are, that at a special term of the police court of said county, on the twenty-first of June, 1867, an election was ordered to be held in the town of Columbus, for the purpose of authorizing said town to become a stockholder in the B. B. B. & C. R. R. Co., to the amount of one hundred and twenty shares of stock of $100 each; and for the payment of the same, that the said town borrow or issue its…

Tried below before the Hon. J. B. Williamson. This was a suit filed January 25, 1870, by James C. Wheeler, administrator of JohnMcLanahan, against Ann Walling, A. J. Walling and C. M. Wilson, executors of Jesse Walling, for an account of funds in hands of their testator, the proceeds of sale of the Jean Baptiste Gray league of land; and for the proceeds, less une-fiftli thereof. The cause of action is a contract as follows : “Republic of Texas, '[ “ County of Houston.

Tried below before the Hon. John B. Rector. This was a suit to try the right of property claimed by Mrs. E. H. Mitchell, and which was seized under execution to satisfy a judgment against her husband, Dr. James Mitchell, in favor of C. J. Hutchison. In November, 1852, James Mitchell, then free from debt and, as the testimony shows, in affluent circumstances, conveyed a tract of land and twenty-eight negro slaves to Win.

Tried below before the Hon. J. B. Rector. A judgment was obtained by Josiah Hill against B. G-. Jackson, administrator, enforcing a vendor’s lien.

Error from Robertson. Tried below before the Hon. Charles A. Frazer. This suit was brought in June, 1853, by Penelope Smith, to recover a number of slaves from Reuben Anderson. Anderson asserted title to the slaves, and plead that he had purchased them from James B. Smith, deceased (who was Penelope Smith’s husband), in his lifetime. He asked that the representatives of James B. Smith be made parties.

Error from Live Oak. Tried below before the Hon. J. B. Carpenter. This cause was tried below before the Hon. J. B. Carpenter at the Fall term of 1868 of the District Court 'of ‘ Live Oak county. The record contains no statement of facts nor bills of exception.

<p>1. The location of the lines of a survey is to be determined by the lines as actually run -upon the ground, where this can be ascertained; nor will this rule be varied by the fact that an adherence to it would give to the locator less land than he was entitled to by his certificate.</p> <p>2. Nor is the rule varied by the fact that a call is made to run to the line of an older survey, if that line was never reached in the survey actually made, but the surveyor stopped at another line which was mistaken for it.</p>

Tried below before the Hon. J. P. Osterhout. J. E. Ferguson brought an action of trespass to try title against S. W. Turner for one hundred and sixty acres of land, alleged to have been patented to plaintiff on December 15, 1871.

Tried below before the Hon. J. R. Burnett. Burd was indicted for swindling, the indictment charging, “That J. C. Burd, in the county aforesaid, on the sixteenth day of September, 1872, being then and there in the employ of the Houston and Texas Central Railway Company, a body corporate by the laws of said State, as assistant road master of said company, and it being then and there the duty of the said Burd, by virtue of his office and employment aforesaid, to issue checks or…

Ebeob from Guadalupe. Tried below before the Hon. Henry Maney.

Error from Crimes.- Tried below before the Hon. James B. Burnett.

Error from Galveston. Tried below before the Hon. C. B. Sabin. The State of Texas instituted suit by the district attor- • ney of the Eighteenth Judicial District against the appellants, on a bond which was set out in the petition.

<p>1. A party in failing circumstances may prefer a creditor by conveying to him a part or all of his property to the exclusion of other creditors, provided the transaction be in good faith.</p> <p>2. The declarations of the assignor made after his sale and in the absence of his assignee are not admissible against the validity of such sale.</p> <p>3. The retention-of possession of the property after such sale by the vendor is not fraudulent, but is a badge of fraud, and should be explained.</p>

Tried below before the Hon. I. B. McFarland. Charles Sutton in his petition alleged that he and John Sutton owned, jointly and equally, three hundred and ninety acres of land in Washington county, Texas, having bought the same from I. G. Killough on September 18, 1855, giving notes for purchase money, which notes had been paid promptly, but no deed executed for the land; that he bought and paid for, jointly with John Sutton, sixty-nine acres of John P. Bell, and traded this…

Tried below before the Hon. D. D. Claiborne. This suit was brought by Farley, Jury & Co. against the children of Alexander McAlister, deceased (three of whom were minors), and John McAlister, as executor of the- estate of Alexander McAlister, and H. Clay Pleas-ants, for the purpose of establishing a judgment rendered in the District Court for De Witt county against Alexander McAlister, before his death, and in favor of the plaintiffs, and for the purpose of enforcing payment…

Tried below before the Hon. I. B. McFarland. In November, 1869, Dunlap, Bogarth, Williams and Lawrence prepared a note, blank as to date and payee, for three hundred dollars. This was done to enable Dunlap to raise money, and it was expected that the money would be obtained of one Hershberg. For some reason Dunlap went to Breedlove, a banker, with the note, first, however, having obtained the guaranty of Stuart & Mail* that the makers of the note were solvent.

<p>1. An appeal to the Supreme Court is not allowed from a judgment rendered in a prosecution for a misdemeanor, taken to the District Court by appeal from a justice's court.</p> <p>2. The creation of the Criminal Court for Galveston and Harris counties, of original and exclusive jurisdiction in all cases of felonies and misdemeanors, deprived the District Courts of said counties of all criminal jurisdiction.</p> <p>8. An appeal in a criminal case from the District Court of Galveston county to the Supreme Court will be dismissed in the Supreme Court for want of jurisdiction in the court below.</p>

<p>1. In a suit by the holder against the drawer of an unaccepted order for money, which is addressed to no one, but in other respects in the form of a check, no recovery can be had in the absence of allegations and proof of facts aliunde to establish the liability of the drawer.</p> <p>:2. The execution of such an instrument implies no promise on the part of the maker who issued it to pay to the one in whose favor it was drawn the sum of money specified in it.</p>

<p>Appeal from Tarrant. Tried below before the Hon. Hardin Hart.</p> <p>The opinion states the facts.</p>

. Tried below before the Hon. E. P. Wood. This was an action of trespass to try title to six hundred and fifty acres of land situated in Navarro county, brought by J. R. Allen against Root and others. The land was patented to Root.

Error from Victoria. Tried below before the Hon. T. C. Barden. January 19, 1871.

<p>1. A judgment creditor takes no lien by the judgment upon lands sold by the defendant before judgment, even if the deed be unregistered and' the creditor have no notice of such deed at the rendition of the judgment.-</p> <p>2. The judgment creditor has no greater' right in an action to set aside sucli unrecorded deed than he would have, had he caused the land to be sold under execution and purchased it.</p> <p>3. The judgment creditor in such case has parted with no money or consideration, and so cannot be considered a bona fide purchaser for value.</p>

Tried below before the Hon T. C. Barden. The record is voluminous; so are the briefs for each party. The refusal of ithe court to consider the many . questions discussed in -the briefs renders a statement of .the case unnecessary.

Tried below before the Hon. I. B. McFarland. The defendant, Gaines, was indicted, tried, and upon ■ sufficient evidence convicted of bigamy, and his punishment fixed at one year in the penitentiary.

Tried below before the Hon. A. P. McCormick. On the thirteenth of February, 1871, Tod Rosseau, principal, and ten sureties, executed a bail bond in the sum of $250, conditioned for the appearance of the principal at the District Court of Brazoria county on the first* Monday in May, 1871, to answer the charge of rape. May 14, 1872, the bond was forfeited* and judgment nisi rendered against the obligors in the bond.

<p>Appeal from Nueces. Tried below before the Hon. T. C. Barden.</p>

Tried below before the Hon. T. C. Barden. Archibald Bass, on the, twenty-third of December, 1867,. executed a deed to his daughter Margaret, the wife of' John A. Reeves, by which he conveyed to her all his stock of cattle and horses, and his farm, including all the land he owned. The consideration expressed in the deed was $1500 cash in hand paid for the stock, and $2500 for the land.

Tried below before the Hon. T. C. Barden. A statement of most of the facts upon which the judg- - ment was rendered will be found in the case of John A. Reeves et al. v. Archibald Bass (infra p. 618). Shry insisted that the deed from Bass to Margaret Beeves, of date • December 23, 1867, was in fraud of the rights of creditors, and introduced Bass as a witness, who testified that he-did not owe his daughter Margaret “one cent” at the-date of his deed to her.

Tried below before the Hon. J. B. Williamson. This was a suit by Henry Berry to establish boundary of lands that he claimed to own on the Daniel Reed league, diaiming the west fourth of the league. Harnage and his co-defendants denied that Berry had any interest in the land, and pleaded the statutes of limitation, and treated Berry’s suit as an action in trespass to try title. Berry claimed the west fourth of the Daniel Reed league under deeds from Reed, the grantee.

Error from Hood. Tried below before the Hon. Charles Soward. Galveston county brought this suit for the purpose of' recovering possession of a part of one of her leagues of' school land, upon which she alleged the defendants were ■ trespassing. The defendants denied the trespass, and claimed severally portions of the land which they occupied as pre-emptors, alleging that the pre-emption claims occupied by each of them were- outside of the-boundaries of plaintiffs land.

Error from Harris. Tried below before the Hon. James Masterson. This cause was dismissed on motion filed in this court February 10, 1873, because no bond for costs had been filed, as required by the statute. On the tenth of February, 1873, a certified copy of a cost bond was filed in this court, the original of which was approved by the district clerk January 28, 1873.

<p>Appeal from Cameron. Tried below before the Hon. Wm. H. Russell.</p>

Tried below before the Hon. T. C. Barden. This was an action of trespass to try title to two leagues ■of land situate in the county of Victoria, brought by Holliday and others against Harvey and others. The title under which plaintiffs claimed was duly proved and admitted by the judge in evidence. It consisted— 1.

Tried below before the Hon. E. M. Pease, as Special Judge. The litigation which terminated with this suit began in 1846, and involved title to one league of land adjoining the town of Seguin. The first suit was brought by the administrator of Thomas E. Miller, through whose heirs Herron claimed title, and will be found reported in 9 Texas, 239.

Sectiom 6 of Article 3 of the State Constitution is as follows: “Sec. 6. Held: required the election to be conducted in accordance with the provisions of the election law of March 31, 1873.