Volume 4 — Texas Reports

The appellant filed his petition in the District Court ou tiie 28th day of November, 1848, praying an injunction to stay proceedings on a judgment rendered against him in favor of the appellee in a Justice's Court, and a certiorari to remove the cause to tiie District Court.

The appellee sued tlie appellant, for two lots in tlie- town of Scgiiiu. 'At tlie next term of the court the plaintiff disclaimed as to one of the lots. There was a trial; verdict for the defendant; new trial; continuance.

<p>Appeal from Travis.</p>

Error from Fayette, This was a suit brought by the defendant in error to recover of the plaintiffs in error the possession of a tract of land, the former .claiming the title by virtue of a purchase at a sheriff’s sale, at which the land ■was sold by the sheriff as the properly ot and to satisfy an execution against the said Warren J. Hill, and the plaintiffs in error claimed title by virtue of a conveyance to the wife from the former proprietor.

This snit was brought by tiie appellant to recover the purchase-money of a house and lot in tiie town of Seguin'. The plaintiff, in her petition, claimed a lieu on tire house and lot for the purchase-money, prayed for judgment for the debt, and that the Hen should be enforced. The main defense relied on was that the debt had been paid in the life-time of the plaintiff's intestate by various payments and set-offs existing before his death.

<p>In order to entitle a party to recover in all action for specific property, it is incumbent on him io prove a property ia himself, either genera! hr special, ami a present right of possession at the time of bringing the action; a mere reversionary interest is not sufficient.</p> <p>The plaintiffs own deed, in which ho reserves a reversionary interest, is not sufficient evidence to entitle him to recover in au notion brought against a third party after the happening of the event upon which tho reversi-mary interest was to come into possession. There must he some proof of title in the plaintiff when he executed the deed.</p> <p>The execution of a deed and its loss being proved, it is competent to prove, by a witness who lias examined it and knows the fact, til i corroernos» of a copy. (Note ;h)</p> <p>It is not sufficient proof of the.loss of an instrument to prove tho declarations merely of the person in whoso custody it was at tlie time.</p> <p>If it be proposed to prove by parol the contents of a lost doed, it must in general he shown that inquiry lias been made after the doed, and the loss of it must be proved by tho person in \vho>« custody it was at tho time of the loss, if he ho living, and if he ho dead, application should he made to his representatives, and search be made amongst tho documents of the deceased.</p> <p>In an action to recover a slave or other personal property specifically, domand before suit is not necessary, except for the purpose of oniilling tho plaintiff to damages for tho detention between the time of tlie demand and the commencement of the suit. (Note 4.)</p> <p>Note 3. — There are no degrees in secondary evidence. An examined copy is equally admissible with a certified, copy. (White v. Burney, 27 T., 50.)</p> <p>• Note 4. — Where no demand is proven, damages are computed from service of the writ, (Calvit v. Cloud, 14 T., 53.)</p>

<p>In an action on a mortgage, a judgment that the plaintiff recover Ms debt, interest, and costs, that tho mortgage be foreclosed, and that the property be sold by execution under the terms of tho statute, is final.</p> <p>In a case where the statute prescribes tho specific relief which shall be granted, a general domnrror will not lie toa petition which prays specifically for different relief and does not contain a general prayer. *</p> <p>The first and second applications for a continuance must be determined by the certain and definite rule prescribed by tho statute; but a subsequent application is, as a general rule, addressed to the discretion of tho court. There niay, however, be circumstances under which a refusal to grant a continuance on such subsequent application would operate such flagrant injustice as to induce its reversal (Note 5.)</p> <p>Itseems that in some cases relief will bo graufed different from and even inconsistent with the specific relief prayed for, wheve there is a prayer for general relief.</p> <p>Whore a party sues to foreclose a mortgage which contains a power to sell on so many days* notice, tho judgment in favor of the plaintiffshould be rendered in pursuance of the provisions of the one hundred and nineteenth section of tho act to regulate proceedings in the District Courts, without regard to tho length of the notice of sale, as stipulated in the mortgage.</p> <p>Where the statute proscribes tho specific relief which shall bo granted, it is the duty of the court, to rerider their judgment or decree accordingly, without regard to the propriety or impropriety of the prayer for relief, and whether the petition contain a general prayer or not.</p> <p>Where an instrument is signed by tho only party on whom it purports to impose any obligation, it is sufficient, although it. be drawn with reference to a party of the first part and a party of tho second part.</p> <p>Note 5. — If tho terms of the statute are complied with on tho first and second applications, tju» court can exorcise no discretionary power; tho continuance must be granted. (Prewitt v. Everett, 10 T., 283; McMahan v. Busby, 20 T., 191.) Tho statute makes no provision fora third continuance, mid whether or not it shall be granted must rest in the sound discretion of the court. It would require a strong ease-to warrant (he control of that discretion by the AppeJIate Court. (Green v. Crow, 17 T., 180; Burrill v. The State, 18 T., 713; Brooks v. Howard, 30 T., 278.)</p>

<p>Appeal from Bastrop.</p>

<p>Appeal from Guadalupe.</p>

Error from Travis. The only question in tlie case was whether the following acknowledgment of the' justice of a claim took it out of the operation of the statute of limitations: “ Tlie within obligation and interest is just, due, and unpaid, after deducting “ the above credits of $203.12^. Dec. 21st, 1844.

Tlie appellee sued (.lie appellant upon three promissory notes, one of which was for less than $100. There were some credits indorsed upon the notes.

Error from Montgomery. This suit was brought in the conrt below, by the defendant in error, on a promissory note made by the plaintiff in error, payable to one Halstead, and by him indorsed to the defendant in error. The defendants in the court below answered that the plaintiff is not the legal and equitable owner of the note sued on.

Error from Travis. Snit by Henderson, Governor, for the use of the State, against Nicholas Boyer, David Ilolduman, and Edward Burleson, upon a bond conditioned for the payment, by Boyer, to the collector of customs for the district of Galveston, &e. A citation was issued to each defendant, requiring- him “ to be and appear before the honorable tho District Court, to be held in and “ for the county of Travis, on tho second Monday after the first Monday “ in March next, to…

This suit was brought by the appellant for a specific performance of a contract for tho sale of one hundred and sixty acres of land purchased hy tho appellant from the defendant James id. Patterson and Sarah E. Patterson, his wife, since dead.

<p>Appeal from Walker.</p>

<p>It seems that a verdict which finds several distinct issues specially may be set -aside as to some and sustained as to others.</p> <p>Technical assignments of error will be disregarded where the facts disclosed by the record are sufficient to sustain the decree.</p> <p>Proofs not sufficient to entitle a retired partner to relief against his liability for the debts of the partnership.</p>

The appellant suet! tin- applfilee upon an agreement; in writing for the payment of $22.), alleged to be in consideration of the rent of a farm for the year ending on I lie 1st of January, 18-19.

<p>A certiorari was properly dismissed where it issued without bond. (Note IS.)</p> <p>Tho application for a certiorari, under the sixiy-seventh section of the act to organize Justice’s Courts, must show sorno error or illegality in the proceeding before tho justice. Where it does not appear that the justice decided incorrectly upon the cases as presented to him, the certiorari, if granted, should upon motion bo dnnissed.</p> <p>The application for a ccriiorari, under the sixty-seventh section of the act to organize Justice’s Courts, should show good cause why the applicant did not appeal. {Overruled.)</p> <p>Note 18.—Mays v. Lewis, ante, 1.</p>

Tlie appellant brought suit against the appellee upon two promissory notes alleged to have been made by the defendant Kle-berg-, payable to tlie' defendant Burleson, aud indorsed to tlie plaintiff. Tlie notes are described in tlie petition according- to their legal effect. From a bill of exceptions in tlie record it appears that at tlie trial a jury was waived aud tlie case submitted to tlie court.

The appellant brought suit against the appellee as administrator of William W. Massie, deceased, for the ’sum of $1,035.43, alleged to be due the plaintiff by the intestate in his lifetime, upon a written acknowledgment and other alleged grounds of indebtedness specified in a memorandum or hill of particulars appended to the petition.

Error from Guadalupe. The plaintiff in error brought suit against the defendant in error, in March,-1848, in a Justice’s Court, on a promissory note ¡for the payment of $100. The justice gave judgment-for the defendant, and the plaintiff appealed to the District Court. The defendant there moved to -dismiss, upon the ground tliat the justice had no jurisdiction of the case, the amount being within, the jurisdiction of the District Court.

<p>The rj'tgmenf: of » emirfcof competent jurisdiction i* eonclnsivo and binding upon the parties jifst'i all directly involved and necessjv-ly dotermiu' -l by it; and it matters not wY-ihertii * tribunal rendering it bo clothed ri i limited or ¿^nerai powers. (Note 20.)</p> <p>Its- -i Ihata jiul mentis not only final as to the ran »r actual W determined, but as to every ■ matter hich the Pities might litigate u tlie cauce, .*nd which they might have I ad decided.</p> <p>In oi tier that a judgment should be a bar to a second notion, it must appear that the trial was on the meri’.-*, ami that it did not go oil’ on a to-hmeal defem. (Note 21.)</p> <p>A non.mit is not a bur to another action; so also ol\t discontinuance.</p> <p>A ionner recover;, may be pleaded in bai\ ami or.d testimony to explain the judgment and identity what was adjudicated will be received. (Note 22.)</p> <p>The judgment of a justice oí the peace should bo produced whenever it is set up by way of defense.</p> <p>Note 20.—Weathered v. Maya, post. 387; Lycch v. Baxter, post, 431: Neill v. Tarin, 9 T., 256; Grassmeyer v. Beeson, 18 T., 753; Mills v. Alexander, 21 T., 154; Bowers v. Chaney, 21 T., 363: Thouvenin v. Rodrigues, 24 T., 468; Webb v. Mallard, 27 T., 80; Moke v. Brackett, 28 T., 443; Giddings v. Steele, 28 T., 732.) -A judgment obtained by fraud cannot be enforced. (Drinkard v. Ingram, 21 T., 650.)</p> <p>Note 21.—Graves v. White, 13 T., 123; Hassell v. Nutt, 14 T., 260.</p> <p>Note 22.—Bailey v. Knight, 8 T., 58.</p>

<p>Appeal from Bastrop. Clopton. as bearer of the following instrument in writing, sued Smith in a Justice’s Court:</p> <p>“ On or before the first (lay of January ne"xt, I promise -to pay IV. B. Wal- “ drop or bearer one dollar ancl fifty cents for each and every acre of land “ which lies north (that is to say) above Walnut Creek, which said Waldrop “has this day sold to me, being part of the land which was sold unto the said “Waldrop byL. C. Cunningham, the said land being (he consideration of “ this note; and if this note is not paid promptly at maturity, id shall draw interest at the, rate of ten per cent, per annum until paid. Witness: E. C. “ CüNNINCrHAM.</p> <p>Thohas Smith.</p> <p>“BASTROP, April loth, 184S.</p> <p>“Since, the within was written, tho land has been surveyed and found to be “sixty-five acres, which will make the within call for 697.50.</p> <p>“Thomas M. Smith.</p> <p>“Bastrop, Now. 10í7¿, 1848.”</p> <p>•Clopton recovered judgment in tho Justice’s Court, and Smith appealed to the District Court, where Clopton again</p> <p>recovered judgment. The only ((vide, nee besides tire instrument‘sued on was that the legal title to the laud for which (he note was given was in tho witness Cunningham; that Smith knew it at the time,; that he took Waldrop’s bond to make title as soon as the note was paid, and that he had ever since been in possession of the laud.</p> <p>I. Tho instrument sued on is not a promissory note, hut an agreement. (Baylev on Bills, 14; Smith v. jSTight'mgale, 2 Stark. It., 373; Ellis v. Ellis, Uow.,‘210.)</p> <p>II. Cloy;oil held (he instrument sued upon as hearer. Ile'conld not maintain a suit, upon it as such. By the law merchant, which* may be considered part of ( lie common law, bills of exchange were the only instruments transferable by delivery so as 1o vest iri the holder a right of action upon them. The ■instrument in ibis case, if not a promissory note,'"does not come within the provisions of tho statute, of 3d and 4th Ann. Chan., 9, s. 1; and if a promissory note, that statute is not in force here. The- negotiable quality of every written instrument, save bills of exchange, must depend upon some positive statute. Our statute of 1810 does not authorize the transfer by delivery of an instrument payable to hearer.</p> <p>Equity has no jurisdiction of such a case. Courts of equity, it is true, as well as courts of law, will take, notice of assignment of papers not negotiable, and afford them every protection not inconsistent with the principles-and proceedings of tribunals acting according to tho course of the common law. (Manr idiville ®. Welsh, 3 Coiul. B. S. C. IT. S., 554; Andrews v, Beecher, 1 Johns. Cas., 411; Litttcfprd v. Story, 3 Johns. It., 42G; "Warden v. Eden, 2 Jolms.. Cas.. 121; Raymond v. Squicr, 11 Jolms. It., 47 ; 1 Wash. C. C. R.. 424.)</p> <p>III. The instrument sued on and the bond of Waldrop for title are hot parts of an entire contract. The stipulations are dependent, (limit v. Livermore,. 5 Pick. It., 395; Sexton a. Wood, 17 Pick. It., lit); Cunningham v. Gwinn,. 4 Blackf., 312; Tarpiey v. Poage’s Ad., 2 Tex. It., 139.) The vendor having no title, could convey none. But admitting- that Waldrop liad a good title to the laud and was able to conves', still lie could not sustain an action-for the recovery of the purchase-money without having- executed a conveyance' or offered to do so. (Sug. Vend., 229; 1 Pet. It., 435; Green v. Reynolds, 2 Johns. R., 207; Parker v. Parmale, 20 Johns. It., 130; Hudson v. Swift, 20-Johns. It., 24; Jones v. Gardiner, 10 Jolms. It., 2G0 ; Fulton v. Hubbard, G Cow. B., 13; Fuller v. Williams, 7 Cow. It., 53; Fauchot v. Leach, 5 Cow It., 50G; Blood is. Goodrich, 9 Wend. It., 08; Love®. Jones, 4 Watts., 4G5; Dearth ®. Williamson, 2 S. & R. R., 50; Withers v. Alkcasou, 1 Watts R., 230; 3. Rawle R., 393; Withers v. Beard, 7 Watts It., 227 ; Leonard v. Bates, 1 Blackf., 172.) w</p> <p>IV. Suit Being brought in the name of the assignee or hearer dons not alter the case. He took it subject to all the equities subsisting between tlie assignór and debtor. (2 Story Eq., 311.)</p> <p>argued that the payment of the money was a condition, precedent to the making of the title. The appellant executed the note sued on, payable “on or before ” a particular day, and accepted "Waldrop’s bond to malm a title after the payment of the money. (Gibson «. Newman, 1 IIow. Mi. R., 341; Leftwich v. Coleman. 3 Id., 1G7; Owen v. Norris, 5 Blackf. R., 479; G Cow. R., 038; 1 Sug-. Vend.', 272, Gtli Am. Ed.; 1 N. Y. Dig-., 25S, 2GI.)-</p> <p>II. Waldrop could make title, although it was in a third person. (2 Sug. V., 27, Gth Am. Ed.; Ti-ask v. Vinson, 20 Pick. R., 111.)</p> <p>III. Tlie appellant entered into possession of the land and has kept possession under tlie purchase. (Ayres v. Pease, 12 Wend. R., 393; 2 Sug. V., S, 6th Am. Ed.; 1 Madd. Ch„ 440; Hoy ei al. v. Taliaferro, 8 S. & M. R., 727 ;■ Duncan et al. v. Lane, Id., 744.)</p> <p>IV. This court has decided that the holder or bearer of a note is-prima fade owner thereof, and can maintain an action on it in his own name.. (Ogden a. Slade, 1 Tex. R., 13.)</p>

Suit before a justice on an open account. Plaintiff failing to appear, judgment of nonsuit. Appeal to .District Court. Appeal dismissed for want of jurisdiction. There is nothing in law or reason whi'eh would prevent an appeal from this anymore than any other judgment rendered by a-justice.

Error from Polk. Cochran sued Kellum and TVhetmore on an arbitration bond. The defendants pleaded the award, set-off, and payment. Verdict for the plaintiff for $81.78. Judgment in favor of the plaintiff for $S1.78 and against liim for the costs of the suit. There was no statement of facts.

The appellant brought suit against the appellee, in the District Court of Walker county, to tiie Fall Term, 18-19.

The appellant was indicted at (ho Fall Term, 1848, of the District Court, for playing- at cards in a public place.

The appellant was indicted for the crime of incest with liis own daughter, and found guilty. There was but one witness to support the charge. He testified that lie overheard a conversation between the accused and his (accused’s) wife, sometime in December, 18-18, in which tlie accused said to his wife that she had stated that he had been with Sarah. She replied that she had said so, and asked him if he had not been with her. He ¡vii:l he hail.

This suit originated before a justice of the peace of the county of Harris, on the information of the assessor of taxes for the county, against Stephens, for the penalty of $10, incurred by him for failing to malte a return to the assessor, as required by the act of 1848, for raising a'revenue by taxation.

Appeal irom Walker. The appellant filed his petition in the District Court on the (ith day of .June, 1849, alleging in substauce that on the 23d day o£ January, 1840, John Bobbins, since deceased, in consideration of the snm of $1,480, executed and delivered to the plaintiff a bond in tlie sum of $4,000, conditioned to make title to a certain tract of land held by Bobbins by virtue of a location of his headlight certificate.

This ease was tried at the Fall Term, 1848, of the District Court. There was judgment for the defendant, and the plaintiff appealed. The record was filed in this court oil tho 20th clay of December, 1848, and not within the first three days of the term. 'Upon tho liling of Ihe record the appellee moved to dismiss the appeal, upon the following grounds: 1st. Because the record was not filed within the time prescribed by law. 2d. For want of a sufficient append bond.

The appellant brought suit against the appellee for the recovery of a sum of money.

<p>In appeals, the parties stand as they did before the justice, not as appellant and appellee, but as plaintiff* and defendant.</p> <p>Objection cannot bo heard in the District Court to the service of the process of the Justice’s Court; nor can the defendant set up any defense that does not go tó tho merits of tho action.</p> <p>Much indulgence is extended to the proceedings of Justices’Courts; and if they have not ■ operated as an injury, they will be sustained. (Note 31.)</p> <p>Note 31.—Clay v. Clay, 7 T., 250, Wahrenbergor v. Horan, 18 T., 57; Howerton v. Luckie, 18 T., 237; Aycock v Williams, 18 T., 392; Davis v. Pinckney, 20 T., 310; Doyle v. Glasscock, 24 T., 200.</p>

The appellant was convicted, under tho eighth section of the act of February 5, 1S40, to suppress gaming, of “permitting agamo of cards to he played in his store-room, the same being a public place.” The judge, charged the jury that “if the State proved that tlie store-house named in the indictment belonged to and was in the possession and under tlie control of the defendant and another in partnership; that it was a public place ; that a game of cards was then and there,…

Error from Colorado. This suit was brought by tlie plaintiff in error against tlie, defendant in error “to enforce tlie specific, performance of a title bond for two hundred and lifty acres of laud.” The date of (he bond was tlie 28th of August, 1889.

Error from Gonzales. Suit, before a justice, by Jones against Houston. Record of justice did not show that Houston was served. Judgment in favor of Jones; Houston not appearing. Same day Houston appealed. In District Court verdict and judgment for Jones. The trial was on the 23d of April. On the 24lh of April there appears to have been filed what was designed to be a bill of exceptions, authenticated by bystanders.

Motion against the sheriff of Harris county and his sureties for failing to return an execution issued from the District Court of Brazoria county. The motion was overruled, and plaintiff appealed.

Error from Matagorda. The defendants in error filed their petition against Ward, the plaintiff in error, in which they allege that they are citizens of the State of New York; that Ward is indebted to tliem by certain promissory notes, which are described and set out in the petition, dated at New York. They pray judgment against the defendant for their debt and interest.

<p>"Where the plaintiff recovers judgment for costs, but is unable to make them out of the defendant, he is liable to the officers of the court for so much only of the costs of the suit as was incurred in liis behalf; and the liability of his surety for costs is the same.</p>

One Tyler was indebted to Duncan. Duncan employed Blakely, who was an attorney at law, to collect the money. Blakely received from Tyler, in payment of the debt, three negro slaves, Jenny, Nicey, and her child Isaac. This occurred in the State of Mississippi. Blakely, instead of delivering the slaves to Duncan, brought them to Texas. This suit was brought to recover the slaves.

This suit was brought in October, 1840, by Hie appellant, as guardian óf Sarah Jamos McIntyre, minor lieir of James McIntyre, deceased, lo recover of (lie. appellee certain slaves. The. defendant answered that the slaves in controversy were not the property of the ward of the plaintiff, as alleged in the petition, but of Harriet 0.

Error from Galveston. This suit Wits brought by the plaintiff [íí©!] in error against Jonas Butler, administrator of Edmund Andrews, deceased, and John >S. Sydnor, guardian of II. B. Andrews, heir-at-law of said Edmund Andrews, at the Spring Term, 1845, of the District Court of Galveston county.

This suit was brought by the appellee against the appellant, in a .Justice’s Court, to recover the amount of-an account for services mu !ere¡ 1 :i> a physician to the appellee by attending on his slave when wounded; from which court it was taken by appeal to the District Court.

The executor of Clements applied to the court, tinder the statute of 1846, for an order of sale of a part of the real estate of his testator for the purpose of paying- debts acknowledged. The application resulted in an order, on the 1st of June, 1S4-S, granted by tlie Chief Justice of Gonzales comity, for tlie sale, agreeably to the petition of the executor.

<p>Appeal from Liberty.</p>

<p>Error from Bexar!</p>

<p>In order to obtain a rule for security for costs, a motion should be made and entered in the motion docket. When the order is made, the rule should be expressed in distinct and appropriate terms, and be entonad in the minutes of the court.</p> <p>The entry of “ rule, for costs ” on tho judge’s docket is not a sufficient foundation to support a judgment of dismissal for non-compliance.</p> <p>A judgment of dismissal made upon such entry is properly a subject for the exercise of tho appellate jurisdiction of this court, although no motion to set aside such judgment was made.</p>

<p>Appeal from Walker. The indictment in tliis case-contained two counts, tlie first for an assault with a deadly weapon, with an intent to commit murder, and tlie second for an assault anti battery.</p> <p>The defendant to tlie first count pleaded not guilty. ,To the second he pleaded a former conviction and judgment for tlie ¡Samp ’offense before a justice of tlie peace, and satisfaction of tliat judgment.</p> <p>To flic second plea the district attorney filed a demurrer, which ivas sustained by tlie court, anil the defendant asked leave, (o plead pver, but was refused permission to do so. A jury was impaneled to"try the issue on the first count and to assess the fine on tlie second. The jury returned a verdict of not giiilty on tlie first count, and assessed the. fine. aL ifio on the .second count, for which judgment was awarded. The defendant appealed. N</p> <p>The errors assigned, 1st. That the court erred in sustaining the demurrer to the plea to the second count. 2d. Tlie court erred in refusing to permit tlie defendant to plead over after sustaining the demurrer to his plea of a former conviction.</p> <p>The demurrer was sustained on the ground that tlie statute giving jurisdiction to justices of the peace is unconstitutional, in the opinion of tlie judge below, conflicting with the 8th section of 'the bill of rights, and the 10th section of the 4th article, as expounded by the court in Aulanier v. The State.</p> <p>Appellant suggests that the provisions of the 8th section of the bill of rights were introducedfor the protection of the citizen, and it is for him to invoke their aid; that the passage of the act giving jurisdiction to justices of the peace was the act of the State; his conviction under it, before the justice, was at the - instance of tlie State; and the flue has gone to the benefit of the State. Would it not be a worse evil than those provided against for the State now to repudiate her own act, merely for the purpose of collecting another fine from him for the same offense. The grant of this jurisdiction is expressly recognized by -the Constitution. (Art. 4, sec. 17.)</p> <p>Whatever may be the ruling of this court upon tlie constitutional question presented by the demurrer to' the plea, they cannot affirm the ruling of the court in refusing the defendant the privilege of pleading over. There may be some dicta found in the old English black-letter law to support the decision of the court below, but even in that age the court had a discretion to allow or not. But tlie time has long since passed when a man could be deprived of his life, liberty, or property by the State in a public prosecution merely because he happens to mistake some one of the technical rules of common-law pleading.</p>

<p>Where the condition of a certiorari bond was that the principal “shall pay all such costs and damages as shall bo recovered or awarded against him in any suit or suits that may hereafter be brought against him, his heirs. &t\, by the said Thomas Murphy:” Held, That Murphy could not recover judgment in that action against Die surety.</p> <p>Where judgment was recovered against the principal and his surety, and they appealed, the judgment as to the surety was reversed, and the judgment as to the principal was affirmed, with an order that the principal pay the costs of the appeal.</p>

<p>where the plaintiff filed an affidavit and obtained- an attachment, and afterwards filed his petition, which was served on defendant, the clause coming on to trial, the court ruled out important testimony of the plaintiff, who thereupon took a nonsuit, and afterwards moved to set the nonsuit aside and reinstate the case. The court refused the motion, unless the defendant would discharge the attachment and continue the ease as on petition and answer: ITohl, There was no error, all the proceedings before the filing of the petition being a nullity.</p>

Appeal irom Galveston. The appellants brought suit against J. Lombardo and John Kirker, before a justice of the peace, upon a promissory note in the following- words: ‘•853,20. GALVESTON, May., 2Gffi, 1318. “Forty days after date we promise to pay Crozier, Rhea & Co., or order, fifty-three 20-100 dollars; value received. (Signed) J. Lombardo & JOHN Kirker.” The justice gave judgment for the plaintiffs, and the defendant Kirker appealed to the District Court.

The appellant was indicted at the Spring Term of the District Court, 1819, for an assault and battery. The name of the person, upon whom the injury was alleged to have been committed occurred throe times in the indictment. In the first place his name was stated as “ Francis nubble,” in the second as “ the said.

The appellant filed tlieir petition in the District Court ou the 13l.li day of July, 1844. allegiug, in substance, that on the 30th day of June in that year a certain slave named Nat, belonging to the estate of Thomas II. I’oage, deceased, (of which the appellee is administrator,) pursuaded, decoyed, and enticed away a certain other slave named Jerry, the property of the plaiulifis, of the value of $1,000, and that having so pursuaded aud decoyed the slave.

This suit was brought by the appellants against the appellees to recover the value of a slave alleged to have been drowned by reason of tlie tortious and wrongful acts of the slaves of tlie appellees. There was a demurrer to the petition, which was overruled. There was a plea of “ not guilty,” upon which the cause was tried. The proof corresponded with the averments in the petition.

The appellee filer! his petition in the District Court, alleging, in substance, that at tho Fall Term, 1847, of that court the appellant had obtained judgment against him for the contents of a promissory note given by the petitioner for goods furnished him previous to the 1st day of March, 1842; that, execution had been issued upon this judgment-, upon which execution the clerk bad indorsed the words “without appraisement,” whereas the indorsement thereon should have been…

This suit wag, commenced in tlio District Court of Victoria county on (he 26th day of May. 184S, on a judgment of the, Circuit Court of Copiah comity, in the State of Mississippi, rendered on the 15th day of May, 1S45. The plaintiff afterwards amended ids petition by an averment that the defendant was not a resident citizen of Texas at the date of the judgment against him, and that lie emigrated to Texas sometime in November or December, 1845.

The appellee filed her petition, stating that she was the wife of one John D. Wright, and praying leave of the court to sue in her own name because of the pendency of a suit for a divorce between herself and her said husband; that she was the legal administratrix of one Peter ÜST. Hays, regularly appointed, &c.; that the defendants are indebted to her as adminis-tratrix iipon a note made by them, payable to the plaintiff as administratrix aforesaid.

<p>Where no objection is mad© in the District Court to the bond on appeal from a Justice’s Court, no objection will be heard in this court.</p> <p>Where an appeal bond described the judgment as against one, whereas the judgment was against two: Held, That the bond was bad.</p>

Error from Bastrop. The defendant in error brought suit against tlie plaint iff in error jointly with Edward Burleson-and Thomas F. McKinney, in the District. Court for Bastrop county, on the 20th day of July, 1847.

Action in name of appellee against appellant, for failing to render property for taxation, “to the damage of the plaintiff one hundred dollars, wherefore,” &c. The facts were agreed upon and submitted to the judge, as follows : “It is agreed that Bowles came to Texas iu the winter of 184;), and settled in Dallas comity, and made an improvement upon uncultivated land within the limits of Peters’s colony; that Bowles died in the spring of 18-17; that the land upon which he…

Error from Lamar. The- note on whicli the action was brought bore date the 21st March, was payable one day after date, and was sued on the 22d, the day ou whicli it became due. The defendant demurred. The demurrer was overruled. Judgment for the plaintiff. Por a reversal of the judgment appellant refers to Chittv on Bills, page 406, the text referring- to note d, and next page, third paragraph in note L

■ Error from Bed River. The defendant in error brought suit against the plaintiff in error Look and one Griffeth as the makers and the plaintiff in error Cornelius as the indorser of a promissory note. There was service of process on the maker Look and the indorser; but there being no service on Griffeth, the other maker, the plaintiff discontinued as to him and took judgment by default against his joint promissor, Look and the indorser.

Error from Grayson. The defendant in error brought suit against tlie plaintiffs in error, tlie one, Kyburn, as the maker, and the other, Doss, as the in-dorser of a promissory note. On tlie iiftli day of tlie term next after tlie service of process the defendant Doss appeared and Sled liis answer, containing- exceptions to tlie petition for tlie want of diligence sufficient to charge him as indorser, and also a general denial.

Error from Collin. The return of the sheriff was that he “ loft a copy of the writ and a true copy of the petition.” Judgment for the plaintiff by default. . The return of tlie sheriff shows that the process was served by leaving a copy; but with whom it was left nowhere appears. The'judgment being by default, and nothing appearing upon the record to bring notice of the pendency of this suit home to the defendant, it must be reversed.

<p>Where a petition alleges ownership generally in the plaintiffs, a title showing a special property in one of the plaintiffs and a general property in the others will support an action for the property, if no objection be made to its introduction.</p> <p>■ Where a mortgagee asserts a claim of absolute ownership in the property mortgaged, it is not necessary for the mortgagor to tender the amount acknowledged to be due on the mortgage before commencing suit for the property.</p> <p>Where the mortgagor sued the mortgagee for the mortgaged property, claiming damages for the detention of the property, and themortgagor was permitted without objection to prove the value of the hire of the mortgaged property: Held, That it was competent for the jury to estimate the value of the hire and apply it to the extinguishment of the debt.'</p> <p>A defendant can not set up the defense of an outstanding superior title in a third party by an instruction to the jury when lie has not set up such defense in his answer.</p> <p>To entitle a party to a new trial on the ground of newly-discovered evidence, he must satisfy the court, first, that, the evidence has come tohis knowledge since the trial; second, that it was not owing to the want of due diligence that it was not sooner obtained; and, third, that it would probably change the result upon a new trial. (Note 03.)</p> <p>A want of recollection of a fact which, by due attention, might have been remembered, is not a ground for granting a now trial; nor is an inadvertent omission by a witness to state all he knows material to the case. (Note 04.)</p> <p>Note 03.—Sweeney v. Jarvis, 6 T., 30; Long v. Steiger, 8 T., 460; Latham v. Selkirk, 11 T., 314; Pinkard v. Pinkard, 14 T., 356; Dean v. Border, 15 T., 298; Stewart v. Hamilton, 19 T., 96; Augustine v. The State, 20 T., 450; Angell v. Strut et al., 21 T., 485; Frizzell v. Johnson, 30 T., 31; Koontz v. The State, 41 T., 570.</p> <p>Note 64.—King v. Gray, 17 T., 62.</p>

<p>Error from Red River.</p>

Error from Keel River. This suit was instituted.by the plaintiff against the defendant on a writing of which the following is a copy : “ On or before the first clay of March, 1S47, we or either of ns promise to pay Young Ritter or order one hundred dollars for value received; as witness our hands and seals this 3d clay of November, 1846. “ William W. Vininu. [seal.] “J. J. WARD. [SEAL.] “E. S. HAMILTON.” [SEAL.] The defendant answered, in abatement of the suit, that William…

<p>Error from Bed Biver.</p>

<p>The transcript of the record on appeal to this court must be certified by the clerk to be a full transcript of all tho proceedings in the cause.</p> <p>Where a judgment liad been affirmed at a former term, without reference to the merits, on motion, it appearing that the transcript had not been certified to be a full transcript of all the proceedings in the cause, and further, that no appeal bond had been given, the-mandate was revoked and the judgment declared a nullity “ on both the grounds mentioned.” (Note 70.)</p> <p>Note 70.—Hills v. Bagby, ante, 320.</p>

Error from Bowie. The 'defendant in error brought suit'against the plaintiffs in error, upon a promissory note. The defendants were duly served with process, and judgment was taken against them by default.

Error from Bowie. The defendant in error recovered a judgment against the plaintiff in error at the Pall Term of die District Court now last past. The plaintiff obtained a writ of error returnable to this court.

<p>Where the defendant in error, after thirty days, f\led the transcript and moved an affirmance of the judgment without reference to the merits, the indorsement on the transcript being “demanded by the defendant,” who was the plaintiff in error, the motion was refused, the writ of error dismissed, and the defendant in error condemned to pay the costs.</p>

Parsons sued Phipps and Innes on a draft drawn by Phipps on lunes in favor of Parsons, and accepted. One term of court had passed after the. maturity of the draft before the suit was commenced. There was a verdict and judgment for the plaintiff,, against Innes the acceptor and against, the plaintiff, in favor of Phipps, the drawer.

Emu from Hod Hiver. This vas a summary proceeding; by motion of the District Court against a sheriff for failing to make return of an execution received by him in fa vor of the. defendant in error, and also for refusing to pay over money colleded nuder the execution.

Error from Houston. This suit was brought by tho intestate of the defendants in error, in his life-lime, against Joshua J. Hall and. the plaintiff in error.

Error from Houston. This suit was brought by the' defendant in error against the plaintiff in error and others upon a bond ill tlie penal sum of $5,600, conditioned for tlie delivery of certain slaves, the payment of their hire, and the incurring of other expenses in furnishing clothing for the slaves and paying taxes upon them, &e. The breach assigned was the non-payment of the hire of tlie negroes, alleged to lie of the value of $214.90, and the non-payment of .taxes upon…

The appellants filed their, petition, praying an injunction against the corporation of the town of Victoria.

<p>Error from Houston.</p>

Error from Houston. The plaintiff in the court below set out in his petition tlmt the defendants had given their note to J. J. Burton as executor of Willis Williams; that- subsequently thereto and before the payment of the note or any part thereof, on the 28th day of April, A. D. 1847, hy a decree of the District Court of Houston county, upon the petition of William Watson, next friend, &c., against John J. Burton, No. 882, which is there referred to and prayed tó be' made a…

• Appeal from Dallas. Prior ivas indicted for playing cards in a store-house for retailing spirituous liquors, then and there situated, and being (hen and there occupied and used by one Alexander Bonner as a store-house for retailing spirituous liquors, the same being then and there a public place. There was no proof as to who occupied the store-house in which the witness saw the defendant playing.

Eiror from Roll River. Suit. on two notes under seal, calling one clay after date for so many dollars in cashi-notes, `I'here was no proof of the value of tim notes. Tice court. charged the jury that it was not necessary for the plaintiff to prove tile value of tile cash-notes.'' It is not necesss~ry to prove the meaning of words in the veroaeelar. (1 Greeul. flv., 63.) Notes include those ~al1ing for cash and those calling for specific articles.

This suit was brought by the appellant on an open account against the appellee. Among other defenses set up was a former judgment of the same court, between the same parties, in which all matters in controversy between them were adjudicated, and a judgment rendered in. favor of the defendant.

Custer received a certificate oí election as sheriff of Collin county for two years from the 7til day of August, A. D. 1848. Fitzhugh, who liad been a candidate at the same rime, contested tlie election.

Petition by Banton for a mandamus to Wilson to deliver up to him the office of clerk of the District Court of Walker county, together witli the records, &c. •In September, 184G, the clerk of said court, who had been elected the August previous, died. In October tlie district judge appointed Banton, the appellant, clerk, until a regular election could be held.

The complainants filed their bill of complaint, stating that the complainant Nancy Danzey was tlie widow, and tlie said Rebecca Ann, William N., Julia Ann, and Mary Ann Danzey are the children of Bich-ard Danzey, deceased, late of the county of Liberty.

ThTOL from Houston. Dailey was«'(>¡11111111.0(1 to jail hy a justice of the peace of Houston county on the 4Oth day of Deco:.«tier, JS47, in default of his giving hail in the ¡'.mu of fit.000 to appear and answer to a charge of “having in his posse-Mon stolen goods.” On the 10th day of January, 18IS, the sheriff took from him a bond in the sum of 81,00'), with Youngblood & McICim as his sureties.

Error from Harris. Suit on a note dated at “Philadelphia, 21st March, iSSO.” There was no proof other than the note itself of the place where the note, was made. The court instructed the jury to compute interest at the rate of five per cent, per annum, the rate allowed in Texas at the date of the note. This cause has already been once before this court, and should now be reversed on the same grounds. (1 Tex. R., 9: Dallam, 522; Id., 530; 1 Tex.

Error from Houston. Suit instituted on the lltli of January, 1845, on a due hill dated and due ou the 4th of February, 1839. Judgment'by default. The note sued on was barred by the statute of limitations and by prescription, on tiie principle recognized in tiie cases of Gautier v. Franklin (1 Tex. R., 732) and Hays v. Cage, (2 Tex. R., 501.) The defendant can lake advantage of this defense on error. (Coles v. Kelsey, 2 Tex.

<p>The District Court has iurisdiction of a suit on two promissory notes amounting in the aggregate) to S1U0, exclhsive of interest.</p>

The appellant brought suit against (lie defe-sd-ants as successive indorsers of anote given by one Allison. The plaintiff alleged that lie had sued Hit* maker on the note, and that on tiie plea (hat he had never made it, the dcíeudant liad judgment in his favor before a justice, of the peace.

<p>Appeal from Washington county. The appellees sued the appellants on a note of hand, dated October 5, 1841, due twelve months after its date, payable to Walker C. Cooper, administrator of James Hensley, deceased. The petition alleged that the said note, was given for tho purchase-money of a tract of land sold by the said Cooper, as administrator of the said Hensley, deceased, at an administration sale, as the property of the succession of the said Hensley, deceased, on the said nth day of October, 1S41, and that the said Lynch then became the purchaser thereof. The death of Cooper, the first adminis- ’ trator, was suggested, and the grant of the administration de bonis non to Mrs. Baxter, and her intermarriage" with Baxter. They prayed process and judgment, &o. Tiio defendants first filed an answer denying the allegations in, the petition. They subsequently amended and pleaded‘specially, admitting the note sued on was given for the land, «fee., and making a bond for title given by Cooper, former administrator, a part of their plea, and alleging that'title, though often demanded of I lie said Cooper and of the said plaintiffs, had not beeñ made; that title cannot he made by them, because the (itle is in the heirs of the said .James Ilensley, deceased, and not in the administratrix; and that the consideration for which tho note sued on was given inis failed. And in a second amendment of their answer they said the land was not the property of said James Ilenslev, deceased, but was the undivided estate of J. JT. Hensley, and belonged to his heirs, consisting of children, &c., and the children of the, said James Hensley, deceased, the said Cooper’s intestate; and therefore the said Cooper could not sell the said land.</p> <p>Johnson Hensley, a witness for the defendants, swore that there was no such person as J. H. Hensley; (hat (.he land in question was part of the, headlight of Harmon Ilensley, father of plaintiffs’intestate aud of witness; and that the said Hannon Hensley died sonie time'early in the year 1834, leaving- several heirs, all of age, except, one. Margaret, ahont fifteen years of age; that in November of the same year (lie children of said Harmon Hensley agreed to divide the said land, by metes and bounds, in equal parts. Witness could not say whether the partition was in writing-. The best lot was given to the said minor Margaret. She married in 1833,; and .she and her husband sold it to plaint ill's’ intestate. The said Margaret i|ud her husband aud all the heirs, since 1834, have acquiesced in the partition and have used and enjoyed the parts allotted to them. The defendants then offered in evidence a copy of the petition of Cooper, administrator of Hensley, praying an order of sale, and the-' decree of the probate judge rendered on the petition. The petition represents tin- perishable properly as worth about, $300, aud that the debts already presented and allowed amount to $1,200, besides the expenses of the administration, and prays an order of sale of the perishable property, and as much of the real estate as'shall be of value sufficient to pay the debts and expenses of administration. Tlie petition is sworn to by the administration. The decree of the probate judge is made in conformity with the prayer of the administrator. There was a verdict and a new trial; the case was afterwards submitted to the judge, the parties waiving- a jury trial; judgment for the plaintiffs; from which the. defendants appealed.</p> <p>(t’lie errors relied on were—</p> <p>1st. That the land did not belong to the estate of the administratrix’s intestate, and that the, plaintiffs, the administratrix, could not make title.</p> <p>2d. That the. decree of the probate judge ordering the sale was a nullity and absolutely void, and that consequently Cooper, the administrator, had no right to sell the land under such void decree.</p> <p>3d. That tiie covenant in the bond and the note sued on being dependent on each other, the action could not lie.</p> <p>I. Upon the first, point the testimony shows that the land was a pait of the . headlight leag-no of Harmon Hensley, and that after his death his heirs, of whom'James Hensley was one, verbally agreed to a partition between themselves, one of them being- a minor; that they made the partition according- to the agreement, and each one of the heirs claimed in.severalty the parts allotted to him; aud that the part wiiicii fell to James Hensley was (ho land sold h,v his administrator, Cooper, to Lynch, for which the note sued on was given. This partition, it is insisted, was illegal, and the whole of the heirs remained as well affer as before if, joint temints in each aud every parcel of the league of land; and consequently, if the administrator has conveyed the land to Lynch, the other heirs might sue for aud recover from him their portion of ii. (J- vol. Laws, p. 122. sec's. 38, 39, 49; 7 Mass. It., 488; 12 Mass. It., 520.)</p> <p>II. The judgment of (he Court of Probate of Austin county, under which the land was sohlj was in evidence, before, (he court in. Washington in this case, aud it shows upon its face that the. Probate Court had no jurisdiction over the subject-matter at the lime the order to sell the laud, was made. The judg-ni'Hit, therefore, was coram non judien. A Probate' Court lias no authority to order a sale of real (-state except it he for the payment of debts, in default of personal estate, or for distribution, and not even for (bo payment of debts, until it shall be shown that the personal estate is exhausted. (4 Laws, p. 119, sec. 29.) The petition to the Probate Court by the administrator for an order to sell the land of Ilensley shows that the personal estate had not been ex. hausted or applied to the payment of the debts. The court therefore had uo~ui'isihctron to entertain it and the judgment rendered lipoli. it was cc-ram non judice, and void. (1 Ala. B., 25; 3 Ala. B., 153; 5 Stew. &Port.B., 441, 449; 8 Port. Ii., 99, 10~J, 101, 301, 372; 2 Stew. B., 331; 5 U. S. Cond. B., 008; 1 11111, B., 130; 5 U. S. Conci. B., 28; 8 Port. B., 400; 3 B~ub. B., 341; .3 Mass. B., 253, 200; 7.Mass. II., 70; 2 Mass. B., 120, 124; 4 Mass. B., 117, 122; 10 Mass. B., 171, 178; 8 Pet. B., 375, 377; 3 Stew. & Port. B., 355.) The Court of Probate being a court of limited ~nrisdie1ionin respect to the sale of real estate, nothing is to be l)resumed in favor of it; everything essential to its ~nrisdietion must affirmatively appear. The necessity of the sale of the real estate could only be known after the IersolIal estate was exhausted; and without that llecessi(v was showii, tile court had no jurisdiction to eider a sale of the land. (1 1-lill B., 133; 3 Pet. Conci. 11., 7, 8; 2 Pirt. Dig., 10, sec. 9; 1 Pet. B., 340; 5 Pet. Coat]. B.. 972; 5 Cr. B., 173; 11 Ala. B., 110; 2 U. S. An. Dig.. p. 83, see. 14; 2 U. S. Dig., 249, arts. 40, 47, 48, 54, 55.)</p> <p>Hunger, for appellees.</p> <p>I. The testimony of Johnson Hensley was objected to, and ought not to have been admitted. The transcript of part of the proceedings of the .Probate Court was also objected to, and ought, to have been excluded. (11 Hart. It., 608.)</p> <p>II. Admitting the evidence, (he judgment is correct. A parol sale of land was good under the Mexican law. (Scott & Solomuu v. Maynard and AVife,, Dallam, 651, and authorities there cited.) A parol partition would be equally good. If defective, iu this ease it has been perfected by acquiescence and the statute of limitations. (Laws, 1 vol., p. 156, sec. 30; Id., 5 voh, p. 1(17, secs. 15 et seif.; Tabor v. Johnson, 3 N. S., 074.) The possession of Lynch has not been disturbed; and he has no right to impeach his own title io defeat this action, at least without offering to "give up the bond and the. possession of the land. ('labor ». Johnson, 3 N. S.,' 674; La. Dig., p. 574, Nos. 14, 16; Id., p. 595, No. 53.) There is no warranty in Judicial or administration sales; the, decree protects the purchaser, (La. Dig., p. 642, Nos. 21, 22;) and the purchaser only gets the title of the intestate, be it good or bad. (3 U. S. Dig., p. 377, No. 474.)</p> <p>III. It is contended by tlie appellants that the order of court to sell the real estate was a nullity. But not so. The statute is merely directory, and does not require tlie. perishable property to be first sold before obtaining an order for the sale, of real estate. Besides, tlie purchaser looks to the judgment only, not to the facts which authorize it. (AVheaton v. Sexton, 4 AVheat. R., 506; 4 Or. It., 328; 1 Stark Bv., 217.) A judgment, in rem is conclusive. Matters of probate arc in rem. (1 Stark. Ev., 24Í ; 2 How., U. S. R., 238.) It is not ne.eos-cessnry for (be record to disclose' all the facts. (Grignon v. Asfor, 2 How. U. S. R., 341; Ex parla Tobias v. AVai kins, 3 Pet. R.. 202; Kemp, Lessee, v. Ken-edy, 5 Or. R., 173; Thompson ?>. Tolmio, 2 Pet. R., 16S, 169.)</p> <p>The amended pleas of the defendants are but pleas of failure of consideration. The bond for warranty, title, and the possession of the land were sufficient. consideration to support the promise in the note. (Bessj' v. Pintado, 3 La. R., 488.)</p> <p>The Probate Court had jurisdiction of the subject-matter. In such cases its proceedings stand upon the. same fooling as the proceedings of the District Court. It is not, the manner but, the' matter upon which a court is called to act, that gives jurisdiction. (14 Johns. R., 289.) The conrt. obtains jurisdiction by tlie plaint, or here by the petition. (2 N. Y. Dig., 109S; 20 AVond. R., 245, aiid cases (.here cited.)</p> <p>The proceedings must show affirmatively jurisdiction. Thus, if a suit is ■brought before a justice of the. peace, it must be. shown that, the debt or damage claimed is not over $100; if in the'District Court, tlie petition must show that the debt, or damages is 8100 or upward.-,; and if 'h the Probate Court, that it i iu relation to the estate of a dc.-.-tTmt, uifi-.t, lunatic, or some other of Hie specific! cases in which that court >.:s autlioni. to act. The one under consideration shows that it is in relation lo t-lie estati of a decedent. It is no objection to the jurisdiction that the court deceived hr acted on improper aud insufficient evidence, or even without evidence. The law gave that court power to act, and directed its action in certain specified cases; and that court alone had the authority (in the first instance) to determine whether there was sufficient. evidence before it to warrant its action. And if the court was mistaken or acted without the proper authority, the course, and the only one, to correct the error, if any exists, is by appeal. We are authorized to believe that the Probate Court had proper evidence to authorize the proceeding. The law did not require that the testimony should be taken down and preserved. In the probate law of 1840 there are) precise aud very minute directions given for the government of the court, but not. a word as to the amount or kind of testimony. The 20th section only requires satisfactory proof; tins «1st section of the same law gives particular directions on this subject for a jiarticular class of cases; and why f his distinction, if it is necessary in .all eases?</p>

The appellant was indicted at the Spring Term, 1848, of the District Court for Collin comity, upon a charge stated in the indictment as follows; “The grand jury,” &c., “present that Tieonard Searcy, late of the county aforesaid, on the twelfth day of June, in the year of onr Lord one thousand eight hundred and forty-eight, (the said Leonard Searcy being then and there assessor and collector of taxes in and for Collin county aforesaid,) did willfully receive the inventory of…

The appellant filed his petition in the District Court, as follows: “The petition of Thomas J. Jennings, a citizen of Nacogdoches county, against Marcellas Moss, a transient person, showetli that your petitioner is the holder and legal owner of a note, which is in the following words and figures, to wit: “ ‘ $200. On the first day of October next I promise to pay Francis W. Brewer or bearer two hundred dollars for value received.

The appellant brought suit against the appellees upon, a promissory note set out in the petition as follows : “MONTGOMERY, January 20, 1844. “ $100.10 On or before the first day of January next we or either of ns promise to pay Franklin Armstrong or bearer oue hundred dollars and ten cents for' value received. Jarrot Dean.

Error from Cass. The plaintiff filed tlie following petition: “To the Honorable Judge of the 5tli Judicial District: “The petition of William S. Todd, a citizen of Bowie county, complaining of Ebenezer Frazier, a citizen of Cass county, respectfully represents unto your honor that he holds a note on the said Ebenezer Frazier, by the name of E. Frazier, in the following words and figures : “ ‘$2.'55.

<p>Appeal from Harrison.</p>

This suit was instituted on the 2St.li of April, 1849, oil three promissory notes, a copy of one of which is ns follows : • “StlS.lifi. Faith of the city pledged. No. 21. Galveston city ten per cent, stock.

<p>Appeal from San Augustine.</p> <p>Special court composed of Hemphill, Oh. J., and J. M. Aedbby, and JohNE. CbaveNS, special judges,</p>

This suit was brought by Perry, executor of Stephen F. Austin, deceased, against Elizabeth Pettus, administratrix of William F. Pcttus, deceased. The petition charged that Pettus, deceased, in his lifetime, made and delivered tlie following instrument in writing, to wit: “$1,753.90. On settlement this day I owe James P. Perry, executor of Stephen. P. Austin, deceased, seventeen hundred and fifty-three dollars and ninety cents for value received.

The appellant sued the appellee for a trespass alleged to have been committed by the latter in shooting certain mules belonging to the former, whereby lie sustained damage., &c. The answer contained a general denial and the allegation of special'matter of justification, to the effect that the mules of the plaintiff were mischievous; that one Harris, who had charge of them as overseer and agent of the plantation, in liis absence from the country, drove the mules over the…

The appellant’s intestate brought suit against the ap-pellee as the drawer of a bill of exchange drawn in favor of the plaintiff upon Messrs. Kirkmau & Abernathy, and payable May 15, 1845. The original petition was filed on tiie 2GTh day of April, 1847, and it alleged the making and presentation of the bill ¡it its maturity, and the refusal of the drawee to pay or accept tiie bill.