Volume 42 — Texas Reports

<p>Appeal from Rusk. Tried below before the Hon. J. B. Williamson.</p>

<p>Appeal from Cass. Tried below before the Hon. James H. Rogers.</p>

<p>Appeal from Morrison. Tried below before the Hon. J. D. McAdoo.</p>

Tried below before the Hon. M. D. Ector. Thomas Allen was indicted and convicted of the crime of perjury, and has appealed.

Tried below before the Hon. John Gr. Scott. This is a suit by Adams and wife, the object of which is to annul a deed of conveyance made by them to Huff-master, July 11, 1870, on the ground that it was procured by fraud. Originally the suit was brought by Adams alone. His wife afterward was joined with him. The petition alleged that July—, 1870, appellants’ son was arrested for the alleged theft of an ox, and by examining court bound over in a bond of $800.

<p>1. Wife’s power over community property when abandoned by husband.—It is not an open question in this court that the wife, when forced hy the action of the husband to assume and fulfill the duties of a feme sole, or the head of the family, may exercise the rights and privileges of such position.</p> <p>2. Announcement of ready—Amendment of pleading.—The announcement of ready, when there are questions of law to be considered by the court, implies readiness, unless the rulings of the court upon the pleadings require their amendment; and the right to amend pleadings to which exceptions have been sustained only authorizes the amendment of the pleadings held to be defective.</p> <p>3. Practice in Supreme Court.—A hill of exceptions to the admissibility of evidence is held a waiver of objections not urged; and this court will not consider objections apparent in the record to evidence • to which other objections were made.</p> <p>4. Instructions excluding the effect of evidence, admitted for reasons not urged when the testimony was offered, should not. be given. Objections to testimony must be taken when it is offered.</p> <p>5. In an action of trespass to try title, where defendant has no title he cannot show in defense that' plaintiff had not paid a valuable consideration for his title.</p> <p>6. Parol contract for sale of lands.—Tender of purchase money, making improvements by vendee, (it not appearing that vendee expended beyond rents received by him,) and possession, do not constitute such part performance of a parol agreement for sale of land as will justify a decree of specific performance of such parol agreement to sell.</p> <p>7. See discussion of principles governing specific execution of parol contracts for sale of land.</p>

Tried below before the Hon. M. L. Crawford. This case was before the court ata former term, and the • appeal dismissed, being from an interlocutory judgment, (37 Tex., 389.) All the facts necessary to a proper under-. standing of the case will be found embodied in the opinion.

<p>1. Hew trial, when defective pleading will not authorize. —The petition in a suit on account contained no itemized statement of the account, but no exception was taken for that cause : Held, that after a verdict for plaintiff the objection could not avail on a motion for a new trial.</p> <p>2. What must appear to authorize a reversal when there is NO statement op pacts.—To reverse a judgment, in the absence of a statement, on account of error in excluding evidence apparent from a bill of exceptions, it must appear not only that the court had erred, but that such error must with reasonable certainty have produced a substantial injury to the party or his cause.</p>

Tried below before the Hon. M. D. Ector. Suit on assessor and collector’s bond. A question rose on the trial of this cause as to admissibility in evidence, of a certificate signed by A. Bledsoe, Comptroller of the State, certifying to facts in regard to taxes which appeared of record in his office, but having no reference to any copy from the records accompanying the certificate.

Tried below before the Hon. John C. Easton. ’ Turner King sued James E. Hopkins in the County Court of Red River county, and on December 9, 1868, judgment was rendered for King for $412.50 and costs. Motion for new trial was overruled, and notice of appeal given on the same day.

Error from Harrison. Tried below before the Hon. M. D. Ector. Steel, Furrh & Co. brought suit against G-.

Tried below before the Hon. A. II. Latimer. David F. Castleman, for use of Francis G. Goodman, December 5th, 1865, sued Barney Sherry for specific performance of a parol contract for the sale of a tract of land in Red River county. The pleadings and evidence showed that in ¡November, 1864, Goodman delivered to Sherry a negro woman, for which Sherry was to convey to Goodman the tract of land, and was to deliver some cattle and hogs.

Tried below before the Hon. James M. Rogers. By indictment it was charged that M. H. Brooks, “an officer of the Government, to wit, a deputy sheriff in and for the county of Marion, and by virtue of his said office then and there by law a receiver of public money, to wit, a collector of the taxes for said county, and authorized to collect and receive the moneys due the Government of Texas, and then and there acting in said office, did * * * take, misapply, and convert to his…

<p>Appeal from Kaufman. Tried below before the Hon. A. J. Fowler.</p>

<p>Indictment fob permitting gambling.—An indictment which charges that A B “did nnlawf ally and knowingly keep a room in the Star Hotel to be used for gambling, and did knowingly permit said roomito be used and occupied for gambling,” charges no offense recognized by law- (Overruling State v. Crowder, 39 Tex., 47.)</p>

<p>Appeal from Rusk. Tried below before the Hon. M. D. Ector.</p>

<p>Indictment—Fraudulent representations.—An indictment for obtaining property by fraudulent representations should charge in terms that the property was acquired by means of the fraudulent representations. It is not sufficient to allege that the owner was swindled out of value of the property by means of the fraudulent representations.</p>

<p>1. When a second judgment by default may be taken, and THE FIRST SET ASIDE WITHOUT NOTICE TO DEFENDANT.—B obtained judgment by default against 0 in a suit on a promissory note which sought tlie enforcement of a vendor’s lieu. At the same term, on B’s application, the judgment was set aside without notice to C, and after an amendment by B, of which C was not notified, more carefully describing the property on which the lien was sought, a second judgment by default was obtained enforcing the lien: Held, that since the original petition sufficiently described the property, there was no error.</p> <p>2. When service of an amendment not required.—When the object of an amendment is merely to cure a defective statement, or to give form to what was before informal, or the like, no service of the amendment on the defendant is necessary.</p>

' Tried below before the Hon. J. C. Easton. B. F. Weatherby brought suit to January term, 1874, against U. W. Townes, upon a promissory note for four hundred dollars specie, bearing date June 14th, and due six months thereafter; also to foreclose a mortgage bearing date 22d January, 1868, executed by Townes upon certain lands to Theophilus Hardison, John Harris, B. F. Weatherby, (plaintiff.) and A. N. Wright, stipulating an extension of time for twelve mouths, and the debts…

<p>Appeal from Raines. Tried below before the Hon. Z. Horton.</p> <p>J. E. Mooring was indicted for an aggravated assault upon Peter Bullard “ with a certain knife, the same being a deadly weapon.”</p> <p>The testimony adduced on the trial sufficiently appears in the opinion.</p> <p>The court gave in charge the statutory definition of an assault, and the law as to aggravated assault charged, in the indictment: that it devolved upon the State to prove the material facts, presumption of innocence, reasonable doubt, and as to punishment. Defendant asked no instructions.</p> <p>Defendant was convicted of aggravated assault. His motion for new trial was overruled, and appeal taken.</p>

<p>Appeal from Wood. Tried below before the Hon. Z. Horton.</p>

<p>1. Sheriff’s agency in making sale of land.—Such agency is in behalf of the plaintiff in execution to the sum required to satisfy the judgment, and in behalf of the defendant in execution as to the residue of the money bid at such sale.</p> <p>2. Vendor’s lien will be enforced to secure the payment of the bid by a purchaser at sheriff’s sale above the satisfaction of the judgment, for the payment of which credit is given by consent of the defendant in execution.</p> <p>3. Credits on note—Bankruptcy.—The bankruptcy of the payee of a note taken by such payee for a debt due his principal will not deprive the maker from such credits as he has honestly acquired in belief that the payee of the note was the owner.</p>

Tried below before the Hon. J. D. McAdoo. Amanda M. Abernathy, joined with her husband, brought suit upon a contract made with her before her marriage against R. Short and T. J. Aikin. The contract was evidenced by two instruments, alike save in the sum, one being for one hundred dollars and one for fifty dollars. One is as follows : “ $100.

Tried below before the Hon. M. L. Crawford. Virginius H. Claiborne sued J. M. Urquhart and H. A. Birge upon three promissory notes, of date January 1,1871, executed by Urquhart as principal and Birge and one Ward as sureties to William Hamilton, and by Hamilton indorsed to plaintiff.

Tried below before the Hon. A. J. Fowler. This is a record of two hundred and eighty-two pages, and the object of the appeal was to revise the action of the court in passing upon the account of J. M. Wiggins, who had been appointed receiver pending the litigation resulting in setting aside the (alleged) will of Casper Renn, (33 Tex., 760, and 37 Tex., 240,) and also to revise an order retaxing the costs made at the instance of Jas., M. Mead, deputy district cleric.

<p>Practice—Damages for delay.—The right of a defendant in error to an affirmance, with damages for delay, is not affected by the fact that, after the writ of error was obtained, he procured, upon application and notice to the plaintiff in error, a correction of the judgment entered erroneously as to amount by mistake of the clerk, and brought up a transcript of the record with the judgment corrected nunc pro tunc ; nor is the liability of the securities on the bond of plaintiff in error affected by the fact that they had no notice of the proceedings to correct the judgment.</p>

<p>Appeal from Hopkins. Tried below before the Hon. W. H. Andrew.</p>

Tried below before the Hon. J. D. McAdoo. July 25, 1870, W. P. Hughes and Eeece Hughes, jr., for themselves and as next friend of Howell R., Bettie, Mary, and Benjamin P. Hughes, minors, brought suit against Thomas Eoper and J. E. McKenna, sheriff, to enjoin the sale of certain lands levied on under an execution in favor of Roper for $1,900, and against Eeece Hughes, sen. Plaintiff claimed that the land, twenty-two tracts, containing in the aggregate about twenty-five…

<p>1. Service of citation in error.—Service of citation upon one of several partners, plaintiffs, against whom writ of error has been taken, is insufficient; all the defendants in error must be served.</p> <p>2. Transcript.—See irregularities in the record for which writ of error was dismissed.</p>

Tried below before the Hon. Z. Horton. Suit was brought in the District Court 11th May, 1872, by C. Gf. Held: and used by him as such at the time of his death, and afterwards by his surviving wife. On the 28th March, 1872, the plaintiff excepted to defendant’s answer, on the ground that it did not present any legal or equitable defenses to plaintiff’s cause of action.

Tried below before the Hon. A. J. Fowler. This was an action of trespass to try title, brought by Rebecca York, Robert A. York, Milton G-. York, and Mary York, against Amanda Cartwright, Americus Cartwright, Leonidas Cartwright, Matthew Cartwright, Anna Roberts, formerly Anna Cartwright, and her husband, Ben.

Tried below before the Hon. J. B. Williamson. Wm. M. Burriss, June 10, 1870, brought an action of trespass to try title against David McPhail and Thomas Wagnon for five hundred and fifty-six acres of land of the head-right of John Ward.

Tried below before the Hon. James II. Rogers. On 21st March, 1871, Hardy Birmingham brought suit in his own name for the use of his sons, G. C. and W. P. Birmingham, to establish a boundary line between the lands of plaintiffs and W. E. Griffin et al., and for rents. The defendants, at return term, demurred, and pleaded not guilty.

Tried below before the Hon. J. B. Williamson. Bryant Marsh, Ed. McKeller, and John McKeller, as surviving partners of Marsh & McKeller, of Shreveport, Louisiana, and Miller & McKeller, of Texas, sued J. M. Robertson on an account. Defendant pleaded payment. The testimony showed the correctness of the items of account claimed by plaintiffs, and of the credits insisted on by defendant, save as to two hundred and fifty dollars gold.

<p>1. Service of citation.—A sheriff’s return, “ Came to hand September 30th, 1873, and executed same day by handing J. B. King and John A. Pearce, in person, a certified copy of plaintiffs’ petition, together with a copy of this citation, tills October 1st, A. D. 1873Held, insufficient in not clearly showing service upon both citation and copy of petition.</p> <p>2. Amendment—Practice—Judgment by default.—Where judgment was taken by default, enforcing a vendor’s lien set up by amendment upon one-half interest in a town lot, wherein the original lien was insisted upon against two-thirds of a half interest, and defendant having no notice of amendment: Held, to be error.</p>

Error from Kaufman. Tried below before the Hon. M. H. Bonner. This was a suit brought in the District Court of Kaufman county, December 11, 1870, by the heirs-at-law of R. H. Temple, on a note for $1,626, executed March 4,1862, by H. J. Snow and A. J. Burton to M. T. Stephenson, as administrator of Temple.

<p>1. Injunction—Garnishment.—An injunction will not be issued in aid of a garnishment sued out in the United States Circuit Court against a defendant sued in the State court upon the same debt.</p> <p>2. Conflict of jurisdiction.—The jurisdiction of a State court to proceed to judgment and execution cannot be affected by subsequent garnishment proceedings in the United States courts.</p> <p>3. Practice.—The plaintiff in t garnishment proceedings will not be allowed to interfere for the protection of such garnishee against others seeking to enforce by suit collection of such debt. It is the duty of the garnishee to protect himself against being compelled to pay his debt twice.</p>

Tried below before the Hon. J. B. Williamson. The Southern Pacific Railroad Company brought suit by publication against Vernon K. Stephenson and W. B. Grubbs, alleged to reside in Hew York.

<p>1. Mistake in written contract.—Where an agreement to pay a sum in gold is reduced to writing, but by mistake the word “ gold ” is not written in the contract, the instrument may be reformed to correspond with the real contract, and a decree may be rendered ■ thereon accordingly.</p> <p>2. Presumption in favor OF verdict.—On a suggestion of delay, when there is no statement of facts, nor averment in the petition as to the date of a contract on which the plaintiff below recovered, the contract will be presumed to have been executed under a statute which would permit the verdict to stand, and not under a statute repealing the former law, and which might defeat the verdict.</p>

T. C. Barden. Prior to the war, and up to September, 1862, Bagland and Coller were partners in mercantile business, and owned a storehouse and lot in Victoria. About September, 1868, they closed up their business, sold out their remnant of goods, and divided their notes and accounts, but continued to own the storehouse and lot in common.

<p>Judgment Lien. The Act of Nov. 9th, 1866 (Pas. Dig., Art. 7005), gave a lien from the date of its passage, upon the land of the judgment debtor, liable to execution, situate in the county where the judgment was ren dered, if executions had issued upon it to prevent it from becoming dormant.</p>

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

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

<p>1. Wager on Horse Racing.—In an action to recover of a stakeholder property placed in his hands as a wager on a horse-race, the terms of which were reduced to writing, in the absence of allegation and proof that the rules of the turf entered in and formed part of the contract to run the race, it is error to. instruct the jury that the decision of the parties selected to witness the race and announce their conclusion on the relative speed of the horses is conclusive as to the question whether the race had been fair and as had been stipulated between the parties; the question of fairness should have been left to the jury.</p> <p>2. Rules oe ti-ie Ture.—The court will not take notice of the rules of the turf without allegation and proof.</p>

Tried below before the Hon W. H. Burkhardt. Clayton, on the 14th November, 1871, sued Mrs. Sorrel. His petition charged, that in May, 1864, she borrowed of him two thousand two hundred pounds of ginned cotton, to be returned out of the crop of 1865 ; that the cotton belonged to the estate of W. H. Reeves, of which he was then administrator ; that upon final settlement he accounted for it to the estate, and thereby became the owner, and prayed judgment for the amount.

<p>1. Homestead. Ordinarily there can be no blending of homestead rights so that the exemptions can be partly in town and partly in the country,</p> <p>3. Same. The leading idea in Homestead Exemptions is to furnish a home and shelter to the family; but limited and confined to the residence, ■ and not to property of a specific value, irrespective of its uses.</p> <p>3. Same. It was not the purpose of the framers of the Constitution, to exempt a definite quantity of land in the country, or lots of a designated value in town, irrespective of the uses to which such property had been applied, so as to provide the family a homestead, if its head had failed to do so, or extend and enlarge such homestead as had already been provided, and secure to the family an adequate support, or the means of making such support, without regard to the rights of creditors, out of other property not connected with it, or from its nature and character, or from its use forming part of the homestead.</p> <p>4 Same. The urban homestead may consist of one or more lots, but unless such lot or lots constitute or form in fact part and parcel of the homestead they are not included in the exemption ; excluding from protection lots in no way connected with or contributing, by their particular use or appropriation, to the comfort of a mansion house as a home stead.</p> <p>5. Same. The revenue or profit derived from property situated elsewhere may contribute to the comfort of its possessor, but this by no means authorizes the conclusion that a lot or lots disconnected from the homestead, are appendages to it, or contributing by their use to the enjoy ment of it as the residence or home of the family.</p> <p>fi. Where a head of a family lived at a place not laid off in lots and streets —called a settlement (and which is a small collection of houses in the country)—and owned four acres there in two separate tracts or lots, on one upon which he gave a deed of trust was a house in which he was doing business as a merchant, on the other, three or four hundred yards distant, and consisting of three acres was the residence of himself and family ; the two tracts being worth about two thousand and five hundred dollars. Meld that a sale of the store house and lot under the trust deed passed title although the wife did not join in the trust deed.</p>

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

Tried below before the Hon. Wm. H. Burkhart. In the early part of the winter of 1858 Henry C. Manor and James A. Coker, as administrators of William Manor, brought suit against the heirs at law of their intestate, and others, supposed to be interested, to establish the rights of the parties in the hire of certain negroes named in the petition, of which their intestate died possessed, and for partition.

Tried below before Hon. T. 0. Bar- . den. W. L. Bogers, Oct. 11th, 1872, sued John McOlane, alleging tliat on 28th Feb., 1872, one P. H. McManigle obtained judg ment against Richard King for four hundred dollars and sixty cents, and twenty-nine dollars and seventy cents costs of suit, in District Court of Nueces county; that on 16th March, 1872, said McManigle for value transferred said judgment to plaintiff (Rogers), of which transfer on April 8, 1872, McClane was notified…

Tried below before Hon. D. D. Claiborne. Jack Gorman was indicted for an assault upon Martha Gorman.

<p>Appeal from Trinity. Tried below before Hon. L. W. Cooper.</p>

• Tried below before Hon. D. D. Claiborne. Burrill Davis was charged by indictment that he “ unlaw- “ fully, wickedly, feloniously and of his malice aforethought “ in and upon Mary Schwab, then and there, a female under the “ age of ten years, did make an assault, and he, the. said Burrill “ Davis, did by force then and there her, the said Mary Schwab, “ rape, penetrate and carnally know, without the consent then “ and there of her, the said Mary Schwab.” On the trial the…

Error from Victoria. Tried below before the Hon. T. C. Barden. Suit in. trespass to try title, instituted in August, 1854, by Holliday against A. H. Cromwell et ah, to recover two leagues of land on San Antonio River. Holliday in liis petition set up title to one-fourtli of the two leagues, granted by the Empressarios, Power and Hewitson, in 1834, to Santiago Serna and Lazaro Serna.

<p>Appeal from DeWitt. Tried below before the Hon. D. D. Claiborne.</p>

<p>New Trial. When on the trial of a criminal cause, evidence is excluded which might have been properly admitted without prejudice to either side, hut which, if admitted, would prove a fact so remotely connected with the case as to be entitled to no appreciable weight in favor of defendant, its exclusion furnishes no ground for new trial.</p>

<p>Appeal from Matagorda. Tried below before the Hon. W. H. Burkhart.</p>

<p>1. Final judgment—appeal. A judgment is not final from which an appeal can be taken unless the whole of the matter in controversy as to all of the parties be disposed of.</p>

<p>Appeal from Hardin county. Tried, below before the Hon. ¥m. Chambers.</p>

<p>Appeal from Tyler. Tried below before the Hon. H. C. Pedigo.</p>

<p>■ Appeal from Goliad. Tried below before the Hon. D. D. Claiborne.</p>

Tried below before the Hon. James B. Burnett. On the 15th of August, 1874, Louis Dinkens was committed by a magistrate in default of bail, on a charge of horse-stealing. On the 13th of October following, an indictment was filed against him. The same day, on his application, an attachment was issued for a witness in Walker county, which was placed in .the hands of the proper officer.

<p>Appeal from Liberty. Tried below before the Hon. H. C. Pedigo.</p>

<p>1. Injunction, when issued to stay proceedings under judgment. When a defendant, through accident or mistake, and without default in the proper degree of watchfulness and care required of careful men in their own cases of equal importance, fails to present his defense fully, the court will, in its discretion, grant relief ky injunction to stay proceedings under the judgment, and re-examine the case.</p> <p>2. Judgment, when interlocutory. When, after the expiration of the term, an injunction is issued to stay proceedings under a judgment, and, upon a trial, a general verdict is'rendered for the plaintiff, a judgment should be rendered disposing finally of the case ; a judgment upon such verdict permitting the plaintiff to plead defenses which he had neglected in the former suit and continuing the cause, is interlocutory, from which no appeal lies.</p>

<p>Wbit of ebrob. A writ of error is not the remedy for one removed from an administration, who gave no notice of appeal at the time of his removal, and who took no such steps to obtain an appeal or review as are contemplated by the statute.</p>

<p>1. Accomplice. One jointly indicted with a defendant on trial, and who testifies upon a condition that all prosecutions concerning the affair of which he is called to testify be dismissed, is considered an accomplice, and the defendant in such case is entitled to have the instruction" given to the jury that they shall not convict upon the unsupported testi- , mony of such accomplice ; and it is so held although the defendant in his testimony denies the fact of his guilt.</p> <p>2. Same. The fact that a witness testifies in order to escape prosecution, and the moral delinquency invol ved in actual guilt, affect the credibility of the witness so as to render corroboration necessary.</p> <p>3. Venue—reasonable doubt. The law as to reasonable doubt may not extend to the proof of the venue, but the question is not adjudicated.</p>

Tried below before the Hon. D. D. Claiborne. James Farrer was indicted and put on trial for murder. Allen Brown, witness for the State, testified that “ on August On cross-examination, witness was asked as to his testimony before the examining court. Philip Baraldono, for State, testified, that “ Allen Brown “ called to witness just before deceased was killed, and told “ him that the defendant was about to attack deceased.

Tried below before Hon. T. C. Barden. The testimony for the State is sufficiently shown in the opinion. An ineffectual effort was made by defendant to prove an alibi.

<p>1. Verdict—Robbery. A verdict asfollows : “ We, the jury, find the de- “ fendant, H. C. Ring, guilty of agreeing to the commission of the “ offense, and is liable as a principal offender, and assess the punishment “at seven years in the State penitentiary,” found by the jury on a trial for robbery, will' not support a judgment.</p> <p>8. Principal Offender. It is error to instruct the jury that the presence of the accused at the time of the robbery, his failure to give the alarm, his silence, his inaction, and the supposed concealment of the offense by him, were sufficient to authorize a conviction ; the Code requires advice given, or an agreement entered into to commit the offense, coupled with an actual presence at the commission of the offense.</p>

<p>Appeal from Houston. Tried below before the Hon. L. W. Cooper.</p>

<p>Appeal from Houston. Tried below, before the Hon. E. S. Walker.</p>

<p>Appeal from Houston. Tried -below before the Hon. L. W. Cooper.</p>

Tried below before the Hon. Edward Dougherty. The constitution, Article 5, Section 9, provides that the clerk shall be elected for four years, subject to removal for cause, etc. By the record it appeared that the former clerk died, and that thb judge appointed Hr.

Tried below before the Hon. Gustave Coolc, Thomas Flynn was indicted, in the Criminal District Court of Galveston county, for the crime of theft from the person of Nicholas Walsh. The indictment was a joint one, charging the appellant, one James Anderson, and one George Wheeler, with the offense. There was a severance, and appellant being tried, was convicted, the jury assessing his punishment at five years in the penitentiary.

Tried below before the Hon. John C. Easton. The errors committed in this cause by the county attorney and magistrate are noticed in the Opinion.

L. W„ Cooper. Suit instituted by Monroe to restrain by injunction James E. Downes, as marshal of the town of Crockett, from the colleetion of a capitation tax, levied by the corporate authorities of the town for the purpose of maintaining and repairing the public streets. The court overruled a motion to dissolve the injunction which had issued.

Order refusing bail made by Hon. J. C. Easton. The testimony is voluminous, and its insertion would be necessary to show the grounds of the action of the court in admitting to bail, if attempted to be given.

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

<p>1. Verdict. It is the duty of the jury (1) To speak the truth between the State and the defendant by their verdict of “guilty” or “ not guilty” of any one of the offenses of which he may be convicted under the indictment. (2) If they find defendant guilty of any offense included within the different degrees charged by the indictment, to assess the punishment.</p> <p>2. Verdict in murder oases. A verdict, “ We, the jury, find the defend- “ ant guilty, as charged in the indictment, and assess his punishment to “ be hung by the neck until dead,” is insufficient to support a judgment.</p>

Suit by Whittlesey v. R. A. & E. A. Grant, on' a promissory note. The petition failed to allege that the note was due, or that defendant ever became liable or promised to pay it, or that the note was not paid. The petition alleged that the note was executed for services rendered by attorneys in defending the separate property of the wife in a suit against her.

Tried below before the Hon. H. C. Pedigo. William M. McFaddin sued Gilbert Stephenson and A. J. Lewis to recover one hundred and twenty-five dollars, being one-fourth part of a legacy of five hundred dollars left by Haney Hutchinson to certain persons, to which one-fourth plaintiff was entitled by purchase of one of the legatees. It appeared that Haney Hutchinson died January 4th, 1863, and that her will was admitted to probate January 26th, 1863.

Appeaj, from Victoria. Tried below before the Hon. T. CL Barden. This was an action brought by Frances Tucker and her husband, J. W. Tucker, against Robert T. Carr, to recover two horses, a wagon, harness, etc., alleged to be the separate property of Frances Tucker. A writ of sequestration was sued out, and the defendant giving a replevy bond retained possession of the property.

Tried below before the Hon. A. P. McCormick. On the 2d day of December, 1873, an election was held in Brazoria county for five justices of the peace for said county.

<p>Appeal from Harris. Tried below before the Hon. James Masterson.</p> <p>The facts appear in the Opinion.</p>

Tried below before the Hon. J. B. Burnett. ■ At the June term, 1874, Dick Austin was indicted in Grimes county, for theft from a house. In July following, he was arrested. October 5th, the fall term commenced, when the case was called. The indictment and exceptions thereto are sufficiently shown in the opinion.

Tried below before the Horn H. 0. Pedigo. Hobby & Post sued J. F. Trotti and Lewis H. S'elig on a promissory note executed by Trotti to plaintiffs, secured by mortgage on eighty acres of land adjoining the town of Jasper, of which land Selig was in possession under a purchase from Trotti; judgment was asked for amount of the note and foreclosure. By amendment, July 22d, 1873, plaintiff set out the land by metes and bounds.

Tried below before the Hon. Samuel Dodge. Appellant was indicted in the Criminal District Court of Harris county, on the 3d of January, 1874, and at the June term, A.n. 1874, upon a plea of not guilty, was found by the jury guilty of murder in the second degree, and his punishment assessed at fifteen years’ imprisonment in the penitentiary.

Tried below before the Hon. Sam. Dodge A little after dark on Sunday evening, the 19th day of May, 1872, Green W. Butler and his family had finished their supper, at the residence of Butler, on Clear Creek, in Galveston county.

Tried below before the Hon. Samuel Dodge. Jeff Black was jointly indicted with Andrew J. Walker for the murder of Green Butler. The facts developed on the trial were identical with those reported in Walker v. The State (ante, p. 361), with the exceptions stated in the opinion delivered in this case. The charge of the court in the trial was a reproduction of the charge in Walker v. The State, with the exception of the charge as to alibi, which the court omitted.

<p>Appeal from Gonzales. Tried below before Thomas M. Harwood (Special Judge).</p>

<p>Appeal from Lamar, tried below before the Hon. John 0. Easton.</p>

Tried below before the Hon. D. D. Claiborne. Anderson was indicted for an assault with intent to murder one Hew man. Incorporated in the record is an application for continuance, based on the absence of a material witness, at that-time confined in the Galveston jail.

Tried below before the Hon. I. B. McFarland. June 25, 1874, the grand jury of Fayette county presented an indictment charging that Dick King, Ike Smith, Offer Alexander, Henry Williams, and Anderson Satterfield “ on the “ 10th day of December, 1873, with force and arms, in the “ County of Fayette, State of Texas, did then and there willful- “ ly, feloniously, and of their malice aforethought, together and “ with each other, by the aid and assistance each of the other,” x x x…

<p>1. Testimonio—Records. A testimonio to be admitted in evidence must be proved, and to be admitted to record must have the due authentication attached. A record without such certificate of authentication has no effect and is not duly recorded.</p> <p>2. Border and coast leagues. The consent of the Federal Executive was essential to the validity of grants within the ten border leagues.</p> <p>3. Trevenio v. Cavasos, 35 Texas, 133, discussed.</p> <p>4. Limitation during war. The court said : “ If there is anything that “ restrains the people of a State from declaring the effect of a state of “ war in suspending the statutes of limitation, it has not yet been so ad- “ j udicated, so far as we are advised, by the courts of the United States, “ nor has it yet been made to appear to our satisfaction.”</p> <p>5. Bender «. Crawford, 88 Texas, 745, concurred in.</p> <p>6. Power of attorney—Evidence. In is not error to exclude a deed offered in evidence made by an attorney whose power is of subsequent date to the deed, but which does not refer to or ratify the deed.</p> <p>7. Verdict—Certainty. Where several tracts are sued for in trespass to try title, and are described in the petition by the date and name of the patentees and number of acres in each tract, a verdict for plaintiff less two of the tracts, described by name of the grantee, is sufficiently certain to allow of a judgment thereon.</p> <p>8. Limitation. In absence of proof of the date of the location and survey of the land sued for, limitation will only run from the date of the patent in favor of defendant in possession under another title.</p>

Tried below before the Hon. A. P. McCormick. In November, 1871, Gardner sued Moody & Jamison in the District Court of Galveston county, to recover a balance of five hundred dollars, gold, alleged to be due him on a contract made with them for one year’s services to be rendered by him as their cotton-clerk, the employment beginning in July, 1870. It was claimed that the contract had been performed on plaintiff’s part.

<p>Appeal from Gonzales. Tried below before the Hon. John P. White.</p>

Error from Colorado. Tried below before the Hon. Livingston Lindsay. Suit by Miller against the heirs of Turner, on a broken covenant of warranty, in which he recovered from the heirs the sum of money paid, with interest, and the fees paid by Miller to his attorney, to defend the suit brought against him for the land. The only point in controversy was as to the liability of the warrantor for attorney’s fees paid by the vendee to defend the title.

Error from Victoria. Tried below before the Hon. T. C. Barden.

Tried below before the Hon. John P. White. 'Indictment for hog-stealing. The evidence seems, from an examination of the record, to have been about equally divided in regard to the true ownership of the hogs, there being quite as much evidence to establish ownership in Smith, the defendant, as in Houston, the alleged owner.

Error from Harris. Tried below before the Hon, James Masterson. Suit to recover the value of a mare and colt alleged, the former to have been killed, and the latter so injured as to make it worthless, by collision with appellant’s train of cars, within the corporate limits of the city of Houston.

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

Tried below before the Hon. D. D. Claiborne. Volney Young was indicted, the indictment charging that Young “ unlawfully did carry on and about his person a pistol, the said Yolney Young not being then and there authorized by law.” On trial he was convicted, and has appealed. The facts appear in the opinion.

Tried below before the Hon. H. 0. Pedigo. The indictment alleged that defendant “at a place not then “ and there being his own premises or place of business, did “ then and there unlawfully carry on his person a certain pis- “ tol, the said Ransey Smith not then and there being a person ‘ authorized by law to carry said pistol.” From the statement of facts it appeared that December 25th, 1873, the defendant, who. lived in Jasper county, and was in the employ of Henry Hadnot,…

<p>Appeal from Milam. Tried below before the Hon. J. M. Gains.</p> <p>The facts appear in the opinion.</p>

<p>1. Common carriers.—Charge of court. In a suit against a common carrier for damage to cotton bales, and where tlie issue is, whether the cotton bales were received or in effect delivered to defendant, and where the testimony on such point is conflicting, it is error in the court in the charge to the jury to call attention to evidence about which there could be no doubt, and instruct that such facts prove a delivery, and the consequent liability of defendant.</p> <p>2. Delivery to a common carrier. The placing cotton on the wagon or car of a carrier, or near his boat or warehouse, is not a delivery, unless some regulation of the carrier or custom existing between the carriers and the public makes it otherwise, or notice is given to the carrier, or his agents or authorized servants.</p>

Tried below before the Hon. A. P. McCormick. Wallis, Landes & Co. sued Oscar Sullivan in the District Court of Galveston county, in debt for between one thousand one hundred dollars and one thousand two hundred dollars, and had attachment levied same day on merchandise belonging to the firm of Sullivan & Green, to the extent of Sullivan’s undivided half interest therein, which undivided half interest was shown by the sheriff’s return to be nine hundred and fifty-one dollars…

Tried below before the Hon. L. W. Cooper. The intervener, J. H. Burnett, about the last of July, 1866, made a location upon the premises in controversy, which appear to have been then vacant, and a portion of the public domain, subject to location by any valid certificate; the land was regularly surveyed by the county surveyor, on the 1st of ¡November, 1866, and on the 9th of August, 1869, a patent was duly issued to him.

Error from Houston. Tried below before the Hon. L. W. Cooper. On the 31st of December, 1859, W. D. Williams executed and delivered to T. P. Collins his note for three hundred and eighty-four dollars and eighty-six cents, due one day after date, bearing ten per cent, interest, and payable to the order of T. P. Collins.

<p>Former conviction—Practice. It is proper to submit to the jury the plea of former conviction with the plea of not guilty, with instructions to first find upon the plea of former conviction, and proceed no further if the evidence sustains it. But if the jury fail to make a response to the issue submitted of former conviction, and find against the defendant on his plea of not guilty, it is error for which the case will he reversed, though not complained of in the court below, if it be apparent from an inspection of the record.</p>

Tried below before the Hon. Samuel Dodge. Mary Sylvester was indicted for keeping “ a disorderly “ house, for the purpose of public prostitution, and as a com- “ mon resort for prostitutes.” On the trial, witness Drew testified that he knew the defendant, and her residence, in 1874; knew the general character and reputation of defendant to be that of keeping an assignation house—that he liad been at the house of defendant, and had met one woman there for a lascivious purpose.

Tried below before the Hon. Gustave Cook. E. Sherwood was indicted for swindling, in passing off to Miss Maggie Martin a check for one hundred dollars, which check was not genuine. The indictment set out the check, and the original check and indictment formed part of the record, being sent up by order of the court.

<p>Appeal from Criminal District Court of Harris county. Tried below before the Hon. Gustave Cook.</p>

<p>Appeal from Galveston. Tried below before the Hon. Gustave Cook.</p>

<p>Appeal from Fayette. Tried below before the Hon. I. B. McFarland.</p>

Tried below before the Hon. A. P. McCormick. Win. II. Griffin filed his petition in the District Court of Galveston county, against David Wakelee, alleging that Wakelee is the clerk of the said District Court; that on December 10, 1874, plaintiff had obtained judgment in said court against Martin H. Royston, adjudging the said Griffin to be the clerk of the Criminal District Court for Galveston county, and entitled to the custody of the records of said Criminal District…

<p>1. Appeal prom justice’s court. No appeal from the District Court to the Supreme Court is allowed in cases appealed from a Justice’s Court.</p> <p>2. Nichols 13. Doge, 34 Texas, 333, adhered to.</p>

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

Tried below before the Hon. T. 0. Barden. Suit filed October 31, A.D. 1864, by John Henderson in District Court of San Patricio county, on a written contract, set out in petition, by which Love agreed to let Henderson have charge of his stock of brood mares, from the 12th of October, A.D. 1863, to the 1st day of March, A.D. 1866, on shares, as stipulated, Henderson to pay expenses of management of stock; charging, that Love, in October, A.D. 1864, with force and arms, took…

Tried below before the lion. J. E. Burnett. In October, 1865, Samuel Calhoun recovered judgment in Walker District Court against Ehodes and wife for one thousand and nine dollars and twenty cents and costs, on their joint note, and had it recorded in the County Court of said county on the 17th of February, 1866. At the rendition and recording of the judgment, Ehodes and wife owned certain lands in Walker—community property— specified in petition.

<p>1. Search-warrant—Trespass. A search-warrant issued upon an insufficient affidavit, affords no protection to those charged with committing trespass in its execution.</p> <p>2. Recaption op personal, property. But when one purchases personal property without taking a bill of sale, and from another not authorized to sell, when the title to the property could only pass by written bill of sale, the recaption of the same by the true owner under color of a search-warrant, though based on insufficient affidavit, will afford the purchaser no cause of action against the, owner.</p> <p>3. Unlawful purchase can never affect title. An unlawful talcing or purchase of personal property can never affect the right of the true owner, when he has done nothing to weaken or destroy his right.</p>

Tried below before the Hon. George B. Scott. Held: and the entire action and proceedings of the stockholders and company conducted adversely to the right claimed by plaintiff, during all which time, for inore than thirty years, the right claimed by plaintiff had been in no manner asserted or set up, but plaintiffs had been guilty of laches for that period, until now, when all the…

Tried below before the Hon. John P. White. In December, 1814, Saunders brought suit against Wagener for the office and the books and papers pertaining to the office of treasurer of Guadalupe county, alleging, that on the 9th November, 1874, Wagener was the lawful incumbent of the office; that on that day he was removed from said office by a decree of the County Court of said county, upon trial to which he was legally cited; that said decree was as follows (giving it, it…

Tried below before the Hon. A. P. McCormick. November 23, 1874, Wm. H. Griffin brought suit in the District Court of Galveston county against .Martin II. Royston to determine who was the lawful clerk of the Criminal District Court of Galveston county.

• Tried below before the Hon. J. B. Hector. Jim Titus was indicted for unlawfully carrying a pistol about his person. The testimony showed that Titus, with three or four others, who had guns, were out hunting about a mile from the residence of defendant; that he was seen to have in his hand a pistol. They had dogs, and said they were hunting, about the date charged in the indictment, in Freestone county. Defendant was convicted and appealed.

<p>1. Lottery. Every scheme for the distribution of prizes by chance is a lottery.</p> <p>2. Gift enterprise. That every ticket-holder receives something does not render a distribution of prizes of unequal value to the ticket-holders any less a lottery than if the ticket-holders drew blanks when not drawing prizes.</p> <p>3. Constitutional prohibition op lotteries. Article XII., Section 36, of the State Constitution : “ No lottery shall be authorized by the State ; “ and the buying and selling of lottery tickets within the State is pro“hibited,” renders nugatory the third section of Act of June 3, 1873 (Paschal’s Digest, 7705), defining what shall be regarded as a gift enterprise, and imposing a license-tax on the proprietors of such business.</p>

Tried below before the Hon. L. Lindsay. Stewart Campbell was indicted, November, 1872, for theft of a woidc ox, of the value of twenty-five dollars.

<p>1. Where husband and wife contemplating a separation agree upon a division of their property, and for that purpose convey the same, including expressly their homestead, to a third party, the husband paying the wife in money the amount agreed upon as her share; and after the husband’s death the children of the parties and the wife bring suit against a purchaser of the said homestead property, at administration sale of the estate of the husband. JSgld, it is the right o£ the defendant to have the court instruct the jury upon the, legal effect of the deed of the said husband and wife as affecting the question of homestead, and it was error in the court to refuse to charge, at request of defendant, “that if the j ury believe from the evidence that S. and wife made “ an outright deed of the property in controversy to C., who after the “ death of S. conveyed it to his administrator, such conveyance vitiated “ all homestead rights as to innocent parties and strangers, and an iit- “ nocent purchaser of the property, in such case, without knowledge “ of the facts, under decree of the Probate Court, in which the estate “ was administered, would acquire a good title.”</p> <p>2. Homestead—Abandonment on bight. Husband and wife have full control of the homestead, and upon conveying it voluntarily witli the formalities prescribed by law, with the intent of divesting it of its homestead character, no reason is perceived why such conveyance was not effectual to accomplish their purpose.</p> <p>8. Abandonment oe homestead bights. A deed executed by husband and wife for the express purpose of an abandonment of homestead rights, would have that effect in law, and he conclusive against heirs oi the grantors claiming, against a purchaser at administrator’s sale, the right of the husband for whose use the original deed was made, and to whose administrator the grantee liad conveyed the homestead,, unless the property had again become homestead.</p> <p>4. The question of fact whether the husband had subsequently to the deed made the property his homestead, was a question of fact for the jury, who should have been instructed as to the legal effect of the deed to the trustee, and that it was an abandonment' by the parties of homestead rights.</p>

Tried below before the Hon. A. P. McCormick. George E. Clements, one of the appellants, in July, 1870, executed a deed of trust on certain lots in the city of Galveston, and the buildings thereon, to secure a note executed by him to E. E. Crawford, for two thousand dollars, borrowed money. Under this deed of trust, the lots were sold by the trustee to Crawford, and deed executed in accordance with the power.

Tried below before the Hon. A. P. McCormick. This suit was brought May 20, 1873, by the State against A. W. & E. P. Clegg, to recover of them the sum of sixty-six dollars and sixty-five cents, alleged to be due by them as ad valorem income and capitation tax for the year 1870, with eight per cent, interest thereon, from January 1,1871; also the further sum of two hundred and seventy-five dollars and fifty cents ad valorem tax, for 1871, and sixty-eight dollars and…

Appeal 'from Galveston. Tried below before the Hon. A. P. McCormick.

Appeaí from Galveston. Tried below before the Hon. A. P. McCormick.

May 23,1874, proceedings were taken in the name of the State by suit against the Texas Banking and Insurance Company, a corporation having its principal office in the city of Galveston, and pursuing the business and occupation of dealing in stocks and bills of exchange in the city of Galveston, a city containing more than five thousand inhabitants.

Tried below before the Hon. A. P. McCormick. On the 23d September, 1871, Solomon T. Blessing, Theodore B. Stubbs, F. W. Bartlett, Joseph Seitz, William B. Sorley, and John W. Wicks and James H. Trezevant, the two persons last named being partners under the firm-name of Wicks & Trezevant, filed in the District Court of Galveston ■county, their petition in behalf of themselves and all others of like interest, who might desire to become parties, in order to .avoid a…