Volume 44 — Texas Reports

<p>1. Evidence of parties to suit—Practice.—Where, in actions by or against executors, &c., the testimony of a party to the suit as to statements made by the deceased is admitted over objections made, the ruling of the court will be considered as made upon the objection taken, unless it affirmatively appear that the testimony was admitted in the exercise of the discretion allowed the court under the statute.</p> <p>2. Parol testimony contradicting written.—In the absence of fraud or mistake, it is inadmissible to admit parol declarations varying or contradicting a written contract; such testimony is not admissible to explain subsequent acts of the party to whom such parol statements were made touching the written contract.</p> <p>3. Guaranty.—The guaranty of an overdue obligation does not assure the payment of such debt at any particular time, and the circumstances of the guaranty may be alleged and proven to explain when payment was to be made.</p> <p>4. Same—Claim against an estate.—Such guaranty would make the guarantor liable only in the event the claim could not be collected from the estate by the use of the legal remedies appropriate for the enforcement of such claims.</p>

Tried below before the Hon. James H. Rogers. Appellant was convicted of aggravated assault, and fined one hundred dollars. Hew trial being refused, he appealed.

<p>Bail bond.—The sureties on a bail bond are relieved from liability by a second arrest and bail of their principal on the same indictment.</p>

<p>1. Estates—Homestead—Vendor’s Lien.—An administrator has no right, without an order of court, to apply the general assets of the estate to the discharge of a debt secured by vendor’s lien upon the homestead set apart to the family of the deceased.</p> <p>2. Same.—It seems that under Art. 5706 Paschal’s Dig., providing that payment of a debt secured by special lien may be ordered out of the general assets when beneficial to the estate, such order would only be made when beneficial to the general estate; the homestead forms no part of such estate.</p>

Tried below before the Hon. M. H. Bonner. Oliver Loftin brought suit against John D. Morrison to set aside a former judgment of the District Court of Henderson county in which Morrison was plaintiff and James W. Duty and John Z. Chandler were defendants, and to quiet the title of Loftin (plaintiff) to the east half of the Simon Weiss league of land in said county.

Tried below before the Hon. M. H. Bonner. This case is dependent in the main upon the facts given in the preceding case, Morrison v. Loftin. The additional facts appear sufficiently in the opinion.

Tried below before the Hon. M. H. Bonner. This was an action brought by appellants, P. J. Willis & Bro., against John H. Morrison and H. C. Hunt, as merchant partners, doing business under the firm name of John II. Morrison & Co., on an instrument of writing directed to Double & Wooters, in favor of P. J. Willis & Bro., and signed “John H. Morrison & Co., per T. C. Hooker,” which instrument was partly paid. To recover the balance this suit was brought.

Tried below before the Hon. J. L. Camp. Gus Williams was tried and convicted on an indictment charging him with theft from a house. On the trial the defendant, who was a negro, presented his challenge to the array of jurors on the following grounds : 1.

Tried below before the Hon. M. H. Bonner. Johnson Johns, the appellant, brought suit against Mary Ann John's, (both persons of color,) alleging that he had been married to the defendant under peculiar circumstances, and praying that the marriage be declared “ null and void, ab initio .” His petition alleges that the said Mary Ann, “on the 8th day of June, 1874, went before a justice of the peace, and not having the fear of God before her eyes, and being moved and instigated…

Tried below before the Hon. John P. White. George McKay, while carrying a pistol, which was unloaded and out of repair, let it fall accidentally as he was Tiding along the road. Upon this Dan Duke, who was .near, laughed at the accident when he saw McKay dis-i mounting to recover it.

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

<p>Theft—Declarations of accused.—The declarations of a party after the commission of an offense, or after he is found with the property in possession, are not evidence in his favor.</p>

Tried below before the Hon. J. L. Camp, judge of the Criminal District Court for the city of Tyler. S. W. Marsh was indicted in the District Court of Rusk •county for an assault on one Greenwood, in the town of Mount Enterprise, in said county, on the 23d day of October, A. D. 1871, with the intent to murder him, the said Greenwood.

<p>1. Indictment.—In an indictment for theft of four hogs it is sufficient to describe the property stolen as “four certain hogs;” the identity of the hogs as the animals stolen is a question of evidence.</p> <p>2. Practice.—When two distinct offenses are charged in an indictment or developed by the evidence, the district attorney should be required • to elect on which of the charges he intends to claim a conviction, as soon as he has examined the witnesses far enough to identify the transaction, and in all cases the election must be made before the accused offers his testimony.</p> <p>3. Same.—On the trial of a party indicted under the act of May 17,1873, for theft of animals, it is necessary to prove the value of the property stolen in order to assess the punishment.</p>

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

<p>Appeal from Van Zandt. Tried below before the Hon. M. H. Bonner.</p>

<p>Indictment.—The addition of the name of the State, “Texas,” to the conclusion of an indictment “against the peace and dignity of the State ” will not vitiate the indictment.</p>

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

Tried below before the Hon. W. H. Andrews. William Lynch and E. L. Tollett were jointly indicted for theft from a house. There was a severance, and Tollett was first put on trial and convicted. The conviction rests alone on circumstantial evidence. The main points relied on by the State were the identification of a hat found where the theft was committed and identified by some of the witnesses as a hat belonging to Wm.

Tried below before the Hon. Z. Horton. Indictment for assault, with intent to kill and murder, and for aggravated assault. On the trial George Williams, for the State, testified as follows : “ On the 4th day of September, 1871, I was in the town of Quitman. I saw my brother, J. P. Williams; (sheriff of the county,) attempt to arrest one J. M. Brock, who was riding through town on horseback. Brock drew a pistol on the sheriff, and refused to he arrested.

Tried below before the Hon. Z. Horton. At the May Term, 1814, of the District Court of Gregg county the grand jury presented an indictment against W. F. Perry, charging that on April 15th, 1814, in said county said Perry “did then and there unlawfully sell and was concerned in selling a quantity of intoxicating liquors, to wit, one quart of whisky to one E. R. Davis without first having obtained a license therefor, and did then and there permit the same to be drunk” where…

<p>Appeal from Delta. Tried below before the Hon. W. H. Andrews.</p>

Tried below before the Hon. Z. Norton. Brogden was indicted, the charge being that he “did unlawfully kill and dispose of a certain estray heifer, of a white-spotted color, of the value of five dollars, which said heifer had been taken up by him, the said Brogden, as an estray.” The defendant moved to quash the indictment because it did not show where the heifer had been estrayed. The motion was sustained, the indictment quashed, and the district attorney appealed.

Tried below before the Hon. Z. Norton. The grand jury of Wood county, at the November Term, 1874, of the District Court, presented an indictment charging that “one Doctor Goldman did, on October 10, 1874, in Wood county, unlawfully engage in the practice of medicine in its various branches and departments as a means of livelihood, without first having attended a regular course of study and lectures at some regularly-established and well-conducted and accredited medical…

<p>3. Accomplice—Evidence.—The rule forbidding a conviction on the testimony of an accomplice, unless corroborated "by other testimony tending to connect the defendant with the offense committed,” is, under the statute, positive and peremptory.</p> <p>2. Domestic—Theft.—A servant hived to wash clothes for one day and to iron clothes on the next, from the nature of the employment was a domestic servant, and when on trial for theft from the house in which she was so employed, it was error to refuse an instruction asked as to the mitigation of punishment in favor of a domestic.</p>

<p>Recognizance-—Practice.—The recognizance in bailable eases of appeal to the Supreme Court, must name the offense charged in the indictment, or so describe it as that it may he identified as being the one alleged.</p>

<p>1. Service.—A citation issued and served on A. B., calling upon him to answer a petition “wherein S". and G-. are plaintiffs, and A. B. & ; Co. are defendants, as per copy of said petition will more fully appear,” is sufficient.</p> <p>2. Judgment.—It is not error to render judgment against all the members of a partnership when service has been had on one only, if the judgment directs the issue of execution against the partnership property of the firm, and on no individual property except that of the one served.</p>

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

Tried below before the Hon. W. H. Andrews. James Roberts, Wm. Ledbetter, C. J. Ake, Branceford Marshall, and James Glass were indicted for theft of a gelding, the property of R. W. Lane. Roberts was put upon trial at the January Term, 1875, when the district attorney entered nolle prosequi as to Ake and Ledbetter. R. W. Lane, witness for the State, testified to bis horse, branded R. L., being stolen on the night of the 7th of October, 1874.

Tried below before the Hon. M. D. Ector. Harris sued Williams and wife on a promissory note exe-, ented by them for the rent of a dwelling house, as alleged in the petition, for the necessary use of the wife and her children, defendants owning no dwelling house, the husband having no separate property, and there being no community property, the credit being extended to the wife, and the house leased on her going on the note sued on.

<p>Self-defense.—A party guilty of a misdemeanor and fired on by a policeman while avoiding arrest may repel such attack in self-defense by returning the fire, and if in so doing he kill the policeman such killing would not necessarily be unlawful.</p>

Tried below before the Hon. James Q. Chenoweth, Judge of the Criminal Court of the city of Paris, in said county. Buck Bray was convicted of theft of a cow and his punishment fixed at two years in the penitentiary. The testimony was conflicting ; defendant introducing testimony that the cow was the property of his father, who was jointly indicted with him.

<p>1. Bum op review in probate matters.—Such bill is defective unless it be accompanied by a transcript of so much of the proceedings as relate to the order, decision, or judgment sought to be revised, or unless it contains a specific statement of the error complained of.</p> <p>2. Probate practice.—See discussion of practice in action upon the reports of executors and administrators.</p> <p>3. Attorney at law—Recitals.—A recital in a decree that a party was represented by an attorney at law, does not preclude such party from showing the want of authority of the attorney.</p> <p>4. Amendment.—It is error to refuse an application to amend a bill of review seeking to revise the action of the District Court in probate matters, after exceptions to the same had been sustained.</p>

Tried below before the Hon. Edward Daugherty. This case was an information filed by the district attorney against the appellant, as defendant below, to remove him from the office of district clerk under the provisions of section 9 of article 5 of the constitution, which is as follows: “ The clerk of the District Court of each county shall be elected by the qualified electors in each county, who shall hold his office four years, subject to removal by the judge of said court…

Tried below before the Hon. M. H. Bonner. Mason brought an action of trespass to try title against Keys. The defendant pleaded limitation of three, five, and ten years. By amendment the plaintiff set out the facts of his case, alleging fraud, and asking that his contract with the vendor of Keys be canceled.

<p>Practice—Final judgment.—Upon the dissolution'of an injunction in chambers in vacation the judge cannot enter final judgment dismissing the bill. Such an order made in vacation is not a final judgment.</p>

Tried below before the Hon. A. S. Broaddus. The appellant was indicted at the July Term, 1875, of the District Court of Brazoria county for assault with intent to murder Jake Scurry, and on 25th of the same month was tried and convicted, the jury assessing his punishment at five years in the penitentiary.

Error from Henderson. Tried below before the Hon. J. Gr. Scott.

<p>1. Practice.—In a suit for breach of a verbal contract, if the plaintiff pray for general relief, he may recover whatever the facts alleged and proved will entitle him to, although he may have also prayed for a special relief, for which the facts of his petition, as alleged, do not constitute an appropriate predicate.</p> <p>2. Limitation.—The plea of limitation cannot be interposed to an amended petition, in a suit for damages for breach of contract, on the ground that the amendment sets up a new and different cause of action, barred after the filing of the original petition, if the facts alleged as the basis of recovery are substantially the same in the original and amended petitions, though the form of the breach be different.</p>

Tried below before the Hon. James H. Rogers. This was a suit in the ordinary form, brought January, 1875, to recover possession of a piano, with prayer for judgment for its possession or its value. Verdict and judgment for plaintiffs.

Tried below before the Hon. Z. Horton. Dement sued Williams for five acres of land occupied by defendant, and on the east half of a 640-acre tract patented to Wesley Tollett. The 640 acres had in partition been apportioned, the east half to Margaret Tollett, after-wards wife of Elijah Trimble, under whom the plaintiff claimed ; the west half to Sarah Tollett, afterwards wife of William Trimble, under whom defendant claimed. William and Edward Trimble were brothers.

<p>Appeal from Hopkins. Tried below before the Hon. W. H. Andrews.</p> <p>E. P. Walsh, Cyrus McClarty, and Charles Helms sued J. M. Stinnett and Wm. Thomas on an account for goods, wares, and merchandise sold and delivered by plaintiffs to Stinnett. As to Thomas it was alleged that Stinnett being in failing circumstances fraudulently conveyed all his property to Thomas for the purpose of defrauding bis creditors, and that said conveyance was made to Thomas on the express trust to apply the proceeds to the payment of Stinnett’s debts, and that Thomas had disposed of the said goods so conveyed, and would not pay plaintiffs, nor could the goods be found to satisfy execution.</p> <p>At February Term, 1874, judgment by default was taken against Thomas, and the case continued for service as to Stinnett.</p> <p>February 19, 1874, Thomas filed a motion to set aside the default, (1) because defendant had been advised that he was not required by law to answer, his co-defendant not having been served with process, (2) alleging that his purchase was not a fraud, but that he held by a deed from Stinnett, for the benefit of his creditors.</p> <p>20th February plaintiff excepted to the sufficiency of the motion of Thomas to set aside the default, which exceptions on the same day were sustained. The court adjourned for the term on the next day, 21st February.</p> <p>June 1, 1874, Thomas filed what is termed an amended motion to set aside the default, setting out at large his acts under the trust deed, copy of which was made part of Ms original motion, which was overruled and motion dismissed. Service having been perfected as to Stinnett, judgment by-default was also taken against him at the June Term.</p> <p>At October Term, 1874, a writ of inquiry was executed and a verdict rendered as follows:</p> <p>“We, the jury, find for the plaintiff $340.96, principal and interest, against the defendant Stinnett.”</p> <p>Whereupon the court rendered judgment for said sum against Stinnett, and further “that the said transfer and assignment from the said James M. Stinnett to the said Wm. Thomas be and the same is hereby canceled, set aside, and held for naught, and that the plaintiffs do have and recover of and from the defendant Thomas the amount of their judgment against said Stinnett, ($340.96,) with the costs of this suit, and that execution therefor issue against the said Wm. Thomas and James M. Stinnett, and a satisfaction of this judgment by either of the defendants shall be a satisfaction as to the other.”</p> <p>Motion by Thomas for a new trial was overruled, and he appealed.</p> <p>The assignments of error and further facts appear in the opinion.</p>

<p>1. Measure of damages.—In an action upon a note executed in part consideration for “a 16-horse power portable engine” defendant pleaded in reconvention breach of a guaranty of the capacity of the engine: Held, That the relief was an abatement of the purchase-money equal to the difference in the value of the engine furnished and that contracted for.</p> <p>2. Same.—In the absence of fraud or of an express contract to take back an article sold with guaranty, the vendee cannot return the article and recover back all the purchase-money. The measure of damages is the difference between the article delivered and that called for in the guaranty. „</p> <p>3. This rule will not apply to contracts where there is an express or implied agreement that the vendee sliaU not be required to keep the article if not such as was stipulated for, but in such case the goods are returned under the contract.</p>

<p>Error from Upshur. Tried below before the Hon. Z. Horton.</p>

<p>Appeal from Harrison. Tried below before the Hon. J. L. Camp, Judge of the Criminal Court of Marshall.</p>

Tried below before the Hon. M. H. Bonner. This was a suit brought by the heirs of a deceased wife against the purchasers of the homestead sold them by the surviving husband on the day after he had filed an inventory and appraisment of the community property, under the act supplementary to the act better defining marital rights.

<p>Appeal from Rusk. Tried below before the Hon. J. B. Williamson.</p> <p>Suit brought by appellant against the defendant, Z. Booth, June 23, 1870, to foreclose the vendor’s lien for the purchase-money held by the appellant, as administrator of Polly Elliott, upon a certain tract of land described in the petition which, in the lifetime of the intestate, had been sold by her to said Booth.</p> <p>The defendant, Booth, on the 22d day of November, 1870, filed a general denial, general demurrer, and pleaded his discharge in bankruptcy from all debts which were provable on the 29th of December, 1868.</p> <p>The appellant then filed, March 12, 1871, an amended petition making the defendant, B. C. H. Johnson a party defendant, alleging in substance that the defendant, Booth, had, before going into bankruptcy, sold to defendant Johnson the land in dispute ; that he had taken from Johnson an obligation to pay the debt to appellant’s intestate; that he had demanded this paper, but it was refused him, and that it was held either by Booth or Johnson ; that they had confederated together to deprive plaintiff of his rights, and that Booth had not in his schedules in bankruptcy either returned the vendor’s lien on the land held hy Polly Elliott or the obligation of Johnson, and he prayed that he have judgment against Booth establishing the debt, but waiving any personal judgment against him, and also that he have judgment against Johnson, the vendee of Booth, for foreclosure of the lien upon land for the purchase-money shown to be due and unpaid.</p> <p>The defendant Johnson, on the 2d of August, 1871, filed a general exception to the amended petition, and also several special exceptions.</p> <p>1. Because the petition did not show any privity in the contract between Booth and Johnson in the agreement for the latter to pay the remainder of the purchase-money.</p> <p>2. That the only remedy against the land was against Booth or his assignee in the bankrupt court for failing to return the obligation of Johnson on his schedule in bankruptcy.</p> <p>3. That if there was any remedy it was in the United States court in bankruptcy and not in the State court.</p> <p>He also filed a general denial of the allegations of the petition.</p> <p>An amended petition was filed by the plaintiff April 5, 1872, setting forth the obligation between Booth and Johnson, to wit, that the latter was bound to pay the remainder of the purchase-money on the land.</p> <p>At the May Term, 1873, the demurrers of the defends ant Johnson were submitted to the court and overruled. Thereupon the cause was submitted to the jury upon special issues, who found thereon as follows :</p> <p>1. The amount of the debt for purchase-money due to be $1,205.76.</p> <p>2. The note was executed, etc., as set out in the petition.</p> <p>3. That it was given for the purchase-money of the land described.</p> <p>4. That Johnson had notice when he bought the land, and that the purchase-money was not paid ; and</p> <p>5. That Booth was discharged in bankruptcy December 9, 1869.</p> <p>Upon this finding the court rendered judgment against the plaintiff, decreeing costs against the estate of Polly Elliott.</p> <p>Motion for a new trial was made, and also motion to reform judgment on the finding of the jury, which were overruled. The plaintiff appealed, and assigned as error the rendering of judgment for defendants and the refusal of the court to grant motion for new trial and to reform judgment.</p>

<p>Appeal from Harrison. Tried below before the Hon. J. L. Camp.</p>

Error from Titus. Tried below before the Hon. M. L. Crawford. There was nothing in the charge of the court or the verdict which in terms indicated that the promise to pay coin and ten per cent, interest was for a consideration, or subsequent to the execution of the note. There was no statement of facts, no objection shown to the evidence, no charges asked by defendant below, and no motion for new trial.

Tried below before the Hon. M. D. Ector. A. T. Graham & Co., on the 23d September, 1873, made an agreement in writing with W. H. Pope, in which they agreed to build a house for him. The house was built in conformity with the contract, and on the 15th of July, 1874, Pope gave his note to Graham & Co. for a balance of $1,256 due on the contract, which bore a rate of interest different from the contract, hut which on its face reserved a mechanics’ lien.

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

Tried below before the Hon. M. Priest. John Norris brought trespass to try title against Samuel C. Sulphen, alleging that, as one of the heirs of Edmond or Ramundo Norris, he was the owner of seven-twelfths of a tract of land in Nacogdoches county of four leagues, and known as Banche Naconichi; alleging a grant in 1810 to Bamundo Norris; that the grant was lost; continuous possession of the land from 1806 and from the issuance of the title; possession under it by Bamundo…

Tried below before the Hon. M. H. Bonner. Suit by J. F. Smith against one Burns and Warren and wife upon a parol contract alleged to have been made between Smith and Burns to construct two rooms on a lot on which J. H. Warren’s office was situate.

Tried below before the Hon. James Q. Chenoweth, Judge of the Criminal Court of Clarksville. Owens was convicted of theft of a saddle of the value of ten dollars, and the punishment fixed at one day’s imprisonment and a fine of forty dollars.

<p>1. Homestead.—In insolvent estates, under the probate act of 1848, the homestead descended to the widow and children of the deceased in fee, free from all express lien creditors.</p> <p>2. Same.—Creditors secured by trust deed signed and duly acknowledged by the husband and wife upon the homestead, after the death of both the grantors and the majority of their children, cannot enforce the lien, even though the premises have been abandoned as homestead.</p>

Tried below before the Hon. Z. Norton. Suit by F. J. Harrison & Co. against Boring & Kennard to enjoin them from appropriating to their private use a portion of a lot in the town of Longview, alleged to have been sold under such circumstances, by the Southern Pacific Railroad Company, at the original sale of lots, as to create an easement thereon in favor of plaintiffs.

<p>1. Making threats.—There is no such crime as making threats, and a recognizance to answer such offense is a nullity.</p> <p>2. Recognizance—Practice-—The insufficiency of description of the offense in the recognizance, can be taken advantage of by the sureties in a motion in arrest of judgment.</p>

Tried below before the Hon. James H. Rogers. February 4, 1873, Jeremiah Moreland brought trespass to try title against H. Barnhart, to recover a tract of 242 acres of land. Plaintiff set up title deed for the land from S. J. Round-tree to Thomas H. Roundtree, of date September 3, 1867 ; from Thomas H. Roundtree and wife to Isaac H. Betts, of date 17 March, 1870; from Betts and wife to plaintiff, of date 16 June, 1870. April 4, 1873, Barnhart disclaimed and pleaded not guilty.

Tried below before the Hon. J. D. McAdoo. The suit out of which this arose was instituted in the District Court of Marion county, December 5, 1871, by M. S. Ward, (wife of W. H. Ward,) against her said husband, W. H. Ward, W. M. Harrison, Erastus Jones, and J. H. Bemis, wherein she claimed certain property as a homestead, and asked that Harrison, Jones, and Bemis be restrained from selling the same under deeds of trust made by her husband on said property to secure the…

Tried below before the Hon. J. D. McAdoo. Mrs. Margaret S. Ward brought suit to enjoin the sale of lots 11 and 12 in block 29 of city of Jefferson, claimed as the homestead of plaintiff and her husband, W. H. Ward, who, refusing to join as plaintiff, was made defendant.

<p>Error from San Augustine. Tried below before the Hon. M. Priest.</p>

Tried below before the Hon. Z. Horton. Breen sued the Texas and Pacific Railway Company for damages, in assaulting and compelling plaintiff to pay fare a second time, &c. Defendant pleaded in abatement and general denial, &c. The jury found a verdict for $635 in favor of plaintiff, and the truth of the plea in abatement. Upon the verdict judgment was rendered for defendant, and the plaintiff appealed. The pleadings and evidence sufficiently appear in the opinion of the court.

<p>Appeal from Van Zandt. Tried below before the Hon. M. H. Bonner.</p> <p>The facts are sufficiently given in the opinion.</p>

<p>1. Amendment of indictment.—Was properly allowed where the word “ court ” was omitted where it should have been inserted to show where the prosecution was had.</p> <p>2. Right of sheriff in preventing an escape.—See discussion of the authority given the sheriff to use force in preventing an escape by a prisoner in custody.</p> <p>3. Assault with intent to murder.—Where a prisoner attempting an escape was pursued and fired on by the sheriff, and the prisoner returned the fire, and was on trial for an assault with intent to murder the sheriff, and the testimony tends to show that the defendant may have supposed the sheriff had wrongfully fired on him and had attempted or endangered his life, and that what was done by defendant was whilst laboring under the influence of resentment or passion arising from such provocation, the jury should be instructed so as to give the accused the benefit of such evidence in reducing the punishment to a misdemeanor.</p> <p>4. Assault upon an officer.—While the law makes the killing of a sheriff in the discharge of his duty murder, still if he act outside of his authority or exercise it unlawfully, the party resisting his acts is not prevented by the official-character of the sheriff from setting up said unlawful acts to justify or extenuate the offense against the officer in resisting such acts.</p>

Tried below before the Hon. J. D. McAdoo. Held: possessed, cultivated, and enjoyed the same by virtue of said community right and partition; making a transcript of the records of Bowie county, in said suit of petitioner, an exhibit thereto, also alleging improvements in good faith, giving value thereof, and praying to be allowed the value thereof.

The city marshal, in his return, set up proceedings instituted before the mayor of the city of Tyler, and a capias by him issued, under which the marshal held the relators in custody.

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

Tried below before tbe Hon. H. Barksdale, holding the Criminal Court of Dallas. Lowe Gilleland was indicted for the murder of Sam Stevens, and was put upon bis trial before Hon. H. Barks-dale, who exchanged with the Judge of the Criminal Court of the city of Dallas. Defendant was convicted, and his punishment fixed at ten years in the penitentiary. The facts appear in the opinion.

Tried below before the Hon. M. H. Bonner. Thos. J. Word brought his second action of trespass to try title on March 11th, 1873, against David Drouthett, sen., Evan Y. Drouthett, and David Drouthett, jr., for 640 acres of the Philip Martin league grant, described by metes and bounds.

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

Tried below before the Hon. T. C. Barden. The appellees, Moses Johnson, Isaac Walker, and Harriet Fry, joined by her husband, David Fry, brought suit against H. E. Bradford and James A. Sloan, alleging that on 12th May, 1870, said Johnson, Walker, and Harriet Fry entered into a co-partnership of that date for the purpose of making, burning, and selling brick; that the members of said partnership, Harriet acting by her husband and agent, David Fry, carrying out said agreement…

<p>1. Bankruptcy—Jurisdiction.—The State courts have concurrent jurisdiction with the bankrupt courts over liens on real estate of a bankrupt. The court having obtained jurisdiction first retains it.</p> <p>On Rehearing.</p> <p>2. Liens, foreclosure of, in bankruptcy.—A creditor whose debt is secured by lien on real estate may enforce his lien notwithstanding the discharge in bankruptcy of his debtor, and although his claim was not proven up against the bankrupt’s estate.</p>

<p>Claims against an estate.—The statutory mode of presenting claims to the administrator for allowance or approval is not the proper remedy to recover back money paid for land bought at administrator’s sale where there is a deficit in the land sold.</p>

<p>1. Habeas Corpus.—This writ cannot be made use of to effect an appeal or writ of error.</p> <p>2. Same.—When the return to the writ shows a commitment to enforce a fine imposed by a court, the extent to which the judgment imposing the flue can be investigated is to inquire into the jurisdiction of the court to impose the fine.</p> <p>3. Same.—Darrah was fined by the recorder’s court of the city of Galveston for a breach of an ordinance, and in default of payment was committed to the custody of the chief of police of the city. He obtained a writ of habeas corpus and sought on the hearing to disprove the charge on which he was adjudged guilty by the recorder: Held, That the exclusion of such testimony was not error.</p>

' Appeal from Austin. Tried below before the Hon. Livingston Lindsay.

Tried below before the Hon. T. C. Barden. John McClane brought suit April 13,1872, in the District Court of Nueces county, against the county of Refugio, upon eighteen county warrants for one hundred dollars each, seven bearing date August 30, 1861, of which the following is a copy: “ No. 1. $100.

<p>1. Allowance in lieu of homestead.—An estate was appraised at fifteen hundred dollars; a creditor had a mortgage, allowed and approved, on two mules belonging to the estate; there being no homestead, the court, in lieu thereof and of other exempt property, set aside all of the assets of the estate except the said two mules to two children of the deceased, they being the family. On appeal by the guardian of the children from the order setting aside the property, and which excepted the two mules from its operation, held, that in the absence of facts showing that the allowance made by the court was insufficient to support the two children, the action of the court below will not be disturbed.</p> <p>2. Same.—This court will not determine, in absence of testimony, that thirteen hundred dollars is too small an allowance to be made to two minors in lieu of exempt property in the administration of their father’s estate.</p>

Error from Austin. Tried below before the Hon. Livingston Lindsay. This was a suit by Z. W. Mathews, administrator of F. R. Penrice, deceased, against Alex. Glenn, upon a covenant of warranty in a deed executed by Glenn to Penrice, January 1, 1859, for a labor of land on the Brazos river, in Austin county.

<p>1. Practice—Objections to depositions.—To enable this court to revise the action of the District Court in overruling objections to depositions which were read in evidence, it is necessary that the bill of exceptions contain the deposition or certificate objected to and the grounds of objection urged.</p> <p>2. Practice—Bills of exceptions.—When objections are taken to the ruling of the District Court, which do not ordinarily form part of the record, exceptions must be taken and presented by bill of exceptions, or by the statement of facts, and all the facts and circumstances pertinent to the exceptions and necessary to enable this court to understand tire questions decided by the District Court must also be set forth or shown by the record.</p> <p>3. Charge of court.—It is not error in the District Court to refuse a verbal charge asked, though otherwise unexceptionable.</p> <p>4. Verdict.—Resort may be had to the pleadings to determine, the date from which interest found in the verdict for plaintiff shall be computed. When such fact can be so ascertained a verdict for a sum certain and interest is not void for uncertainty.</p>

Tried below before the Hon. Livingston Lindsay. 28th May, 1872, Louisa A. Griffin, joined with her bus-band, John A. Griffin, obtained an injunction from the district judge restraining the sale of certain blocks and lots in the town of Hempstead, alleged to be the separate property of the said Louisa, levied on under an execution issued to collect a judgment in favor of John N. Chadwick v. John T. Griffin and J. M. De Lyon, tor $665.75.

<p>1. Liability op sub-tenant to the landlord.—A sub-tenant is not liable upon the covenants contained in the contract of lease between the landlord and the tenant under whom the sub-tenancy exists; otherwise in case of an assignment of the lease.</p> <p>2. Distress warrant.—Where a sub-tenant paid rent to the tenant for two years of a term of lease for three years, and the third year, by consent of all interested, attorned to the landlord, the crop made during the third year is not subject to distress for the rent due from the tenant for the first two years of the lease and during his sub-tenancy.</p>

Tried below before the Hon. Livingston Lindsay. Harrison sued the city of Columbus for damages for an illegal arrest and false imprisonment by the marshal and mayor, alleging’ that, on May 8, 1873, lie “ was wantonly arrested by the marshal and banished -from the northern portion of the-city, of Columbus to the central portion there-of, a distance of one-half mile, -and' while in lonely exile the said marshal positively forbade his-return that said illegal arrest was without…

Error from San Jacinto. Tried below before the Hon. J. E. Burnett. April 12, 1871, H. Kemper sued A. W. Harrell, jr., on , a promissory note -for $1,000, gold, alleged to have-been exr ecuted by Harrell on January 15,1870, to one Mrs. Haden, in part payment for a tract of land, and by her transferred to plaintiff, being secured by vendor’s lien upon the land.

<p>, Error from Victoria. Tried helow before the Hon. D. D. Claiborne. . ■</p>

<p>Error from Fort Bend. Tried below before the Hon. Livingston Lindsay.</p>

<p>1. Regent possession of stolen property.—Possession of stolen property, to raise a presumption of guilt, must be recent; and such possession cannot be infered from testimony showing that the accused, in 1874, had possession of and publicly used a mule which had escaped or had been stolen from its owner in 1872.</p> <p>2. Alteration of brand.—Where the testimony - showed .that the accused had bought the animal from one in the neighborhood, and had paid for it, and had used it publicly for several months before claimed by the- owner, the alteration of the brand by the accused cannot be regarded as referable only to guilt of theft; such act may be referable to a desire to retain the property and to destroy the effect of the brand as evidence.</p> <p>3. New trial.—See facts sufficient to require a new trial.</p>

<p>1. Practice.—Where two plaintiffs prosecute a suit for damages to their joint property, it is error to allow verdict and judgment in favor of one of the plaintiffs.</p> <p>2. Verdict.—In a suit against a sheriff and an execution creditor for seizure of goods in which issue is taken between the sheriff and the execution creditor, who had given an indemnity bond, a general verdict for plaintiff will not authorize a judgment over in favor of the sheriff against the plaintiff in execution.</p> <p>3. Joint trespassers.—In a suit against a sheriff and the execution creditor for a wrongful seizure, to recover against the creditor, it must have been shown that he was a joint trespasser; and in such case the sheriff could not have had judgment over against the execution creditor.</p> <p>4. Partnership—Goods liable to execution.—Partnership goods may be seized and the share of a partner sold under an execution against such partner.</p> <p>5. Warren v. Wallis, 38 Tex., 225, overruled.</p> <p>6. Joinder op actions.—Action against a sheriff for wrongful seizure of goods cannot he joined with a suit on an indemnity bond, executed to the sheriff, against the makers of such bond.</p> <p>7. Variance.—In an action by partners, it is error to charge the jury that, if the goods seized were the property of plaintiffs or of one of them, the defendants are responsible.</p> <p>8. Indemnity bond.—Such bond, executed subsequent to a levy, does not render the maker of the bond liable as a joint trespasser for the levy.</p> <p>9. Liability of judgment creditor for illegal levy.—To fix snob liability upon the judgment creditor for a levy, it must appear (1) that no interest in the goods belonged to the defendant in execution; and (2) that the creditor ordered or instigated the levy upon the goods seized. G</p>

<p>Appeal from the Criminal District Court of Waco. Tried below before the Hon. N. W. Battle.</p>

Tried below before the Hon. T. C. Barden. The defendants were indicted and convicted for passing a galvanized twenty-five-cent silver coin as a five-dollar gold coin. The defect on which the court acted in reversing the judgment is set out in the opinion.

<p>Appeal from Orange. Tried below before the Hon. Wm. Chambers.</p>

<p>1. Special pleas—Verdict.—The code (Paschal’s Dig., art. 3091) expressly requires, when a special plea is submitted to them, that the jury must say in their verdict that the matters alleged in such plea are true or untrue.</p> <p>2. Special plea—Practice.—A plea of former, acquittal, regular in other respects, but not stating the day or month of the year when the former trial was had, is not, on that account, a nullity, and it was error to exclude evidence offered, on the trial to support the plea.</p> <p>3. Practice.—It is error to exclude testimony offered in support of a plea merely defective, and liable to be held bad on exception. Such practice would be to try the sufficiency of the pleading after the opportunity of amendment had passed, and might deprive a party of a good defense.</p>

Tried below before the Hon. Livingston Lindsay. This was a suit by Colorado county against William Beethe, the treasurer of said county, and his sureties, for $530.45, funds of said county collected, and which he refused to pay over.

Tried below before the Hon. Livingston Lindsay. Knolle brought suit against James Daughtrey for $162, the amount of an alleged deficiency of 27 acres of land, at six dollars per acre, in a tract sold and represented to contain 498 acres, but which, on actual measurement, contained only 471 acres.

Tried below before the Hon. T. C. Barden. George Blackburn was indicted for theft of a black gelding, the property of Bernardo Esparza.

<p>. Appeal from Colorado. Tried below before the Hon. Livingston Lindsay.</p>

George H. Noonan, in chambers, at the city of San Antonio. Bethel F. Coopwood applied for a writ of habeas corpus, alleging that he was illegally restrained by one P. Fox, a policeman, “ under the pretense of executing a capias pro fine issued by a person claiming to be city recorder of the city of San Antonio, upon a trial and judgment against applicant for violation of an ordinance of said city in relation to the carrying of arms; that said pretended trial was not by a…

Tried below before the Hon. Livingston Lindsay. Simon Thulemeyer sued John Wilkinson, a non-resident, owner of a plantation in Colorado county, Texas, managed and conducted by his agent, George S. Zeigler, on an account for money and goods supplied on Wilkinson’s account to said agent necessary for the purpose of carrying on said plantation.

<p>1. Express malice in an indictment for murder is sufficiently charged by the words “with malice aforethought.”</p> <p>2. Verdict.—A verdict for murder in the first degree is not vitiated by its containing a clause fixing the penalty of death.</p> <p>3. Variance.—This court will not consider the word “freedman,” following the name of the deceased in the indictment, as forming part of the name of deceased, when the question was not raised below, and where the same addition follows the name of the accused.</p> <p>4. Burden op proof in criminal cases.—In criminal cases the burden of proof is not on the defendant in the sense understood in civil cases; the reasonable doubt extends to the entire case, and the presumption of innocence must be overcome by the prosecution before a conviction can be had.</p> <p>5. Charge of court.—Held error to instruct the jury, on a trial for murder, “ that the law implies malice in case of unlawful killing by means calculated to produce death, and in such case the burden of proof is on the defendant, if he would reduce the offense to a lower grade than murder in the second degree.” The burden of proof is never cast upon the accused in the sense that the State is at any time relieved from proof of the facts constituting any degree of criminal offense.</p> <p>6. Same.—An instruction to the jury upon a case of a conflict brought on by the accused, giving only the law applicable if the conflict had been brought on with intent to kill, is erroneous; the failure to instruct upon the law had the conflict been brought on for any other purpose might convey to the jury the impression that the conflict had been brought on with intent to kill.</p> <p>7. See facts in which it was held that the definition of murder in the second degree was not sufficiently given to the jury.</p>

Tried, below before the Hon. T. C. Barden. Prince was indicted for burglary in breaking into Bob Johnson’s smoke-house with intent to steal, &c. On the trial it was proved that on the night of 26th March, 1875, Johnson’s smoke-house had been entered, the door lifted from its hinges, and about 150 pounds of bacon stolen. Tracks were seen next morning in the smoke-house, and which were followed in the direction of and to within five hundred yards of Prince’s residence.

<p>Non-residents—Jurisdiction.—A non-resident can maintain an action by publication and without attachment against a non-resident defendant to foreclose a mortgage upon lands in Texas.</p>

Tried below before the Hon. I. B. McFarland. This case has been before this court twice. (20 Tex., 476, and 30 Tex., 644.) In 1850 Chadoin commenced an action of forcible entry and detainer against Richard A. Magee, husband of Nicinda.

<p>Appeal from Colorado. Tried below before the Hon. Livingston Lindsay.</p>

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

Tried below before the Hon. Livingston Lindsay. Judgment was rendered sustaining a general demurrer to the petition, and plaintiff below appealed. The facts are contained in the opinion.

Tried below before the Hon. J. B. Burnett. April 3, 1873, a decree of divorce was rendered in the District Court of Walker county, divorcing Frances C. Momand from her husband, D. W. Momand. By the decree, John S. Besser was appointed trustee to sell the homestead of the parties, and to pay the proceeds of such sale, one-half to each party, and to take the receipt of each respectively.

<p>1. Continuance.—Application for continuance, made several days before the trial, may properly be overruled, unless it be also shown that the attendance of the witnesses could not have been had when the case was called, or that the proper diligence would have been useless.</p> <p>2. Witness—Charge op court.—It is not error to instruct the jury, where one jointly indicted was allowed to testify in behalf of the State, “to give the evidence such credit as they believed it entitled to, and that the presumption was that all the witnesses testified correctly.”</p> <p>3. Witness.—A defendant cannot object to the testimony as incompetent, of one jointly indicted, after the district attorney has dismissed the indictment as to the witness offered.</p>

<p>1. Construction of statutes.—The acts of 12 May, 1846, (Paschal’s Dig., art. 5115,) of February 11, 1860, (Paschal’s Dig., art. 2508.) and of November 14, 1864, on the subject of costs of prisoners in jail, are not cumulative, but each subsequent statute must be regarded as revising the subject-matter of the former one, and as a substitute therefor.</p> <p>2. Costs of prisoners confined in jail.—Under the act November 14, 1864, in force, the action of the County Court upon the sheriff’s account for the board and guarding of prisoners in jail is conclusive, in the absence of allegations that the County Court had abused its discretion in the matter, or that the amount allowed was not sufficient for the support of such prisoners.</p>

<p>1. Execution sale.—A purchaser at execution sale who looks to the record and finds there a valid subsisting judgment authorizing the execution under which the officer proceeds, and who in good faith buys, pays the purchase-money and receives a deed, takes a title which is valid until the sale is set aside.</p> <p>2. Same—How set aside.—A sale made under execution in violation of the order of plaintiff, and in which property has been sacrificed, may be set aside by motion in the court from which the execution issued, with notice to the purchaser, or by appealing to the equitable } jurisdiction of the court, setting up grounds for equitable relief, offering to repay the purchase-money, and to do equity.</p> <p>3. Stay of judgment.—A sale made by a deputy sheriff under an execution issued upon a judgment, which by agreement of parties had been stayed, and notice of stay given to the sheriff, but not communicated to the deputy making the sale, and the purchaser being ignorant of the agreement, is not void, though it may be avoided as above.</p>

<p>1. Special judge.—The district attorney has power to agree with the defendant upon a special judge when the district judge is disqualified from trying the case.</p> <p>2. Murray v. The State, 34 Tex., 331, overruled.</p> <p>3. Disqualification of district judge.—That the property stolen belonged to the district judge, is not a ground of disqualification to try the party accused of the theft.</p> <p>4. Special judge.—Until the contingency happen authorizing the selection by the parties of a special judge, the appointment of one is void.</p>

Tried below before the Hon. E. B. Turner. Buford was indicted May 20, 1875, for fraudulently altering the brand of a cow, of the value of ten dollars, and of a calf, of the value of four dollars, on 20th March, 1875.

Tried below before the Hon. George Quinan, special judge. Lathrop, administrator of the estate of J. T. Sanford, brought suit against Thomas G. Masterson on a promissory note executed by one J. L. Overton, Masterson, and one A. E. Westall.

<p>1. Trust—Mistake.—Parol evidence is admissible to correct mistakes in written instruments so as to conform them to the intention of the parties; and the doctrine of trusts, as applicable to deeds obtained by fraud or without consideration, is fully recognized by repeated decisions of the court.</p> <p>2. Same—Evidence.—See facts held insufficient evidence of mistake.</p>

Tried below before the Hon. James Masterson. Fredericka and Albert Cordier sued R. K. Cage for a part of a tract of 61-| acres of land bought by Frederick Stahl, the father of Fredericka, claimed to have been community property and the homestead of the parents of plaintiff. The defendant, Cage, claimed the land by purchase from Mary Stahl, the widow surviving, and who had filed an inventory of the community property.

<p>1. Limitation—Coverture.—Where plaintiff in trespass to try title showed in his chain of title that the title he held had been vested May 1, 1847, in a married woman, and so continued until within the period of limitation pleaded, it devolved upon the defendant to prove his entry before that date, (May 1,1847.)</p> <p>2. Same.— See facts held insufficient to sustain the plea of limitation of ten years.</p>

Tried below before the Hon. Livingston Lindsay. September 10, 1872, H. F. Dunson, Sallie A. Dunson, H. Z. Payne in their own right, and H. F. and Sallie Dunson as the legal guardians of Cleaveland and Nannie Windrow, and as the natural guardians of Laura and Frank Dunson, styling themselves “the heirs and distributees of the estate of C. Windrow, deceased,” brought suit against Josiah F. Payne.

Tried below before the Hon. J. R. Burnett. This suit was filed in the District Court of Walker county on the 24th February, 1874. The suit is founded on a nonnegotiable note executed by Carter and wife payable to “ W. H. Crawford, agent of Thomas B. Bodley.” The original petition declares upon this note in the name of D. W. Eames, as one indorsed in blank by Bodley, the payee.

Tried below before the Hon. I. B. McFarland. On the 12th February, 1872, T. N. Waul recovered a judgment in the District Court of Washington county against John Schackey and C. Hueske for the sum of $1,816.70. On this judgment execution issued 30th April, 1872, on which is indorsed “ Returned, held up by order of plaintiff’s attorneys,” May 27, 1872. C. Hueske died November 10, 1872.

<p>Administrator de bonis non.—An administrator de bonis non cannot maintain an action against his predecessor to annul a sale of real estate made by him by order of and approved by the court, nor to set aside an allowance and approval of an account against the estate made in the proceedings of the former administration.</p>

<p>Pleading.—A petition on an account for labor at a stipulated price per month, is insufficient in the absence of an allegation that the labor was performed. An exhibit showing the months and price “for services rendered,” and referred to for the amount due, will not cure the defect; such petition is bad on general demurrer.</p>

<p>Motion to file record and for affirmance.</p>

Tried below before the Hon. Livingston Lindsay. This case was before this court on a former appeal. (38 Tex., 275.) On the trial it was conceded by the parties that the only issue of law or fact unsettled and left open for consideration was in regard to the value of the rents and improvements, and also use and occupation, and the appropriate judgment to be rendered on these points.

Tried below before the Hon. A. P. McCormick. Emilie C. Janson brought suit in the District Court of Galveston county against Jacobs and Meyer, who reside in Harris county, and Peter Bock, administrator of Joseph D. Funck, deceased, late of Galveston county. The petition alleged that in May, 1864, the deceased had deposited with Jacobs and Meyer $1,833 in specie, and that they executed a note therefor.

<p>Habeas Corpus.—On habeas corpus the accused cannot interpose the plea of autrefois acquit. He can only have its benefit by special plea entered in the court in which the indictment is pending.</p>

Tried below before the Hon. Livingston Lindsay. M. C. Conley, executor of Reuben Bonds, deceased, May 1, 1872, sued the Columbus Tap Railway Company upon an obligation as follows: $400.

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

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

<p>1. Rape—Indictment.—An indictment charging that defendant, “with force and arms, in and upon J. A., a female of the age of ten years, then and there violently and feloniously did make an assault, and her, the said J. A., then and there violently, against her will, and without the consent of her, the said J. A., did ravish and carnally know:” Held, Sufficient on a motion in arrest of judgment.</p> <p>2. Practice on appeal.—See this case for many questions not considered because not presented by bill of exceptions.</p>

Appear from Washington. Tried below before the Hon. I. B. McFarland. P. H. and Mary A. Barnhill sued A. W. Kirk, administrator of Mrs. S. C. Kirk, upon an account duly authenticated, presented to, and rejected by the administrator. The account was as follows: “Exhibit A.”—Estate of Mrs. Kirk, Deceased. 1871. To P. F. and Mary A. Barnhill, Dr. July 2.

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

<p>1. Homestead is defined to be “the place of the house;” the mansion house with adjoining land.</p> <p>2. Same—Rural Homestead.—The object of the Constitution was not to protect the house with two hundred acres of the most valuable land, but to protect the house and the farm, tan-yard, mill, gin, or whatever else had been used in connection with the residence to make a support for the family.</p> <p>3. Same.—What is meant by “the homestead of a family ” in the country and its approximate locality is determinable by obvious facts, as a determinate object, and not by the variable intention privately entertained or openly declared by the husband, he and his wife residing on the land in their home at the time; and under the same circumstances, where the residence is on a large tract, most o£ which being inclosed, the locality of what part of it is not a part of the homestead is determinable in the same way, approximately.</p> <p>4. Same.—The residence and farm used in support of the family, being upon one part of a large tract of land, is a designation of the homestead more authoritative and notorious than mere lines run through and marking out other lands upon the tract as the homestead.</p> <p>5. Change of homestead.—The marking out of lines upon a large tract of land, so as to include lands remote from the dwelling-house and unused before in connection with the support of the family, is no less an attempt to make a new homestead than if the house liad been moved to such new locality after a lien had been acquired upon that part attempted to be appropriated as homestead by such removal.</p> <p>6. Intent—Homestead.—The question of intent becomes important in some cases, so as to determine whether a party has acquired a homestead at all, as in case of domicile, or whether he has abandoned his homestead, or which one of two houses, when he resides sometimes in each, is his homestead, or which of two fields used in connection with his rural occupation is to be preferred when both cannot be held.</p> <p>7. Acts held a designation of homestead.—Where a person is the occupant of a large tract of land, with a mansion-house surrounded by or contiguous to his farm, which he uses in his calling as a means of support, most of the tract being wood land or prairie, or consisting of a number of tracts, some of which are not used at all, such facts determine substantially and approximately the locality of his homestead, and the locality of portions of such large tract not so used to be not his homestead, or part of it, irrespective of his intention at the time.</p> <p>8. Change of Homestead.—A change of designation of homestead upon such large tract of land by moving the houses, or by changing the boundaries of it substantially different from the locality which the pre-existing facts of ostensible use and enjoyment have fixed as a homestead, cannot he made, to the injury or destruction of rights of judgment lien holders, or of purchasers from the husband without the wife being joined, and existing before such attempted change.</p>

<p>1. Theft—Charge of court.—A charge of the court enumerating the principal circumstances in evidence relied on as proof of recent possession of the property stolen, and instructing the jury “that the law raises from them, if unexplained, the presumption of guilt,” is error, for which a new trial should have been granted.</p> <p>2. Recent possession of stolen property.—Such possession, if unexplained, is a fact to be taken with the other testimony, from all which the jury may infer guilt as a presumption of fact, not of law. Any interference with the right of the jury in drawing their own conclusions from the testimony is error.</p>

Tried below before the Hon. A. P. McCormick. M. Block was indicted for embezzling three hundred dollars, by him collected as agent of J. Lavenberg.

Tried below before the Hon. James Masterson. This suit was originally commenced by George Goldthwaite, as trustee, against the Houston City Mills Manufacturing Company, to foreclose a deed of trust given by said company upon its property and franchises, to secure the payment of certain bonds executed by said company. The company was served with process to answer the suit of said Goldthwaite, but made no appearance or defense.

Tried below before the Hon. James Masterson. Harn sued appellant as a common carrier, to recover the value of a buggy, harness, and cushions, delivered at Groesbeck, to be carried and delivered at Havasota, on the line of appellant’s road. The petition declares on the contract as evidenced by the bill of lading, and avers non-delivery and loss of the property by the negligence of appellant.

<p>1. Jurisdiction of mayor’s court.—The Constitution of 1869 provided for five justices of the peace, to be elected for the five justices’ precincts in each county. This excluded the idea of the mayor being ex officio a justice of the peace, either under the general law or under a special act incorporating a city and conferring jurisdiction.</p> <p>2. Same.—The act of 26th May, 1873, (Gen. Laws 13th Leg., p. 99,) amending the general incorporation act and repealing the 24th section of same, (Paschal’s Dig., art. 5270,) may be considered a legislative interpretation of the Constitution, and applying equally to cities incorporated by special acts as to those incorporated under the general laws.</p> <p>3. Same.—A mayor has no jurisdiction to sit as an examining court, or to hold to bail to answer for a felony. A bail bond executed before a mayor in such proceedings is a nullity.</p>

. Tried below before the Hon. A. P. McCormick. This was a trial of the right of property, under the statute, in certain merchandise levied on under an execution in favor of L. H. Woods & Co. against J. R. Brooks, and claimed by Half, Weiss & Co. The merchandise had been bought by Brooks, at Galveston, of Half, Weiss & Co., on a credit of ninety days, and at the time of seizure by the sheriff were boxed up, marked with Brooks’s name and place of residence, and on the dray on…

Tried below before the Hon. Livingston Lindsay. Barnard brought trespass to try title against Good, claiming a tract of land lying northeast of and adjoining the Patrick Reel survey, as it appears on the maps of the land office and in the office of the county surveyor, the dividing line between the Reel tract and that sued for being in the direction S. 56° E. The defense set up was the patent to Reel, in which the call was S. 85° E., by which and the extension of the lines…

Tried below before the Hon. A. P. McCormick. The appellant was convicted of. rape upon Teresa Lotke, a girl of about twelve years of age, and daughter of a woman with whom he had been living for several years as man and wife. ■ On the trial Teresa appeared as witness ; was much excited when placed - on the witness stand; at first declared that the- accused had never injured her. Being again ex? amined by direct questions, facts showing the guilt of the accused were elicited.

<p>Appeal from Brazoria. Tried below before the Hon. A. P. McCormick.</p> <p>On the 8th of October, 1875, the appellant, William Wright, and one Bud Robinson were indicted in the District Court of Brazoria county for the murder of one Nelson Seigler, on the 31st of July, 1875. Robinson was not arrested, and on the 13th day of October, the case being called, William Wright made his application for a continuance.</p> <p>The affidavit in other respects was regular, and stated “He expects to prove by said witness that he was in the employ of Ward, Dewey & Co., lessees of the Texas State penitentiary, during the month of July, 1875, as a guard over convicts sent to the penitentiary.</p> <p>“ That Ward, Dewey & Co. had a lot of convicts employed on Lake Jackson plantation, in Brazoria county, at said time, and this affiant was one of the guards.</p> <p>“ That on the 30th day of July, in said year, one of said convicts made his escape, and this affiant, with other guards, was sent out to arrest said convict; that said witness and affiant saw said convict just before day, on the 31st day of July, riding a white horse, just such a one as Nelson Seigler was riding when he was killed.</p> <p>“ He also expects to prove by said witness that his orders from those in authority in the penitentiary were to shoot any convict when endeavoring to ¿scape and would not halt and surrender when called on to do so.”</p> <p>The application wás overruled.</p> <p>The facts proven were substantially that on the 31st of July a penitentiary convict, employed on a plantation of Ward, Dewey & Co., in Brazoria county, made his escape, and that the appellant, Wright, and Bud Robinson, who were two of the penitentiary guards employed on said plantation by Ward, Dewey & Co., were sent out to recapture said convict, with positive instructions from Ward, Dewey & Co., the lessees of the penitentiary, if when they found said convict, and he would not halt when called on to do so and surrender himself, that they, the guards, should shoot said convict.</p> <p>It was also in proof that during the night of the 30th they saw the convict riding a white horse, and that shortly before day, on, the 31,st of July, the said Wright and Robinson were stationed on a bridge leading over Oyster creek, when an individual riding a white horse rode up on the opposite side of the creek, it being too dark to see who it was ; that Wright and Robinson hailed the person so riding up to stop; he failing to do so, but starting to run, both the guards fired, and the result was the killing of Seigler, who was not the convict. It was also in evidence that for several hours Wright could easily have- escaped, but he, thinking he had merely done his duty, remained to take the consequences.</p> <p>The charge complained of is as follows:</p> <p>“The penitentiary of Texas and-the labor thereof, under certain regulations not important in this case, is in the hands of certain lessees, and these lessees, with the knowledge of the political authorities, are operating said convict labor on certain plantations in this and other counties of "the State, using guards and other means to prevent the escape of said convicts.</p> <p>“One of said convicts when attempting to escape from one of such guards actually having said convict in custody may be killed by such guard so having the legal custody of said convict, if the escape of said convict can in no other way he prevented, and such killing, if it so occur, would be justifiable homicide, and one charged with any offense therefor would be acquitted.</p> <p>“When an escape has been completely effected and the custody of the convict is lost, certain officers of the penitentiary have authority to offer certain rewards for the apprehension and arrest of convicts.</p> <p>“The officers of the penitentiary or lessees thereof have only such authority to effect a capture when the convict has entirely escaped from custody as belongs to ordinary officers in making arrests.</p> <p>“Peace officers in making arrests can only take life when it becomes necessary to do so to protect their own lives or save them from serious bodily harm.”</p> <p>There was a verdict of guilty, and punishment fixed at five years in the penitentiary. Motion for new trial was overruled, and defendant appealed.</p>

<p>1. Practice in supreme court.—In absence of an assignment of errors, only such errors as go to the foundation of the action will he noticed on appeal.</p> <p>2. Injunction restraining collection oe taxes.—A petition to enjoin the collection of a tax because of unlawful and excessive assessment should show that the petitioner had used every mode provided by the law for his relief, and should allege readiness to pay the tax admitted to be due.</p> <p>3. Damages in dissolution of injunction.—It is proper to render judgment for ten per cent, damages on the dissolution of an injunction restraining the collection of a tax.</p>

Tried below before the Hon. Silas Hare. Cameron was indicted for theft of a steer, the property of Jesse Daniels. On the trial E. A. Daniels, witness for the State, testified “that about August 1, 1873, he went to the cattle herd of one Buck Dawson, in Dallas county, and there found a certain brown or black steer with the brand of Jesse Daniels upon it; both ears were cut smooth off to his head; he was dewlapped and branded D, the brand of Jesse Daniels.

<p>1. Jurisdiction—Service by publication.—In a suit by a resident plaintiff against a non-resident, the jurisdiction does not depend upon auxiliary attachment proceedings. Such suit, on service by publication, may be prosecuted to judgment, which will be valid as against property of the defendant found in the State.</p> <p>2. Practice.—Appearance by a non-resident defendant by attorney confers jurisdiction over him equally with personal service.</p> <p>3. Cases overruled.—Herrington v. Williams, 31 Tex., 457, overruled as to service on non-residents.</p>