Volume 49 — Texas Reports

<p>1. Limitation affecting vendor’s lien.—When an absolute deed is made for land by the vendor, reciting payment of .the purchase-money, tile vendor’s lien for any unpaid purchase-money cannot be enforced after the debt is barred by two or four years’ limitation. The lien will be barred by the same lapse of time that would bar the debt.</p> <p>2. Cases limited.—Dunlap v. Wright, 11 Tex., G04; Baker v. Barney, 27 Tex., 59.</p>

Tried below before the Hon. A. P. McCormick. This is an action brought by Stone, in the District Court of Galveston county, February 11,1873, on a policy of insurance issued by the Texas Banking and Insurance Company, February 17,1872.

Error from Galveston. Tried below before the Hon. A. P. McCormick. This was a suit, brought in the District Court of Galveston county, on the 28th clay of May, 1871, by Aaron Coffee, to set asido a judgment by default that had been rendered by that court, on the 3d of March, against him, in favor of the defendants.

Tried below before the Hon. Livingston Lindsay. This was a suit brought by appellant for 1010 aeres of land, part of the Nelson league, in Colorado county, Texas; being the tract of land set apart by James S. Montgomery to his son, William W. Montgomery, who, while financially embarrassed, on the 15th of January, 1869, conveyed it to Sarah M. Thatcher, his sister, in consideration of $1005, which sum he claimed that he owed his sister;—this being all the property owned by…

Error from Harris. Tried below before the Hon. James Masterson. August 10, 1872, William O. Moore, husband of Mary A. Moore, was on a freight train running on the Houston and Texas Central Railway between Hempstead and Houston. At a point about two miles and a half west of Hockley station, the train ran off the track, and Moore received injuries, from the effects of which he died.

Tried below before the Hon. James Masterson. May 23,1873, M. V. Garey and husband, J. E. Garey, sued Charles Schmeltz in trespass to try title in the usual form for lots 2, 3, 4, 7, and 8, in block number l,in the town of Clinton, and described as on the Harris tract. Schmeltz pleaded not guilty, and, by amendment, the three years’ statute of limitations, as tenant of Reuben Wright, and asked that Wright be called to defend.

Tried below before the Hon. I. B. McFarland. On the 24th of October, 1859, the appellant Jackson pur chased from J. E. Daniels an undivided interest in a tract of land originally granted to James Cochrane, and executed the notes mentioned in Elliott’s petition for the purchase-money, which were payable to Daniels or bearer.

■ Appeal from Harris. Tried below before the Hon. James • Masterson. This was a suit instituted by defendant in error to recover ■ damages from plaintiff in error, for alleged false imprisonment, &c. On the trial, the jury found a verdict in favor of defendant in error for $1,000, on which the court rendered judgment. Plaintiff in error then made a motion for ■' a new trial, which was by the court overruled, and after- • wards brought up the case on a writ of error.

Tried below before the Hon. A. P. McCormick. February 11, 1876, N. O. Lauve sued Price and wife on their joint note for $634.86, executed October 30, 1874, and due one year thereafter, and to enforce the vendor’s lien on a lot in Galvestion for which the note was given.

<p>1. Jurisdiction.—The Supreme Court, on the 14th of April, 1873, issued a mandate, reciting the affirmance of a judgment in favor of B, and against C. On the 22d of October, 1873, another mandate in the same cause was issued, reversing the judgment of the court below, and reciting that the former mandate was vacated and annulled, and requiring its return. Another mandate of like import issued in December,' 1873, which recited that a rehearing had been refused December 9, 1873. On the filing of the last two mandates, the District Court, in November, 1873, entered a judgment in favor of C, reciting the import of the last mandate, and decreeing in accordance with it. A petition for a writ of error, by B, was sued out, which brought to the Supreme Court the record of the petition and answer in the original suit, the mandates of the Supreme Court, and the last judgment of the District Court. On motion to dismiss : Held—</p> <p>1. That the proceeding on error was an effort to cause the court to revise and reverse its own judgment of a former term, and that this court had no jurisdiction.</p> <p>2. That the judgment in form entered on the minutes of the District Court did not add anything to the judgment of the Supreme Court of October 22,1873, and amounted, in legal effect, to a mere recognition of its mandate.</p> <p>3. That the record does not sliowawant of power in the Supreme Court to render the last judgment, on which the mandate issued.</p> <p>4. That had defendant in error claimed the right to proceed below under the first mandate, and pleaded the nullity of the second mandate on its appearance, for want of jurisdiction in the Supreme Court, then the question of power to issue the second mandate could have been reviewed.</p> <p>5. That the jurisdiction of the Supreme Court in the first proceeding will be presumed' its judgment regarded as final, and not the subject of proceeding oh error.</p>

July 17, 1871, Manuel Trevino & Bro. sued Manuel-Leon De Leon, of Camargo, Mexico, on four promissory notes of date October 8, 1866, executed by defendant, each note reciting that it was “ for equal value received in money and merchandise to my entire satisfaction,” the notes amounting in the aggregate, with interest, to $12,977.07. An attachment was levied. Subsequently personal service was had. Pending the suit, May, 1872, before answer, defendant died.

<p>1. Practice—Citation in error.—When the petition for a writ of error omits to state the residence of a'defendant in error, the clerk, in issuing the citation in error, may direct it to the sheriff of the county in which the orgiual petition states that the party resides.</p> <p>2. Computation of time.—When time is to he computed from or after a certain day from an act done, the day on which the act is done is to be excluded in the computation.</p> <p>3. Same—Writ of error.—In computing the two years within which a writ of error may be taken, the day of the.rendition of the judgment is excluded.</p>

.Appeal from Freestone. Tried below before Hon. J. B. Rector. This was an action of trespass to try title in the ordinary form, brought March, 1873, in the District Court of Freestone county, by William T. Gainer and others, who are appellants, against William Collins and others, who are appellees, for the league of land upon which the town of Fairfield is situated, originally granted to Redin Gainer.

Tried below before the Hon. John P. White. The pleadings in this ease are quite lengthy, and raise many issues, which are discussed in briefs of counsel; but the opinion is based on points which render it unnecessary to make a statement of the progress of the cause.

Tried below the Hon. L. Lindsay. On the 18th day of April, A. D. 1871, Marcus D. Herring, administrator of R. M. Hargrove, recovered a judgment, in the District Court of Austin county, against Edwin Waller, Jr., for $2,500 and costs. On the 24th day of September, A. D. 1873, a fieri facias issued to Waller county, against Edward Waller, Jr., the defendant in the judgment.

Error from Harris. Tried below before the Hon. James Masterson. The stateriient of this case, which explains the misfortunes of Peter Gabel, and how they grew out of his fondness for his dog, was made by his counsel, and is adopted as correct. At the June Term, 1872, of the criminal District Court of Harris county, Alexander Weisensee was indicted by the grand jury of that court for the theft of a dog.

Tried below before the Hon. A. P. McCormick. This was a trial of the right of. property under the statute, in thirty-two bales of cotton which bad been shipped by Stephen Harbert to his factors, A. Sessums, Powell & Co., at Galveston. After the death of Sessums, and insolvency of the firm, Harbert brought suit by sequestration for the thirty-two bales of cotton against “ The Southern Cotton Press and Manufacturing Company,” in whose warehouse it was stored.

A. P. McCormick. This is a case made under the statute for the trial of the , right of property seized under process of court, and claimed by a person not party to; s.nch process. , The appellee sued “The Southern Cotton Press and Manufacturing Company” for sixteen bales of cotton, described by marks and number of bales, .and caused the, property- to.be seized-under, writ .of sequestration, Charles, M. Todd and Henry M. Neill, partners in business, under the name of' Neill…

Tried below before the Hon. James Masterson. This is an action for damages, brought by Forsyth against the appellant, for. the recovery of $23,000, because of personal injury received by him when in appellant’s employment, in the capacity of a bralceman on one of its trains.

Error from Harris. Tried below before the Hon. James Masterson. The defendant in error was brakeman on one of the passenger trains of th& plaintiff in error, and while in the discharge of his duty was injured, by being thrown from the track with the sleeper.

Tried below before the Hon. James Masterson. Doyle sued to recover damages for an injury to Ms hand, received in operating a hand-car, while in appellant’s employ as a section hand on the road. It was alleged that the injury complained of resulted from the negligence of defendant in failing to provide a safe and proper hand-car for the use of the laborers on the section.

Tried below before the Hon. Wm. H. Burkhart. The case is fully stated in the opinion, in connection with the brief of the appellant, made under the new rules.

Error from Harris. Tried below before the. Hon. James Masterson. . The Houston Direct Navigation Co. brought suit against Robert S. Kirk, the husband of Mary A. Kirk, on a moneyed demand, and to foreclose a mortgage executed by him alone on the 16th of September, 1872, on lots 4, 5, and 6, in block 289, on the north side of Buffalo bayou, in the city of Houston.

<p>1. Practice in Supreme Court—Motion to reinstate.—Causes dismissed on call of the docket for want of prosecution will not be reinstated, except on some showing of merit in the appeal, and excuse for the failure to appear, by brief or otherwise.</p> <p>2. Excuse for neglect to prosecute.—Counsel for motion to reinstate showed by affidavit that he knew the crowded condition of the docket, and supposed that a hearing or decision could not be hoped for at the present term; and that counsel was too much pressed with business to prepare such a brief as the importance of the question involved demands: Held, The excuse for failure to appear was insufficient.</p> <p>3. Same—Merits.—In cases where it can be reasonably inferred that there are merits in the appeal or writ of error, and that serious injury will probably result from tliq dismissal, although no strictly legal or satisfactory excuse is given for the neglect leading to dismissal, the court lias frequently set aside the order, and permitted the case to be reinstated upon terms.</p> <p>4. Facts held not meritorious.—That a homestead was conveyed in trust to secure a loan made before the present Constitution took effect, and at twenty-four per cent, per annum, and that the privy acknowledgment of the wife was taken to the trust deed by a notary employed by the husband to negotiate the loan, does not constitute an evident meritorious case for equitable relief.</p> <p>5. Appeal bond.—Where an injunction is dissolved, bill dismissed, and costs adjudged against plaintiff and sureties on the injunction bond, such sureties cannot "become sureties on the appeal bond of their principal.</p> <p>6. Approved.—Labadio v. Dean, 47 Tex., 90, approved.</p>

Tried below before the Hon. James Masterson. Grace T. Morse, administratrix of the estate of A. T. Morse, deceased, brought an action of trespass to try title against William Hunter and others, for 357 acres of land, part of the A. C, Reynolds league. The peculiarites in the petition as to description of land, and as to chain of title under which a recovery was sought, are carefully stated and discussed in the opinion.

Tried below before the Hon. James Masterson. The Legislature of Texas passed an act entitled “ An act to regulate the practice of medicine,” and the same became . a law on the 16th day of November, A. .D. 1873.

Tried below the Hon. William H. Stewart. Under the act to authorize the several counties of the State to raise means to pay their indebtedness, approved May 1, 1874, (Paschal’s Dig., 6026m,) the County Court of Galveston county levied, for the year 1875, upon the property, real and personal, in Galveston county, a tax of one-eighth of one per cent. The County Court did not levy this tax upon the occupations and professions taxed by the State in said county.

Tried below before the Hon. William H. Stewart. This was an action of trespass to try title.

<p>1. Measure of damages—Defective machinery.—The measure of damages in an action for the breach of a contract to deliver specified machinery, is the difference in value between the machinery as furnished and as contracted for.</p> <p>2. Same—How ascertained—Experts.—This difference may be ascertained by the testimony of experts, taking the contract price and expense of delivery as the basis, and estimating the difference between that amount and the value of the machinery actually delivered ; or by ascertaining the reasonable cost of supplying the deficiencj’ or of remedying the defects of the machinery as delivered.</p> <p>3. Same—Parties.—All parties interested in the contract to sell are responsible to the purchaser for whatever damages he may have sustained from a breach of the contract.</p> <p>4. Acceptor paying before maturity.—An acceptor of a bill drawn by the purchaser of machinery cannot, by paying the bill before maturity, change the relations of the original parties to it and to each other, and thus cut off the drawer from the defense of failure of consideration, from defects in the machinery so purchased.</p> <p>6. Same.—Tim acceptor paying before maturity is not a holder for value of the paper, as against the drawer.</p> <p>6. Drawer and acceptor.—The liability of the acceptor is to pay according to the terms of the contract. His remedy, as against the drawer, then, is for money had and received by him, of which the bill is the evidence.</p> <p>7. Same—Surety.—An acceptor, even though lie may have been surety for tlie drawer to the payee for machinery purchased by the drawer, in paying before maturity is subject to any defense which could be made by the maker, if sued by the payee.</p>

J. C. Gorham instituted this suit in the District Court of Galveston county to recover from appellant the sum of $2,240, being the amount of the county occupation taxes which had been by plaintiff and certain other persons paid to the county of Galveston, as wholesale merchants, during the years 1872,1873, 1874,1875, and 1876.

Error from Washington. Tried below before the Hon. I. B. McFarland. The James Lynch league of land is situated on the right or west bank of the Brazos. June 19,1835, Lynch conveyed to Martin Allen, without metes and bounds, one-fourth of the league, being the upper quarter. This quarter, by consent of all parties, seems to have been the west half, or part of the upper half, of the league, when divided by a line from the river and parallel with the side lines of the grant.

Tried, below before the Hon. James Masterson. The appellee sued as the father, and also as next friend of his minor son, Joseph E. Miller, for damages by the latter sustained as brakeman on defendant’s train of cars.

Tried below before the Hon. A. P. McCormick. This suit was brought by Emeline D. Taylor (formerly Emeline 1). Sterne, formerly wife of Christopher H. Sterne, deceased) and her children to recover a lot of ground in the city of Galveston. The character of the suit as originally brought, is set forth in the opinion of Judge Gould, in 42 Texas, pages 597-599.

Error from Bastrop. Tried below before the Hon. J. P, Richardson. June 26, 1872, appellee, who was a brakeman and baggage-master on the Houston and Texas Central Railway Company, while attending to Ms duties as brakeman, and ascending a side ladder on a car, was knocked off by the projecting frame-work of a water-tank belonging to the company.

Tried below before the Hon. E. E. Gaines. Appellees, who were plaintiffs in the court below, filed their petition in the District Court of Lamar county, alleging that they were owners of property fronting on the public square of the town of Paris, the county-seat of Lamar county.

Tried below before the Hon. R. R. .Gaines. The Paris Exchange Bank, claiming to be a private corporation under the laws of the State of Texas, brought suit .on the 28th day of August, 1876,- against G. and W. G. Beard, defendants, on a promissory note for the sum of one thousand dollars, dated August 25, 1873, and payable on ot before the 1st* day of January, 1875.

Error from Fannin. Tried below before the Hon. R. R. Gaines. J. R. Ryan and others, plaintiffs in error, petitioned the judge of the District Court for a mandamus to compel the defendants in error, composing the County Court of Fannin county, to organize Webster county under an ordinance or declaration of the Constitutional Convention of 1868.

Tried below before the Hon. Joseph Bledsoe. This was a suit among collateral heirs for partition. The diagram shows the relation of the parties to the intestate.

Tried below before the Hon. J. A. Carroll. This case was submitted on an agreed statement, as follows: “ 1st. That at the June Term of the District Court of Montague county, 1877, a final judgment on a forfeited bail bond was rendered against H. C. Hewbury, as principal, and Lee if.

Tried below before the Hon. W. H. Andrews. December 17, 1872, H. H. Williams brought an action of trespass to try title against L. C. Cowan and others, in the District Court of Grayson county, for a league and labor of land granted to Miguel Ybarbo on October 13, 1835.

Tried below before the Hon. William H. Burgess, special judge.

• Appeal from Washington. Tried below before the Hon. I. B. McFarland. Under an order of the District Court, on the probate docket, of Washington county, certain lands, belonging to the estate of Samuel Edney, deceased, were sold to Lyd Smith and others. The administrator made return of the sale. The reports under oath showed that the sales “ were fairly and legaily made, after full notice to all parties interested.” The lands brought twenty-eight cents per acre.

<p>3. Preferred cases—Bules.—By rule 59,- administration cases will be advanced on the Supreme Court docket.</p> <p>2. Removal of administrator—Statute construed.—Section 27 of the Probate act of 1876. providing for the removal of executors or administrators by the county judge of his own motion, or-of any - person interested in the estate, * * * “ when they fail to obey any order of the court consistent with this act in relation to the estate committed to their charge,” gives the right to remove for the failure to execute an order requiring the sale of land, although the administrator may claim that the order was illegal, because including the homestead.</p> <p>3. Practice in Probate Courts.—The legality of an order of sale cannot be tested by the administrator resisting an order removing him for disregarding the order of sale. The remedy against the disputed order is by appeal or certiorari.</p> <p>4. Order of sale held not to be a nullity.—An order for the sale of 300 acres of land, including the homestead, for the payment of debts of an estate, is not a nullity by reason of including the homestead, though it might be erroneous.</p> <p>5. Minors prosecuting suits__Minors cannot sue by attorney. In litigating, general or special guardians should be appointed.</p>

<p>Appeal from Lamar. Tried below before the Hon. B. B. Gaines.</p> <p>The facts are sufficiently given in the opinion.</p>

Error from Collin. Tried below before the Hon. W. H. _ Andrews. May 21, 1873, Adelia Clay brought an action of trespass to try title against Hardin Hart in the usual form, for a tract of land described in her petition.

Tried below before the Hon. E. B. Turner. This suit was instituted on the 25th of September, 1876, by the widow and sole surviving constituent of the family of the decedent, W. J. E. Heard, against the appellees, executors of said decedent, to recover the value of certain pension bonds, eight in number, each for $100, and one for $70, issued to decedent under the act of April 21,1874, and which were in the possession of plaintiff at the death of decedent on the 8ch of…

Tried below before the Hon. E. B. Turner. April 20, 1875, Jesse J. Northcutt and about sixty others brought trespass to try title, in the District Court, against C. R. Johns, F. Everett, Win. Yon Rosenberg, and S. J. Swenson, for about 3,000 acres of land patented to Henry Martin. June 10, 1875, defendants' pleaded not guilty and general denial.

<p>Conditional sale—Parol evidence to explain writing— Trusts.—Sale was made of land under a trust deed executed by husband and wife. The purchaser,- after the sale, executed to the makers of the trust deed an instrument promising to recouvey said land to them on their payment to him of a sum and at a time named,—the instrument providing that on failure to pay by the time named, the obligation should be void. Payment was not made. The purchaser sold his right to plaintiff, who brought suit against lessees of the makers of the trust deed for possession of the land: Held—</p> <p>1. Parol testimony was admissible to show the real intent of the parties to the defeasance.</p> <p>2. It was error in the court below to exclude testimony offered to explain the defeasance.</p> <p>3. Error in the court below to hold that the defeasance needed no explanation, and was evidence of a trust or mortgage.</p> <p>4. See an instrument susceptible of explanation to be either a mortgage dr conditional sale.</p>

Tried below before the Hon. H. Barks-dale. James A. Roosevelt brought suit on the 13th day of December, 1871, in the ordinary form of an action of trespass to try title, against Robert Hodge, the appellee, George W. Davis, and others, the defendants below, to recover the possession of one league of land, it being the northern league of the Chambers eight leagues in Ellis county, setting out the boundaries thereof, and claiming the title to and possession of the same on the…

Tried below before the Hon. I. 2T. Everett. Suit was originally brought in G-uadalupe District Court, and the venue was changed to Comal county. This is the third appeal in this case. It was before the Military Supreme Court in 1868, (Smith v. Dibrell, 31 Tex., 239,) and the judgment reversed. A second appeal was heard in 1873, and the judgment appealed from reversed. (Dibrell v. Smith, 40 Tex., 447.) A third trial was had October 17, 1874, before the court, without a jury.

<p>Appeal from Llano. Tried below before the Hon. E. B. Turner.</p> <p>The facts are stated in the opinion.</p>

<p>Error from Coryell. Tried below before the Hon. J. R. Fleming.</p> <p>The facts are fully stated in the opinion.</p>

<p>1. Pleadings—Trespass to try title.—In an action of trespass to try title in the ordinary form, with the plea of not guilty, the equities of parties to the suit in the land in controversy, which was sold under a decree foreclosing the vendor’s lien, and which equities grew out of the relation of the parties prior to such sale, will not be inquired into. The equities must be set out in the pleadings.</p> <p>2. Tenants in common.—Parties acquiring titles to parts of a tract of land subject to an .incumbrance by different instruments and at different times, there being no agreement, between them, respecting the title, are under no such relation to each other as to prevent one Of them from purchasing such incumbrance, or an outstanding title to the whole tract, in his own right.</p> <p>3. Order of liability to sale under a decree enforcing an incumbrance.—Ordinarily, where parts of an estate incumbered by a mortgage or lien are sold at different times, such tracts are liable to be sold in the inverse order of the date of such sales, the latest first.</p> <p>4. Practice in Supreme Court.—A sheriff’s deed conveyed all the interest of the defendant in a foreclosure suit at the date of the decree ; part of the land bad been sold pending the suit; the point was not raised in the court below: Held, That the question as to the effect of the sheriff’s deed will not be limited so as to exclude that sold pending the suit,1 and before the decree, when first raised in the Supreme Court.</p> <p>5. Sheriff sale—Legal title .—In ease of a j ndicial sale made under a valid subsisting judgment or decree authorizing the execution or order of sale under which the officer acted, where the proceedings are regular, resulting in a deed to a purchaser, such purchaser takes a title which will be held valid until set aside by proceedings had for that purpose.</p>

Tried below before the Hon. J. A. Carroll. July 27,1874, John Eldridge brought an action of trespass to try title in the usual form, in the District Court of Clay county, against Foster Johnson, for 160 acres of land, described in the petition. The defendant pleaded not guilty. At a subsequent term, the parties amended, setting up the facts constituting their respective titles.

Error from Ellis. Tried below before the Hon. Hardin Hart. Hovember 29, 1871, Angelletta Colville, J. R. and J. F. Colville, brought suit in the District Court of Ellis, county against P. H. Coffee, Sallie Pendleton, widow of E. Pendleton, deceased, and his minor children, George, William, Edward, David, Alice, and Flora Pendleton, and Pinckney C. Sims. The defendants Sims and George Pendleton resided in Texas; the other defendants, in Tennessee.

<p>Appeal from Johnson. Tried below before the Hon. A. J. Hood.</p> <p>The facts are given in the opinion.</p>

<p>1. Damages—Widow not responsible unless assets had.—Pending a suit for damages, the husband, who was a defendant, died; the widow was made a party, and there was no allegation or evidence tliat tlie widow had participated in the act for which suit had been brought; nor evidence that she had received any property from the estate of her husband, or that there was any community property : Held, That a judgment against the widow could not be sustained on such facts.</p> <p>2. Contradictory testimony—Evidence.—Where the testimony to plaintiff’s case is confined to his own testimony, and it is evasive and contradictory, his action cannot be maintained.</p>

Tried below before the Hon. Spencer Ford, appointed special judge to try the case.

Tried below before the Hon. D. M. Prendergast. The briefs in the case are interesting as a discussion of the questions involved. They contain, together, a full statement of the matters necessary to understand the opinion.

Error from Brazos. Tried below before the Hon. D. M. Prendergast. This suit was brought, in December, 1874, by O. S. Gorbett, as plaintiff below, to recover damages from the Houston and Texas Central Railway Company, defendant below, for personal injuries received by him as a passenger on defendant’s railway, while attempting to get off the cars at Bryan station, Brazos county, on the night of the 16 th of November, 1874.

Tried below before the Hon. X. B. Saunders. David H. Williams instituted suit, in the District Court of McLennan county, on the lltli day of September, 1873, by petition in the ordinary form of action of trespass to try title, for eleven leagues of land, situated in McLennan county, known as the Miguel Bab ago grant. The defendants named therein were ¡Norman H. Conger, Edward D. Conger, Charles M. Harvey, W. II. Smith, W. C. ^Tolbert, Thomas Harrison, and James Sadler.

Tried below before the Hon. B. H. Davis, special district judge selected by the parties. September 16, 1874, W. G. Veal brought, in the ordinary form, his suit of trespass to try title, against W. B. Newcomb, James Reynolds, W. H. Calvin and appellants, the heirs of Thomas K. Pierson, to try the title to about 860 acres of land, situated in Burleson county.

Tried below before the Hon. L. C. Alexander. Mrs. S. E. Morris brought suit against A. A. Casseday for 1,345 acres of land, being a part of a tract of 1,920 acres patented to the heirs of E. T. Davidson, the original 1,920 acres lying partly in Bell county and partly in McLennan county. The original petition was in the ordinary form of an action • of trespass to try title.

Tried below before the Hon. John B. Rector. Bumforrl B. Garrett sued G. W. Hearne, in the District Court of Bobertson county, for damages on a breach of contract. Garrett alleged that in January, 1874, he contracted with Hearne to secure and bring from Alabama to Texas, for Hearne, a number of farm hands, for the ensuing year.

Tried below before the Hon. Spencer Ford. There was judgment in District Court of Burleson county, May 9, 1859, in favor of E. C. Knox and W. F. Grant, for $479.12, against W. W. Hill. March 17,1870, this judgment was affirmed in Supreme Court, with damages, against W. J. Hill, administrator of W. W. Hill, and J. M. Wyett and Charles Covington, his sureties on writ-of-error bond.

Tried below before the Hon. A. Barksdale. March 4,1873, J. W. Lloyd brought suit, in the District Court of Ellis county, for a balance due on a promissory note, against Joseph N. Whittenherg. September 8, 1873, plaintiff'obtained a writ of attachment, on the alleged ground that defendant was “ about to transfer his property, for the purpose of defrauding his creditors.” On same day, the attachment was levied upon lots 3 and 4, in block 18, in town of Waxahachie.

Tried below before the Hon. E. B. Turner. Motion to dismiss. This was an appeal from a judgment removing appellant from the office of county attorney, upon charges in writing, sustained by verdict of a jury, for habitual drunkenness and official misconduct.

Tried below before the Hon. E. B. Turner. This was a proceeding to remove B. Trigg from the office of county attorney of Travis county. The pleadings and testimony will be sufficiently understood by the opinion, in connection with the briefs given. The court charged the jury as follows : “ This proceeding was instituted by filing charges against xhe defendant, charging him with official misconduct and habitual drunkenness.

<p>Appeal from Milam. Tried below before the Hon. Spencer Ford.</p> <p>The facts are given in the opinion.</p>

Tried below before the Hon. J. M. Lindsay. Held: removing all the houses, and cultivating or leasing the field. It seems that two payments were made on the note number 118 by William G. Jones before he left home. His father made the remaining payments, and obtained patent in 1864. Claim was made to the land by the widow, Sarah Jones, in behalf of her daughter and herself.

<p>Appeal from Jack. Tried below before the Hon. A. J. Hood.</p> <p>The opinion gives a full statement of the case.</p>

Error from Hood Tried below before the Hon. J. H. Boach, special judge. The facts are sufficiently given,in the opinion.

Tried below before the Hon. X. B. Saunders. The case was submitted under rule 47, upon an agreed statement, as follows: 1. Plaintiff and S. C. Page were lawfully married February 14, 1829. 2. Joseph Page, the only issue of said marriage, was bom December 29, 1830. 3. A San Jacinto donation certificate for 640 acres of land was issued to said S. C. Page and his heirs December 15,1838, and was located on the land in controversy in 1847. 4.

Error from Lamar. Tried below before the Hon. J. C. Easton. * The writ of error was returnable to the Austin Term, 1876, • and the case being briefed by both parties was submitted at that term.

<p>Appeal from Robertson. Tried below before the Hon. John B. Rector.</p> <p>The facts are very fully stated in the opinion.</p>

Error from Washington. Tried below before the Hon. I. B. McFarland. February 6, 1873, Bussell Adams, of Bobertson county, Texas, brought suit in the District Court of Washington county against the Houston and Texas Central Bailway Company for the value of two bales of bedding and one box sundries, of alleged value of $1,192, shipped on the railroad of defendant at Houston for Brenham.

<p>1. Assessment of town lots. —The lots into which town or city blocks are subdivided, are generally regarded as separate and distinct tracts or parcels of land, as much so as separate and distinct though adjoining surveys or grants in the country; and cacii lot should he separately assessed.</p> <p>2. Lien on real estate for taxes.—The lien given by sections 10-22 of article 12 of the Constitution of 1809, is a charge merely upon each separate tract for the tax assessed against it.</p> <p>3. Same.—A suit to foreclose such tax lien, brought for a gross sum alleged to be assessed against several lots in a block, cannot be O O Q maintained.</p> <p>4. Approved.—Clegg v. The State, 42 Tex., 605, approved.</p>

<p>1. Retaxing costs —Injunction.—An injunction suit, by a defendant in execution, brought against the district clerk and the plaintiff to restrain the collection of an execution for costs, on the alleged illegality of some of the items in the bill of costs, is in effect but a motion to re tax the costs, and should be treated on the hearing as such.</p> <p>2. Same.—It was improper to enjoin items in such costs bill against which there was no complaint.</p> <p>3. Auditor.—It was improper in such case for the court to appoint an auditor to retax the costs. It was the duty of the court, on motion, to retax the costs.</p> <p>4. Damages.—It was error to render judgment, on the dissolution of such injunction, for damages.</p> <p>5. Interest not allowed on costs.—So, also, it was error to render judgment for interest. Costs do not bear interest, and the judgment dissolving the injunction does not alter the relation of the parties.</p>

<p>.Appeal from Bexar. Tried below before the Hon. George H. ifoonan.</p>

<p>Error from Washington. Tried below before the Hon. I. B. McFarland.</p> <p>The facts are given in the opinion.</p>

<p>1. Practice in Supreme Court.—Discussion as to diligence required of plaintiff in error to have citation in error served.</p> <p>2. Same—Waiver.—A motion to dismiss for defective citation in error is a waiver of delay in its issuance, as reason for dismissing the case when the defective citation has been corrected.</p>