Volume 5 — Texas Reports

At the May Term, 184S, of the District Court of tlie county of Henderson a hill of indictment was found against the said defendant for gaming.

<p>Appeal from San Augustine.'</p> <p>Special court composed of Hemphill, Chief Justice, and John E. Cravens and J. M. Ardrey, special judges.</p>

The appellant was indicted under the gambling act. The indictment contained two counts : the first, for permitting a faro bank to be kept and exhibited in his house; the second was for renting a room in his house to certain persons, to the jurors unknown, for the purpose of keeping and exhibiting a faro hank for gaming.

The appellant was convicted of an assault with intent to murder, by presenting a loaded gun, &c. After the trial had commenced, it was discovered that the indictment had not been indorsed “filed.” The court ordered the clerk to make the indorsement, winch was done, and the defendant excepted. The defendant asked the coiu-t to charge the jury that it devolved upon the State to prove that the gun was loaded.

The appellant was convicted’ of playing cards for money at a public place. The indictment charged the offense to have been ■committed in a blacksmith shop, the property of One -Foster S. Young, thfe same then and there being a public place. There was some conflict in the testimony as to the ownership of the shop, and the court instructed the jury that it was necessary for the State to prove it as laid. Cravens, for appellant. The proof does not support the verdict.

This suit was brought by the appellee to recover from the appellant certain lots in the town tract of the town of Seguin. The plaintiff claimed title in his intestate, James Campbell, derived from' the former Government through one Branch, a colonist in tiie colony of De Witt, lo whom I he land had been granted.

<p>'Where territory is.acquired by conquest or cession, in the absence of any order, decree, or law of the new sovereign, and in the absence of any treaty stipulations, individual rights of property remain unchanged. (Note 8.)</p> <p>.In the case of conquest it is undoubtedly in the power of the conquerer to destroy all the rights of the conquered; but in doing so, the most flagrant outrage would be done to the moral sense of the age, and such as would never be presumed to have been perpetrated, in the absence of the most positive and explicit affirmation of its author.</p> <p>■So in the case of a peaceful change of government by the people assembled in convention for the purpose of forming a constitution. It would be in the povVer of such a convention to take away or destroy individual rights; but such an intention would never be presumed; and to give effect to a design so unjust and unreasonable would require the support of the most direct, explicit affirmative declaration of such intent.</p> <p>The majesty of the law was neverdestroyed during the Texas revolution; it was in the people, and it still remained in them under a different modification of the government.</p> <p>‘The term revolution, when used in reference to governments, has a positive and a qualified meaning; when employed in the former, it supposes a radical change of the whole system and structure of the government; when in the latter, it conveys the idea of a modification only. The revolution of Texas was clearly of the latter description. As a seceding part of the Mexican Confederacy, she was not left without laws made by herself, nor without proper officers for administering them; the laws of Mexico were her laws, and she was under the most sacred obligation to defend and support her own laws and to protect her •own citizens.</p> <p>The first section of the schedule in the Constitution of the Republic continued in full force-all laws in force before the separation from the Mexican Confederacy which were not. inconsistent with that Constitution.</p> <p>Taking the first section of the schedule of the Constitution of the Republic with the tenth section of the General Provisions, it would seem that tlie convention did not intend to-destroyany rights or tides, except those enumerated and specially named. Those two sections virtually confirm all other titles that were consummated at the date of the revolution.</p> <p>We ha7e uniformly decided that in case of imperfect titles, to give them a .standing in court,, required the action of the political authority; but if consummated before the change of the government and owned, by a citizen of the Republic, they were valid without any act of the political authority, and have standing, in propria vigore, in a court of law.</p> <p>The organization of the Indian missions and tnq.character of their grants of land examined at length, and the conclusion arrived at that fjjie Indians were [35] merely tenants at will; that their rights could neither he alienated nor transmitted by inheritance, and that after* the extinguishment of the missions, the lands became a part of the appropriable public-domain. t</p> <p>All lands sold under laws 15 and 19, title 12 book 4 of the New Recopolacion, were only in composition, and the purchasers were merely tenants at will. (Note 9.)</p> <p>I think it may well be doubted whether large grants of pasture land were ever authorized in any case by the laws of Spain. Lipscomb, J.</p> <p>Note 8. — Hardy v. De Leon, post, 211; Kilpatrick v. Cisneros, 23 T., 113.</p> <p>Note 9. — See Trevino v. Fernandez, 13 T., 630, for the discussion of the legal effect of composition grants.</p>

Error from Port Bend. Suit was brought by George against Hill to recover the sum of $2,000 and damages for its detention. The petition charged that on the sixth day of January, 1837, Pattersou and Henson executed a promissory note to the defendant for $2,000, duo on the first day of January, 1838; that Hill, afterwards, on the 8lh day of July, 1837, indorsed it to George for a valuable consideration.

<p>Note 12. — Mims v. Mitchell, 1 T., 443; Jones v. Black, 1 T., 527; Elliott v, Mitchell, 28 T., 105; Wheeler v. Styles, 28 T., 240.</p> <p>Note 13. — McMahan v. Rice, 1G T., 335.</p> <p>Note 14. — Stephens v. Sherrod, 6 T., 294; Mead v. Randolph, 8 T., 191; Horne v. Puckett, 22 T., 201; Huffier v. Womack, 30 T., 332; Boutright v. Peck, 33 T., 68; Beale v. Ryan, 40 T., 390; Gibbs v. Penny, 43 T., 500.</p> <p>Note 16. — Briscoe v. Bronaugh, 1 T., 326; Edrington v. Kiger, 4 T., 89; Cummins v. Rice, 19 T., 225; Patton v. Gregory, 21 T., 513; Montgomery v. Culton, 23 T., 156: Baldridge v. Gordon, 24 T., 288. Where it is not a case of conflict but of entire deficiency of evidence, a new trial ought to be grauted. (Rowe v. Collier, 25 T. Supp., 252; Moore v. Anderson, 30 T., 224.)</p>

Error from San Augustine. On the 16th clay of August, 1S41, Isaac Campbell filed his petition, and obtained an injunction against a judgment recovered against him and Thomas Garner by Alexander Horton, as administrator, Upon obtaining said injunction Campbell entered into bond with the plaintiffs in error as his sureties, payable to the defendant in error in the sum of one thousand three hundred dollars, conditioned, ‘‘that if the said Isaac Campbell shall prosecute his suit…

■ Error from Wharton. This suit, was instituted in August, 1847, upon a note of hand executed in the Slate of Alabama, and which fell due in the month of March, 1842.

This suit was brought by the appellees against the appellant upon a promissory note made by the latter for the payment to Enoch and William Grigsby of $1,000, find by them indorsed to the appellee, Theresa A., wife of Moses Thomason. The defendant pleaded in abatement a former action pending between the same parties for the same cause of action, and at the same time answered to the merits.

The appellee sued the appellants and Travis G. Broocks to recover damages for the loss and injury alleged to have been sustained by him in consequence of the carelessness and negligence of the appellants in (he transportation of cotton of which they, as common carriers, had undertaken (he transportation, for tiie plaintiff. The plaintiff claimed one thousand dollars damages.

E n'or from Houston. This suit was brought by the defendant in error against tho plaintiff in error as the. maker and one James Burton as the indorser of a promissory note. There did not appear to have been any service upon James Burton, nor did there appear from the record to have been any flual disposition of the case as to him. The defendant, John J. Burton, appeared and confessed judgment, with a stay of execution, and subsequently prosecuted this writ of error.

?. Tho appellee sued the appellant in the District Court to recover damages for tho fraudulent sale of a location or the right of location upon a tract of laud.

Error from Washington. The defendant in error brought suit against the plaintiffs in error upon a promissory note made by tho latter, payable to James It. Jenkins or hearer, upon which Jenkins by a special indorsement had guaranteed the solvency of the makers. The defendants answered by exceptions to the petition, a plea of failure of consideration, and a general denial.

The petition represents that William and Elizabeth L. Hollis, his wife, are indebted to the petitioner in tho sum of one hundred and eighty-fonr dollars and fifty cents, with interest at the rate of ten per cent, per annum from the 13 th of March, 1847; that the said William, having occasion to purchase goods, wares, and merchandise for tile use of his fatuity and plantation in 1840, applied to the petitioner to malte the said purchases, and proposed that his wife, the said…

The appellant’s intestate, brought suit against the appellee and one Edward Bailey upon a promissory note made by the appellee and said Bailey, and indorsed to the plaintiff, which note is as follows : “Washington, 8th January, 1840. “Twelve months after date we or either of us promise to pay John A. Merle & Co., at their office in the city of Hew Orleans, six thousand and twenty-eight dollars seventj'-iive cents, with interest at the rate of ten per cent, per annum from the…

The petition stated that Elizabeth L. Hollis,, the wife of William Hoilis, was on the first day of November, 1845, ostensibly the owner of a number of negro slaves in the possession of the said William, which slaves were held by John G. Love, as trustee for tho, said Elizabeth, hut were in truth and fact, as the petitioners believed, the bona fide property of tho said William.

This suit was brought by the appellee oil a promissory note made by the appellant for the payment to the order of one G. Martel of twenty-four hundred and fifty dollars, and by said G. Martel indorsed to the plaintiff. The suit was brought to the Fall Term, 1847, and was at that ■term continued by operation of law. At the Spring Term, 1848, it was continued, on the affidavit of the defendant, for tlie alleged want of testimony material to his defense.

This suit was brought on the 22d day of June, 1844, ■by Fernando De Leon, as guardian of Francisco Santiago De Leon and next friend of Martin De Leon and Francisco De Leon, infant children and heirs of Sylvester De Leon, against the appellant Hardy, to recover the possession of •a league of land.

<p>Appeal from Bowie.</p>

Error from San Augustine. In this case the plaintiff in error filed his petition in the court below on the 17th of May, 1843. On the 27th of September, 1844, the defendant Young appeared by attorney and filed an answer, a part of which was an informal plea of set-off for the labor or services of a negro man slave.

The appellant brought suit to recover possession of a certain tract of land and damages for being ejected from the same. She claimed the premises in question by virtue of a location of her unconditional headright for six hundred and forty acres. The defendant Lane set up title in a codefendant by virtue of Ills headright and a location thereof prior to the location of the plaintiff.

Error from .San Augustine. In this case suit was brought by the defendant in error against the plaintiff in error on a.note payable at the house of a commercial firm in the city of New Orleans, in the State of Louisiana.

<p>Appeal from Cass.</p>

<p>A bond taken by an officer of court, by authority oC law, and required to be returned into court, when so returned anrl placed upon the files of the court, is an obligation of record; is, in effect, a recognizance, and will support a scire facias.</p> <p>A statutory bond, to be valid as such, must strictly conform, in every essential particular, to the statute. Therefore, when the statute required the bond to be payable to the State, and it was taken payable to the Governor, the bond was held to be invalid. (Note 49.)</p> <p>Note 49. — Warren v. The State, 21 T,, 510; Patton v. The State, 35 T., 92.</p>

<p>Error from Red River. Scire facias on a bond taken before a justice of the peace to keep the peace and to appear at the next term of the District Court to answer a charge of assault and battery. The bond was taken before annexation, in the name of Anson Jones, President of ihe Republic. The appellants were sureties on the bond. At the next term of the court, indictment being found against the principal and he failing to appear, an entry was made declaring the bond “forfeited,” and ordering a scire facias against the principal and his sureties on the bond. At a subsequent term of the court, the defendants, having been served with the scire facias, failing to appear and answer, judg-meat final by default was rendered against them for the amount of the bond ■without the intervention of a jury. The judgment recited that the bond had been taken before E. W., sheriff, &c. The sureties prosecuted this writ of error.</p> <p>argued that the entry of the “ forfeiture” of the bond was not sufficient { that there should have been a formal entry of judgment that the State have and recover from the defendants (naming- them) the amount specified in the bond, (naming it,) unless they shall appear at the next term, &c.</p> <p>II. There is no such bond set out in the record as the one on which the judgment purports to have been rendered. The bond purports to have been taken before one E. IV., a justice of the peace. The judgment purports to be on a bond taken before one E. IV., sheriff, &c.</p> <p>III. The bond contained two conditions : one to appear at court, the other to keep the peace. The penalty was to secure the performance of both conditions; and unless botli conditions had been broken, judgment could not have been rendered for the whole penalty. IVhat part of the penalty was intended to secure the performance of the first condition, or what the second? Tins is uncertain, and the bond is therefore void; at least a breach ought to have been assigned, and a jury called to assess the damages.</p> <p>IY. The bond was payable to Anson Jones, President of the Republic of Texas and his successor in office, and cannot be enforced at the suit of the State which is not the successor of Jones.</p> <p>I. It was not necessary for the judgment nisi to set out specifically the names of ilie parties to the bond or the amount of the penalty. The bond being a part of the record, it was sufficient to refer to it. The scire facias disclosed fully the proceedings upon which it was founded.</p> <p>II. The second assignment of error proceeds upon a mistake as to the record. The final judgment is rendered in favor of the State, and recites merely the fact that the bond was taken “before E. IV., sheriff,” &c.</p> <p>III. The bond is good, and the proceedings upon it regular.</p> <p>IY. The bond beiug made payable to Anson Jones, President, &c., the suit is well brought in the name of the State of Texas. This is a penal action, and comes within the provision of the second section of the thirteenth article of the State Constitution.</p>

<p>It is not erroneous to render judgment in the aggregate for the debt and interest due at the time.</p> <p>Ministerial acts of the officers of the court subsequent to the rendition of judgment cannot be assigned as error.</p>

<p>Error from Harris. The defendant in error filed his petition in the District Court against the plaintiff in error, administrator of Berry, and against Weir, Hoth, and Banks. He alleged that he had a claim against the estate of Berry, founded on an instrument in writing, in the words following: “State of Mississippi, Adams county: Know all men by these presents that I, Anderson M. Berry, am held and firmly bound to Dr. Joliu L. Bryan in the smr of six thousand dollars, to the which payment, well and truly to be made, I bind myself, my heirs, executors, and administrators, firmly by these presents. Entered into in the town of Natchez, in the county and State aforesaid, this 16th day of February, A. D. 1837. The condition of the above obligation is such that whereas I have purchased and am now owner of head right claims to five Spanish leagues of land, purchased of claimants, in Col. John Seguin’s company, which are entitled by the laws of the Republic of Texas to be entered in said Republic within the first six months after opening the land office in said Republic, and have this day sold unto the said John L. Bryan one-half the said five leagues of land thus to be entered for the sum of two thousand five hundred dollars, to mo in hand paid at and before signing of these presents, the receipt whereof is hereby acknowledged, I now hereby bind myself to have located, in as judicious and advantageous a manner in Texas as I should do for my own private benefit, within six months after the opening of the land office in said Republic, lo secure the Government title papers, and to make a deed or deeds for the aforesaid one-half of Che said five Spanish leagues of land, to him, the said John L. Bryan, his heirs and assigns, free and clear of any further charge or expense therefor; then this obligation to he null and void; otherwise to remain in full force and virtue.</p> <p>“In witness I hereunto set my hand and seal the day and date above.</p> <p>A. M. Berby.” [Seal.]</p> <p>The plaintiff alleged that the conditions of this bond had never been complied with or performed, and that the same remained unsatisfied; that Berry departed this life in August, 1844; that one John Shackelford, jr., had been duly appointed his administrator by the Probate Court of Harris county; that petitioner had within the time prescribed by law presented the said bond to the said administrator, who had acknowledged in writing on the same that it was unsatisfied ; that- Shackelford had subsequently, and before closing the administration, resigned, and .the defendant Dobbin had been appointed by the said court administrator de bonis non of said estate; that Dobbin refused tc acknowledge the acts of his predecessor and denied plaintiff’s claim, and had fraudulently combined with Weir, Hoth, and Banks to defraud the creditors of the estate of his intestate, and had fraudulently obtained an order of sale, and by falsely and fraudulently misrepresenting the title and value of the land prevented any other person from bidding but his own confederates; that they at this fraudulent sale had become the purchasers of the land and slaves belonging to the succession, and that the said sale was so fraudulently made to these purchasers at prices greatly below the real value of the property; that the securities of Dobbin were worth but little, and not able to answer in damages for his maladministration. He prays that Dobbin be enjoined from making title to the property so sold, and that his confederates, the purchasers, be enjoined from selling or conveying any of the said property; that the sale be annulled and set aside, aud that the claim be allowed by the administrator and the land be decreed to be conveyed to him, and damages for the long detention anc loss. The injunction prayed for was granted.</p> <p>Dobbin demurred to the petition for want of jurisdiction in the court of the subject-matter, as it belonged to the Probate Court. He answered, denying all fraud, and asserting that the sale was fairly conducted; and he set up the statute of limitations against the claim on which the petition was founded,</p> <p>Weir and Hoth answered, denying all fraud and combination, and alleging that they had become the purchasers fairly and at fair prices.</p> <p>Banks answered, denying ail fraud and combination with the other defendants, and denying that he had been a purchaser or in any way concerned in the sale.</p> <p>A jury was waived and tbe canse submitted to tbe decision of the judge on tbe bill, answers, exhibits, and evidence. The allegations contained in tiie petition, of improper means used by Dobbin, Weir, and Hotli to prevent competition and other bidders than Weir and Hotli, were fully sustained by the evidence. Tbe judge decreed that the sales should be annulled and set aside; that the injunction should be perpetuated as to Dobbin, Weir, and Iloth and dismissed as to Banks; that tiie claim of the petitioner for twenty-five hundred dollars, tiie purchase-money, with ñve per cent, interest from the time the money was advanced, should be allowed to the petitioner against the estate of tbe intestate, to be paid in the due course of the administration.</p> <p>The administrator Dobbin prosecuted this writ of error.</p> <p>I. The petition is multifarious. (1 Dan. Chan. Prac., 432; Story 35q. PI., 530-540; 3 Mylne & C. R., 85; 1 Id., 003; Litt. Sel. Cas., 320; 2 Bibb. Tí., 314; 8 Pet. It., 123; 1 Johns. Ch. R., 349, 437, 000; 0 Id., 103; 0 Da. It., ISO; 5 Cow. It., 80 ; 3 How., IT. S. R., 412; 2 Id., 019, 642 ; 2 Mass. R., 181; 1 Madd. R., 294.)</p> <p>II. Tiie petitioner cannot maintain any action upon the bond. Where limitation precludes damages equity will not decree specific performance. (Allen v. Beal’s Heirs, 3 Marsh R., 555 ; 2 J. J. Marsh R., 107, 178.)</p> <p>The land office was opened in August, 1838. An acknowledgment by an administrator cannot take a claim out of the statute of limitations. 'Ang. Dim., 293, 294; 1 Poth. Obi., 413, 414.)</p> <p>III. The Probate Court was a court of competent jurisdiction, and its jurisdiction over the estate, had attached. The subject-matter of tbe present suit was res judicata at tiie filing of the petition, and could not be affected by a collateral proceeding. (Denison v. Ingram, Dallam, 519; Sutherland v. De Leon, 1 Tex. R., 250; Lube Eq. PI., 115, notes.)</p> <p>The cause of action sued on below is barred by the statute of limitations. It accrued 1st August, 1838. Tiie intestate who executed the instrument sued on died 30th of August, 1844. It was first presented to his administrator 23d January, 1845, and suit not filed tili 31st January, 1840. It is barred by l lie 1st section of the statute. (Acts of 1841, p. 63.) That section is peremptory and clear in its language, and applies 1 o all contracts, whether made prior or subsequent to its passage. (Ross v. Duval, 13 Pet. R., 64; 6 La. R., 074; 11 Id., 60; Gautier v. Franklin, 1 Tex. R., 732.)</p> <p>An arithmetical calculation shows in this case that nearly one-sixth of the time required by the old law had elapsed before its repeal, which, being deducted from four years from the passage of the new act, bars the claim four months before the death of the intestate.</p> <p>The pretended acknowledgment of the administrator cannot take the case out of the statute, even if the acknowledgment were a good one, which we deny. He is not the person to be charged thereby, (Acts of 1841, p. 163, sec. 12.) and the courts are bound officially to protect the defenses of intestates in this respect. (Id., see. 7.)</p> <p>I. If the view which I have taken of this portion of the decree (that the sale was fraudulent and void) be correct, then there remains only to inquire whether that portion of it which establishes the claim of John L. Bryan as a valid, subsisting claim against the estate of Berry is in conformity with law and the facts of the case or not. This branch of the inquiry involves two questions : 1st, Was the claim of Bryan a legal and subsisting one against the estate of Berry? 2d, Did the District Court have jurisdiction of the subject-matter as presented by the petition ?</p> <p>The answer of Dobbin denies that Bryan held any legal claim against the estate. The testimony shows that on the lGth day of February, 1837, Bryan advanced to Berry, in cash, the sum of twenty-five hundred dollars; that Berry then executed to him his bond, by which he bound himself in the penalty of six thousand dollars to obtain the Government titles to two and a half leagues of land and convey them to him, Bryan, by deed, within six months after the opening of the land office; that Berry died on the 30th of August, 1S44, and that this bond was presented to his administrator, Shackel-ford, on the, 23d of January, 1S45, who made an indorsement on the bade of it in the following words: “This instrument presented and acknowledged to be still unsatisfied by A. M. Berry or the estate, since iris death.”</p> <p>It is urged, however, in opposition to the legality of this claim, that it was barred by the statute of limitations previous to its being presented to Shackel-ford, the administrator, and that therefore the acknowledgment of the administrator was illegal and void. The. obligee of the bond hacl no right to demand of the obligor the performance of the condition until the expiration of six months after the land office was opened. It is a historical fact which this court will notice, and of which the public archives of the nation furnish the most ample evidence, that the land office was not practically open six months for the issuing of patents until some lime in the year 1844. The operation of the 39th section of the land law of 1837, (p. 75,) which required the land offices to he opened in February, 1838, so far as the same related to the issuing of titles by the Commissioner of the General Land Office, was suspended by the order of President Houston, ami remained suspended under the renewed order of President Lamar, until the passage of the act of 1840, “to detect fraudulent land certificates and to provide for issuing patents to legal claimants,” (vol. 4, p. 139.) The 5th section of this act prohibited the commissioner from issuing patents upon any certificate unless t.lio same was reported by the board appointed under it as legal and genuine; and consequently no patent could issue until those boards had made their reports. Some of these reports were not made until a very [2§3] short time before the invasion of Vasqucz in the spring of 1842; immediately after which the land office was closed by proclamation, and remained closed' until the return of the commissioner to the seat of Government in 1844. (See President Houston’s Message, May 6, 1838, pamph., p. 23; President Lamar’s Message, November, 1S39; Certificate of Commissioner of General Land Office.) So that at no time from the execution of the bond by Berry until the year 1844 did he have the six months allowed him in the bond to procure the titles; and consequently at no time previous to 1844 could Bryan have sued him and recovered for a breach of his covenant.</p> <p>But suppose it he conceded that the General Land Office was opened for the issuing of patents within the meaning of the parties to this contract upon the reception of the first report made by the board of travelling commissioners: still this claim was not barred when presented. The first report was not made until the 1st of June, 1840. Six months from that time would have brought it to the 1st of December, 1840, when Bryan might have demanded a performance of the condition of the bond. The record shows that Berry died the 30th of August, 1844, in less than four years from the time that Bryan’s right of action accrued. So that if tiro statute commenced running from the time the right of action did accrue, still the claim was not barred at the death of Berry, and consequent^ was not barred when presented to the administrator a few months afterwards. But it will hardly be contended that the statute commenced running in this case before the passage of the act of limitations on the 5th of February, 1841. At the time the right of action in this case accrued there was no statute of limitations in the country to commence running. It therefore does not come within the rule or reason of the rule laid down'by this court in the case of Gautier v. Franklin. In that case the statute had commenced to run on both notes before the repeal of the old law, and the subsequent repeal was construed not to stop it.</p> <p>II. As to the jurisdiction of the court. The District Courts of this State have as full and ample equity jurisdiction as the courts of chancery in England. The three principal subjects out of which that jurisdiction arises, either here or there, are fraud, mistake, and trust. (1 Story Eq., pp. 67, 194, 195; Massie v. Watts, 6 Or. It., 148, 158.) In this case the petition presented a most glaring and flagitious fraud, against which it was impossible for the party to obtain a remedy except in a court of equity. (1 Story Eq., pp. 197, 198.) The whole record shows that no remedy was to be expected or could be obtained in tile Court of Probate, and that fact alone gave jurisdiction to the Di. trift Court as a court of equity. Besides, Dobbin, the administrator, refused, as 1 lis answer shows, to receive or admit the claim of Bryan as a subsisting one against the estate of Berry. He was therefore compelled to resort to t suit in the District Court to establish it, and that court, having thus acquired juris’lotion over the subject, had a right to decide every question arising in the case between the parties. (Probate Law 1840, p. 116, sec. 19.)</p>

Gardiner, on the 25th March, 1845, obtained a judgment before a justice of the peace against Peter V. Shaw on a promissory note. Shaw appealed to the Pall Term of tlie District Court and entered into a bond, with Joseph Shaw as his security, on the appeal. Gardiner died on the 12tli June, 1845, having made his will, appointing Weaver liis executor, and James Mayiield, esq., an attorney at law, his legal adviser.

Error from Do Witt. Suit by the appellants for the recovery of a tract of land claimed to be the separate property of the wife. The title of the wife originally was admitted, and the point to be determined was whether the title had passed out of the wife into the appellee. The land formed a portion of' one-half of a league, one quarter of which had been sold by the appellants to the appellee.

Error from Bowie. The defendants in error brought suit on the 4th day of January, 1845, to recover of the plaintiff in error a family of negroes, consisting-of the mother and six children. The plaintiffs claimed as legatees under the will of Richard Thurmond.

The appellant brought this suit against the appellees as sureties on an administration houcl given by one Van Ness, in the penalty of five thousand dollars, conditioned for the faithful discharge of the duties of administrator of the estate of one Zembrano. The bond bore date the 8th day of March, 1838.

Error from Travis. Certain certificates of stock of the funded debt of the 'State held by Frederick Dawson had been levied on by an execution that liad ■issued on a judgment and decree of the court against him at the suit of McKinney & Williams, and had been sold by the sheriff of Galveston county; at which sale Menard, the plaintiff in error, had become the purchaser, and the sheriff had transferred the certificates to him.

The appellant, who was plaintiff in the court below, -alleged in his petition that he placed his headlight certificate in the hands of •one Cherry, a deputy surveyor, and directed it to he surveyed on land designated by him on which he liad made extensive improvements, which land was ■vacant and unappropriated before Ills loeation„and improvements; that it was •surveyed by the said Cherry, and the field-notes of the survey properly made, ■hut the surveyor refused to…

This suit -ivas brought in the names of the appellees as copartners, trading- as merchants, for the use and benefit of Josiah L. Doak, one of the said copartners.

Error from Galveston. This suit was brought by the plaintiffs in error against the defendant in error on the 28th day of November, 1846, upon two-bills of exchange, drawn by the defendant in favor of the plaintiffs on the firm of “Bhea, Sykes & Co., Mobile, Alabama,” and by them accepted; one for the sum of $1,090, dated Mobile, March 10th, and the other for the sum of' $1,049.27, dated at Mobile, March loth, 1845, payable twelve months after date.

Error from Fayette. This was a trial of the right of property under the statute, and the question for determination is whether the slave levied on is the property of the husband or of the community, or a portion of the separate estate of the wife, and as such not liable for the debts of the husband.

Appoal from Cass. The appellant filed his petition hi this ease in the.

Tiie appellant brought suit against Eeed, Menard, and Butler. lu his petition he alleged that he had brought a suit against Eeed iu Harris District Court, returnable to the next term of that court, for fraudulent negligence in not having collected a debt owned by plaintiff' against one Richardson, which debt was placed in the bands of Eeed for collection; that Menard is indebted to Eeed, which indebtedness has been secured by a certain ■conveyance made by Menard to Butler;…

Error from Colorado. This suit was brought by Williams against Henry McNeil and Angus McNeil. Among other causes of action in the petition alleged was an account stated and acknowledged, which was appended to the petition and expressly referred to. The citation was served on Angus McNeil, and returned “not found” as to the other defendant, Henry McNeil. The defendant Angus McNeill set up the statute of limitation of two years as-a bar to the action.

This suit was brought by the State to recover a penalty of five hundred dollars from the defendant for his refusal to return for assessment and taxation corn and cotton owned by him on the 1st ■day of January, 1848. The defense set up by the defendant was that the corn ■and cotton were the produce of his plantation for the year preceding. The court sustained the defense, and the State appealed.

Error from San Augustine. This suit was brought against the plaintiffs in error as non-residents. An attachment was prayed for and issued. The petition was sworn to, but there was no separate affidavit. The defendants appeared by counsel and moved the court to quash the attachment for want of a sufficient affidavit; which motion was overruled. They then pleaded several matters of defense, and among others a plea of set-off. 'Hiere was a verdict and judgment for the plaintiff.

Error from Sail Augustine. In this ease the defendant, in error sued the plaintiff in error as the administrator of one Smith.

The appellant, who was plaintiff in the court below, alleged that the deceased intestate, being indebted to one James Elkins in the sum of three hundred and fifteen dollars, requested plaintiff to pay the same to said Elkins and she would refund the same to plaintiff on request ; that about the 1st day of December, 1S47, lie paid the said Elkins the said sum of money; that in January, 1S48, the said Ann Mclver died intestate and ttie defendant was appointed iier…

This was a trial of the right to certain property levied on hy virtue of an execution in favor of the appellee against Robert A. Lott, the husband of the appellant. The sheriff made return upon the execution of a levy on certain cattle “ on the premises of Robert A. Lott.” The appellant claimed the property and gave bond for the trial of the right of property. At the trial the court ruled that the burden of proof was on the claimant.

Error from Nacogdoches. James Smith, one of the appellants, brought suit In 1S4I to establish a headright certificate as assignee of Francisco Valmora.

<p>The act of May 9, 1838, providing for the removal of county seats of justice, is still in force* and the place and mode of holding elections under it are the place and mode established by law for the election of members of the Legislature.</p>

The petition was filed on the 21st of December, 1S38, and the relief originally sought was an injunction to restrain -the Com-•anissioner of the General Land Office from executing patents to two leagues ot land, one of which the petition alleged to have been surveyed for one Samuel Parr, at the western extreme of land called Point Bolivar, by virtue of a certificate obtained by the said Parr from the board of land commissioners for the •county of Liberty, and the other,…

<p>Appeal from Harris. On the 4th day of August, 184-7, the appellee filed his petition in the District Court praying for a mandamus to compel the appellant, who was clerk of that court, to issue an execution upon a judgment rendered in the same court at its Spring Term, 1839, in favor of the appellee’s intestate. 'The petition recited the judgment and alleged that an appeal was taken from it to the Supreme -Court; that on the 14th day of April, 1847, the Supreme Court dismissed the appeal, leaving the judgment of the District Court in full force, and that the clerk refused to issue execution, concluding with a prayer for a mandamus.</p> <p>In answer to the petition the clerk exhibited two mandates of the Supreme ■Court, the first bearing date on the 15th of July, 1S44, and the second on the 2Gth of May, 1847; the first in obedience to a judgment of the court rendered on the 23d of January, 1840, and the second upon a judgment rendered on the 14th day of April, 1847. The first stated that the cause came on to be heard, and that “it appearing to the court that the facts in the case are not stated in a manner sufficiently full and clear to enable this court to give judgment, it is ■ordered and adjudged that the said cause be, and the same is hereby, remanded to the District Court of the county of Harrisburg (now county of Harris) in order -that the facts may be fully and clearly established and set forth.” The second mandate stated that “this cause coming on to be heard on the trans-cript of the record of the court below, and the same being considered upon the motion of counsel for appellee to dismiss, it is ordered, adjudged, and -decreed that the appeal be dismissed from the docket, having been improperly .placed on the same. The appellee having filed the record in this court, it is ■further ordered that he pay all costs,” &c. By reason of these mandates the •clerk alleged that the plaintiff was not entitled to have execution upon the .judgment. The plaintiff excepted to the answer. The exceptions were overruled. There was trial upon other issues which resulted in favor of the plaintiff, a peremptory mandamus was awarded, and the clerk prosecuted this writ of error.</p>

The appellant filed, his petition in the District Court, praying for a mandamus to compel the assessor and collector of Galveston county to receive, in payment of taxes for the year 1847, two certificates— one issued under a joint resolution of the Congress of the Republic of Texas, approved on the IGth of January, 1843, making the certificates issued agreeably to its provisions, of which the present is one, receivable for all dues to the Government; the other issued under a…

<p>Appeal from Galveston. This suit was instituted before a justice of the peace in the name of Marston, the appellee, for the use of the mayor, aldermen, and inhabitants of the city of Galveston, to recover certain sums of money from the appellant, captain of the steamer Palmetto, for his non-compliance with the following ordinance of the said corporation:</p> <p>“ Section 1st. Be it ordained by the mayor and aldermen of the city of Galveston in council convened, That from and after the passage of this ordinance all masters, owners, or clerks of any ship, steamboat, or other vessel arriving at tho port of Galveston from any port beyond the limits of the State of Texas shall, within twenty-four hours after the arrival of such ship, steamboat, or other vessel, pay to flic city collector the sum of one dollar for each and every cahin, steerage, or dock passenger over the age of fifteen years.</p> <p>Section 2d. Be it further ordained, Thatthe master, owner, or clerk of any ship, steamboat, or other vessel arriving in this port from any port beyond the limits of the State of Texas shall, within twenty-four hours after such arrival, deposit in the mayor’s office a true list, verified tinder oath, of all passengers arriving oil board of such ship, steamboat, or other vessel.</p> <p>“Section 3d. Be it further ordained, That if any master, owner, or clerk of any ship, steamboat, or other vessel, or persons having charge of the same, arriving at this port from any port beyond the limits of the State of Texas shall refuse or neglect to comply with the foregoing provisions of this ordinance, he or they shall upon conviction be liable to a fine of not less than ten dollars nor more than one hundred dollars, to be recovered before any court having’ jurisdiction of the same.</p> <p>“ Section 4th. Be it further ordained, That all moneys collected under the provisions of this ordinance shall be, and the same are hereby, appropriated solely and exclusively to the use and benefit of the city hospital, and for no other purpose whatever.”</p> <p>The action was brought for the tax under the first and for the fine under the third section of the above ordinance. The voyage was from the port of New Orleans, in the State of Louisiana, and the defendant failed and refused upon his arrival at Galveston to furnish said list as required or to pay the tax of one dollar per passenger.</p> <p>The defendant excepted to the proceeding in the court of the justice of the peace. The exception being overruled, judgment was rendered against him, from which he appealed to the District Court. In the District Court he demurred and assigned the following causes of demurrer:</p> <p>1st. That Daniel Marston had no right under the charter of the corporation of the city of Galveston to bring the suit.</p> <p>2d. That the writ and judgment of the court below showed a misjoinder of actions upon which no valid judgment could be rendered or suit maintained.</p> <p>3d. That the Congress of the Eepublie of Texas, under the Constitution of the said Republic, could not delegate to the corporation of the city of Galveston to pass by-laws or ordinances touching the regulation of commerce or the levy of a hospital tax, and that so much of the charter of said corporation as gives them power and annexes a penalty for non-compliance is unconstitutional and void. .</p> <p>4th. That the right given under the charter applies only to passengers coming from a foreign port and not from ports in the United States.</p> <p>The District Conrt overruled the defendant’s demurrer, and, a jury being waived by the parties, the court gave judgment in favor of the plaintiff against the defendant for the sum of seventy-one dollars, both tax and fine, with all costs about this suit expended. The defendant appealed and assigned the same grounds of error which lie had taken in support of his demurrer in the court below, with this addilional one: that the ordinance of the corporation imposing the tax on passengers was in violation of the Constitution of the United States.</p> <p>T. The appellee had no right, under the charter of the corporation of the city of Galveston, to bring the suit. (1 Bl. Com., 475 ; 2 Kent Com., 268; Acts of 1840, p. 26G, sec. 1.)</p> <p>IT. The writ and judgment of the court below showed a misjoinder of actions, upon which no valid judgment could be rendered or suit maintained. (1 Chit. PI., 231, 23G.)</p> <p>III. The Congress of the Republic of Texas, under the Constitution of said Republic, could not delegate to the corporation of the oily of Galveslon the power to pass by-laws or ordinances touching the regulation of commerce or the levy of a hospilal tax, and so much of (.lie charter as gives this power and annexes a penalty for non-compliance is unconstitutional and void. For charter, see acts of 1S40, p. 26G; Id.. 1S44, p. 87; Id., 1845, p. 67. The Constitution of the Republic gave Congress the same power to regulate commerce, &c., as is granted by the Constitution of the United States to their Congress. (Gibbous v. Ogden, 0 Wheat. B., 1; Broom v. The State of Maryland, 12 Wheat., 419; City of New York v. Miln, 11 Pet. B., 102.)</p> <p>IY. The right given under the charter applies only to passengers coming from foreign ports and not from ports in the United States. (Buckner v. Pin-ley & Vaii"Lear, 2 Pet. B., 5S6.) New Orleans is not a foreign port.</p> <p>V. The imposition of the tax, and the other requirements of the ordinance, being merely auxiliary thereto, conflict with the Constitution of the United States. (Smith v. Turner, and Norris v. The City of Boston, decided by the Supreme Court of the United States at the December Term, 1848.)</p>

Latimer sued Titus in a Justice’s Court and obtained judgment. Titus appealed to the District Court. On motion of Latimer the appeal was dismissed upon the ground that the District Courts had no jurisdiction of appeals from Justices’ Courts.

<p>Appeal from San Augustine.</p>

This suit was brought by the appellant against the appellees for the recovery of land.

<p>Appeal from Fannin. This action was instituted by the appellee as the administrator of one James Garland, deceased, to recover of the appellant certaiu negro slaves alleged to belong to the succession of the said deceased.</p> <p>The intestate departed this life in the month of May, 1835. The laws of Arkansas appear from the evidence, at least by inference, to have been enforced at that time in that portion of the now State of Texas, and the negroes were inventoried in a court having jurisdiction under those laws as the property of the deceased Garland. This was in 1837. After Garland’s death his widow married one Clift, and the slaves remained in their possession until the death of Clift. She then married William Heath, and the negroes remained in their possession. There was no issue of either of the marriages.</p> <p>There was offered in evidence a bill of sale of the slaves executed by the said .Heath to the appellant. Two of the negroes were afterwards returned to Heath in part payment oí the purchase-money. The defendant also proved that Heath and his wife executed a conveyance to Samuel IX. Fulton, the appellee, on the 16th of July, 1842, of the slaves in controversy, or of their interest in Garland’s estate.</p> <p>The appellee obtained letters of administration on the estate of Garland, at the Probate Court of Fannin county, in November Term, 1842.</p> <p>The petition was filed on the 1st of February, 1843, and prayed judgment that the defendant be decreed to deliver the slaves or damages for their value and detention.</p> <p>The jury found that the defendant should deliver to the plaintiff certain slaves named in the verdict, and on refusal to do so on demand they found for the plaintiff the sum of sixteen hundred and fjfty dollars and interest from the 25th of February, 1843; upon which judgment was entered at the Spring Term, 1845.</p>

<p>j&eld, That empresarios, Perry and Williams, were entitled to premium lands for the number of colonists received and admitted as such before the closing of the land offices, disregarding as immaterial the inquiry who introduced them into the country or at whose expense.</p> <p>Documents authenticated in the manner required by law for the authorization of papers emanating from the Executive Department of Coahuila and Texas, and emanating from thence prior to the Revolution, are admissible in evidence without further proof.</p> <p>-Certain testimony held sufficient to establish a register of the colonists admitted in Perry and Williams’s colony.</p> <p>-It is not admissible to object to the whole of defendant’s or plaintiff’s evidence in general terms unless every particle of it be incompetent or irrelevant. The rule in taking an exception to evidence is that it must be so specific as to point to the precise error intended to be relied on, except, perhaps, where the evidence offered and objected to consists of matters of record. (Note 82.)</p> <p>Note 82. — Bailey v. Knight, 8 T., 58: Cheatham v. Riddle, 8 T., 162; Hubert v. Bartlett. 9 T., rH7; Croft v. Rains, 10 T., 620; Ryan v. Jackson, 11 T., 391; Tucker v. Willis, 24 T., 247; Burleson >v. Hancock, 28 T„ 81.</p>

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

This was a proceeding* instituted by the appel-lee in the District Court of Travis comity to compel the Commissioner of the General Land Office to issue to tiie petitioner patents to certain lands claimed by him in the county of Refugio.

The appellee filed his final account, and published notice in the*nsual form that at the next term of the Probate Court lie would move its confirmation and for his discharge.

Sait by the appellee for the value of work and labor done by him for the appellant in setting sugar-kettles; answer denying all and singular, &c., payment, set-off; and ¡iSfeo: “ And for farther plea iu this behalf this defendant says that the worlc and labor in plaintiff’s petition mentioned was not performed in a workmanlike manner; and by reason thereof this defendant saith the same was wholly worthless and of no value to him, and occasioned great loss to him in his sugar…

Ei vor from Calhoun. The defendant in error brought suit against the plaintiffs In error to recover the value of services rendered the intestate of the latter by the former as an attorney at law. The character and amount of the services were specially described in the petition, and it contained a statement that the account was presented in due form to the administrators and by them disallowed within the time prescribed by law.

Error from Calhoun. The defendant in error brought suit against the plaintiffs in error, under the “act to provide the mode of trying titles to land,” (acts of 1840, p. 136,) to recover the possession of a tract of iand to which he claimed title, and damages in the sum of two thousand dollars for the use and occupation of the premises.

Suit by appellant for the recovery of certain property belonging to his wife and for damages for carrying the property away. Answer denying all and singular, &c. The proof was that the property was taken away from the plaintiff’s premises by the defendants at the instance of the plaintiff’s wife while the plaintiff was absent, and that the same remained in the possession of the plaintiff’s wife at the house of the defendants.

Error from Victoria. Suit by defendants in error on a balance of account. The account was principally made up of two promissory notes and charges of interest thereon. There were a few other charges, but the credit side of the account far exceeded them. The account was dated at New Orleans. There were no exceptions to the petition. The defendant pleaded a general denial and partial failure of consideration.

Error from Goliacl. The petition stated that a short timo [5H3»] before the auction sale of town lots in Goliad in December, 1846, the defendant in error (who was plaintiff in the court below) and the plaintiff in error (the defendant in the lower court) agreed to purchase together a certain town lot particularly specified; that it was expressly understood between the said defendant and the petitioner how the lot should be divided; that the defendant should have that part of…

<p>Appeal from Walker.</p>

Motion by appellee to dismiss tlie appeal. This case was dismissed oil the motion of the appellee’s counsel on the 12th of January, 1849, on tlie ground that there was no transcript of an appeal bond sent up with the record.

<p>The evidence must be confined to tho issues made by the pleadings.</p> <p>Under a general denial the defendant cannot introduce any evidence except such as directly rebuts the evidence introduced by the plaintiff. By that plea the defendant simply puts himself upon the defensive and calls upon the plaintiff to prove his averments. (Koto OG.)</p> <p>Where the defendant had leave to amend, and pleaded “that the property sued for, land and negro, is the property of the estate of defendant’s intestate, bought aiid paid for by him,” to which the plaintiff' excepted “ because the same has been filed at too late a day, and that said plea and amended answer is irregular and wholly insufficient in law: ” Held. That tho exception was rightly overruled.</p> <p>The 108th section of the act to regulate proceedings in the District Courts does not authorize the court to make up issues foreign to or different from those raised by the pleadings of the parties.</p> <p>An estoppel may be created by the acts of a party without a deed. Such an estoppel is called an estoppel in pais.</p> <p>Whatever may have been the legal effect of the legislation of Mexico previous to the Revolution upon tho relation of master and slave in Texas, which relation never ceased for n ' moment to exist defacto, if not de jure, there is no doubt the object and effect of tho ninth section of the General Provisions of the Constitution of the Republic was to recognize and continue that relation wherever it existed defacto in good faith. (Note 07.)</p> <p>Although the relation of master and slave, in a particular case, may have existed at some period anterior to the Constitution of tho Republic, yet if it did not exist, defacto at least, at the date of the Constitution, as if the master disclaimed the relationship and treated tho person in all respects as free, the condition of such person is not affected by it.</p> <p>According to the Spanish law a master could manumit his slave, 1st, by writing, with five witnesses to it, before a judge or elsewhere; 2d, by verbally manumitting him in the presence of five witnesses; 3d, by will duly executed; 4th, by marrying her. But this law was not in force in Mexico after she ceased to belong to Spain, and in Toxai, before the Constitution of tho Republic, a master could let his slave go free without pursuing any one of the above modes of manumission.</p> <p>Quere when the Constitution of the Republic took effect.</p> <p>Note 98. — Lewin v. Houston, 8 T., 94; Bailey v. Hieks, 16 T., 222; Hollingsworth v. Hols-housen, 17 T., 41.</p> <p>Note 97. — Galvib v. Cloud, 14 T., 53.</p>

Tilomas Bradley, the deceased intestate, in bis lifetime verbally agreed to sell to the appellant forty-one acres of land at three dollars per acre. The land was surveyed preparatory to the execution of a conveyance; and the fees of the surveyor were paid by the appellant with the understanding that they were to be credited on the purcliase-money.

Error from Jefferson. Motion to dismiss. The defendants in error recovered judgment against the plaintiff in error at the Pall Term, 1850, of tlie District Court for Jefferson county for the sum of five hundred and eighty-«ix dollars and fifty cents.

Forcible entry and detainer by Dunn against O’Brien before a justice of the peace under the act of March 15, 1848. (Hart. Dig., p. 449.) Judgment for the plaintiff. Defendant offered to file an appeal bond in double tlie amount of the costs and rents and profits of the land. But the justice required a bond in the sum of ten thousand dollars, the estimated value of tlie land.

<p>Error from Goliad. This was an information by two practicing attorneys against the defendant, Smith, for attempting to practice law without a license. Tile attempt to practice was admitted. The facts were as follows:</p> <p>“That Joseph E. Smith, the defendant, was regularly licensed to practice law in all the inferior courts of this State-by the Hon. M. P. ÍT.;ftan„ judge of the fourth judicial district, on the 22d day of September, 1817; that his home from that time to the present has been at Victoria, Texas; that he filed a brief in the Supreme Court, or caused it to be done, on the 20th day of December, 1847, in his own defense in a case pending there, in which he was appellant and James Power appellee; that said brief cast out some reflections on Judges William E. Jones and R. E. B. Baylor, presiding judges of the District 'Courts, by innuendoes; that for said language the Supreme Court attached him for a contempt of court; that the order was made on the 22d day of April,. 1848, and that the writ of attachment was issued on the 1st day of May, 1848;. that In the fall of the same year it was served on the body of said Smith; that he appeared before the Supreme Court at its December Term, 184S, and on the 26th day of the month he filed his defense; that he has not been discharged, but that the case is still pending; that at the Pall Term of the District Court of Travis county, on the 7th day of October, 1848, William E. Jones, presiding-judge of that district, entered up a rule of court against the said Smith, and ordered that he be cited to appear at the next term of the District Court and show cause why his license as a lawyer should not be canceled for the language he used in his own defense in the brief filed in the Supreme Court on the 20th day of December, 1847, in the ease of Joseph P. Smith, appellant, v. James-Power, appellee; that said Smith appeared and filed various defenses, but they were all overruled, and he was stricken off the roll of attorneys*”</p> <p>The defendant was fined fifty dollars.</p> <p>Two errors are assigned to the judgment of the-lowcr court:</p> <p>1st. That the judgment of the District Court of Travis county upon which-this judgment was based was a nullity, as the court had no jurisdiction of the pretended offense.</p> <p>2d. The judgment of the lower court in this case decided, in effect, that constructive oí’ consequential contempt had been committed by the defendant, and that he could be dlsfranchished without the right of trial by jury.</p> <p>The defendant seeks to reverse the judgment of the lower court upon these-grounds of error assigned.</p> <p>The statement of facts shows that at the time of the judgment of the District Court of Travis county canceling his license the defendant was regularly domiciled in the town and county of Victoria, and had been so long before that time, and had remained so domiciled to the present time. The court of Travis-county then had no jurisdiction over the person of the defendant, for the statute of 1846, page 363, says that no man shall be sued out of the county of his domicile. The statement of facts also shows that the District Court of Travis county have no jurisdiction over the pretended offense, for it shows that this court had taken jurisdiction of the same offense; and no court but the one offended has jurisdiction of contempts. (1 Bouvier Law Die., 337; 1 Kent Comm., p. 300.)</p> <p>Then, as the court of Travis had no jurisdiction of the case, but another court had, its judgment is a nullity; and that nullity may be shown in any collateral proceeding. (De Leon v. Sutherland, 1 Tex. R., 310; Mason v. Bus-sell’s I-Ieirs, Id., 727; 2 Cr. R.; Elliott v. Piersol, 1 Pet. R., 340; Hickeys. Stuart, 3 How. TJ. S. R., 760.) “In all cases of concurrent jurisdiction the court which first has possession of the subject must decide it.” (9 Whe. R., 632.) And it must follow that the judgment of the lower court in this case must be reversed, as it is based upon a nullity.</p> <p>The statement of facts shows that the offensive language was used in the Supreme Court in the defense of the defendant’s own case, and was a pri-. vate act for which the defendant can only be responsible to a jury of his country in the manner pointed out in the Constitution. (Constitution of United! States, Judicial Power, 2d section, 1st article o£ Amendments; Constitution of Texas, Bill of Rights, 5th and 8th sections.) All the late decisions, both of England and America, show that no constructive or consequential contempt can be committed. The act must be in open court or in the resistance of the process of the court. (1 Kent Comm., 800; 1 Bouvier Law Die., 337; 3 Wils. R., 1S8; 14 East R., 1; 2BayR., 182; 6 Wheat. R., 204; 7 Wheat. R., 38; 1 Breese R., 266; 1 J. J. Marsh. R., 575; Charlt. R., 136; 1 Blackf. R., 166; 9 Johns. R., 395; 6 Johns. R., 337.)</p>

This suit was brought by the appellee against, the appellant as-administratrix of James Wells, deceased, upon an account'for work and labor alleged to have been doue by the plaintiff for the defendant’s intestate.

Error from Montgomery. This suit was brought by the plaintiff in error to recover damages for the loss of a part of Iiis oxen by a bridge breaking down when his team was passing over it.