Volume 50 — Texas Reports

Error from Harris. Tried below before the Hon. James Mastersou. This was a motion filed February 20, 1878, by defendant in error, to affirm on the record filed by him without reference to merits. The assignment to which the cases from Harris county were returnable was fixed for February 18, 1878. There was no appearance for plaintiff in error.

Error from Harris. Tried below before the Hon. James Masterson. This was a motion to affirm on certificate. The opinion of Justice Moore sets out the facts.

<p>1. New rules—Taking appeal to Supreme Court.—A failure to observe the rules prescribed by this court regulating the manner of ■ bringing cases before it, is a sufficient ground, in the discretion of the court, for the dismissal of an appeal or writ of error, unless good cause is shown why the rules were not observed.</p> <p>2. Same—Practice in Supreme Court.—1The leading purpose in requiring the assignment of errors and copy of brief to be filed in the time and manner prescribed in the rules, was to facilitate attorneys in representing their cases in the Supreme Court without appearing before it in person. (Sup. Ct., R. 40.)</p> <p>3. Briefs of the appellant or plaintiff in error.—1The brief, after a general and succinct statement of the nature and result of the suit as introductory, must exhibit, (1) in the shape of a separate proposition, each point embraced in each assignment of error taken ; (2) ■ then, under' each point thus presented as a proposition for the reversal of the judgment, there must be presented the substance of such proceedings contained in the record necessary for the court to know, in determining whether the judgment should he reversed, and (3) a citation of the authorities relied upon.</p> <p>4. Propositions.—In each proposition should he propounded or affirmed some matter or thing done or refused to be done in the court below, embraced in the appropriate assignment of error, for which the judgment should be reversed, or sustained.</p> <p>5. Brief of appellee or defendant in error.—Rules as to briefs by the appellee or defendant in error discussed and illustrated.</p> <p>G. Appeal dismissed.—See case where appeal wa.s dismissed for failure to comply with the rules prescribed for taking and perfecting appeals, failure to file assignment of errors within the prescribed time, and failure to file briefs formed under the rules.</p>

<p>Error from Anderson. Tried below before the Hon. li. S. Walker.</p> <p>The facts are sufficiently set out in the opinion.</p>

Tried below before the Hon. M. H. Bonner. On November 4, 1874, Murchison, Coleman & Warren, a mercantile firm doing business in Goshen, Texas, dissolved. In their partnership Warren had put in $4,500 capital, and Murchison & Coleman had put in the same, Warren having a half interest in the business, and Murchison & Coleman the other half.

<p>1. Community property—Homestead.—Under our statute, if the deceased spouse leave a child or children they take by inheritance the community half of the ancestor, subject to the community indebtedness. This applies to the homestead, subject to the use of the same, as such, by the survivor.</p> <p>2. Pleading—Hot guilty—Estoppel.—In an action of trespass to try title by heirs of their mother against vendees holding under deeds from the' father executed subsequent to the wife’s death, the defendant, under the plea of not guilty, may prove the equities, if any, against the plaintiffs by reason of their having received through their legal guardians the proceeds of land received by the father after the deatii of the mother in exchange for the land the community interest in which was sued for.</p> <p>3. Estoppel.—The lawful act of a legally-appointed guardian, performed in the proper discharge of his duties, will conclude the ward.</p> <p>4. Same.—But where such acts of a guardian, in disposing of lands obtained by the father in exchange for the lands sued for, are relied upon as an estoppel against the heirs, such sale must he shown to have been made and approved by order of the Probate Court.</p> <p>5. Recitals.—In a deed by a guardian, recitals of his official character are not evidence of his appointment as guardian.</p> <p>6. Pabol evidence.—Hor is parol evidence, that the maker of a deed acted as guardian of the parties for whom he acted in making such deed, admissible to sustain such deed against the right of the minors, in the absence of evidence of a confirmation of such sale by the Probate Court.</p>

<p>1. Railroad—Right to eject passenger not paying fare.— The right of railway companies in this State to eject from their cars, at a regular stopping place, without the use of unnecessary force, all persons failing to pay fare or presenting, when demanded, a ticket or other evidence of their right to a seat thereon, cannot be questioned.</p> <p>2. Railroad regulations—Stop-over checks.—Railroads may prescribe, as a regulation, that passengers shall not stop off a train and complete their trip, for which they may have paid, without obtaining “ stop-over tickets.”</p> <p>3. Same.—The individual check of a conductor upon one train, given a passenger on taking up his ticket, is not evidence of a right to be carried on another train, under another conductor.</p> <p>4. Assault by railroad conductor.—See facts held insufficient to show an unlawful use of violence to a passenger by a railroad conductor.</p> <p>5. Costs—Statute construed.—In suits for damage, for assault and battery, or slander, in the District Court, where plaintiff recovers less than twenty dollars, he cannot recover costs. In such case judgment should be rendered against each party for his own costs. (Paschal’s Dig., art. 1467.)</p> <p>6. Tender.—The plea of tender does not apply to suit for unliquidated damages; and where a verdict and judgment were in such suit rendered for only the sum tendered, it was error to render judgment for costs against plaintiff.</p>

Tried below before the Hon. James H. Eogers. This is a suit brought by J. E. Irvin against Haney E. and Mary A. Garner, on a joint promissory note, as follows, to wit: “ On or before the 3d day of January, 1873, we promise to pay to J. E. Irvin, or bearer, the sum of six hundred and thirty-two -yjV- in gold coin, bearing 12 per cent, interest-; it being for the purchase-money of a certain tract or parcel of land known as the tract or parcel of land whereon Haney E. and Mary…

Tried below before the Hon. M. H. Bonner. On the 22d day of January, 1877, John M. Wiggins filed a suit in the District Court of Smith county, Texas, against M. L. Fleishel and W. H. Hendrix, as the sureties of one B. K. Smith, on an injunction bond given by Smith in a suit brought by him in the District Court of Smith county, Texas, on the 4th day of February, 1874, against John H. Rowland and Wiggins.

Tried below before the Hon. E. S. Walker. September 4, 1876, Aiken, plaintiff below, brought suit against appellants and J. W. Ozment to recover an iron safe and burglar-proof combination-lock chest, together of the alleged value of $1,600, of which appellee claimed to be the owner on the 1st day of January, 1876, and which appellants refused to deliver to him on demand; which property was alleged to be of the value of $25 per month from the 1st day of January, 1876, and…

Tried below before the Hon. M. H. Bonner. Motion to dismiss for insufficiency of the appeal bond. The facts are given in the opinion.

<p>1. Principal and agent—Neglect of a duty.—Where a person is bound to perform an act as a duty, he intrusts its performance to another at his peril, and upon failure of such person to perform it, whether he stood in the relation of contractor or of servant, the person on whom tiie duty rests is liable for such failure or neglect.</p> <p>2. Eminent domain—Eight of way.—Where the State, by virtue of the right of eminent domain, authorizes the appropriation of private property, such a right can only be exercised under the protection of tiie legislative grant, and under the conditions and liabilities which the statute attaches to the grant.</p> <p>3. Duty imposed by general railroad act touching inclosures.—The statute (Paschal’s Dig., art. 4925) evidently implies that railroads are to be so constructed as to preserve inclosures unimpaired.</p> <p>4. Same—Neglect of contractor of duty creates liability of the railroad company.—Tiie duty of placing stock-guards, preserving or supplying the fences, so far, at least, as on the right of way, and protecting the inclosure from injury, in the construction of a railroad, is a duty from the railroad company to the proprietor of the inclosures through which the road passes, annexed by statute to the privilege granted the corporation; and for the failure to perform such duty the railroad company is liable, though resulting from the negligence of a contractor in the construction of the road.</p> <p>5. Same.—A duty to the public or to an individual cannot be devolved upon a contractor, and a judgment against a railroad company for damages to growing crops, injured by the negligence of a construction contractor and his servants, held to be proper.</p> <p>6. Same—Consent.—The consent given to the construction of a road would not relieve the railroad company from the duties prescribed by the statute granting them their right of way, touching inclosures.</p>

<p>Appeal from Panola. ■ Tried below before the Hon. B. S. Walker.</p> <p>The facts are fully given in the opinion.</p>

Tried below before the Hon. M. H. Bonner. May 22,1871, H. C. Hunt and H. 0. Manning, editors and proprietors of the National Index newspaper and job office at Tyler, Texas, formed a partnership with B. W. Reilly, publisher. By the terms of the partnership Hunt and Manning were to “ furnish all the necessary material for the publication of said newspaper and for job work of the office for one year from this date,” damages from loss by fire excepted.

Error from Anderson. Tried below before the Hon. B. S. Walker. August 9, 1876, in Galveston County Court, J. W. Ed-mundson, plaintiff in error in this suit, recovered judgment against B. S. Kirk for the sum of $360.33 and costs.

<p>1. Accord and satisfaction.—It is sufficient evidence of a plea of accord and satisfaction to show that the plaintiff received the property agreed to be taken in payment of the debt to which it is pleaded.</p> <p>2. Same.—It is no reply to such evidence, in support of the plea of accord and satisfaction, to show that after the property had been, received and accepted by the plaintiff in satisfaction of the claim sued on, it had again gone into the possession of the defendant under some other or subsequent contract with which defendant had not complied, and by reason thereof or in any other way plaintiff derived no benefit.</p> <p>3. Same.—To be operative, the accord and satisfaction must be finally and fully consummated by the parties in accordance with its terms and stipulations.</p>

<p>1. Amending judgment.—An application to correct a miscalculation of interest in a judgment may be acted upon, on service of reasonable notice. Hotice of four days held reasonable notice.</p> <p>2. Statute construed.—Article 51 of Paschal’s Digest, providing for correction of miscalculation, misrecital, &e., in judgments, construed; and “reasonable notice,” in said article, does not require five days, as in cases of citation.</p>

<p>Appeal from Wood. Tried below before the Hon. M. H. Bonner.</p> <p>The case is fully shown in the opinion.</p>

Tried below before the Hon. B. T. Estes. E. 8. Terry recovered a judgment, January 17,1878, against Zachry & Milner, for the sum of $2,365.07, in the District Court of Marion county.

Tried below before the Hon. B. T. Estes. This suit was instituted March 6, 1874, by T. II. Turner and his wife, E. H. Turner. The petition alleges that in 1865 appellant conveyed to T. H. Turner six hundred and forty acres of land, for $640 in cash and a note for $640, made by T. H. Turner, payable to appellant twelve months after date; that in 1871 Haney Rogers, by judgment of the District Court of Titus county, evicted T. II.

Tried below before the Hon. E. S. Walker. October 19, 1875, Mitchell sued, in the District Court of Cherokee count)7, Findley, a constable, and his sureties, for wrongfully refusing plaintiff the right to replevy certain gin-gearing, seized by the constable under a writ of sequestration. Mitchell employed counsel to aid in replevying the sequestered property, and he set up the counsel fees as part of his damages.

Error from Beckwall. Tried below before the Hon. Green J. Clark. January 14,1878, John W. Batcliff brought suit in the District Court of Bockwall county against J. A. Townsend on two promissory notes, and to enforce the vendor’s lien on two tracts of land, for which the notes were alleged to have been given. The petition set out the notes, and referred to exhibits as containing field-notes of the two tracts sought to be subjected to the lien.

Error from Kaufman. Tried below before the Hon. J. G. Eblen, special judge. Suit was brought August 12, 1875, in the District Court of Kaufman county, by Alex. Crozier & Co. against Jacob ¡Mawthe, on a promissory note for $450, of date February 19, 1872, with interest from date, at ten per cent., and executed by defendant. A credit of $361.06, paid September 14,1872, was allowed in the petition. October 5, 1875, defendant pleaded a general demurrer and general denial.

<p>1. Evidence—Copies—Practice.—Where certified copies of recorded instruments have been admitted over objections, the record must show that said copies were filed and three days’ notice given. (Paschal’s Dig., art. 3716.) In absence of evidence in the record that the statute was complied with, such admission will be held error.</p> <p>2. Outstanding Title as defense.—It is error to instruct the jury, in an action of trespass to try title, that an outstanding superior title adverse to the plaintiff, to the land, or a title to the whole or part of the land in defendant, will defeat the right of plaintiff to recover, whether such title is vested in defendant or any other person. An outstanding title would defeat only to its extent.</p> <p>3. Limitation.—See facts discussed as applying to the statute of limitations, and not constituting a defense.</p> <p>4. Infants may sue, &c.—Limitation.—Under section 14 of article 12 of the Constitution of 18G9, minors had the right to sue for lands within seven years after the removal of the disability of minority.</p>

Appear from Franklin. Tried below before the Hon. B. T. Estes. Motion to affirm on certificate. In the appeal bond, the appellant and sureties “acknowledge themselves bound to pay to S. B. Erwin all the costs that may accrue in our Supreme Court, conditioned that the said 0. B. Goode shall prosecute his appeal,” &c.

<p>1. Registration of judgments, decrees, &c.—The object of articles 4710 and 5023 of Paschal’s Digest, requiring that judgments and decrees relating to lands be recorded, &c., is not to prohibit the introduction in evidence of a decree or judgment of the class designated, under all circumstances, until recorded, but only to apply the sj'stem of registration to such a judgment or decree, and to deny to a party the right to so introduce it in evidence unless he shows its registration, or facts which make it, as between the parties and under the general provisions of the registration laws, admissible without registration.</p> <p>2. Same.—A decree of divorce and adjudging the possession of the homestead of the parties to the wife, said homestead being in another county, is admissible by the wife in defense in an injunction suit brought by a party in possession to enjoin a writ of possession under such decree.</p> <p>3. Same—Statutes construed.—Articles 4710 and 5023 of Paschal’s Digest, construed.</p> <p>4. Pleading.—Where the petition in a suit seeking to enjoin a writ of possession described the land, the defendant in asserting title could properly adopt the description so given without setting it out in full.</p> <p>5. Preemption—Abandonment.—That a preemptor in actual possession, after having survey made, liad not caused the field-notes to be returned to the general land office within twelve months after the settlement upon the preemption, is not a forfeiture or abandonment of the preemption claim.</p> <p>6. Statute construed.—Paschal’s Dig., art. 7099, construed.</p> <p>7. Same.—See facts held insufficient to evidence an abandonment of a preemption in favor of a subsequent preemption claimant with full knowledge of the older claim.</p> <p>S. Decree op divorce a finality as to the rights adjudicated.—A decree adjudging a homestead to one of the parties to a divorce suit is a finality, and one claiming against the interest of both parties to the divorce suit,cannot open up the divorce proceedings in his own defense,against rights of the parties asserted by the successful party in the divorce suit.</p>

Tried below before tlie Hon. M. H. Bonner. This is a fact case. The opinion sets out enough to be understood. A synopsis even of the various items of testimony forming the title claimed by the respective parties would take many pages. The motion for continuance overruled was a second application.

Tried below before the Hon. B. T. Estes. The suit was instituted February 8, 1878, by appellee, J. M. Driver, as plaintiff, against Reese Hughes, Jr., appellant, and one Morgan Dees, as defendant, in the ordinary form of trespass to try title, with writ of sequestration, to recover the possession of one hundred and seventy acres of land. The said defendant Hughes replevied the property, and the defendant Dees disclaimed.

Error from Collin. Tried below before the Hon. W. H. Andrews. The facts are given in the statement made by counsel for appellant in their brief and in the opinion. This case was submitted at Austin, taken to Tyler, and decided Hov. 15, 1878.

<p>Appeal from Smith. Tried below before the Hon. M. H. Bonner.</p> <p>January 15, 1877, E. B. Hubbard brought an action of trespass to try title in the ordinary form against W. H. Marsh and A. A. Letchworth for a house and lot in the town of Tyler. ' The defendants pleaded not guilty, and, by amendment, set out the facts constituting the claim to title by both parties.</p> <p>March 13, 1878, the cause was tried. The testimony was, in substance, as follows:</p> <p>Willis Eoberts is the common source of title. Hubbard derived title as follows: On the 30th of August, 1873, Willis Eoberts, with E. B. Hubbard as his surety, made a note payable to J. H. Burnett & Co. for $5,375.63, due the 1st of January, 1874. Eoberts, to secure Hubbard against loss, gave him a deed of trust on the land in controversy, with power of sale, to be executed if Eoberts did not pay said note at maturity, “ whenever demand should be made on him (Hub-hard) by J. H. Burnett & Co. for the payment of said note or any part thereof.”</p> <p>The note was not paid, and J. H. Burnett & Co. demanded payment of Hubbard after its maturity.</p> <p>On the first Tuesday in September, 1876, Hubbard, in pursuance of the power, sold the land and purchased it himself for $1,300. He had not yet paid J. H. Burnett & Co. anything on the note. On the 5th of September, 1876, he executed to himself a deed for the land, which was recorded 11th of January, 1877.</p> <p>Marsh and Letchworth derived title through a deed from the sheriff of Smith county, made to them as purchasers of Willis Eoberts’ interest at a sale made by virtue of an execution issued on a Justice’s Court judgment, against said Eoberts, rendered in 1875.</p> <p>The defendants were Eoberts’ tenants before said sale and have been in possession ever since.</p> <p>The rental value was proved to be $12.50 per month.</p> <p>Judgment was rendered for Hubbard for the lot sued for and $250 damages. Marsh and Letchworth appealed.</p>

Tried below before the Hon. Green J. Clark. July 14, 1877, John W. Fraley and his wife, Mary Emma Fraley, brought suit against John Heath, in the District Court of Kaufman county, on a promissory note. August 14, 1877, citation issued to Heath, requiring him “ to answer the petition of John W. Fraley and wife.” The citation in other respects wqs regular. Judgment final by default was rendered October 12,1877, for $3,195.10 and costs, for plaintiffs.

<p>1. Indorsement in full of negotiable note.—The legal effect of possession of a promissory note payable to bearer and indorsed in full by the payee, as against the maker, is to evidence title to the note.</p> <p>2. Same—Guaranty.—See discussion of effect of an indorsement in full by the payee of a negotiable note payable to bearer, as against the indorser, who also was guarantor.</p>

Tried below before the Hon. William Charlton, special judge. This was a suit of trespass to try title, brought by Nash against Snow, in the District Court of Kaufman county. The defendant pleaded not guilty, and, by way of cross-action, set up the fact that he was the owner of the land in controversy; that the paramount title was in him.

Tried below before the Hon. Green J. Clark. November 26, 1875, James H. Johnson, administrator d& bonis non of the estate of James H. Johnson, deceased, in an amended petition, abandoning all other pleadings, set out his appointment, alleging the facts constituting the title of his intestate to two thousand six hundred and eighteen acres of land, located and patented under an unlocated balance of the headright certificate of M. H. Eagsdale for a league and labor of land;…

Tried below before the Hon. A. J. Booty. S. W. March and L. D. March, April 25,1871, claiming one-fourth interest in the estate of Susan and Bird Linthecum, brought suit in the District Court of Busk county for partition against B. C. Linthecum, Mrs. Martha Salmons, and others. The defendant B. C. Linthecum held part of the estate by purchase of Bird after the death of his wife Susan. The deed from Bird Linthecum was attacked and asked to be cancelled.

Tried below before the Hon. M. H. Bonner. Frank T. Randall, July 3, 1874, sued the Houston and Great Northern Railroad Co. for damages.

<p>1. Presumption—Practice.—An appeal was taken from the District Court in a case.appealed to that court from the Probate Court, the record showing notice of appeal in the Probate Court, and that the amount of appeal bond was fixed; no objection to the jurisdiction being made in the District or Supreme Court: Held, That it would he presumed that the appeal bond was given and that the District Court had jurisdiction on the appeal.</p> <p>2. Same.—In such case it will be presumed, also, that the necessary notice of application for "sale of lands was posted, under the statute. (Probate Act of 1876, secs. 72, 77.)</p> <p>3. Practice.—A decree enforcing the vendor’s lien, on appeal to the Supreme Court was affirmed against an administrator. An application was made in the Probate Court for the issuance of an order of sale under the decree. To this application the administrator answered, pleading a partial failure of the title to the land sold; the want of proper parties, in that the heirs of the intestate were not made parties to the proceeding; and part payment in cotton delivered by the administrator to the holder of judgment: Held—</p> <p>1. That the administrator could not again litigate the validity of the decree.</p> <p>2. That the heirs were not necessary parties to such proceeding-</p> <p>3. That the administrator could not defeat or postpone the issuance of the orcler of sale by merely pleading such payment.</p> <p>4. The remedy of the administrator against the enforcement of a judgment partially-satisfied, would he'by petition under oath and bond for injunction. <</p>

Tried below before the Hon. Green J. Clark. December 1, 1876, Williams & Bonner brought an action of trespass to try title for one hundred acres of land in Hopkins county against H. Q. Thomas. The defendant pleaded not guilty. Both parties claimed under the same title. Williams & Bonner claimed under a sale made April 7, 1874, under a trust deed made for their benefit, and to secure them a loan of $500 made to W. T. Prather.

Tried below before the Hon. A. J. Booty. April 19, 1867, S. C. Folger recovered judgment in the District Court of Rusk county, for §524, against William Davenport. Execution was issued thereon April 1,1868, and subsequently several alias executions. April 22, 1867, Davenport executed a mortgage to Stacy and Poland for a tract of eleven hundred acres of land in said county, which was regularly recorded on April 26.

<p>1. Justices’ Courts.—Much liberality is extended to uphold proceedings in courts held by justices of the peace.</p> <p>2. Same.—See a judgment and execution from proceedings in a Justice’s Court held valid and sufficient to- pass title to land sold under them.</p> <p>3. Deputy sheriff.—A levy and sale liavihg been made by a deputy sheriff, it was competent for such deputy to execute the deed to the purchaser.</p> <p>4. Parties—Foreclosure.—Proceedings in the District Court to enforce a vendor’s lien, began on the day such sheriff’s deed was placed on record, and not making the purchaser a party defendant, do not conclude the rights of such purchaser, and, as to bis title, are void.</p>

Tried below before the Hon. A. J. Booty. ' On July 15,1875, J. La Vega Moorer and S. J. Moorer contracted with Justin McCarty, in writing, substantially as follows: Moorer and Moorer, owning a homestead of one hundred and sixty-six acres in Panola county, executed their bond to McCarty, in the sum of $500, conditioned that if McCarty would clear, fence with a good ten-rail fence, and prepare for cultivation twenty-five acres of said tract of one hundred and sixty-six acres,…

<p>1. Military Supreme Court not authority. — Chief Justice Moore does not regard the opinions of the courts organized by the military authority under the reconstruction laws as authoritative expositions of the law, but only as conclusive of the cases between the parties.</p> <p>2. Not authority.— Roundtree «.Thomas, 32 Texas, 28G, declared not authority.</p> <p>2. Ante-nuptial debts op wife—Community property.—Community property is liable to execution for the debts of the wife contracted before marriage.</p> <p>4. Statute construed.—Paschal’s Digest, arts. 4641,4642, discussed and construed.</p>

Tried below before the Hon. E. 8. Walker. January 21, 1876, suit was brought in the District Court of Panola county by W. H., Isaac E., Joel, Adelbert, James, and Louisa Dillard, (the last three, being minors, suing by their next friend, W. H. Dillard,) and against Samuel A. Eoed, E. B. Ashurst, J. D. Youngblood, and J. E. Bond.

Error from Panola.' Tried below before the Hon. 'A. J. Booty. So far as acted on by the court, the opinion sets out the facts.

' Tried below before the Hon. A. J. Booty. November 19, 186‘9, R. A. Andrews and wife conveyed a tract of land to John H. Robertson, with warranty of title. The deed recites the consideration to be $650 in gold and a note for $650, due December 25, 1871, bearing interest at ten per cent, from date. For this note others were substituted—two payable to L. Elliott and one to the appellee—by Robertson, at the request of Andrews.

<p>1. Suit on rejected claims against an estate.—A petition alleging ownership of valid claims against the estate, described therein', which have been duly presented to the administrator and have been by him rejected, is sufficient, on general demurrer, when one or more of such claims appear to he valid.</p> <p>2. Practice.—That other claims set„out in the petition on their face appear invalid, is no ground for sustaining a general demurrer. The court should have required plaintiff to replead, restricting his suit to the valid claims in his petition.</p> <p>3. Same.—Where invalid claims are inserted in a petition with claims apparently good, it is no answer to exceptions to the invalid claims, to announce to the court that the invalid claims are not relied on.</p>

<p>Error from Red River. Tried below before the Hon. Joseph Bledsoe.</p> <p>The facts are given in the opinion.</p>

<p>Error from Busk. Tried below before the Hon. A. J. Booty.</p> <p>The facts are given in the opinion, and in 40 Tex., 386, 387..</p>

<p>Appeal from Smith. Tried below before the Hon M. H. Bonner.</p> <p>A careful statement of the case is given in the opinion.</p>

Tried below before the Hon. Joseph Bledsoe. January 7, 1874, James M. Gilbert brought an action of trespass to try title in the ordinary form, in the District Court of Red River county, against Isham Farris, for a tract of three hundred and twenty acres of land, “ a part of the original survey located and patented by virtue of the headlight, certificate for twelve hundred and eighty acres of land granted by the board of hind commissioners of Red River county to the heirs of…

Tried below before the Hon. A. J. Booty. This was a suit originally instituted on May 20, 1874, by appellee, Edward H. Henry, as plaintiff, against appellant, Guilford Pitman, as defendant, in the usual form of trespass to try title, for three hundred and fifteen acres of land.

Tried below before the Hon. Joseph Bledsoe. Coleman • Smith and others, heirs of James Bankston, brought an action of trespass to try title against' Sarah J. Wilson and others for a tract of land described, substantially, as the unsold balance of a tract of twelve hundred acres, and reserving also a homestead of two hundred acres.

Tried below before the Hon. Green J. Clark. June 1, 1874, T. B. Buford, M. L. Patten, and W. B. Buford brought an action of trespass to try title in the ordinary form against P. Bostick and others, for a tract of three hundred and twenty acres of land located and surveyed in name of Mary Hamilton, with field-notes and survey returned to the general land ofiice. The defendants pleaded not guilty and limitation of three years.

<p>Appeal from Rusk. Tried below before the Hon. R. 8. Walker, alternating with the Hon. A. J. Booty, district judge.</p>

Tried below before the Hon. A. J. Booty. The opinion gives a sufficiently full history of the case, ex-eept that the answer held to have been erroneously ruled out is not stated. The plaintiff sued in trespass to try title. By amendment he set out his title, wrhich was by sheriff’s sale, in which he was plaintiff and the purchaser. The defendants held under a trust deed made by the defendant in execution, which deed was by plaintiff attacked for fraud.

Tried below before, the Hon. A. J. Booty. This is a second appeal in this case. In 48 Texas, 242, 243, a full statement of the facts appears.

Tried below before the Hon. J. A. Carroll. April 9, 1878, A. S. Burgess brought suit in the District Court of Parker county against Samuel H. Millican.

Tried below before the Hon. B. F. Estes. A careful statement of the case is given in brief of appellants and in the opinion.

Tried below before the Hon. M. H. Bonner. This is a case where Laird and Holt removed a schoolhouse from land belonging to the Mount Sylvan Baptist Church, of which Bass and Will banks were the only surviving deacons. The facts show that the school-house was originally erected by W. P. Martin, by an arrangement with one J. W. Bradshaw, who was an agent or contractor for the State.

Tried below before the Hon. A. J. Booty. Prior to May 18, 1874, the appellant and W. B. Henderson, partners in merchandise, were indebted to several merchants at Galveston.

Tried below before the Hon. Green J. Clark. The facts are fully stated in the opinion, in which will be found the charges referred to in appellant’s brief.

<p>1. Sinking fund—County bonds—Constitutional law.—Section 23 of article 12 of the Constitution, of 1869 provides : “It shall be the duty of the Legislature to provide by law, in all cases where a State or county debt is created, adequate means for payment of current interest, and two per cent, as a sinking-fund for the redemption of the principal; and all sucli laws shall be unrepealable until such principal and interest are fully paid : ” Held, Hot to prohibit the issuance of bonds and a tax to pay interest thereon and the principal within ten years from their date, the provision being designed to compel payment of all such bonded indebtedness within fifty years; said bonds being authorized by a special act authorizing a county to fund its indebtedness.</p> <p>2. Same.—Sections 5 and 6 of “ An act to authorize the county of Marion to audit and fund the debt of said county, (Special Laws, 13th Leg., p. 178,) authorizing the issuance of county bonds payable in ten years and to levy a tax to pay the principal and interest as they should become due : Held, Hot in conflict with the Constitution.</p>

Error from Smith. Tried below before the Hon. M. H. Bonner. October 30, 1868, Warren Williams and H. S. Williams bought .of J. B. Lollande a tract of six hundred and thirteen acres in a square and part of the Thomas Quevado seven-league grant. The tract was divided by Copperas creek, running from north to south and near the middle. At the purchase, there were improvements on the east side of Copperas creek on the land. There the purchasers both lived for awhile.

<p>Appeal from Cherokee. Tried below before the Hon. R. S. Walker.</p> <p>The case is stated in the opinion.</p>

<p>Appeal from Hopkins. Tried below before the Hon. Green J. Clark.</p> <p>The facts are fully stated in the opinion.</p>

Tried below before the Hon. A. J. Booty. G. M. Buchanan sued J. W. and Albert Bradshaw, in the District Court of Busk county, for possession of a tract of land described in the petition, for rent, and for value of some articles of personal property alleged to have been on the premises in controversy and taken by the defendants. By amendments, it was charged that the taking by defendants was by force, wrongful, willful, and oppressive. Punitory damages were asked.

<p>1. Liability of officers.—Judicial officers are not liable to personal actions for official acts within their jurisdiction.</p> <p>2. Same.—This exemption extends not only to negligent, but to willful and malicious acts.</p> <p>3. Ministerial officers.—Judicial officers may be liable for their acts or refusal to act in regard to duties which are ministerial, and which duties are imposed upon them.</p> <p>4. Same.—Where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial; but where tlie act to be done involves the exercise of discretion or judgment, it is not to be deemed ministerial.</p> <p>5. Same.—Ministerial acts may be defined by adopting the rules allowing the writ of mandamus.</p> <p>6. Judicial act.—By section 20 of article 5 of the Constitution of • 1869, the justices of the peace of the county constituted a court having the same jurisdiction formerly exercised by the Commissioners’ and Police Courts, which constituted the County Court for county business; and by section 9 the district clerk was ex-officio clerk of the Police or County Court. By act of 13th Legislature, section 32, page 147, this County Court had the jurisdiction both to require of the sheriff as collector a new bond, and also to approve it.</p> <p>7. Same—Approving bond.—The approval of a sheriff’s bond .is a judicial act.</p> <p>S. Members of County Court.—The members of the County Court, as constituted under the Constitution of 1869, were not liable personally in a civil action, at suit of the sheriff, for having wrongfully and maliciously rejected his official bond.</p> <p>On Motion for Rehearing.</p> <p>1. Pleading.—That said justices of the peace failed to turn over the tax roll, regarded as inducement to the main charge, and as basis for damages in the action against them for refusing to approve the bond.</p> <p>2. Pleadings—Tax rolls.—There having been no allegation that the consolidated tax roll required by the statute had been made out, it did not appear that the court was in default in not delivering such tax roll to the sheriff. The separate assessments by eacii justice were not required to be handed to the sheriff.</p> <p>3. Mandamus—Retiring officers.—A writ of mandamus against the County Court requiring that the tax roll be delivered to the tax collector, is abated b)r the going out of office of the members of the court, as against such retiring officers.</p>

<p>Error from Rusk. Tried below before the Hon. R. S. Walker.</p> <p>On the 14th of October, 1874, Tresy Eay, for herself and as next friend of her children, brought suit against the Piedmont and Arlington Life Insurance Company on a policy of insurance issued by it to G. A. Eay, the husband and father of plaintiffs, for $2,500 in gold, for the benefit of plaintiffs. On the 6th of November, 1874, defendant filed for answer general demurrer and special exceptions, general issue and special answer, in which it substantially states that plaintiff never complied with the terms of the policy, but failed to pay the first premium until G. A. Eay was in extremis, and then paid the premium fraudulently, concealing the condition of Eay from the company, and it tendered back the premium paid in court. On the 18th of January, 1877, defendant filed amended answer, pleading, to the jurisdiction of the court, that the court could not entertain the suit because the defendant did not reside in and had no agent in Eusk county, but was domiciled in Richmond, Va. In special plea, it alleged that G. A. Eay was never insured by defendant; that Eay made application for insurance, and the application was granted on condition that he would pay the first premium; that Eay refused to pay the premium; that the premium was never paid till Eay had died, and the defendant was ignorant of Ray’s death when the premium was paid; alleging fraud, &c., and that defendant offered to return the premium as soon as it was ascertained that Eay had died.</p> <p>On the 19th of January, 1877, plaintiff moved to strike out the plea to the jurisdiction of the court, because filed after plea to the merits of the petition, and because not filed in due order of pleading.</p> <p>On the 19th of January, 1877, plaintiff filed amended petition, alleging that it is not true, as alleged by defendant in its answer, that G. A. Eay did not pay the first premium for the policy sued on; but averring that Bay had paid said premium before his death, and before the policy issued, by executing and delivering to Nash, the agent of defendant, his draft on Nat. Guerin for the premium, and said Guerin; accepted the draft and paid it; that said Nash accepted the draft in full satisfaction of said premium, and delivered to said Kay, long before Kay’s death, the policy, which policy plaintiff filed as a part of her amended petition.</p> <p>On the 5th of February, 1877, defendant filed general exception to the amended petition.</p> <p>On the 5th of February, 1877, defendant filed amended answer, in substance what it had previously stated, and in addition that Nash had no authority to accept the draft from Kay in payment of the premium, and that Kay refused to pay the draft,—caused it to be protested, &c.</p> <p>Defendant’s plea to the jurisdiction of the court was stricken out. Judgment was rendered for the plaintiff for $3,515.38 and costs. Motion for new trial and in arrest of judgment were made and overruled. Defendant brings this case into this court by writ of error.</p> <p>Additional facts necessary are given in the opinion.</p>

Tried below before the Hon. A. J. Booty. Albert Sidney Johnsou brought an action of trespass to try title October 10,1845, in the District Court of Harrison county, against Durshee Shaw. The representatives of Timmons (Shaw’s landlord) defended. Vanzant was attorney for plaintiff at the institution of the suit.

Tried below before the Hon. K. S. Walker. The city of Palestine, by its mayor and city council, contracted with the Palestine Market-house Association on September 2, 1875, whereby, under a city ordinance, it was stipulated that the association should for twenty-one years be exempt from city tax, should have the right to assess and collect market rents, and should have exclusive market privileges in the city; and in consideration, that the association should purchase a…

Tried below before the Hon. II. Clay Pleasants. D. Porcheler sued appellee upon a judgment alleged to have been rendered in the Fifth District Court of the parish of Orleans and State of Louisiana, in favor of D. Porcheler and against E. E. Barrow, stating its amount, &e. He alleged that it had never been paid and remained in full force and effect, not reversed, satisfied, or otherwise vacated.

<p>Appeal from Madison. Tried below before the Hon. James E. Burnet.</p>

<p>Appeal from Victoria. Tried below before the Hon. H. Clay Pleasants.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>1. Mechanic’s lien—Constitutional law.—Section 47 of article 12 of the Constitution of 1869 did not give a lien to “material-men its benefits extended only to “ mechanics and artisans.”</p> <p>2. Material-men—Statute construed.—The “Act to provide for and regulate mechanics’, contractors’, builders’, and other liens in the State,” (Paschal’sDig., art. 7112,) enabled material-men also to fix and secure a lien as therein provided by filing, &c., in the district clerk's office, their claim, as provided in the statute, within six months after the debt should become due.</p> <p>8. Duration of lien.—It seetns that the lien would exist for six months without registration of the claim. • -</p> <p>4. Same.—In order to fix and secure the lien, even as between the parties to the contract for lien, it was necessary, under the act of November 17, 1871, (Paschal’s Dig., art. 7112,) that the same should have been filed in the office of che district clerk for record within six months after its maturity.</p>

Tried below before the Hon. H. ClaiT Pleasants. October 13, 1877, Brownson brought an action of trespass to try title against Miller for one-third of a league of land patented March 15, 1877, to plaintiff, situated in Victoria county.

Error from Nueces. Tried below before the Hon. E. Dauherty. This suit was brought by Mrs. Candida Ramirez, as the surviving wife of her deceased husband, Miguel Ramirez, and as the guardian of her minor child Dolores, in the District Court of Nueces county, on October 14,1875, to revoke an order granting letters of administration to John McClane on the estate of her deceased husband; to vacate a judgment approving and allowing a claim in the sum of $2,000 in favor of F.…

Error from Sun Patricio. Tried below before the Hon. H. Clay Pleasants.

<p>Appeal from Nueces. Tried below before the Hon. John C. Russell.</p> <p>The facts are given in the opinion.</p>

Tried below before the Hon. James Masterson. January 10, 1874, Kuhlman sued Baker in the District Court of Harris county, alleging his purchase of land in April, 1856, of Baker, for which he took a quit-claim deed, believing it to be a warranty; that the title to the land had failed, and his recent discovery that his deed from Baker was not a warranty. The petition was adjudged defective, on demurrer.

Error from Victoria. Tried below before the Hon. H Clay Pleasants. This suit was brought by A. B. Peticolas against J. E. Carpenter in the District Court for Victoria county upon a promissory note and mortgage upon a stock of goods. The mortgaged goods were sequestered.

Tried below before the Hon. L. W. Cooper. August 3,1867, a claim allowed by the administratrix was approved by the chief justice. July 30, 1868, the holder of the approved claim filed in the Probate Court a petition, asking that- she be required to make an exhibit, &c., in the estate.