Volume 6 — Texas Reports

The appellant was indicted for altering the brand of a cow belonging to Mary Boston. He was found guilty, and fined fifty dollars. The only question presented was whether tiie evidence proved the ofi'ense charged in the indictment. Tiie evidence was that the defendant without authority put his brand, L. upon tho side of a cow belonging to Mary Boston, branded with the letters S. B. upon tiie rump.

<p>Appall from Victoria. Suit by the appellee for a divorce. The petition alleged that the plaintiff intermarried with the defendant in the year 1S2S, and that ‘•lie is her present legal husband ; ” that the defendant had for a series of years np t.o the present, time been in the constant habit of using towards her in secret. I lie, most harsh, threatening, and abusive language, and laid frequently resorted to personal violence, ‘-tlie times and occasions of which cannot be specifically set forth; but that in September, 1846, being in great clanger from a violent attack of illness, the defendant most cruelly and unnaturally abused and neglected her, refusing the least assistance or medical aid, and by his conduct towards her caused the physician whom she called in to see her to leave tlie house and return no more, whereby the life of the petitioner was greatly endangered; ” that the conduct of the defendant liad for a long period of time manifested a total want of regard and affection for her; that he had been guilty of many crimes and misdemeanors, from larceny up to murder; “and that his life, marked by acts of studied cruelty and outrage for a series of years against the petitioner, was crowned in the month of September, 1847, as she believes and charges, by the cold-blooded and brutal murder of her only son; that his whole conduct to tlie present time has been such as to render her future cohabitation with him insupportable; that she cannot remain with him longer without incurring the same deep disgrace with himself; and from her knowledge of his sly and dangerous character, and the deep malice' which he bears in the depth of his heart against her, she fears that if she were to continue to live with him she would not only suffer cruel, personal violence when alone with him, but that lier life would be in continual clanger; that soon after she became satisfied that the defendant had assassinated lier son she left their common home and- instituted proceedings against him for a divorce; that during the pendency of the said proceedings the defendant, with the fraudulent design of gaining an advantage over her in the said suit, repeatedly visited her and pretended to desire a compromise of tlie same, and finally succeeded in persuading her by a false and hypocritical promise,” the terms of which are specially set forth, “induced, as she was, also by h&r desire to extend to her daughters the affectionate care and supervision of a mother, to return to his house, but she utterly refused to cohabit with him. She remained with him but a short period of time, viz, ten days, about tlie end of which, the time allowed the petitioner to file an amendment in tlie aforesaid proceeding for divorce having elapsed, the defendant-, having fraudulently obtained the advantage of delay, threw oil' tlie mask and refused to go to the Rio Grande, as lie had solemnly promised, or to give tlie petitioner the control of lier daughters and of the household, and returned to his accustomed course of treatment to tlie petitioner, viz, that of unnatural and fierce abuse, threats, and cruelties, so that she was compelled to escape in the night time.”</p> <p>Tlie appellant, who was defendant in- tlie court below, demurred to the petition ; denied tlie fact of intermarriage with the petitioner; admitted that by liis solicitation she returned to liis house, and remained with him about twenty days; alleged that she did not escape in the night time, but that she departed voluntarily, without bis knowledge, at about four o'clock in tlie evening; that lie again, bona fide and zealously, endeavored to persuade her to return to Ills bouse; but that slie refused to do so; denied that during her return and stay at his house or since he liad ever used any personal violence or abusive language towards the petitioner; but alleged that lie repeatedly urged lier to choose referees to compromise and settle the matters of difficulty between them; and that she wholly failed so to do. The defendant further averred that tlie petitioner, on her return to his house and cohabitation with him for the space of twenty days, liad, by condonation, given up every ground of divorce which , had existed and accrued before the date of lier return; and concluded by denying all tlie other several charges, statements, avermeuts, and allegations in the petition contained.</p> <p>Tlie verdict was expressed in the following terms :</p> <p>“We tlie jury find by the evidence that tlie plaintiff has well-grounded belief that tlie defendant is the murderer of Peter N. Hays, her son ; and that she lives in continual fear of violence from the defendant, which we believe renders it insupportable to live with liim any longer, but find no separate property.”</p> <p>Upon this verdict a divorce from the bonds of matrimony, and a division of the property were decreed.</p> <p>The defendant’s attorney asked the-court to charge the jury—</p> <p>1st. Because it is alleged in the defendant’s answer (and not denied in the pleadings or disproved by any testimony whatever) that defendant had at the time of marriage separate property, such allegation is to be taken for confessed, and the jury will find accordingly.</p> <p>7th. That the returning home of the petitioner at the solicitation of the defendant, and there cohabiting with him for ten or twenty days after, or did so after agreeing to the terms of a compromise, she cannot now be heard to complain of injuries which existed before that time.</p> <p>The intermediate instructions are omitted because they are not material in the view taken of the case by this court.</p> <p>The judge certified as follows: “The first and seventh instructions I decline to give, because I think they are not true. The others were given by the court in substance before they were asked.”</p> <p>The record did not disclose what instructions were given by the court, to which reference is made in the judge’s certificate.</p> <p>There having been no motion for a new trial, and the court having declined on that account to examine whether the testimony sustained the verdict, the testimony is omitted. There was a motion in arrest of judgment for the plaintiff, and for judgment for defendant, notwithstanding the verdict, one of the grounds of which was “because the verdict does not warrant any decree in favor of the.petitioner.”</p> <p>There was no bill of exceptions on the part of the defendant to the admission or rejection of evidence, nor were any exceptions on the part of the defendant noted in the statement of facts, i'he statement of facts was not signed by either of the parties or then- counsel, hut was authenticated by the certificate of the judge, as follows :</p> <p>“I certify the foregoing eleven pages,” &c., “to he a true statement of ail the material facts proved on the trial of this cause.”</p> <p>I. The court below erred in admitting evidence of common rumor and general reputation, together with the fact that the parties lived together as man and wife, to establish the fact of their marriage, and in rejecting similar evidence on the part of the defendant to prove the marriage of the plaintiff and Peter N. Hays. The counsel for the defendant was so unwell when the cause was tried that lie was unable to prepare bills of exceptions to the various rulings of the court on the admission and rejection of evidence. The statement of facts ought to have disclosed the objection to evidence as an integral part of the history of the trial, but tisis it does not do, except in a few eases in favor of the appellee. The appellant contends, however, that, admitting for the sake of the argument that the evidence on this bead was received without objection,yet it is insufficient and incompetent to establish the fact of a valid marriage, which is necessaiy to bo established in a suit for divorce. (Wright v. Wriglit, Ms. Op., 1848; 5 Madd. R., 78; 1 Harr. Dig., 15GS; Smith v. Smith, 1 Tex. R.; 2 Mass. R., 154; 19 C. R., 197; Walk. Ch. R., 52; Shelford, 412 ; Story Bq., 23; Cooper, 5; Mitford, 37; 1 Chit., 224; Mims v. Milehell, 1 Tex. R.)</p> <p>II. The court below erred in refusing to give the first and seventh instructions asked by the appellant. It isbeiieved to be a sound rule of law and of practice whether in courts of merely law or of merely equity, that whore a matter is affirmatively alleged under ¡he sanction of an oath, and neither denied nor confessed, and avoided by the opposite party in pleading, nor by countervailing proof at the trial, such matter stands confessed upon the record, and does not need further proof to support it.</p> <p>The seventh instruction asked by the appellant should have been given. It is a well-established principle that a reconciliation removes all past causes of complaint.</p> <p>HI. The court erred in admitting to record the paper purporting to be a statement of facts. It does not pretend to be a statement of all the facts, but of such only as the judge considered material. It would be very unsafe, to say the least of it, to intrust the district judge with the power io discriminate between facts that are material and facts that are not. He might almost as well be allowed to decide the cause without appeal. The law lias provided no remedy in case a party and the judge should disagree as to the materiality of the fact proved, because it was not intended that ‘there should be any such discrimination-.</p> <p>IV. The court erred in substantially refusing to give the instructions aslced by the appellant. If the fourth, fifth, sixth, and eighth instructions had been “given in substance,” and understood in substance, could a jury, without a wanton and flagrant disregard of such charge of the court, have found that Mrs. Wright believed that the defendant was the murderer.of Peter N. Ilays, her son? But théy did so And, But they also further find, and almost in the language of the petition, only better stated in form as a pleading, “that she lives in continual fear of violence from the defendant.” If the jury had regarded the substance of the eighth instruction, could they have so found ? No, forsooth. Then it follows of necessity that the instructions were not “given in substance ” by the court, or the jury disregarded the instructions and charge of the court; in either event the judgment should be set aside.</p> <p>V. The court erred in overruling the demurrer to the petition. There was no legal marriage averred. The allegation is “that in the year 1S2S she intermarried with one John D. Wright, her present legal husband.” Here is no averment that the marriage was lawful, or whether by publication of banns ; or by whom made; by a qualified person or not; nor by license; by whom issued; by whom the rite was performed or celebrated; when- or where these things were done.</p> <p>The allegations of ill-treatment are equally vague and defective on the one baud, or frivolous and insufficient on the other. (Story Eq. PI., 25; Cooper Eq. Pi., 5; Mitíord Eq. PI., 37 ; 1 Chit., 224; Cooper, GS2.) The allegations of the petitioner’s knowledge of the defendant’s “sly, secret, and dangerous character” amounts to nothing. (Wright v. Wright, Ms. Op., 1848; 8 N. H. R., 1GG; l Miss. R., 288; 2 Johns. Ch. R., 225; 3 How. Miss. R., 751; 2 Kent, 126; 12 N. H. R., 80.) What specifications of ill-trcatmeut are there after her return home; after their reconciliation? None whatever. The usual general allegation of abusive language and cruelty. (1 Johns. Ch. R.,. 492 ; 7 Price, 577; 1 Bing. R., 349; 8 Id., 25G; Miss. R., 309.) _</p> <p>_ VI. The remaining assignments, from their similarity and intimate connection, may be considered together. There is no substantial difference between this case as now presented and the former ease of Wright v. Wright, decided at the December Term, 1848, between the same parties.</p> <p>_ I here appeal to this court whether between the former and this present petition there is any material difference except in the one point of the petitioner’s fears. At all events the district judge said at the trial that all the other grounds had been overruled by this court in the former case; and it is my understanding that they did overrule the whole petition in that case, deciding that most if not all the grounds for divorce there laid were insufficient in law to support a decree; and because there might have been just and valid grounds for divorce in fact existing, aud not proved or provable under the general allegations of the petition, the court allowed the making of amendments in order to develop tiie nature of those cruelties and indignities, &e., which had not been specifically set forth. But now that amendment has not been made by this new petition, still we And the same vagueness, generality, and uncertainty of pleading as before; even this key-stone, the petitioner’s fears, is set-out in the like uncertain and vague manner, the petitioner assuming' at once the legal conclusion that her belief and her fear are well grounded, instead of pleading such provable facts that, when proved by legal and competent testimony, the law could and ought to make that inference. If then it be true that this allegation is defective in form and in substance, seeing that the like objection holds with regard to it as to every other, and under the sanction of this court’s opinion in the former case, no testimony ought to have been admitted under it. The finding of tlie jury, having no legal base, must fall t.o the ground together with the District Court’s decree predicated upon that finding1. But suppose for an instant this allegation of fear to be well-made : was the testimony introduced in support of it competent, legal, and proper, and does it warrant the finding of the jury? What was that testimony giving it the greatest credence it claims for itself? It was simply (he community generally believed a common current rumor that Wright had killed Hays, and hence it was inferred that, ho was an assassin; and Mrs. Wright, taking- her cue therefrom, said that she was afraid of him ; and in support of the varaciousness of her say-so, did some tilings which'a fearful person might do; but this say-so and all her actings aud doings occurring1 since she abandoned his house. And this is the proof of facts which were to show that her conclusion of her fear being wtíli founded is correct. Plainly, if the court please, is it not superlatively preposterous to suppose it is admissible evidence in any case, or legal testimony anywhere ? (Hill v. Hill, 10 Ala. K., N. S.; Stokes v. Stokes, Miss. K., 288.)</p> <p>The motion in arrest of judgment should have been sustained. (11 Price, 235, 283 ; 5 Eng. Oh. K., 62.)</p> <p>I. Out of the fourteen causes of error assigned we shall confine our reply to those points which, as we conceive, embrace all the material points in the ease. These are—</p> <p>1st. Arc the facts embraced in the special verdict well pleaded in the petition.</p> <p>2d. Are they proved by the testimony?</p> <p>3d. Are they sufficient in law to authorize the judgment of the court?</p> <p>II. Are the facts embraced in the special verdict well pleaded in the petition? The court lias so recently, in the opinion it gave in the former case between the present parties — in the cases of Sheffield v. Sheffield, and Lucas v. Lúeas — so thorough!jr examined the subject of pleading- in divorce cases that it is useless to discuss now this branch of the subject. Wo shall content ourselves with merely referring to those opinions and the cases there cited, and, as we conceive, we have Brought our case within the doctrines of the sufficiency of pleading there laid down. We would, however, specially refer the court to cases there cited, which refer to and sustain that familiar principle in pleading — that the verdict of the jury cures all' minor defects in pleading.</p> <p>III. Are the facts found by the jury proved by the testimony? That the proof is ample,'the court will be satisfied by a reference to the statement of facts.</p> <p>IY. Are the facts found by the jury and set forth in the special verdict sufficient in law to maintain the judgment of the court granting the divorce?</p> <p>Human happiness is the chief end of human existence. It is the will of God, as indicated by the mental, moral and physical constitution of man, and his position in the scale of creation, and, as we are plainly taught in Ills revealed word, it is the great object of all political aud social organizations. In all the various stations of social life there is not one t!ia4; does not profess .to be promotivo to this great end. Among them all the marriage relation occupies, by the common consent of mankind, and by, the human and Divine law, the post of honor, as being more promotive than any oilier of the highest happiness of the individual. Man, then, was not made that lie might marry, but made that lie might bo happy. Happiness is the great end, and marriage only the means. Listening to some of the modern rhodomontades upon the indissolubility of the marriage relation, one would suppose that the Bible, and .' the common sense of mankind had been all along wrong, and that man’s chief' end L to marry, and that all other things are to be sacrificed in order that this relation may be maintained indissoluble.</p> <p>The individual is under the highest possible moral obligation to pursue his substantial happiness. He lias no moral right to wantonly mar that happiness, whilst he cannot promote it at the saeriiiee of the right or happiness of others; yet he is bound to pursue it in despite of all hindrances when those hindrances are neither the result of his own culpability nor of such a char-' actor as to render obedience to them of higher moral obligation. From these principles, that as tlie marriage relation is only tlie means to attain the end, individual happiness, whenever it ceases to be prouiotive of that end and entails misery, and that without the fault of tlie suffering party, it should, in pure morality, be dissolved. I admit the obligations to societj', and am. willing to give them due force; but society becomes a tyrant, whoso exacting behests transcend the rules of all sound morality and the laws and instincts of nature itself, when it demands of tlie innocent tlie sacrifice of the great end of existence — all that makes existence desirable — for tlie contemptible purpose of preserving inviolate one of tlie hundred means for the accomplishment of that end, or for the yet more ignoble purpose of ministering to the prejudices of a mistaken zeal in the cause of philanthropy.</p> <p>Happiness may be destroyed in various ways — by infliction of bodily pain and by mental inflictions. Life may be made intolerable to the sensitive mind by tlie vile tongue of slander, by tlie thousand modes which tlie ingenuity of malice finds to manifest its fiendish nature and send its shafts to reach and fester among tlie weaknesses of onr nature. These are more numerous than tiic bodily “ ills,,which flesh is heir to.” Tlie sufferings of the mind are a thousand times more intolerable than the pains of tlie body. Witli’snch force did this truth strike the ancients that the most respectable sect of philosophers amongst, them — the Stoics — discarded bodily pains from among ihe ills of life, and made mental suffering the greatest ill.</p> <p>Tlie gentleman’s interpretation of the law would allow a divorce for a blow struck in a moment of passion,'whilst it would not see any cause for one in a studied and systematic course of mental inflictions, tlie very memory of which is calculated to “ make the heart a tomb.” He could find ample ground for a divorce in a scratch on the face, whilst lie would see none in the “mild-mannered” stop-father who could serve up a step-child for breakfast, another for dinner, and a third for supper, done up in the best stylo of French cookery, that lie may woo more voluptuously “ tired nature’s sweet restorer ” in the arms of tlie agonizing mother; and he would invoke this court to aid him in the unholy work of helping tlie monster to repose upon her bosom. If lie succeed, 1 must exclaim, “ Cruel law, cruel legislators, cruel judges! ” An ancient tyrant, as a refinement in cruelty, was accustomed to attach to the person of every malefactor a dead human body, that lie might ever have beneath his vision its gradual and loathsome decay, and have its fetid stanch forever in bis nostrils. More refined in cruelty than the ancients, the gentleman's interpretation would tie this loathsome moral carcass to the body of this innocent and feeble old woman, where she may forever sec tlie blood of her murdered son smeared all over it, and inhale tlie moral pollution as it arises rank and fetid from tlie corrupting mafes. Surely the court will not give such an interpretation to the law, unless forced to it by tlie plain and uncontrollable letter of the statute. I feel sure that tiie court will bring to the interpretation of the statute’s terms tlie ameliorating influence of the more modem aud more enlightened public opinion oil this subject. The ancient Homans admitted of divorce on too slight grounds. The abuse of this privilege disgusted tlie early Christians, who, as was natural, fell into tlie opposite error. The Catholic Church, which prevailed throughout. Europe during the middle and dark ages, forbid divorce; tint the Reformation originated a more sound philosophy oil this subject, which has gradually enlarged the grounds for divorce in general in exact ratio with the spread of a liberalized Christianity and a more thorough understanding of human lights. Let not, therefore, judicial decisions originating in a more. narrow and bigoted theology have more than their due share of influence in the interpretation of the Texas statute — the result of a different popular sentiment and a more enlightened Christianity.</p> <p>The language of the statute is broad enough to cover this ease, giving to each word its true natural signification. The'"language used is not tiie same used in the English books or the statutes of most of the Slates, but is much broader and more comprehensive. Then why give, it the same interpretation ? Why not enlarge the meaning in Che same, proportion that the terms are enlarged? To do otherwise.is surely illogical, lint even their opinions are not against ns in principle when thoroughly understood, when examined in reference to the facts of the case determined. A ease analogous to the present is nowhere decided. (2 Kent Comm., 125; 2 Mass. K., 150; 3 Mass. E., 321 : -1 Id., 587 ; 9 Bn,; 1 Hagg. Const. 1!., 65; 2. lhigg, lie. R., dñ,‘l; i £d., 773, also Wright v. Wright and Sheffield v. Sheffield, Mi. Op., 1848.)</p>

<p>Where a party fails to appeal or prosecute a writ of error to a final judgment in a cause, and afterwards, upon the rendition of some judgment or order of Ihe court made for carrying the judgment into execution, appeals, he cannot assign for error any ruling, &c., that was not made subsequent to entry of the final judgment upon the merits.</p>

<p>Appeal from Victoria. I'll a former action between these jiarties for divorce, the appellant liad been ordered to pay the appellee during the pendency of tlie suit for her separate support the sum of two hundred and fifty dollars annually, payable in quarterly installments. Tlie suit was afterwards dismissed, and at the time of its dismissal three of the installments were unpaid. Some months subsequently executions were issued for their collection, and the appellant prayed for an injunction to restrain further proceedings ou said executions. By the decree of tiie District Court the executions were ordered to be, canceled ; an injunction which had been issued to restrain proceedings under the order for alimony was dissolved, and an execution ordered to issue for the whole amount, of alimouy due and unpaid.</p> <p>argued that an execution could not legally issue without, a judgment, or order equivalent thereto, or to enlorco one that had been vacated or annulled; and that the dismissal of tlie suit, for divorce liad vacated and annulled the decree for alimouy; consequently execution could not issue on it.</p> <p>The court did not err in refusing tlie injunction, because tlie deeree for alimony was iinal. It vested a right in tlie appellee the moment eacli several installment became duo. It is true it was subject to be altered, amended, or rescinded by the court at any time during the pendency of tlie suit; but such alteration orrescission could not affect installments which liad already become due.</p> <p>Alimony is an allowance’made by the court for the subsistence of tlie wife during tile pendency of tlie suit. It is supposed to bo necessary for her subsistence. She maj use it or sko may not. She may choose to support herself by her own labor; but tills does not forfeit her right to the allowance suitable to her condition. It vests in her the moment it becomes due as effectually as tlie judgment of a court can vest a right. Suppose instead of letting it, lay, secured by the judgment of tlie court, as in the present case, slie bad assigned each installment to pay for her support. Would not tlie assignment have been good and valid? and could not the assignee have liad Ills execution even after the determination of the suit? Would bot the various installments becoming due before her death, supposing she liad died before the determination of the suit, have been assets in tlie hands of licr administrator? If such would have been trie law, what distinguishes this case in principle from those? Here the wife, relying on the validity of tlie order of court, contracts debts on a credit on Hie faith of it. Must those debts go unpaid? But we will put a stronger ease : Will nothing short of tlie actual collection of the money make it her’s? If anything short of that will suffice to vest the right in her, what is itr Surely nothing, according' to the reason of the counsel. Does not the court perceive that such an interpretation would render the allowance of alimony nugatory; a mere '‘promise to the ear,' to be broken to the. hope?”' Nothing would be necessary to render it entirely unfruitful but to file a bill of injunction against its collection and keep it pending during the, pendency of the divorce suit. Snell would be the inevitable, practical operation of the view of the case contended for by appellant. (Hart. Dig., art. 8.10 ; 1 McO.)</p>

Motion to dismiss. The appellants, as administrators for George W. Reynolds, deceased, sued the appellee and another upon a promissory note made by the appellee and others, and indorsed to the plaintiffs as administrators of G. W. Reynolds, their intestate. There was a judgment for the defendant, and the plaintiffs appealed. No appeal-bond was given, and the appellee moved to dismiss the appeal for the want of a bond.

<p>Error from Harris. This was'a trial of Ibe ri^-ht of property levied on by virtue of an execution in favor of the plantiff in error as the property of E. M. Jan is, and claimed by his wife, the defendant in error, as her separate property.</p> <p>Tlie plaintiff moved the court to dismiss tho proceedings for insufficiency in the bond tiled by the claimant. Subsequently the. claimant was permitted to give a new bond, to which permission the plaint iff objected, but his objections were overruled. There was a trial and verdict for the plaintiff. .</p> <p>The claimant moved for a now trial, on the ground of newly-discovered evidence. The facts stated in the motion were that the newly-discovered evidence would prove that tiie negroes in controversy were the'property of tiie claimant, and that tiie evidence was not known to the party before the trial. Tiie motion was accompanied by the affidavits of the witnesses by whom it was proposed to prove the facts. Upon argument the motion was adjudged insufficientfor tiie want of the proper affidavits to the facts stated. These omissions tiie court permitted the party to supply, and thereupon granted a new trial. There is no statement accompanying' the motion that it was not for the want of due diligence that tiie evidence was not discovered before the trial. There was a second trial, which resulted in a verdict for the claimant, upon which the court gave judgment, and the plaintiff prosecuted a writ of error. Thoie is no statement of tiie facts proved upon either trial.</p> <p>I. The motion for a new trial was overruled, because the facts stated were not sworn to. The court had no,authority to permit the party to amend by making- tiie oath. But the motion as amended did not show sufficient cause for a new trial. (Madden v. Shapavd. Dee. Term, 1848; Stafford v. Callihan, 3 N. S., 124.) '</p> <p>Where a new trial is erroneously granted, the order and subsequent proceedings should be reversed and judgment given on tiie first verdict. (Holmes v. McKinney, 4 Mon. R., 4; Wood v. Am. Ins. Co... 7 How. Miss. B., COO; Moore n. Ayres, 5 Sm. & Marsh R., 310; Smedes’s Digest, New Trial, 41, p. 320.)</p> <p>II. The claim bond was insufficient, and the court had no power to receive a new one. The sheriff only is authorized by the statute to take one. (Acts of 1S40, p. Go, sec. 3.)</p> <p>The first ground relied upon by the plaintiff in error cannot avail him in this court, as lie seeks here to inquire into ;i supposed error committed on tiie first trial, which, according to tiie rule established by this court in the case of-v.-, Tex. R., cannot now be urged in this court as error. It is in the power of the court trying the cause to grant a new trial. (Hilliard v. Carr et al., G Ala. R., 557.) A motion for a new trial is a matter addressed t.o the judicial discretion of the court. (3 Stew. & Port. R., 244 ; 9 Port. R., 104; 1 Dali. R., 254; 1 Pet. R„ 183.)</p> <p>The appellate court ought always to look favorably upon the judgment of the court below,.especially upon its rulings upon a matter- addressed to its discretion. (2 Marsh. R., 314, 335.)</p> <p>II. The second ground assumed as error cannot be sustained. This was a-proceeding, common under the statute of 1840, establishing tiie mode of tiie trial of the light of property levied on by execution when the claimant was not a party to the execution. The statute merely contemplates that the claimant shall give tile plaintiff in execution security. (Acts of 1840, p. GG, see. 3.) The power exists in the court to allow the party to file a new bond if the first was defective. (Shelton v, Wade, decided in this court.)</p>

<p>At common law delivery is essential to the validity of a parol gift. Actual manual delivery, however, is not always necessary, but in certain cases the delivery may be symbolical or constructive. There may be circumstances, loo, under which a gift m.iy be complete and valid as between donor and donee without delivery; as where the donee of personal property was under the age of twenty-one years, and lived with his father, the donor, the possession of the gift by the donor was held to be consistent with the donee’s right. (Notes.)</p> <p>Where a father procured a brand to be recorded in the name of his child and branded certain cattle with the brand so recorded, with the avowed object of making a gift of the cattle to the child: Held, i hat Micro was a sufficient delivery to consummate the gift.</p> <p>It has been he'd that a gift by deed or writing is tantamount as between donor and donee to a gift by actual delivery.</p> <p>Where property only is in question, the value of the article, as nearly as it can be ascertained, furnishes a rule of damagos from which the jury cannot depart. In such a ease the value of the property must bo proved, or some data must be furnished by which its value can be ascertained; else the damages must be merely nominal.</p> <p>Where a motion for a new trial was made on the ground that the verdict was contrary to law and evidence, and the motion was overruled: Held, That although the damages were excessive, yet, as that ground had not been specified in the motion for a new trial, the judgment would not be reversed for that cause.</p> <p>Where infancy was relied on to take a case out of the limitation of two years, the evidence was ‘‘that in 18-12 the plaintiff was a small girl,” ‘’that two years ago” — that is, two years before the trial in the fall of 1850 — “she was upwards of Cvvonty-one years of nge,” the suit having been commenced on ihe27Mi of October, 1848: Held, That the evidence was insufficient to sustain the verdict on appeal.</p> <p>Where the ground specified in a motion for a new trial was that the verdict was contrary to law and evidence, and the assignment of error was that the court erred in overruling the motion for a new trial: Held, That the plaintiff in error might show that the evidence did not sustain the allegation of infancy, which was relied on to take the case out of the statute of limitations; and the judgment was reversed on that ground.</p> <p>Depositions which are not referred to in nor made a part of the statement of facts will not be considered by the Supreme Court.</p> <p>Note 8.—Hillard v. Frantz, 21 T., 192; McCulloch v. Renn, 28 T., 793; Manly v. Culver, 20 T., 143.</p>

In this case it appears from the record that at the Pall Term, 1849, the plaintiff’s counsel suggested the death of the plaintiff, and had the cause continued. At the next term of the court, without making parties, the canse was tried, and verdict and judgment for the defendant, from which the plaintiff appealed.

In tins case a rale was entered against the appellant at the relation of Samuel D. Hay and W. C. Abbot, esquires, two attorneys and counselors of the courts of tho State, to show canso why ho should not be stricken from the roll of practicing attorneys on a charge of malpractice.

This suit was brought by the appellants'to recover of the, appellee damages for mu alleged trespass commuted in inking and carrying away certain slaves claimed to have been the property and in the lawful possession of the plaint ills.

The appellee recovered judgment against tlie appellants at the Spring Term, 1849, of the Galveston District Court. Held: That the plaint ill' might enter his appeal on the 18th of March; and the statute of 21 Hen. Ill does not prevent.” (Marker v. Addis, 4 Burr. R., 515.) 2d. When the 20th clay of a rule, to plead happens on Sunday, the defendant lias the whole of the next day to plead in.

<p>To entitle a party as surety to the privilege under the statute of .not being sued first he must havo.contmeted and been sued as surety.</p> <p>Where the principal is dead the surety may be sued alone in the first instance.</p> <p>The cases of Scott v. Dewees (2 Tex. li., 153) and Ritter v. Hamilton (4 Tex. li., 325) cited and approved. (Note 13.)</p> <p>Note 13.—A surety cannot insist that the administrator of the deceased maker of the'note sued on should be made a defendant. (Walker v. Collins, 22 T., 180)</p>

Error from Brazoria. In this case a decree was rendered in favor of the plaintiffs in error at the Spring Term, 1819, of the District Court of Brazoria county. At the same term of the court, on tiie affidavit of David E. Butler, attorney in fact of Sarah M. Maddox, tiie decree was set aside and tiie said Sarah M. Maddox permitted to come in as a party, and the case continued to next term.

This suit was brought by the appellee against the appellant on the 8lh of'August, 1S45, on two notes, under seal, for live hundred dollars each, both dated the 1st of August, 1840; one payable on the 1st day of January following, and the other on the 1st day of January, 1842, to one Elijah Erauk or bearer, and botli executed jointly by the defendant, Isaac C. O’Neil, and James II. Grace..

The record in this case disclosed the following facts : On the 29th of May,'A. D. 1850, a grand jury of sixteen persons were impaneled and sworn for the county of Galveston.

Suit toy the appellants on a note of the husband secured by mortgage upon the homestead. Both the husband and wife wore parties to the mortgage.

Error from Matagorda. The defendant in error, as administrator with the will annexed of Ini Ingram, deceased, sued the plaintiff in error in the District Court of Matagorda county upon an alleged judgment of the County Court of that county theretofore rendered for the sum of $1,021.09.

Error from Harris. The defendants in error obtained a judgment in the District Court of Harris county against one McGuffin, and an execution was sued out directed to the sheriff of Grimes comity, which was levied after the death of the defendant on curtain slaves and other property in the possession of the widow of the defendant. The widow and the plaintiff in error gave their bond to the sheriff for the forthcoming of the property levied on.

The return was as follows: “Received July 3, 1847,and executed July 14,1847, by levying upon and advertising for sale for cash without appraisement, on the first Monday in August next, between the hours prescribed by law, by advertisements posted in three of the most public places in the county, to wit, at the court-house door, at the Tremont, and at the Verandah, all tlie right, title, and interest of the defendants or either of them in and to a certain negro man named…

Error from Galveston. This suit originated before a justice of the peace, and was taken by appeal to the District Court in 1845, prior to the adoption of the State Constitution. It was continued from term to term until the Spring Term, 1850, when, on motion of the defendant in error, who was the appellee in the District Court, the cause was dismissed for want of jurisdiction.

This suit was brought by the appellee against the appellant and another upon two joint and several promissory notes made by the defendants and one Conkrite, and payable to plaintiff.

<p>Where the makers of a promissory note past due delivered to the payees, who still retained the note, a quantity of (torn “ to bo shipped to Galveston,” a part of which was so shipped and the balance of which was suffered to rot in the pens in which it was placed when delivered, it living proved that opportunities for shipping to Galveston were frequent at the time: lie Id. In a suit by an assignee ot tho note against the maker that tho jury wore authorized to find that the corn was a payment upon the note to tile oxtent of its market value at tho time.</p> <p>A merchant to whom produce is consigned by his debtor upon a note past due, without instructions as to tho disposition of the proceeds, has a right to apply them to the payment of tho noto; and if he fails to give other account of them, the presumption is that they were so applied.</p>

This suit was brought by the appellee against the appellant upon a promissory note made by the latter and transferred by indorsement to the former. The note contained no words of negotiability. There were in the record two petitions, one purporting to be an amended petition, Both were entitled of the same term, at which term the plaintiff had leave to amend. The record did not show the filing of either petition.

This suit was brought by the appellee against the appellants upon a promissory note made by them in favor of J. Ó. McQonigal, and by him transferred to the plaintiff. The note bore date June 30,1848, and was for the payment of six hundred dollars on the 25th day of December thereafter. The defense relied on was payment.

The appellee recovered a judgment in tlie District Court of Galveston county in May, 1843, against Hughes and Peters. Peters died and administration was taken out on his estate in Colorado county.

<p>Where it was manifest that the plaintiff in a suit before a justice had taken judgment by default against the defendant for one hundred dollars when only thirty dollars were due, and under the circumstances of the case the defendant had good reason to believe that no more than the thirty dollars would be asked: Held, That the defendant was entitled to his writ of certiorari, under the G7th section of the act of 1848. (Hart. Dig., art. 1753.)</p>

This suit was brought by tlie appellee upon a joint and several promissory note made by the appellant and two others and payable to the appellee.

This was a suit by the appellant against thenppel-lee upon three several promissory notes described in the petition, the first for the payment of $1’7G; the second for $101; and tho third for $40.12. The petition was filed on the 27th day of September, 1847.

Error from Galveston. The defendant in error, who was plaintiff in the court below, brought this suit to quiet his title to a tract of land described in the petition.

This was a suit brought by the appellant as administrator de bonis nan of the estate of John D. Ilarvey, deceased,,in the County Court against the appellee as former administrator of the estate.

The appellant sued the appellees on seven promissory notes, six of them for fifty” dollars each anti one for three hundred dollars. The liffy-rlollar notes were not cine when the suit was instituted. The plaintiil' prayed for a citation to the defendants (o answer his petition and for an attachment against their property.

The appellant brought suit against Best and another on a promissory note. There was a verdict and judgment for the plaintiff. A new trial was granted upou condition that defendants should pay all costs on or before the first day of the next term. On the fact being made known that the costs liad not been paid, the court, at the succeeding term, set aside the conditional-order for a new trial and ordered execution to issue.

The appellant filed his petition to enjoin an execution sued out on an award of arbitrators, chosen by the appellant Jones and the appellee Frosh, in conformity with the act of the Legislature of the State to authorize the settlement of disputes b.y conciliation or arbitration. (Ilart.

This suit was brought by the appellant to recover damages for the wrongful conversion by the defendants to their own use of a certain mare, the property of the plaintiff, of the value of one hundred and fifty dollars.

The appellants brought suit against the appellees in the District Court, alleging that they were the only heirs of William Watts, deceased ; that in tho course of administration upon the estate of said deceased the Probate Court ordered William B. Perry, cleric thereof, as commissioner, co sell certain property of the estate of said Watts in order to effect a partition of the effects ol the deceased among liis said heirs; that said Perry acted as said commissioner, and made…

This was a suit by the appellees for ari injunction to restrain the defendants from selling certain property of the wife under a deed of trust given to secure a debt of the husband.

The appellee sued the appellants on the 25th of September, 1849, for work and labor performed by him in the construction of a cotton gin and press under a special contract.

Error from Lamar. This suit was brought by tho defendant in error against the plaintiff in error on the 20th clay of June, 1845, upon a judgment for a sum of money alleged to have been theretofore rendered in the State of Arkansas. There was a demurrer to the petition whioh the court overruled, and a verdict and judgment thereon for the plaintiff, and the defendant brought a writ of error.

<p>Where the statute of limitations begins to run it continues to run. notwithstanding any supervening disability of tho party entitled to sue or liable to be sued. (Note 3f>.)</p> <p>The third section of the statute of limitations of 1811 is limited to actions upon accounts k>r ^frgoods, wares, and merchandise, or for articles charged in a store account, anti the exccp-vFtioa contained in this section in favor of the creditor cannot bo extended to any other causes of action than those enumerated.</p> <p>Where tho Legislature has prescribed a general rule with special disabilities or privileges, these cannot be enlarged or extended to objects not embraced within the exception by mere implication or from parity of reason. (Note 36.)</p> <p>Note 35.—Chevallier v. Durst, post, 239; Ellett v. Moore, post, 243.</p> <p>Note 30. — "When the enacting clause in a statute is general in its terms and objects, and a lu-oviso is afterwards introduced, such proviso is construed strictly. (Roberts v. Garboro, 41 T., 449.)</p>

Error from Bowie. The plaintiff in error sued the defendant in error in the District Court to recover the contents of a promissory note for the payment of ten dollars, and for work and labor alleged to be of the value of one hundred and thirty dollars. The plaintiff filed with the petition an account specifying tiie character and amount of his demand for work and labor. No answer aj> pears to have been filed.

<p>Error from Bowie. Transcript filed by defendant in error with a motion to affirm without reference to the merits.</p>

Error from Bowie. The defendant in error sued McLoskey, Rames, and Moore on a promissory note made payable to him by McLoskey and Rames, and guaranteed after its maturity by Moore. Service was acknowledged by McLoskey, and process ivas returned served on Moore, and as to Rames, not found in 'ibe county. The plaintiff discontinued as to Rames, and took judgment by default against the other defendants.

Error from Bowie. This suit was brought upon the promissory note of the plaintiff in error and defendant below as follows: “Washington, March 31,1845. “ On the 1st day of June nest I promise to pay to Benjamin L. Britton or order one hundred and seventy-five dollars for value received, which when paid will he in full of a judgment obtained by W. IV.

Error from Lamar. This suit was brought for a specific performance of a contract for one half league and half labor of land.

The petition alleged that one Mary Noble, now MaryiNash, wife of Cooper B. Nasii, was in 1840 indebted to Jonas-Ilarvey in tiie sum of seven hundred and nineteen dollars, and that in consideration thereof she executed her promissory note, whereby she promised to pay the said Jonas Ilarvey or bearer the said sum of seven hundred and nineteen dollars, and that by means thereof the saitl Mary Noble, now Mary Nash, and her husband became liable, to pay to the said Jonas Harvey…

The note sued upon was executed on the 10th of November, 1S37, and was made payable six months after its date. The maker, Joseph H. Durst, departed this life in the mouth of May, 1S43, and the action was commenced on the 2d of November, 184-1. The defendant demurred, and among other causes of demurrer, pleaded the statute of limitations and prescription. The exeeptiou was sustained and the cause dismissed.

<p>Appeal from Nacogdoches. Motion by appellant to continue.</p>

Error from Bowie. In this case suit was commenced against Burtridge, Peters, and Ilulme. The two latter accepted service. The former was not summoned by citation or publication. Judgment was entered by default against the defendants generally. The suit was not discontinued as against Burtridge, and for this error the judgment was sought to be reversed.

The appellant brought suit against the appellee before a magistrate on an aeemmt due from the intestate for medicines and medical services, and, in the terms of the judgment, was nonsuited, on the ground that the claim was barred by the statute of limitations.

Error from Rusk. The defendant in error moved the court to dismiss the writ, of error on the following grounds: 1st. That the petition for a writ of error does not show or charge any error in the ruling or judgment of the court below in the trial of said cause, and does not notify the defendant what he has to answer in the Court of Appeals. 2d. That neither the petition for the writ of error nor the citation describes or sets out the amount of the judgmeut sought to be…

<p>Appeal from Cn-ss. The appellee sued the appellant to recover the proceeds of nine bales of cotton alleged to be of the'value of nine hundred dollars. The original petition contained two distinct statements of the cause of action, in imitation of counts in a common-law declaration — one upon a promise to pay to the. plaintiff (he proceeds of so much cotton delivered to the defendant, to be by him sold for the plaintiff; the. other upon an alleged conversion by the defendant, to his own use. of so much cotton of the. plaintiff. The original petition was filed on the 13th day of May, 18-18. The defendant answered by a general demurrer and general denial,"filed on tlie 9th day of June, 1848. On the 22i 1 day of March, 1819, lie filed an amended answer setting tip special matters in defense. On the 23d of the same mouth the plaintiff filed an amended petition, alleging in substance that in February, 184(1, he entered into articles of partnership with 'Elijah and Mieajali Bennett, by which the parties thereto agreed to carry «n a certain farm and tan-yard in partnership, each member oí the firm to sitare and share alike in tiie profits arising, according to the number of hands furnished by each, "‘it.being agreed and understood by (lie said partners that the said Prewitt (tiie plaintiff in (his suit) should take charge of and control the said farm and tan-yard, and dispose of tiie same for the benefit of the partnership; ” that the plaintiff and the said Micajah complied with their agreement by furnishing hands. &c., “and also by the plaintiffs’ taking charge of the said farm and tan-yard in person, and managing- and controlling- the same,” but that the said Elijah failed to comply except in certain particulars mentioned, and that in consequence the farm was conducted with the capital of tiie plaintiff and Micajah, and by tile skill, labor, and personal attention of the plaintiff'; that two of the bales of cotton sued for were his individual property and the other seven bales were “ under the direction and control and management of (lie plaintiff, as tiie agent of the said linn of Micajah Bennett and plaintiff, and that the said Micajah resided during- the year 1SIG in the State of Mississippi, and never liad possession of or controlled said seven hales; ” that the plaintiff' was solely possessed of said seven bales for the purpose of disposing of the same; and that the defendant, knowing- the. said cotton to be tiie property of tiie plaintiff, with the intent to defraud him of the two hales, his own property, and to render him responsible to his partner, (he said Micajah, for tiie one-half of the seven bales, converted the same to his own use by shipping the same and applying the proceeds to tin; individual debts of tiie said Elijah, who had departed this' life.</p> <p>On the 271 li day of March, 18-19, the defendant tiled exceptions to the amended petition,-assigning for special canses “ that by llie averments of tiie same the said plain till lias no separate cause of action against this defendant, and that this defendant is not liable to be sued severally for the cause of action specified in said original and amended petitions; and further, because the original and amended petitions set up different and inconsistent causes of action.” The court overruled the defendant’s exceptions f,o tiie petition.</p> <p>Oil tiie trial the partnership was proved as alleged. It was also in proof that the plaintiff' liad the entire control of tlie farm, &c-., for the firm ; that he delivered tiie cotton at tiie warehouse of ST. G. Butt & Co., of which firm the defendant was a member; that two bales of tiie cotton were his individual property and tiie balance was partnership property of the firm of G.VW. Prewitt & Co., composed of tiie persons mentioned in tiie petition; that the cot.lon was shipped and sold by tiie firm of H. G. Butt & Co., and the proceeds applied by them to tiie payment of tiie accounts of E. and M. Bennett due the defendant; that E. Bennett made purchases of goods on account of the partnership, and was generally understood to he the trading- member of the firm, composed of the plaintiff and tiie Bennetts; that M..Bennett liad given his assent to his so acting, and had approved the application made of tiie proceeds of the cotton, and that purchases made in behalf of rhe firm of G. W. Prewitt & Co. liad been placed to the account either of one or the other of the Bennetts. E. Bennett died in February, 18-17. Tiie court instructed the jury that the plaintiff' could recover of the defendant in this action the value of tiie two bales of cotton which were his, individual property; hut that as to the seven bales, which were partnership property of tiie firm of G. IV. Prewitt & Co., he could not maintain tiie action unless lie was the general agent of that linn ; that if the plaintiff -was such general agent, and conducted the Business of the firm, he could maintain tiie action.</p> <p>There was a verdict and judgment for the plaintiff for the amount claimed in the petition, a motion for a new trial overruled, and the defendant appealed.</p> <p>Tiie assignment of errors related to tiie ruling of the court—</p> <p>1st. In overruling- the defendant’s exceptions to the petition.</p> <p>2d. In the instructions to the jury.</p> <p>3d. In overruling the motion for a new trial.</p> <p>J. The first error assigned by the appellant is that the court below overruled tlie demurrer to the amended petition of the appellee. It clearly shows a cause of action arising out of a contract, and that there is a non-joinder of plaintiffs, for which the demurrer should have been sustained. (1 Chit. PI., 5, 7; 10 Johns. It., 34; Coffee v. Eastland, Cook R., 150; Palter v. Jewell. 0 Mass. R., 040; Converse v. Symmcs, 10 Mass. R., 377.) Our practice assimilates more to that of equity that to the common-law practice. (Wheeler v. Wheeler, 3 Cow. R., 537; Story Eq. PI., secs. 72, 230, 541.)</p> <p>II. The court erred in instructing the jury. (Baker v. Brown, 21 Wend. R., 110; Butts e. Collins, 13 Wend. It., 139.)</p> <p>III. The verdict was most clearly and manifestly wrong, for which a new trial should have been granted.</p> <p>I. Defendant’s (appellant’s) amended answer and demurrer were improperly filed — the demurrer, because the defendant had already previously answered to the meri ts of l he cause, and because it was not filed in due order of pleading; (Stat. 1840, p. 371, sec. 21;) the amended answer is in the nature of a plea hi abatement-, and should have been sworn to. (Stat. 1840, p. 371, see. 31.)</p> <p>II. Dormant partners need not be joined either as plaintiffs or defendants. (1 Chitty PI., 43; Story on Part., see. 241, and authorities there cited; 2 Wheat- Sclw. 1ST. P., 1150, 1157, and notes.) As to who are dormant partners see Story on Part., sec. 80, and authorities there cited.</p> <p>III. As to the kind of agent each partner is to the others and the firm the books declare this as the rule : “ It is only to act in the course of their particular trade or line of business that an authority is delegated by partners to each other, [25Í5] and it is only in such transactions that strangers have a right to go on the credit of the partnership funds.” (Watson on Part., 180; 1G Viner Ab., 242; 1 Salk., 12G; Coup., 814; 6 Ves. Jr. R., G04; 1 Esp. Ca., 29.)</p> <p>“When an agent has an3 beneficial interest in the performance of the contract, as for the commissions, &c., or a special property or interest in the subject-matter of agreement, he may support an action in his own name upon the contract.” (1 Chit. PI., 8.) The non-joinder of proper parties as plaintiffs or defendants, a ground for pleas in abatement. (See PARTIES TO ACTIONS, 1 Chit- PL, Passim.) Pleas in abatement are not permitted to be received or admitted, unless the truth of the matters stated appears on the record or is sworn to. (Acts of 184G, p. 371, sec. 31.)</p>

Error from Bowie. Suit was commenced by the plaintiff in error against the defendant on a promissory note. The defendant appeared and pleaded, 1st, that the matters set forth in plaintiff’s petition were not sufficient to entitle him. to a judgment; 2d, that lie was not indebted to the plaintiff; and 3d, that the consideration on which the note sued on was given had wholly failed.

<p>Appeal from Cherokee. Motion by appellee to affirm without reference to the merits.</p>

Error from Cherokee. This was a proceeding by certiorari in the District Court to revise the judgment of a justice of the peace. The defendant in the certiorari, who was also defendant in the suit before the justice, moved to dismiss the certiorori upon the ground that the bond given to' obtain the writ, liad upou.it the name of but one surety.

This was an action by the appellant for maliciously killing a mule, tiie property of the plaintiff. 'She alleged that she had been greatly damaged by tlie loss of the services of the said mule, and of the time spent in obtaining the service, and making the purchase of another.

<p>Appeal from Cass.</p>

The suit in this case was instituted on a promissory note in the following words : “$400. On the first day of Julj, eighteen hundred and fifty-two, I promise to pay BiehardB. Tutt or bearer four hundred dollars, drawing interest at ten per cent, after maturity, which may be discharged in good cash notes on solvent punctual men living in Busk county, Texas, under the jurisdiction of a justice of the peace, with my indorsement thereon. Value received June 28rli, 1849.

Error from Cass. The defendant in error sued the plaintiff in error, on the 8th day of November, 1847, to recover the sum of one thousand dollars, alleged to be due him for work and labor performed by him for the defendant at his request for the space of seven years, ending on the 1st day of July, 1847. The petition alleged that the plaintiff resided in the county of Cass, in this State, and that the defendant was a resident of the State of Louisiana.

<p>Where judgment went by default and the defendant, by attorney, filed a petition for a writ of error: held, that the attorney who filed the petition for a writ of error was the attorney of record of the defendant for the purpose of receiving noticé of a motion to amend the judgment under the statute. (Note 50.)</p> <p>Where tfie statute required reasonable notice of a motion to be given, and notice was given that the motion would bo made after three days, but the motion was made on the nest day after the notice was given, and was sustained on the same day: Held, The notice was not reasonable.</p> <p>Where judgment was rendered by default for less than the amount due by mistake, and the defendant obtained a writ of error, after which the plaintifF moved to amend, and the judgment was amended at the next term — the plaintiff in error filed the transcript of the proceedings down to the writ of error, and the defendant filed a transcript of the subsequent proceedings — the amendment having been made without duo notice, the judgment was reversed and rendered for the proper amount at the costs of the defendant in error. (Note 61.)</p> <p>Note 50.—Burke v. Thomson, 20 T., 158.</p> <p>Rote 61.—Gillian v. Henderson, 12 T., 47; Westall v. Marshall, 16 T., 182. Judgments may be amended after notice to the adverse party. (Wheeler v. Goffee 24 T., 660; Thomson v. Bishop, 20 T., 154; Russell v. Miller, 40 T., 494.)</p>

This was a suit for the recovery of lands brought by the appellee..

The appellee sued the appellant to recover the sum of four hundred and thirty dollars, money loaned.

Error from Rusk. This suit was brought by the defendant in error on a note of hand, a part of the consideration of a sale of land by Simpson to Farmer, and praying to enforce the vendor’s lien on the 'land by a sale of the land, to satisfy the note. The plaintiff alleged that he had given the defendant a bond for title.

The -judgment rendered by tho magistrate in this suit was removed by certiorari into tiie District Court. As a ground (and tiie only one) for tho grant of the writ it was averred that the cause of action was wholly unjust, and that petitioners believed that their grounds of defense were good, and that, unless they could have a fair and impartial trial, it would operate as a hardship on them.

This suit was brought on several promissory notes. The petition set out one of them as follows : “ Twelve months after date I promise to pay A. Sears and J. Bright, or order, the sum of three hundred dollars, for value received. 10th December, 1843.

The suit out of which this case arose was instituted by the appellees against one Lewis, and, on an affidavit being made that Lewis so secreted himself that the ordinary process could not be served upon him, an attachment was issued.

<p>The form of the final judgment is immaterial, but in substance it must show intrinsically and distinctly, and not inferontially, that the matters in the record have been determined in favor of one of the litigants, or that the rights of the parties have been adjudicated. Therefore a judgment that the defendant recover his costs without an order that the plaintiff lake nothing by his suit, or some order equivalent thereto, is not a final judgment, and an appeal from such a judgment must be dismissed at the cost of the appellant. (Note 5S.)</p> <p>Note 58.—Fitzgerald v. Fitzgerald, 21 T., 415; Martin v. Wade, 22 T., 224; Holt v. Wood, 23 T., 474.</p>

Error from Cass. In this case suit was brought by the defendants in error against tlie plaintiff in error and one William B. Cock on a note of hand, of which tlie following is a copy: “ On or before the 1st day of January next I promise to pay Ira Stnredevant & Co.' or hearer one hundred and twenty-five dollars, for value received of them tiiis 16th of August, 1849. Charles Jackson.” On the hack of which was the following indorsement: “Pay tiie within to Marshall and James.

Error from Red River. This suit was commenced on the 30th of January, 1845, and the petition alleged that on the 3d of June, 1839, the defendant (who is plaintiff in error) conveyed lo the plaintiff tiie headlight certificate of one Tilomas D. Dresser for one third of a league, for which the plaintiff paid the sum of three hundred and eighty-eight dollars and forty-five cents, and that the defendant covenanted to warrant and defend the peaceable possession of the said land.

Error from Upshur. The plaintiff in error was indicted “for betting money on a game of ten-pins, which said game of ten-pins was then and there a gambling device.” He pleaded guilty, and the jury assessed the line at ten dollars, for which and costs judgment was awarded, and the case was brought up by a writ of error.

Error from Bed Biver. One Hightower was arrested and hold to bail to answer to an indictment for an assault and battery. The plaintiff in error became his surety upon a bond conditioned, for his appearance at the Spring Term, 1847, to answer to the charge contained in the indictment. The defendant r.ppoared and continued the case.

The appellant filed his petition on the 22d clay of March, 1848, praying an injunction to stay execution upon two judgments previously recovered against him in favor of the appellee’s intestate, Griswold-one for the sum of four hundred and twenty-six dollars and sixty-eight cents, on the 4th day of November, 184G, and the other for one hundred and six dollars and forty-five cents, on the 7th day of June, 1847.

The appellant was put upon his trial on an indictment for keeping and exhibiting a faro hank for gaming. He was arraigned and pleaded “not guilty.” The jury returned a verdict of guilty, and assessed his line at ten dollars.

The .appellant was indicted, tried, and found guilty of an assault, and lined by the jury one dollar.

The appellant was indicted for an assault with an intent to murder Samuel Wingate. There was but one count in the indictment. The evidence was contradictory. The jury found him guilty of a common assault. A motion was made for a new trial, which was overruled by the court.

The appellant was indicted at the Fall Term, 1848, of the District Court, under tiie 1st section of the act of 1840, “to suppress gaming.” At tiie Spring Term, 1849, he was tided, found guilty, and fined ten dollars under tiie 67th section of the act of 1848, entitled “An act concerning crimes and misdemeanors.” Tiie defendant moved in arrest of judgment. The court overruled the motion and the defendant appealed.

The appellant was indieted for an assault with intent to murder. On the trial the prosecuting attorney did not ask a conviction for any offense but a common assault and batter3>-, which was found by tiie jury, and judgment thereupon rendered bj' the court. The defendant, moved for a new trial, which was refused, and he appealed.

The plaintiff Able claimed of the defendant Sparks the sum of live hundred dollars, the price of a horse sold defendant on the 1st of Januaiy. 1841.

This was an action brought by the appellee against the appellants for false imprisonment. There was a verdict for the plaintiff', and the defendants moved the court for a new trial, which motion was overruled and judgment rendered on tlie verdict. The errors assigned were— 1st. Verdict contrary to evidence. 2d. That it was contrary to law. 3d. Tlie damages are excessive and more than commensurate for the damage done to the plaintiff! 4th.

This was a suit by a scire facias to revive a judgment obtained by the appellee against (he appellant’s intestate in his lifetime.

This suit was brought on the 14th of January, 1850, by tlie appellant, as administrator of Anderson, to recover certain slaves alleged to belong to the estate of bis intestate.

This suit was brought ou the 14th of January, 1SÜ0, by (lie appellant, as administrator oE Anderson, to recover a slave alleged to be the properly of the estate of his intestate..

This suit was brought by the appellee as payee tc recover of the appellant as drawer the amount'dne upon a bill of exchange, a? follows: Bowie county, Texas, December 21,1S44. Messrs.

<p>Where the testimony is conflicting this court has uniformly refused to disturb the verdict on the ground that it was contrary to the evidence.</p>

This suit was commenced in February, 1845. At the Spring Term of tlie court, 1847, the death of the plaintiff was suggested on the record, and a scire facias was issued to Charles II. Alexander to show cause wily lie should not be made a party. This scire facias was served, hut no party was made.

<p>Quere as to the construction of the term “discount” in the act of 1840. (Tlart.Dig., p. 222.) .</p> <p>The system of Spanish jurisprudence was about being abrogated,and the common law, except pleading, was on the point of being introduced. A plea known to the former system, having defined objects and limits, (the plea of recopvention,) was retained by name. And we are justified in recuriing to that system to ascertain its extent, its legitimate object, and the matters which might be therein a-leged.</p> <p>The defendant may plead in reconvention, or by whatever name the plea may be called, all matters necessarily connected with the main action and incident to the same, although it be a claim for *• unliquidated or uncertain damages.” But quere whether he can plead a claim for " unliquidated or uncertain damages” which is not connected with or incident to the main action. (Note 74.) .</p> <p>The objection that a multiplicity of issues may be formed so as to distract the jury has some but not controlling force. “The judge is authorized to make up issues arising on tho pleadings, and submit them for the determination of the jury.</p> <p>Damages arising from the wrongful suing out of an attachment may be pleaded in reconven tioLi iu tho sumo suit in which the attachment issued.</p> <p>Where the plaintiff obtained an attachment on the ground that the defendant secreted him su)f so that the ordinary process of tho law could not be served upon Inin, tlie defendant pleaded in reconvention that ho was temporarily absent from CfNs county on a visit to his sou-in-law in Walker county; that plaintiff well knew defendant’s intention to pay saic visit long before ho startod on the same; that the defendant’s intention was publicly and notoriously known in Cass county long before he left, and that the plaintiff bad ample time to have commenced the suit in tho ordinary way alter he was informed of defendant’s intention, &c.; the proof was sufficient to sustain the allegation that the defendant was on a temporary visit as alleged, and that his intention to make the visit was know*» in lh£ neighborhood: Held, That it was not necessary that the defendant should have shown that he communicated his intention to visit his son-in-law to the plaintiff; that it was sufficient if it was known in his neighborhood and could have been ascertained upon inquiry.</p> <p>The amount of damages that may be awarded for wrongfully suing out an attachment depends in a great measure upon the motives of the plaintiff. If these were malicious — if t-liero was no probable cause for the proceeding, and it was instituted to vex and hnrrass the defendant, the damages should be exemplary; but if the motive was an honest desire to secure the payment of a just debt, though there was no sufficient legal cause for tlie attachment, the damages really sustained should be the measure of redress. Tlitf'jury must determine upon the evidence as to the motives of the plaintiff and the amount of damages.</p> <p>Note 74.—Hammond v. Belcher, 10 T., 271; Castro v. Gentilev, 11 T., 28; Carlin v. Hudson, 12 T., 202; Peiser v. Cushman, 13 T., 390; Sterrett v. Houston, 14 T., 153; Castro v. Whitlock, 15 T., 437; Brady v. Price,19 T., 285; Carothers v. Thorpe, 21 T., 358; Punchard v. Taylor, 23 T., 424; Duncan v. Magette, 25 T , 245; Hamilton v. Van Hook, 27 T., 302; Culbertson v. Cabeen, 29 T., 247; Brown v. Tyler, 34 T., 168; Coleman v. Bunce, 37 T., 171; Osborn v. Schiffer, 37 T., 434; Beckham v. Hunter, 37 T., 551; Munnerlyn v. Alexander, 38 T., 125.</p>

<p>Where the plaintiff moved to set aside a nonsuit on the ground that his attorney, expecting to be in attendance the ensuing week, had spoken tc another attornev to represent him in the case until he should reach the court, but the latter attorney liad failed to do so; Ileld, That the motion was properly overruled. (Note 75.)</p> <p>Where an action of injunction was dismissed for the want of prosecution, the judgment being “that the plaintiff take nothing by his petition.” and '‘that the defendant go hone© without day;*’ and the plaintiff at the same term moved to set aside the judgment, which motion was overruled; afterwards, at the same term, the defendant moved the court to enter judgment against the plaintiff and his sureties in the injunction bond, which motion was sustained: Jlcld, That to have authorized the judgment ln**t rendered the court should first have reinstated the case; then, if the. petition showed no equity, or if the answer repelled the ease made by the. petition, or if fcho plainfiiF had abandoned his complaint, the defendant might have had the. injunction dissolved, his judgmont against the obligor» in the bond, and the petition dismissed; that the judgment should lie reversed, and that the proceedings subsequent to the overruling of the motion to .-einstate < the caso should bo set aside and annulled.</p> <p>Noth 75.—See Cochrane v. Middleton, 13 T., 275; Foster v. Martin, 20 T., 118; Aldridge v. Mardoff, 32 T., 204.</p>

<p>Daily and others v. The State, 4 Tex. R., 417, cited and approved.</p> <p>“Gaming is not of itself an offense punishable by law; therefore a bond for the appearance of the principal to answer a charge of gaming is void.</p>

- Appeal from Cherokee. The appellee sued the appellant upon a promissory note for the payment of six hundred and forty-four dollars. There was a general denial and a plea of payment, alleging' that “since the institution of this suit they (the defendants) have paid the sum above demanded of them by the said plaintiff.” The plaintiff excepted to this plea because not accompanied by “a bill of particulars of the payment of the debt;” which exception the court overruled.

Error from Houston. This was a proceeding commenced before a justice of the peace oil the information of Harrison against Learned in 1843 for a violation of the secoud section of the act of the 16th Jauuary, 1843. (Hart. Dig., art. 3083.) The justice of the peace rendered a judgment against Learned for twenty-live dollars and costs.

This action was brought by the appellee to recover damages for a breach of warranty of the title of a slave sold by the deceased intestate of the appellant in 1837. Shortly after the purchase of the slave, one David Kenly instituted and successfully maintained against the ap-pellee a suit for her recovery.

This action was brought on a note of hand given for money won on the event of a horse-race. The note being road in evidence the judge charged that horse-racing was illegal, and that if the jury believed the note to liave been won on a horse-race they should find for the defendants. There was accordingly verdict and judgment for defendants.

This was a proceeding by mandamus to compel the appellant Arberry, who was chief justice of the county of Cass, to receive and count… Held: and the returns thereof made, in accordance with the laws of said State regulating elections, to the chief justice, who was required by law to open the returns, estimate tho result, and record tiie state of tho polls at eacli precinct in a book to be kept by him for that purpose; that said election returns were made to the proper…

Mrs. Thom, one of the appellees, and William D. Smith, the appellant’s intestate, were appointed joint administrators of the estate of Leander Smith, deceased, the former husband of Mrs. Thorn, and continued as joint administrators until the death of William D. Smith. The appellant was appointed administrator of the estate of William D. Smith.

<p>Appeal from Red river.</p>

The appellee sued the appellant to recover tlie possession of a negro alleged to liave been purchased by the plaintiff of one Monroe, and to have been “decoyed, taken, and carried away” from his possession by the defendants, and by them wrongfully withheld from the plaintiff, said negro being tlie property of the plaintiff, of tlie value of eight hundred dollars. The defendant.

This was an action of trespass to try title brought by the appellee.

Error from San Augustine. This action was brought by Greneanx to recover damages for (he conversion by the defendant to his own use of a promissory note, alleged to be the property of the ifiaintiff. The note was executed by B. J. Thompson in favor of tire plaintiff or bearer, and, being in the hands of one C. M. Gould, an attorney at law, for collection, was by him for a valuable consideration transferred to the defendant.

The appellee filed his petition to enjoin executions issued under an order of the court for costs in several suits then pending in tlie'Disdriet Court of that county. Some of these suits were instituted by the petitioner in his representative capacity as administrator, and one, he alleged, liad been instituted without his knowledge and consent; that he knew nothing of its being on tlie docket, and disclaimed-all interest in tlie same.

Error from Sabine. Tbe plaintiff in error as indorsee sued the defendant in error as indorser upon a promissory note as follows: “$3328 2S-100. Grenada, Miss., 10ih October, 1838. “The Bank of Grenada, Mississippi, will pay to the order of James Sims, esq., six months after date, with interest, after the first day of next month. November, at the counting-house of IV.

The appellant was indicted for an assault and battery on John Laramore. To the indictment he pleaded a former conviction for (lie same assault and battery, by tiie verdict of a jury in a trial before a justice of the peace; that a fine of five dollars had been assessed by the jury against him, and that the fine and costs had been paid.

<p>Appeal from Cass. This suit was brought by the appellant against the appellee and others. The appellant, as' the assignee of a genuine conditional headright certificate granted to one Holcomb for three hundred and twenty acres of land, filed and located his certificate with one Jesse Cherry, the acting deputy surveyor for Frederick Seidekum, who was the principal surveyor at tiie time for the district composed of tiie county of Bowie, in tiie Republic of Texas, under which location and certificate the said Cherry surveyed for the said appellant the laud in question, then unappropriated land of the public domain of the Republic of Texas, which said land lies in the present county of Cass.” The plaintiff alleged that the survey so made had not been .returned by the said Cherry and placed or registered on the books of the surveyor’s office, “nor has it been done by the principal surveyor, Seidekum, whilst he continued in office, although requested so to do by petitioner, but went out of office without having’ performed his duty; ” that after Seidekum went out of office Robert C. Graham was the surveyor, and application was then made to him to place petitioner’s entry and survey on the. records, but he refused to do so; that after his location and survey, so made for him by Jesse Cherry, Hammond procured Robert C. Graham, or His deputy, by virtue of a pretended headlight certificate, granted to him, to survey for him the same land that liad been located and surveyed for petitioner, and had the same entered on the books in the said surveyor’s office. The petition charged Hammond and the surveyor who surveyed for him with full knowledge of his previous survey; prayed that Hammond, Cherry, Seidekum, Graham, and the present surveyor should be made parties defendant, and called upon eacli of them to answer categorically to the truth of the allegations in his petition; prayed that a mandamus might issue commanding the surveyor to vacate Hammond’s entry and survey, and to receive and admit to record the survey made by Cherry. Tiie petition was afterwards amended, and it was made a case of trespass to try title.</p> <p>Hammond answered, denying all knowledge of the appellant’s claim", alleged that when about to locate his own headlight he applied to the surveyor to know if there was any claim or location on the land, who, after an examination in his office, assured him that there was none.</p> <p>Cherry answered that he had surveyed tiie land for the appellant as assignee of Holcomb, and made out tiie field-notes of tiie survey to be returned to tiie principal surveyor, but was prevented from returning them by the frequent absence of the said principal surveyor about the time until he and the principal both went out of office; that he afterwards applied to the surveyor who succeeded Seidekum to receive the said returns, but he refused so to do; (hat lie was a deputy surveyor at the time of his making tiie survey, duly appointed by Seidekum.</p> <p>Seidekum answered that Jesse Cherry was appointed deputy surveyor in July, 1S4.3; that a particular district was assigned lo him, the-bounds of which were designated; that the bounds of the district were specified in the bond given by Cherry for the faithful performance of his duty, and that he particularly cautioned him to receive no tile and make no survey out of his district, as, if lie did so, such file or survey would he void; that for the other district east of Cherry's, Robert Graham was appointed deputy, on the same conditions and instructions, according to the instructions given to him, the said Seidekum, by the Commissioner of tiie General Land Office, requiring that every deputy should be strictly confined to his own district, dated Houston, 3838; that neither Cherry nor Graham liad ever delivered to him a connected plan of 'their work; that he could not therefore ascertain the correctness of the field-notes sent to him as county surveyor, and therefore could not record them.</p> <p>Graham answered that he did not know ihat the petitioner ever applied > Cherry to survey any land for him or ever filed a certificate witli (lie sa.c Cherry for that purpose; that petitioner never applied to him to have tl’e survey entered on tiie records of the surveyor’s-office; that lie was the surveyor of the county, as charged in the petition, after Seidekum went out of officethat Michael K. Iiammond applied to him to survey the said land for him, and filed his own headright, on which to make the survey; that respondent then examined the records of the office, but found nothing in the said records to justify even a suspicion that said land was the property of the petitioner or had ever been surveyed, and that no file of any certificate on said land appeared on said records, and that respondent believed none such was ever made in the surveyor’s office; that after Seidekum had gone out of office, Cherry did apply to respondent to receive his work as deputy surveyor under Seidekmn; that he refused to receive his work, because he was not his deputy and Unit said Cherry presented no map of his work; that respondent could not say whether the petitioner’s survey was on- the map of the work presented by Clicriy or not; diad heard that Cherry had surveyed the land for complainant, but on the closest examination of the records of his office, found nothing' to justify the information.</p> <p>Tlie bond of Cherry was in evidence, and it defined the boundary of his district the same that was set out in the answer of Seidekum. The jury found that the land in controversy is five miles from the boundary of the district set apart for Cherry. Judgment for the defendants.</p>

<p>Whether the authority of an executor or administrator is a mere naked statutory power, which must be strictly pursued, and that this must be proved by tho purchaser in order that title may pass, is not material to the decision of the question suggested by the . argument. If the provisions were to be regarded in many particulars directory to tJio executor or administator, and if the sale, like that of a sheriff’s, would not be affected by any irregularities which might take place without the knowledge or participation of tne purchaser, yet a departure from the statute in the particular of either lime or place could not be classed as an irregularity, and would avoid the sale.</p> <p>The probate judge has authority to order a sale of slaves or lands to be made at a place other than the court-house door of the county; but if the order of sale do nob designate another place, the sale will be invalid if not made at the court-house door of the county. There are exceptions to this rule, as where the sale is confirmed, all minors being represented, and there is no appeal; or where those who are interested in annulling the sale are estopped, as by the reception of the proceeds, &e. (Note 01)</p> <p>Where a distributee of an estate, to whom a note taken for the purchase-money of a slave sold as the property of the estate had been assigned in distribution, instituted suit on the note and the purchaser resisted the payment of the note averring that the sale was void, that he had offered to restore the slave and that he was then ready to restore him, the court finding the sale void, held that the note should be canceled and the slave restored; and further ordered that the cause should be remanded, and that the legal representatives or heirs of the deceased intestate should be made parties to the suit, and that judgment should be rendered in favor of the representatives or heirs of the said estate for the amount of hire due from the defendant, if the latter had offered to restore tho slave before the institution of the suit; the hire to be computed to the date of such offer only.</p> <p>^Note 91.—Jemison v. Gaston, 21 T., 260; Brown v. Christie, 27 T., 73; Tippett v. Mize 30 T., 361.</p>

<p>A distinct cause of action cannot be introduced by way of amendment to the petition.</p> <p>Where the plaintiff instituted suit upon two judgments for the sum of seven hundred and fifty dollars each, alleged to have been recovered by him against the defendant on two promissory notes for the^um of seven hundred and fifty dollars each, in tho State of Alabama, on the — day of-, 1846, and afterwards amended by striking out that description of the cause of action and by describing it as a judgment recovered by him against the defendant, in the State of Alabama, on the 11th day of May, 1846. for the sum of nineteen hundred and six 42-100 dollars, upon two promissory notes for the sum of seven hundred and seventy-five dollars each, alleging that he was enabled to make tho amendment from a transcript of the record of the proceedings in the court which rendered the judgment in Alabama which was not in his possession at tro time of instituting the suit; there was a judgment by default for the plaintiff, and on error the judgment was reversed and the suit dismissed.</p>