Volume 7 — Texas Reports

Roeser brought suit against Bellmer, in a Justice’s Court, and obtained a judgment, from which Bellmer appealed to tho District Court. The District Court reversed the judgment of the justice of the peace, and dismissed the cause, at the costs of Roeser, on tire ground that the judgment had been rendered on a day on which the justice was not authorized to hold his court for such eases — it not being a term day. Roeser appealed.

This suit was instituted by the appellant against the appellee’s intestate, Richard Matson, on the 26th day of August, 1830, in the District Court of Washington county, on a promissory note purporting to have been executed by the defendant in favor of the plaintiff. The defendant having died, his administrator made defense, pleading that the note sued on was not the “ act and deed ” of his intestate.

This ease had its origin in the Probate Court of Washington county, in a controversy between the appellant, Mary Love, formerly Mary Robertson, widow of Jonathan Robertson, deceased, and his only child and heir, Felix F. Robertson, (a minor, represented by his guardian,) respecting the ownership of two negroes, Peter and Finn. The widow claimed that they were community property, and the heir that they were the separate property of liis father.

Williamson HcMassie, the former husband of Mrs. Wood, died in 1847. The estate was insolvent, and, upon the application of the widow and child of the deceased, a house and town lot, appraised at $2,000, together with all other property exempted by law from forced sale, were set apart for their sole use and benefit by the Probate Court. Wheeler was a creditor of the estate by a debt contracted in 1845, and he appealed to tiie District Court.

The appellants brought suit against the appellees, on the 1st day of May, 1845, to recover certain njgroes claimed by the former, in right of Rhoda, wife of James Mmmo, and her children, Elizabeth Fuller and others, plaintiffs. The plaintiffs claimed the property as legatees under the will of their ancestor, Samuel Hamner, father of Rhoda Mmmo, made in the State of Virginia, in the year 1817.

The court below rendered judgment for the defendants upon, the following facts, which were agreed upon by the parties : 1st. The title to the premises in dispute was vested in Vicente Gortario, who died testate, in the year 1837. 2d. The said Vicente Gortario devised all his property, under a certain proviso contained in the last clause of his will, as translated below, to his wife Maria Estrada, and his only, brother Alexandro Gortario. 3d. In the division between his…

This was a suit upon a promissory note bearing date May 5, 1845, by the appellee.

This suit was instituted by the appellee, on the 7th day of September, 1819, to recover a tract of land described in the petition, and claimed by the plaintiff by virtue of a certificate located and surveyed.

Error from Bexar. The plaintiff in error brought suit against Garza to the Fall Term, 1S44, of the District Court of Bexar county. Subsequently to that term the plaintiff amended his petition and made Riddle and Maverick defendants.

<p>Appeal from Guadalupe. This suit was brought by the appellees against the appellant, in August, 1847, on a promissory note. At the Spring Term, 1S43, the defendant answered, by a denial of any indebtedness and a plea of payment; and the cause was continued on his affidavit. On the 24th day of April, 1840, six days before the commencement of the session of the court at which the case was tried, the defendant filed interrogatories, requiring the plaintiffs to answer whether they had not authorized one Hardman to receive of the defendant payment of the note, and whether they (the plaintiffs) had not received a part of the amount due them upon the note. Appended to the interrogatories was an affidavit by the defendant, stating that the answers of -the plaintiffs to his interrogatories wore material to his defense, and that lie knew of no other witness by whom he could prove the same facts ; that he liad caused subpoenas to be issued to Bexar county to obtain the testimony of Hardman, who, he was informed, resided there; but that he had been unable to obtain service on him, and lie is informed that he has gone beyond the limits of tho State, and his residence is unknown to the defendant. The interrogatories were not served upon the plaintiffs or their attorney. When the cause came on for trial, on the 1st day of May thereafter, the defendant made an affidavit for continuance, the same in substance as that appended to his interrogatories, with the additional averments that the plaintiff's resided in the city of Hew Orleans, and the attorney, in that county; and that the interrogatories, for “ some cause,’’ had not been served on them or their attorney. The court refused a continuance. There was a judgment for the plaintiff!?, and the defendant appealed.</p>

The defendant was indicted on the 16fch of March, 18-18, for stealing one heifer yearling, the property of William Tom; verdict of guilty returned on the 4th May, 1850; judgment of the court, that he receive thirty-nine lashes on his hare back; motion for a new trial, and in arrest of judgment; both overruled, and defendant appealed.

<p>An indictment which does not conclude, “against the peace and dignity of the State,” (Hart, Dig., p. 62, see. 9,) should be quashed, on motion. (Note 13.)</p> <p>Note 13. — The State v. Sims, 43 T., 521.</p>

The appellant having failed to file the transcript within the time prescribed by law, the appellees moved the court to affirm the judgment without reference to tlie merits. The appeal bond was conditioned that “if said appellant should sustain his appeal and prosecute it with effect, then this obligation shall be void, and otherwise it shall remain in full force and effect.”

The fourth section of the third article of the Constitution, which declares that the style of the (ah) laws shall be, “ Be it enacted by the… Held: possession thereof adversely to said State; that said land is situate,d in the county of Galveston; is a portion of tlie island of Galveston, and contains twenty-one and sixteen hundredth acres, being designated on the map made for John S. Sydnor by William H. Sandusky as lots number three and four, and known as that part of the…

The record showed that, on the 25th day of February, 1839, James F. Perry,- executor of the last. will and testament of Stephen F. Austin, deceased, exhibited his petition against Joint P. Coles, in the District Court for the county of Washington, in which petition it was alleged that— “On or about the- day of -, (afterwards averred by amendment to be the 12th day of January, 1830,) a settlement of all accounts was made between the said Stephen F. Austin and John P. Coles,…

Appeal frhm Guadalupe. This suit was brought by the defendant in error against the plaintiff' in error and three others — Foster, DeWitt, and Conn — to obtain the cancellation of a deed executed by the plaintiff' to the defendant Johnson for the, conveyance of a tract of land.'on the ground that it was fraudulently obtained.

The appellant having- failed to file the transcript within the time prescribed bylaw, the judgment was affirmed, ou motion of the appellee, without reference to the merits. Afterwards, the appellant moved to set aside the affirmance, on the ground that there had not been a final [judgment] in the court below. The'judgment of the court below had been on a verdict in favor of the defendant, that she should recover her costs from the plaintiff.

This suit was brought on the 13th day of January, 1840, by the appellees, to recover of Thomas'W. Cox, the defendant below, a tract of land. The appellant Primm intervened, claiming title to a portion of the land in controversy.

Mozea Rosseau removed to Texas, in 1828, accompanied by his reputed lawful wife, Sarah Rosseau, and their three children, viz, Mary, who subsequently married one Welobmeyer, but at the commencement of tins suit was intermarried with Wm. A. Hemphill, one of the appellees; and James and-Lavinia Rosseau. He was also accompanied by a woman named Polly Childress, who lived in the same house with his family.

This was an action of “trespass to try title,” ■brought in October, 1848, by the appellauts, in right of inheritance, as heirs of Charles Baird, deceased. On the trial, the plaintiffs offered in evidence a. deed from E. D. Jackson to John P. Coles, administrator of their ancestor, diaries Baird, bearing date on the 7th day of May, 1838.

.Appeal from Leon. An order was entered in the District Court, that the appellant should be fined and imprisoned for a contempt of court, in refusing to answer questions, as a witness, before the grand jury, respecting instances of violation of the act to punish gaming. The only question presented by the record is, whether the witness had the right to judge of the tendency of his own response.

<p>Appeal from Bexar.</p>

The appellant brought suit against the appellees, •tlie administrator and heirs of John Gregg, deceased, to foreclose a mortgage given to secure tlie payment of a promissory note bearing date on the 28th day •of November, 1842, and clue on tiie 1st of March, 1844.

The appellee brought suit to recover back from the appellant $307.50, alleged lo have been exacted by the Latter, under the pretense that lie, as district surveyor, was entitled to that amount as fees of office for having examined and rejected 1470 land certificates for J. N. Reynolds, for whose benefit the plaintiff sued, and to have been paid by the plaintiff as agent for said Reynolds, on the representation of the defendant that he was so entitled.

Error from Leon. This was a suit in the District Court, to foreclose a mortgage upon personal property, alleged to be of the value of one hundred and lifiy dollars, given to secure the payment of seventy-live dollars. It was objected, that the District Court liad not jurisdiction of the case. The court overruled the objection ; there was judgment for the plaintiff.

<p>Where the statute required an applicant for a certiorari to give bond in at least double the amount in controversy, it was held that a bond in double the amount oí the judgment sought to be revised was sufficient. (Note 36.)</p> <p>In some States a petition for a certiorari is regarded as subject to the same rules which apply to a motion for a new trial; but here, where an appeal is not allowed from the decision of a justice of the peace, less strictness is required. (Note 37.)</p> <p>Note rg. — Davis v. Pinckney, 20 T., 340.</p> <p>Note 37. — Hooks v. Lewis. 1G T., 551; Clayv. Clay, post, 250; Hope v. Alley, 11 Tex., 259; Inge v. Ponson, 15 T. 315; Connally v. Renn, 17 T-, 123; Peabody v. Buentillo, 18 T., 313; Robinson v. Jjakey, 19 T.. 139 ; Jones v. Nold, 22 T., 379; Givens v. Blocker, 23 T., 033; Darby v. Davidson. 27 T., 432; Clark v. Hutton, 28 T. 123; Cordes v. Kauffman, 29 T., 179; Ham man v. Lewis, 84 T.,474.</p>

This action was brought on a note given for tiie purchase of a tract of land. The note was executed on the 29th of May, 1849, payable twelve months after date, and the petition was filed on the 30th of August, 1830. Tiie plaintiff, at the date of the contract, executed bis bond for title, covenanting that, in a reasonable time, lie would make or canse to be made to tiie defendant a good and sufficient deed to tiie premises, upon die payment of die said note.

Aj)peal from Washington. This was an action of forcible entry and de-tainer, brought by the appellants against the appellee, before McKnight, a justice of the peace, under the act of 184S. (Iiart.

<p>Where the assignee of a headright claim, in a suit to establish it, proved by two witnesses every fact necessary to show the validity of the claim, it was proved on behalf of the State, by several witnesses, that they were well acquainted in the neighborhood where it was testified by the plaintiff’s witnesses that the assignor resided, and that they knew no such man; and that they believed, had there been any one of that name residing there at ihe time fixed by the plaintiff’s witnesses, they would have known it. The jury having found for the plaintiff, the látate moved for a new trial, offering to produce a greater number of wttneses from the neighborhood referred to, who would prove that if the pretended assignor liad resided there at the time indicated, they would have known it. The court overruiod tne motion: I-Ield, There was no error.</p>

This suit was brought by the appellants, in 1S40, to recover of one Hicks, who was in possession, a league of Jancl, claimed by the plaintiffs, in right of the wife as heir of John nibbins. The appellee, Perry, •under whom Hicks was in possession, defended. The plaintiffs claimed that in 1834 and 1835, John Ilibbins petitioned for and had surveyed the league of laud in question; and that it was granted to him as a colonist in Austin’s colony.

Aldridge and Davis, in the year 1841, recovered judgment against John W. Hall, and having issued execution, it was returned, no property found. The said Hall, in the previous year, had, by deed duly filed for record, transferred the great mass of his property to his brother, VY. D. 0.1-Iall, sen’r, who, in 1841, conveyed the same to W. D. C. Hall. jr„ for himself, and in trust for the other children of the said John TV. Hall.

This was a suit instituted on the part of the city of -San Antonio, against the appellants, to recover a certain tract or parcel of land set out and described in the petition by metes and hounds.

The appellant brought suit to recover from the appellee a league of land, claimed by the former, by virtue of a headlight certilicate, located in October, 1847. The defendant claimed the land under an ancient Spanish grant to one Louis Mencliaca, and by legal mesne conveyances.

This suit was brought by tho appellant, to recover a certain tract of land in the appellant’s petition, set out and described in the field-notes of the survey on which tho patent under which lie claimed the land was issued. The parties waived a jury and submitted the case to the judge, and judgment was given for the defendant. The location and survey were made in tlie summer of 1S3S, aud patented on the 3d day of July, A. D. 1847, ■for half a league of land.

This action was brought ior the recovery of lands. Held: adjudicated the lands to the said Ignacio Perez, and commissioned the actual regidor to survey and designate by landmarks the lines and boundaries of the same, and to put the said Perez in possession, and to extend, in continuation of the decree, the corresponding documents, (los diligencias,) which being completed, the originals…

Action of trespass to try title. The plaintiff claimed under locations upon headright certificates. The defendant claimed under a •concession to one Maria Josepha Rodrigues, wife of Manuel Yture Castillo, extended in 1S34; and the case turned principally upon the question of the validity of the old title.

<p>’Where a concession in sale, under the 24th article of the colonization law of 1825, conceded to the purchaser the terras designated in the 22d article of the same law: Held, That it was no objection to the title. (Note 60.)</p> <p>'The contracts which the Executive had ratified, and the concessions stipulated to purchasers or settlers by virtue of decree No. 16 of the 24th of March, 1825, were confirmed by article 10 of the law of the 28tli of April, 1832. (Decree 190, Laws & Dec., C. & T., p. 191.)</p> <p>In disposing of this objection, on which much reliance seems to have been placed, we have not deemed it necessary to enter into a critical examination of the terms and import of the several provisions of the law to which reference has been made, or to institute an in* quiry into the policy of the former Government in the disposition of her public domain in order to ascertain whether a just interpretation of those laws or a proper understanding of that policy would have required a different action from that taken by the Executive in this instance. It would not bo unreasonable to suppose that the highest executive and legislative functionaries of the then Government had as enlightened views in respect to the true policy of their Government and as just an appreciation of their powers and duties as we possess in respect to them. The construction of their powers, and of the laws which conferred them, adopted and acted upon by the authorities under the former Governments of the country, must bo respected until it be shown that they have clearly transcended their powers-or have acted manifestly in contravention of law. (Note 61.)</p> <p>"Where a concession of land, in sale, to a person who was at tlie time Secretary of State was authenticated by the “ first officer,” instead of the Secretary of State: Held, That the objection was not of a character to invalidate the title.</p> <p>'Where a concession directed the alcalde of “ the respective or nearest municipality,” to put the grantee in possession of the land which ho might select, and to issue to him the title, &o.: Held, That the concession was not directed exclusively to the alcalde of the very municipality, if the land should be within one, the term “nearest” contemplating the event of the land not being within any municipality, but that it was directed to the alcalde of the municipality which might be embraced within either term, and that either one of two might act under the appointment,as might be ionnd most convenient. But the court afterwards say: It is not certainly shown in what municipality this land was situated. (It lies on the right bank of the Colorado, a short distance below the city of Austin.) We have little doubt that it was in that of Bexar. But that is not satisfactorily established by evidence in the case. And if it were, we cannot undertake to say, from the evidence, that, in the then state of the country in respect to the means of intercommunication, the seat of justice of the municipality of Austin, (San Felipe, the alcalde of that municipality put the grantee in possession, «fee.,) was not considered nearer than Bexar; and to sustain [385J the objection, it devolved on the party making it to show that that of Austin was neither the “respectivo” nor “nearest” municipality. (.Note 62.) %</p> <p>The distinction between perfect and imperfect titles under the Government of Ooahuila and Texas has been often discussed in this court, and resulted in the acknowledgment of the distinction, resting on the following basis, that is to say: If the grant were to receive na further act to constitute it an absolute title to the land from the legal authorities, taking effect in presentí, it was a perfect title :\but if something remained to be done by the Government or its officers, such title or right was imperfect; and until it received the sanction of the political authority it could not claim judicial cognizance.</p> <p>Titles issued to colonists and purchasers under the colonization laws of Ooahuila «and Texas were of an entirely different character from those concessions issued by the Spanish authorities in Florida, and afterwards pronounced inchoate by the Supreme Court of the United States. Under these laws the title of possession was a final title. Conditions were annexed, except to those granted to the military and some other favored porsous. But they were conditions subsequent, upon the non-performance of which the land was to bo forfeited.</p> <p>The appellant alleges that the conditions were not performed, and that a forfeiture of the title was the consequence. Ho is here met by the eighth section of the schedule of the Constitution of the State, directing,that “the legislature, shall, by law, provide a method for determining what lands may have been forfeited or escheated.” No method having yet been provided by the Legislature, it presents a case in which all jurists agree that the courts must await the lead of the political authority before they can act. The appellant having located subsequent to the adoption of the State Constitution, whatever rights he can claim under his location must be subject to the Constitution. And it mu^t be distinctly understood, that so far as his right to assert the forfeiture and to take the benefit thereof is concerned, this case is controlled by the State Constitution. No. opinion is expressed as to what would have been the result had the location been made before the adoption "df the State Constitution. (Note 06.)</p> <p>There is no doubt that, in practice, under the Spanish law, where grants.of land were made upon conditions, if the conditions were not performed, any one might denounce the land, prove the forfeiture, and have the land granted to himself. But then it devolved on the denouncer to prove the forfeiture. And if it were conceded that the plaintiff had the right to institute this proceeding, in analogy to the practice under the Spanish law, for the purpose of having the forfeiture adjudged by reason of the non-performance of conditions, nothing can be more perfectly clear than that it devolved on him to prove the facts in which the fvleiture consisted.</p> <p>Quere where it was provided that, upon the failure to perform conditions annexed to a final title, the title should become null, whether the rule is not different from the above, both as to the right of an individual to take, advantage of the forfeiture, and as to the burilen of proof respecting the performance or non-performance of the conditions.</p> <p>Rote 60. — Jenkins v. Chambers, 9 T., 167.</p> <p>Note 61. — Titus v. Kimbro, 8 T., 210; The State ?). Sullivan, 9 T., 166; Jenkins, u. Chambers, 9 T., 167; Jones v. Garza, 11 T., 186; Ruis v. Chambers, 15 T., 586; Cavazos v. Trevino, 35 T., 133.</p> <p>NoTe v. 11 Martin v. 26 T., Barrett v. Kelley, 31 T., 476.</p> <p>Note 63. — Swift v. Herrera, 9 T.,263; Rivers v. Foote, 11 T., 662; Johnston v. Smith, 21 T., 722; Bowner v. Hicks, 22 T., 155; Luter v. Mayfield, 26 T., 325; Howard v. Colquhoun, 28 T., 131.</p>

This was an application to the Supreme Court for a mandamus to the cleric of a District Court, John M. Costley, to compel him to deliver the transcript hi a certain case.

Suit by appellee upon the following note, secured by mortgage, with prayer for sale of the mortgaged property : “On or before^the first day of October next I promise to pay George C. •Craig, or order, the sum of one thousand eight hundred and eighteen ($1,818) dollars, with ten per cent, interest from date, for value received this 30th day ■of October, 1850. “II. McB. Pridgen,” The note was indorsed to the plaintiff, and there was a formal assignment of the mortgage.

<p>It is not stated nor does it appear that, by the use of ordinary diligence, the new evidence-might not have been known to the party before the trial. Besides, there is no statement of facts; and we are not informed what evidence was given on the trial. We have no means of knowing whether the new evidence be not merely cumulative, or of judging” what might have been its effect upon a second trial. (Note 64.)</p> <p>Where one of the grounds of a motioa for a new trial was, that an important witness of the defendant was “so disguised with liquor” that he was unable to testify as clearly as he otherwise would have done, &e.: Held, That after having taken the chance of a verdict upon his testimony, under the circumstances, the defendant could not make that a ground for a new trial which must have been known to him at the time, and which, if sufficient to authorize the awarding of a new trial, would have been sufficient to have entitled him to a continuance, if applied for when the inability of the witness to testify in a proper manner was discovered.</p> <p>Note 61. — Augustine v. The State, 20 T., 163; Angelí v. Strut, 21 T., 185.</p>

The appellants sought to enjoin the collection of certain costs, taxed by the clerk in the bill of costs, as the compensation of witnesses under the provision of the 63d section of the act of 1S46. (Hart-Dig., art. 721.) The costs were taxed after the adjournment of the court, but before the issue of execution.

This was an action for the recovery of a slave named George, the separate property of the appellant Persia A. Porter, wife •of her coappellant John T. Porter. 'The plaintiffs prayed judgment for the said slave, and damages for his detention, for a sequestration^ and also for general relief. The negro was drowned while in possession of the defendant, during the pendency of the suit, and the fact was set up by an amendment to the defendant’s answer.

Error from Walker. The appellee, a resident of tlie county of Walker, sued the appellants, non-residents, to recover damages for an alleged breach of contract. A citation issued on the 3d day of January, 1849, commanding the sheriff to cite the defendants by publication, upon which tlie sheriff made tlie following return : “ Came to hand January 4,1849.

The appellee brought suit on the 16th clay of October, 1850, to recover of the appellants an account for the. hire of a negro woman, amounting to the sum of one hundred and forty-two dollars and forty-two cents, alleged to have been due from the intestate in his lifetime.

On the 15th day of October, 1849, the appellant brought suit against the appellee, on a promissory note, duo on the 2d day of December, 1840, At the Ball Term and on the 7th day of November, 1849, the plaintiff amended his petition, alleging that on or about the 21st day of October, 1845, the defendant, by his indorsement in writing signed by him, acknowledged the justice of 'the debt.

The appellant was indicted and found guilty under the 67th section of the act concerning crimes and punishments. He moved for a new trial, which was granted liim on payment of costs. From this judgment he appealed.

Error from Jefferson. This suit was brought by the appellee against, (he appellants. upon their promissory note for the payment to the former, “admin-istratrix of the estate of Robert E. Booth,” of eighteen hundred and twenty-two dollars. The defendants pleaded a failure of consideration, and also in reconvention.

Error from Jefferson. This was a suit upon a promissory note, less in amount hut similar in its description to that on which the suit was brought in the case heretofore decided between the same parties.

The appellees sued fortlie recovery of a tract of land, and claimed under a conveyance from Charles M. Lockhart to .the plaintiff Solena, executed on the 16th March, 1846. The defendant claimed under a ■conveyance from the said Charles and Iiis mother, Winncy Lockhart, dated May 15, 1837, t.o one Thomas T. Clmmney, and by deed from the said Chum-ney and his wife to the defendant, dated 24th April. 1847.

This was an action to recover damages for an alleged trespass committed in wrongfully suing out and levying ail attachment.

This suit was instituted to tlie Spring- Term, 18-12, by Thomas Harvey, (for whom the appellant was afterwards substituted,) as administrator of John W. Buckner, deceased, against (he appellees, oil a promissory note made by them, payable to Buckner.

At the. last term of this court a decree for divorce in this case and a division of property was affirmed.

Suit was brought by the appellees against the appellant, on the 9th clay of April, 1S50, on a promissory note made on the 6t.h of the same month, payable one day after date. The defendant objected that the suit was prematurely brought. The court sustained the objection, and, on the 3d day of December, 1830, dismissed the case. On the 4th of December, 1850, the appellees brought the .present suit.

This suit was brought for a divorce. The plaintiff (who is appellant in this court) alleged “that she liad been often beaten and bruised by the defendant, until her life was thereby endangered; tiiat the defendant liad charged her with stealing his money, and threatened her life if she did not immediately return it, and'drove her from Ills house; and that his conduct, course, and treatment towards her have been and are so outrageous, inhuman, and brutal, as to render her…

Error from Walker. This writ of error was brought to reverse a judgment rendered against t-he plaintiffs in error, the principal and his sureties, iíi a recognizance for tlie appearance of tlie principal to answer a charge u of playing-at a game of cards.” Tlie recognizance recited that Francis Cotton “had that clay been arrested by said sheriff upon the charge of tlie State aforesaid, of playing at a game of' cards.” This was the only description given to tlie offense in…

Error from Walker. On the Gth clay of October, 18-18, the plaintiff in error filed his petition, alleging that on that day the defendant in error, Gray, a resident of that county, had recovered a judgment in that court against the petitioner and one Wilcox, for $750; that theretofore, on the 31st day of March, 1847, the petitioner had recovered against Gray a judgment for $709.36; that on tiie last-named judgment execution liad issued to the sheriff of that county, and liad…

Error from Harris. Tiie plaintiffs sued as holders of a promissory note, dated 2oth January, 1S49, and made payable to Charles J. Glaviehe or order, on demand, the same being indorsed by the said Glaviehe, in blank.

This suit was brought by the appellee to recover •of the appellants the value of a slave alleged to have been hired to the defendants for a given period, and not returned by them. The defense was, that the slave had disappeared, being lost, stolen, or dead; by reason of which, and without any negligence or fault on the part of the defendants, they were unable to restore him to the plaintiff.

Error from Walker. Chance sued tiie plaintiffs in error for the value of a slave, alleging-, in substance, that said slave, while in the employ of the defendants, under a contract of hire as a wood-chopper, was, in violation of the contract, put to work by the defendants in their steam mill, and, while thus employed, was negligently caused and permitted by said defendants to come in ■contact with the machinery of said mill while the same was being put in motion, &c., by…

Error from Harris. In April, 1S43, the intestate, Lowrey, in a summary proceeding, obtained a judgment against the plaintiff in error for failing to levy and return an execution directed to him as sheriff of Jefferson county. On this judgment execution issued ou the 10th day of June, 1843, and was returned without a ievy in September following.

Error from Liberty. I. The proceedings show that the Probate Court had once decided upon the validity of the marriage of said Martha with said E. H. R. Wallis; and the subsequent action and decision of said court upon that subject-matter was void. (Merle v. Andrews, 4 Tex. R.; Bank of the U. S. v. Mass., 6 How. U. S. R., 31.) II.

Error from Colorado. The plaintiff in error recovered judgment against the defendants in error in the District Court, in a case brought into that court by the latter by appeal from Hie judgment of a justice of the peace before the adoption of the State Constitution. The judgment in the District Court was for a less amount than that recovered before the justice, and the court adjudged the costs of the District Court against the plaintiff.

This suit was brought by the appellee against the appellants to enforce the specific performance of a contract for the sale of a mill and lands. The plaintiff, Barnett, made the purchase of Jackson Wells, and took liis bond to make title, on payment of the pnrchase-money, for which he gave his notes.

Suit by appellant against appellee on a note dated December 2S, 1S3S, which had been presented for allowance and was rejected. The appellant’s intestate died on the 27th of July, 1844; letters of administration were granted on tlie 8th of October thereafter. Tlie claim was presented within twelve months after the grant of letters of administration. The suit was instituted on the 27th of January, 1845. The case went off on a demurrer to the petition. J. Sayles, for appellant.

Error from Matagorda. Action of trespass to try title to a lot in the town of Matagorda, by the defendant in error against the plaintiff in error.

The appellee filed his motion'in tlie District Court, to quash the levy and return on an execution issued on a judgment against him iu favor of the appellants. The return was as follows: ‘‘Came to hand July 5th, ’49; served same day, on 2 leagues laud, Nos. 20 & 21; advertised for sale on 1st Tuesday, August next,” signed by the officer; after which was tlie following: “August 7th, 1849, sold two leagues of land, as per levy, IT.

<p>Where there did not appear to be any notice of appeal or writ of error, but briefs were filed by both parties, the court said: As it may save the parlies from incurring the unnecessary expense of again bringing up the cause for review, wo doom it not improper to express our convictions that there is no error in the judgment.</p> <p>Whore one of two joint defendants died pending suit, the executors of the deceased defendant were made parties, and the judgment of the court was rendered against all the defendants jointly, with an order that execution should issue against the surviving defendant, and that the executors should pay the judgment in the duo course of administration: Held, Thoro was no error.</p> <p>It is no objection that the same judgment cannot be rendered against all the defendants. The court, in the exercise of its general powers, and under the 115th section of the act of 184G, has the power to enter such judgment as will conform to the pleadings and the nature of the case.</p>

This was an action brought by the ax>pellee against the appellant for a malicious prosecution. The petition was in the usual form.

Appeal iron) Liberty. This was an'application to the court of probate of Liberty county, praying for the sale of a tract of land, to satisfy a claim secured, by mortgage and held by plaintiiV (who is appellee in tilia court) against the, succession of the deceased intestate. The claim consisted of three notes of hand, duo respectively on the 7th September, 1845, 184G, and 1847. The notes, were given iu 1844.