Volume 8 — Texas Reports

This was an action by the appellant against the appellee upon a promissory note made by the latter payable to one Ward.

This was an action brought by Mims in his lifetime to recover of Mitchell the value of a negro girl aud her hire. After the case was remanded to the District Court by tiie judgment of this court at a former term, (1 Tex. It., 443,) the parties amended their pleadings. The defense relied on at tlie trial was that the negro had died, by reason of which tlie defendant was unable to restore her to the plaintiff.

Error from Fort Bond. Tiie appellant sued as the bearer of a negotiable promissory note. The defendants demurred, and further pleaded that the consideration for which tiie note was given was void, tiie same being for tho amount of a forfeit on failure to run a horse-race. The plaintiff excepted to all tiie matters of defense set up in tiie answer.

Suit by the appellant against the appellees for partition of a eerlain tract of laud. The plaintiff claimed title by virtue of a sale for taxes.

Error from Austin. This was a motion to quash the levy and return on an execution. The grounds of the motion were— 1st. That the execution was not styled according to law. 2d. That no valid levy was made by taking possession of the property. Tlie execution commenced, “ Ti-ie State oe Texas, \ To the sheriff of ¿aid comity, County of Austin.

Error from Galveston. This suit was brought in the District Court of Galveston comity by the defendants in error against the plaintiff in error as iu-dorserof a promissory note. At the Spring Term, 1848, the defendant'obtained an order for a change of venue to the county of Brazoria. No action appears to liave been taken upon this order. At the Fall Term, 1843, the cause was continued by the defendant as on affidavit.

Error from Galveston. This was a trial of the right to property levied oil in tlie possession of the defendant in execution, Marston, and claimed by Hitchcock and Sliaw. McQuinnay, the plaintiff in error, was the plaintiff in the judgment. A jury was waived. The claimants produced a hill of sale of the property dated August 3d, 1849, and recorded the next day.

This suit was brought by Miller to recover of Alexander ti tract of hand to which the former claimed title and of which the latter was in possession. The defendant claimed as tenant of R. & D. G. Mills, who-were admitted as defendants and pleaded title in themselves derived from Lewis, through Brewster, to them by two conveyances, the former bearing date on the 19th day of February, 1S45, and the latter on the 6th of March of the same year.

Error from Harris. The petition represented tiiat on the 15th day of July, 1837, John Iv.

Error from Polk. The defendants in error sued the plaintiff in error in the District Court to recover two bales of cotton which they alleged the defendant wrongfully detained from them. The defendant pleaded a former action and judgment thereon rendered between the same parties on the same cause of action.

Error from Galveston. The defendant in error filed his petition in the District Court of Harris county on the 30th day of August, 1848, to enjoin the collection of a judgment recovered against him by the plaintiff in error in that court.

The appellees ancl the appellants, jointly with Andrew J. McGown, in April, 1851, on a contract under seal, which contained, among others, the following stipulations, viz, that the party of the first part, Crnger and Moore, should print a weekly religious paper, to contain editorial and other matter, which Andrew J. McGown, alitor and proprietor,” should furnish; in consideration of which the party of (he second part, the said Mc-Gown, Burke, Bailey, and Bagley, were to pay…

Tho appellant brought suit against the appellors by liling his petición in tho District Court of Brazoria county on the 21st day of April, 18-18.

Error from Galveston. Tlie appellee sued tlie appellant to recover the purchase-money of certain lots in the city of Galveston. It was in proof t-liat tlie lots were offered for sale at auction under a deed of trust and power from Blahu and wife to the appellee, on tlie i)th day of November, ISIS, and struck off' to tlie appellant, who was tlie highest bidder at tlie sale ; but no memorandum was made by the auctioneer at the time.

Error from Walker. The plaintiffs in error, viz, Elem and James Cum-min”--!, being minors, sued by their guardian for the undivided two-thirds of a half league of land, alleging that they had been with their adult brother, William Cummings, joint owners of the halt league, and that in the year 1816 the defendant James Powell had fraudulently procured them to join with their said brother in a sale of the said laud to the said defendant, and that the latter had since sold…

Rrror from Montgomery. This was an action to recover the amount cine on a sealed note, executed by plaintiff' in error in favor of the defendant, in error. The petition was in the usual form, and was filed on tiie llt.lt December, 1S49, and the writ was served on tho 13th December, 1849. At tiie Spring Term, viz, March, 1S50, Hie defendant, demurred generally, and pleaded also a general denial.

Tins suit was brought on a promissory note, of which the following- is a copy : “ $206'.CS. Galveston, November 30, 1849. “Due Sydnor & Bone, or order, by schooner Cornelius and owners, for supplies and materials received, the sum of two hundred and six dollars and sixty-eight cents, payable at Galveston ten days after date.

Error from lied River. Suit by the defendant in error against the plaintiff in error and one Ragsdale. The defendants resided in different counties. A citation was issued to each defendant, directing the sheriff of the respective county to summon him (not both) to appear and answer the petition of Mar-ler, exhibited against both, a copy of which accompanied the citation. Judgment went by default.

Error from Bed Elver. This was an action by the defendant in error upon .an account for goods sold. The defendant pleaded in abatement the non-joinder of two others, alleged to have been partners of the plaintiff in a mercantile firm under the firm name of A. 31. Alexander, and as snob to have sold to the defendant the goods in question. There was also a general denial.

Error from Red River. The defendant in error brought his action in the nature of trover to recover of tiie plaintiff in error damages for the conversion to his own use of a horse (the property of the plaintiff) alleged to be of the value of one hundred and fifty dollars, the plaintiff laying his damages at two-hundred dollars. The defendant answered by a general demurrer, a general denial, and a special plea of property in himself.

<p>Error from Ked'River.</p>

The appellant was indicted at the Fall Term, 1849, of the District Court, charged with having stolen a negro woman, the property of one John Carpenter, of the value of five hundred dollars. The jury returned a verdict of “guilty,” and assessed tlie punishment at imprisonment in the penitentiary for one year. The defendant moved in arrest of judgment, which motion tlie court overruled and gave judgment on the verdict. The defendant appealed.

<p>An executor of part of a will and a testamentary guardian are necessary parties to a suit to set aside the will.</p> <p>A person who is a necessary party to a suit and against whom process is prayed may prosecute a writ of error to the judgment, notwithstanding the process was not served and such party did not appear in the court below.</p> <p>Whore the petition contains a prayer for specific relief only and the judgment is not expressly prescribed by statute, it is error for the judgment to go beyond the prayer.</p> <p><¡uere? Whether a direction in a will that all the property after the payment of debts shall be kept together for seven years, the proceeds to be applied to the raising, clothing, and educating of minor children, is void as against forced heirs.</p>

The appellant was convicted upon an indictment for keeping a faro bank. He pleaded in abatement to the indictment that the names of the grand jurors “do not appear by any list prepared by the County-Court” of persons adjudged by said court qualified to serve as jurors. To this-plea there was a demurrer, which the court sustained.

Error from Red Elver. This was a suit by Pickett as indorsee of the promissory note of Pool, payable to Rhine Brothers & Co., of New Orleans, or bearer, and indorsed by Rhine Brothers and Co., and also by one Samuel Rhine. The suit was brought jointly against Pool, who resided in Bowie, as maker, and Samuel Rhine, who resided in Red River, as indorser.

Error from Red River. This suit was originally commenced before a justice of the peace, on Lhe joint and several note of Houston, James & Tucker. The-defendants denied the execution of the note, and the justice gave judgment in their favor. The plaintiff obtained a certiorari, and the case was taken into the District Court. A citation from the clerk of the District Court to tiie defendants was returned, served on the two last, James and Tucker, and Houston not found.

Error irom Grayson. This suit was brought in 184G by tiie heirs of Colville against tiie heirs of Dugan, to compel a specific performance of a contract for tiie conveyance of land.

Error from Bowie. Suit by the defendant in error against the plaintiff in error for the value of a certain quantity of corn. Verdict and judgment for the plaintiff. Motion for a new trial overruled, the plaintiff entering a remittitur as to part of the judgment.

Error from Bowie. This was a suit by Crittenden against Peters as maker and Vandyke as indorser of a promissory note. The petition averred that Peters resided in the county of Bowie, and that Vandyke resided in the county of Bed Biver. The note, was annexed to and made a part of tlie petition.

Error from Titus. Tlie plaintiff in error obtained a certiorari to remove to-the District Court of Titus county a judgment rendered by a justice of the peace of that county. His petition was sworn to before tlie clerk of the District Court of Harrison county. The defendant moved to dismiss, on tlie ground that the petition was not properly verified by affidavit. The court -usfainefi the motion and tlie defendant brought a writ of error.

This suit was brought by T. J. W. Gibson, the plainUif’s intestate, to recover from tire possession of the defendant, Young, several negro slaves. Gibson died pending the cause, and the suit was revived in iho name of his administrator.

, Error from Bed Biver. Mather and Staats were partners in trade. Both, partners having- died, Booth, tiie administrator of Staats, filed his petition in the County Court of Bed Biver county against the executors of Mather for an-account. Tiie County Court entertained tiie petition and rendered a decree in favor of the petitioner. Todd, as guardian of one of the heirs of Mather, removed the proceeding by certiorari to the District Court.

Error from Red River. This was an action by the indorsee against the maker of a promissory note. The defendant pleaded that the note was purchased by tlie plaintiff of the pasme for two-thirds of its nominal value, and that the contract was therefore usurious. He moved a continuance, supported by affidavit, to obtain tlie testimony of one Wootten, who was tlie payee of the note sued on. Tlie court refused tlie application. There was judgment for the plaintiff.

<p>Error from Bowie.</p>

Error from Red River. Tlie action in this ease was brought on a note which became due on the first January, 1849, but which bore interest from the first day of January, 184S. Tlie defendant was duly served with process, but failing to appear and make defense, judgment final by default was, on the 2d November, entered «against him for tlie debt in the sum of fifteen hundred dollars, and for interest amounting to tlie sum of one hundred dollars.

<p>Error from Bed River. Barnett sued Montgomery on a promissory note for $500. Tile petition purported to be filed on the 9th November, 1849. Oil the petition was indorsed, ‘’service of the within petition acknowledged.</p> <p>W. T. Montgomery.”</p> <p>And “I do hereby certify that the indebtedness of said Montgomery, as set forth in the within, is just aud correct. S. H. Morgan, Attorney.</p> <p>“Signed and sworn to this 9th November, 1849.</p> <p>W. II. Vining, Clerk.”</p> <p>Then followed the judgment: “In the District Court, November 8th,. A. D. 1849. This day came the plaintiff by attorney, and the defendant having duly acknowledged service comes into court and confesses judgment in this cause; wherefore it is considered by the court that the plaintiff,"Elias D. Barnett, have and recover of the defendant, William T. Montgomery, his debt, five hnndred and seventeen dollars and twenty-one cents, interest, besides all costs in this behalf expended, aud by consent execution is stayed six months.” On the 4th of October, 1851, Montgomery filed his petition for a writ of error. The errors assigned were—</p> <p>1st. No petition was filed when the judgment was rendered.</p> <p>2d. The justness of the debt was not sworn to by the person in whose favor the judgment was confessed.</p> <p>3d. There was no judgment confessed for any specific amount.</p> <p>4th. The judgment of the court did not correspond to the confession.</p> <p>I. In regard to the first reason assigned, it is wholly immaterial on what day tlie petition was filed, provided it was filed within the term of tlie court at which said judgment was rendered. The term is considered as one day, and a petition filed on any day during the term has the same effect as if filed on the first day of the term. (Starkie on Evidence, yol. 2, p. 783.)</p> <p>II. Every judgment is presumed to be correct, and every reasonable intendment must be made in favor of the correctness of a judgment. It is true that the clerk has written just above the copy of the judgment in the transcript, “in District Court, Fall Term, Nov. St-li, 1849.” This, in truth, constitutes no part of the record; it is only a memorandum made by the clerk, and tlie presumption of law that the court acted legally and in compliance with the statute contradicts tlie entry made by tlie clerk in the transcript that the judgment was rendered on the 8th November, 1849, and that the petition was filecl on the 9th November, 1849. (2 Tex. It., 594 and 297.)</p> <p>III. Tlie second assignment, that the justness of plaintiff’s claim was sworn to by plaintiff's attorney and not by plaintiff himself: It is true that the statute requires that the party in whose favor a judgment is confessed shall make affidavit that his claim is just. Now, to determine whether the affidavit made in this case is in compliance with the statute, we must inquire what was tlie object of the statute. It is evident that the statute in requiring the affidavit to> he made liad for its sole object the protection of tlie rights of third parties and not for the benefit of defendants.</p> <p>Then tlie object of tlie affidavit is to show that the claim is just and to prevent fraud. Now, can it be pretended that the affidavit of a disinterested party does not afford better evidence of the justness of the claim than tlie affidavit of the plain till', an interested party? It certainly does, if any regard is paid to the rules of evidence. The object of the statute, then, in this particular, has been fully complied with, and even better evidence than tlie statute demands lias been adduced.</p> <p>IV. Tlie statute provides that every judgmeut by confession duly made shall operate as a release of all errors in the record thereof. (Hart Dig., art. 771.) Now, it is clear that if the confession is duly made, no errors in the record of the judgment can be sustained by defendant. The appearance of the defendant in open court in proper person and acknowledging that lie owed plaintiff the amount set forth in tlie petition, (it is immaterial what means or words were used to convey to tlie court tlie fact of bis indebtedness,) his public avowal of his liability to pay to plaintiff the amount of said judgment, will estop him from resorting to mere technicalities for the purpose of avoiding the payment of a debt which he has acknowledged in a court of justice, thereby affording the highest grade of evidence known to the law, and that acknowledgment made contrary to his interest, by which additional force is given to liis admission.</p> <p>Now, if tlie judgment had been confessed by one unauthorized to do so, or had there been fraud in the procurement of said confession, these and other reasons-of like nature might afford defendant grounds for attacking said judgment.</p> <p>V. The object of the law in providing that tlie justness of a claim should be sworn to before a judgment by confession could be rendered was not intended' for tlie benefit of defendant, and lie cannot avail himself thereof. The liability of defendant is not founded on tlie affidavit of plaintiff, but rests wholly upon his admission, and lie is forever estopped from gainsaying what he lias thus admitted, and it can only be inquired into by third parties)</p>

<p>Error from Bowie.</p>

<p>Appeal from Titus. It appeared from a bill of exceptions in the record that the plaintiff below (who was appellee in this court) offered in evidence certain depositions, to the admission of which the plaintiff objected on the ground that the testimony was taken under a commission which was returnable to a term of the court held previous to the taking of the depositions, and on the further ground that the interrogatories were leading. The court overruled the objection and admitted the depositions in evidence. The commission anti interrogatories not having been embodied in the record, the appellant moved the court for a certiorari to supply the omission.</p>

This was an action fora malicious prosecution. Tiie appellant, who was plaintiff below, was prosecuted for a misdemeanor by tiie defendant Hemug, before tiie defendant Turner, a justice of the peace. lie was convicted, fined ten dollars, and committed to prison for one day and until the fine and costs should he paid. The defendant Witliee was tiie sheriff of tiie county who executed the mittimus issued by tiie justice for the imprisonment of the plaintiff.

Error from Reel River. Judgment remlei*eel November 13th, 1843. Writ of error prayecl April 25th, 1349; citation served next day. The plaintiff-in. error failed to have the writ of error returned to the December Term, 1849, and the defendant in error filed tiie record at the present term and moved the court to affirm the judgment.

Error irom Bed River. Tiie plaintiff, Amos Morrill, filed liis petition .against tiie defendants, Jolm H. Eowler and Jesse Shelton, tiie plaintiffs in error, and William Trimble, who did not join in the writ of error.

Error from Titns. The appellant moved the court below for a new trial, and in support thereof adduced the affidavit of one of the jurors that the jury, without tlie permission of the court, and after the case had been submitted to them, on the evening- of the same day dispersed and went to their homes and did not re-assemble until next morning.

The record in this ease showed what purported to he a statement of facts made out and signed by the presiding judge after the adjournment of the term at which the suit had been tried, and after the judge had commenced a term in another county.

This suit was brought by the appellee torecover of the appellant two negroes, John and America, claimed tobe the property of the plaintiff's intestate, Benjamin Elliot. Upon instituting this suit the plaintiff filed an affidavit, stating that ho feared that the defendant would remove the negroes sued for beyond'the limits of this State during the pendency of the suit.

<p>Where judgment is obtained against a debtor as garnishee, and he is afterwards sued by his original creditor, he is entitled to have the plaintiff in tiie garnishment made a party to the suit and to have a judgment which will protect him against being required to pay the same ddbt twice. (Note 3U.)</p> <p>(Vote 39. — Miller v. Taylor, 14 T., 538 The garnishee, when cited in garnishment, has the right to make aU persons interested in Ms debt parties to tlie suit. (Igleliart v. Moore, 21 T., SOI; Igleliart v. Mills, 21 T., 0-13; Iieuison u. League, LU T., .'190; Taylor v. Gillean, 23 T., S08.)</p>

The appellant was indicted for gaming nuclei' the 27th section of the act of 1S4S “concerning crimes and disdemeaiiors.” (Hart. Dig., art. 1474.) The indictment charged the accused with having played at a game with cards upon which money was hut. Tito proof was that property was bet ui)ou the game. The court instructed the jury that proof that either money, or property, or the representative of either was bet was sufficient to authorize a conviction.

<p>The decision in the case of Titus v. Latimer, 5 Tex. R., 433, applies to the removal of canses from every sort of inferior jurisdiction except that mentioned in the 13th section of the 4th article of the Constitution.</p>

The appellauts 'were sureties for one Benjamin Fry in a bond in the nature of a recognizance, entered into by them with said Fry for the appearance of the latter' at the District Court to answer the State of Texas u upon a charge of gaming.” The accused failing to appear as required by the terms of the recognizance, scire facias was served upon his sureties. There was j udgment against the sureties, and they brought a writ of error.

<p>It devolves upon the party seeking a reversal to make out the alleged error. To enable him to do this, the record must show the ruling of the court which is complained of as erroneous, or a statement of all Hie material facts on which tho decision is founded.</p> <p>In the absence of a statement of the facts in some authentic form, wo are bound to presume, in Mtpport of the judgment, everything to have been proved which could legally bo proved under the issues. (Note 11.)</p> <p>To enable this court to revise a judgment, on the merits, tho facts of the case, tiiat is, all the material facts in evidence, must be embodied in the record.</p> <p>Note41. — Moor© v. Hardison, 10 T., 467; Francis v. Williams, 14 T.,. 158; Baldwin v. Dear-born, 21 T., 446; St. Glair v. McOtohee, 22 T., 5.; Smith v. Allen, 28 T., 407; Caldwell v. Brown, 43 T., 216,</p>

In 1849 Stoltes, as sheriff of Navarro county, levied upon a lot of cattle, under an execution in favor of Treadwell against one Tilomas Wright. In 1850 McKay and wife brought this action against Tread-well ami Stokes for the wrongful taking of said cattle, averring that they belonged to tlie wife by virtue of a bill of sale from said Wright to her, then Maria Wright, dated February 20th, 1841.

<p>Appeal from Houston. The heirs of Williams, residents of Louisiana, ‘'minors, without a regular guardian in this State, who sue by their uncle and next friend, Wilford 'Williams,” tiled their petition November 29th, 1S49, alleging that- in 18415 their father, Willis Williams, departed this life, leaving a will, wherein Joint J. Burton was appointed his executor; that Burton was duly qualified, and entered upon tlie discharge of his duties as executor in the sanie year in Houston county, Texas, where their father resided at the time oí Ms death, and so continued as executor until 1847, when he was removed, and John Wortham appointed administrator, with the will annexed; that at the October Term last of the County Court of said Houston county the said administration was duly closed and the administrator discharged; that among the property left them, by their father were two negroes, to wit, &c., of the value, &e.; that on the — day of-, in the year 1840, while the said Burton was executor, the said Lacy and Watson, combining with the said executor for the purpose of defrauding the petitioners, with the assent and connivance of said executor, took said negroes away and unlawfully converted them to their own use, &c.; that by reason of the combination and connivance aforesaid the said executor utterly failed and refused to sue for said negroes, whereby, without the interposition of your honorable court, yonr petitioners will lose, &c.; that petitioners are the only heirs and distributees of said Willis Williams, and are, and have been entitled, &c.; they pray for the Lire, to wit, &c., of said slaves, and in the event said slaves cannot be specifically delivered to them, then for judgment for their value, to wit, &c.</p> <p>The defendants, Watson and Lacy, excepted to the petition, 1st, Because the right of action, if any títere be, belongs to the personal representatives of Willis Williams, decease.d, and not to the plaintiffs, as shown by said petition; 2d, Because tlio right of action, if any there be, accrued more than two years next before the commencement of this suit.</p> <p>For further answer (ltct defendants denied till and singular, &c. Watson and Lacy answered jointly. Burton not appealing, no notice, is here. 1 alcen of Ills defense. The, court overruled the defendants’exception to the petition.</p> <p>On the. trial the defendants asked the court to give the following instructions to the jury:</p> <p>1st. That if the plaintiffs fail to prove a joint taking and conversion in an action for an unlawful talcing of personal property against several defendants, the plaintiffs cannot recover.</p> <p>Refused by the court.</p> <p>2d. That ih'e fraudulent or negligent conduct of Burton will not prevent the statute of limitation from running in favor of the other defendants, unless it is proven that these other defendants were concerned in the fraudulent acts of Burton, their co-defendant.</p> <p>Given by the court, with the addition that all who participated in the fraud are. precluded from availing themselves of the statute against the heirs until they become of age. or against the succession until there was some other person than Burton authorized to sue. If it appear that Burton connived at the acts of the other defendants and refused or failed to sue, all would be joint participants in the fraud.</p> <p>Verdict and judgment for the plaintiffs. Motion for new trial overruled.</p> <p>There was a full statement of the facts.</p> <p>Tlie errors assigned were—</p> <p>1st. The overruling of the defendant’s exceptions to the petition.</p> <p>2d. The refusal of the court t.o give, the first instruction asked.</p> <p>3d. The giving of the second instruction asked with the qualification added by the court.</p> <p>4th. The refusal of the court to grant a new trial.</p> <p>I. The appellant asks a reversal of the judgment in this cause because it is shown, even upon the pleadings and certainly in the. proof, to come within the principle of Moore v. Morse, 2 Tex. II., 400, and of Evans, Guardian, &e., v. Oakley, Id., 182.</p> <p>II. And he asks also a dismissal of the suit for the reason above stated, and because it comes within the principle of the decision of this court in the case of Tilomas v. Greer, decided at the last term at Tyler.</p> <p>III. Because the suit is against Burton, executor, &c., with others for a tor-tious taking- of property which belonged to the succession of his testator, and oí which he had possession and charge as such executor, where the wrong-, if any, is shown in the pleadings and proof to have been committed.</p>

This suit was brought August 9, 1849, by Nasboe, against Welch & Franklin, oil the following note : $.500.00. Austin, February llf7t, 1S48. On demand we or either of ns promise to pay to Peter,Nasboe or hearer the sum of live hundred dollars for value received. This note to he discharged with Wm. Combe’s receipts on the United States Government. G. W. FRANKLIN, John Welch. Tlie defendants relied on the following evidence of the discharge of plaintiff’s claim.

Error from Anderson. This is a suit for specific performance.

The appellee brought suit, claiming a pre-emption right to three hundred and twenty acres of land, under the provisions of the act of the 22d of January. 1845.

<p>Appeal from Nacogdoches.</p>

Error from Smith. The defendant in error sued the plaintiff in error and one Merrill on their joint promissory note, as follows : “ $S3S. 10 St. Louis, Mo., April 29,1S46. “Sis months after date I promise to pay to Andrew Park, or order, eight hundred and thirty-eight ten one-hnndrodths dollars, with interest at the rate of ten per cent, per annum after maturity until paid, for value received, negotiable and payable without defalcation or discouut. (Signed) And. J. Ellis.

Error from Nacogdoches. This action was brought by the appellee to recover of the appellant, as chief justice of the county of Nacogdoches, the penalty denounced by the 20th section of the act of 1848 “regulating fees of office.” The petition alleged that on the — day of-, 1850, the plaintiff was ad-ministratrix of the estate of John Engledow, deceased; that she then made a final settlement of her administration in the County Court; that the defendant, as chief justice of…

This case distinguished from the ease of Jones v. Menard. (1 Tex. It., 771.) Appeal from Anderson. The appellant brought his suit to recover from the defendant one-third of a league of land in the possession of the defendant, the appellee.

Error from Harrison. This suit was instituted by the defendant in error against the. plaintiff in error iu March, 1845. The petition in substance set up that plaintiff' was and is the owner of a certain slave named Ben ; that the defendant had gotten possession of said slave and converted him to his own use, and withheld him from plaintiff, although demanded; that the slave is of the value of one thousand dollars.

The record discloses that in 1S34 or 1835 the appellaut, Wofford, residing in Kentucky, and being in embarrassed circumstances, sent by his son to Louisiana a negro woman and her three children, in order to place them beyond the reach of creditors. The son left the negroes in charge of the appellee's intestate, Samuel Thompson, then residing in Louisiana. In 1S36 the Woffords visited Thompson, who in the meantime liad removed to Texas, bringing the negroes with him.

Error from Nacogdoches. The plaintiffs in error brought suit on a sealed nolo described in (lie original petition as tiie promissory nóte of the defendant. Tiie defendant pleaded a general denial and set-off. At the trial the plaintiffs liad leave to amend and amended their petition, describing tiie note as a writing obligatory. They also made an exhibit of the note and filed it as a pan of the amended petition. 'Die court refused to permit the note to be read in evidence.

.The appellants, who were plaintiffs below, claimed under an original title issued by George Antonio Nixon, commissioner of Zavala's colony, in 183ñ. The question on which tiie case turned was, whether the land was within the limits of Zavala’s colony.

Error from San Augustine. Petition for writ of error fllecl February 10th, 1851. Citation prayed to he served on district attorney residing in Nacog-doches comity. Citation issued February 27th, served March 19th, and returned after tlie 7th April, the day on which the term at Tyler, 1851, commenced. The transcript was not filed until the present term of the court.

The appellant brought suit against the appel-lees on the IStli day of March, 1851, on a joint and several promissory note made by the defendant Duffield and tho intestate Horton. The petition alleged tlie presentation of the claim, duly authenticated, to the administrator, Alexander Horton, who refused to allow it, on the 9th day of January, 1851. The administrators demurred. Their demurrer was sustained and the case dismissed, and the plaintiff appealed.

■ Appeal from Nacogdoches. This suit was brought by the appellees against the appellant on a warranty of a slave to be sound, when she was unsound and wholly worthless. There was a verdict for the plaintiffs for the amount of the purchase-money, with interest on the same from the time it was paid up to the finding of the jury, making the aggregate sum of eight hundred and eighty-two dollars and forty-one cents, for which and the costs the judgment was rendered.

<p>Where an execution against the husband was levied upon a slave in the joint possession of tho husband and wife, and tho wife claimed tho slave as her separate property, it was held that under the issuo as made up no question could be raised as to the property being exempt from the execution oil other grounds than that stated in the issue, and therefore that the. charge of th<3 court that the presumption, in the absence of proof to the contrary, was that the .iobt for the payment of which tho slave was levied on was a community debt was immaterial, and, whether right or wrong, could not a/fect the verdict in favor óf tho creditor.</p> <p>Property purchased during the marriage, whether tho conveyance he made to the husband or wife separately or to them jointly, is presumed to belong to the community. This presumption may bo rebutted by clear and satisfactory proof that the purchase was made with the separate funds of either husband or wife, in which ease it remains the separate property of tho party whose money was employed in tho acquisition. (Note 56.)</p> <p>It seems that, in order to rebut tho presumption that property purchased during the marriage is common property whoro a creditor is concerned, it must be shown that the funds with which the purchase was made were owned by the claimant before the marriage, or were acquired by gift, devise, or desoont, or that said funds were the proceeds of property thus owned or acquired. (Note 57.) Noti:ó!). — Sncli presumption may be rebutted by proof that the husband declared at the timo that his intention in taking the deed in his wife’s mime was to make the latid her separate property. In such (taso the deed operates as a gilt. (Higgins v. Johnson, 2üT. J8Í); Urnnh ?> títrahan. 18 rJ\, 5511; BmitU v. Strahan. 25 T., 103.) A deed to the wife for property pim-lmx-d by the husband with community funds imports, in tho absence of evidence of adiiferont purpose, that it was the intention that (he property should become the separate estate of i.,o wife, (tilory v. Marshall, 2t T.. 305 ; Smith x\ Boqnet, 27 T., 507.) Whore tlie conveyance N to the wife, ami it is proved that the husband know it and acquiesced in it, tho title inured to her benefit as completely as if lie had assented by tho mo4 solemn deed (Uateliett o. nor. 30 T., loh) Tho legal import of such deeds, as between parties to thorn, their privies m blood or vendeos without value or with notice may be affected by parol evidence; y\ t no principle is known upon which parol evidence can 'ho received to so explain or modify sm Ii deeds as to engraft upon tho property after it has passed to innocent purchasers a limit ( * their detriment. Tho fact that a deed for a valuable consideration is made to a ma>ric.l woman imposes no obligation on a purchaser from tho husband to inquiro as to the equities between the husband and wife in regard to the property. (Cooke v. Bromond, 27 T-, 45;.)</p> <p>Norn 57. — Where the separate property of the wife has undergone mutations, it is indispensable. in order to maintain its separate character, that it be clearly and indisputably tiaced and identified. (Chapman v. Allen, 15 T., 278.)</p>

The appellant brought suit against John T. Booth in tho District Court of Shelby county in October, 1S74. lie subsequently recovered a judgment and had an execution issued thereon, which was levied on certain negroes, as the property of the judgment debtor, on the 3d day of April, 1850. The appellee, wife of John T. Booth, claimed the property, and there was a trial of ihe right of property.

Error from Harrison. This was an action upon a judgment rendered against Gabriel Moore, the deceased intestate, by the Orphans’ Court of Madison county, in tiie State of Alabama, on the 24th of November, 1842. The petition was filed on tiie 20th August, 184G. Tiie defendant demurred and assigned several special causes of exception, and among other matters pleaded, he set up as a defense that tiie said judgment was not sued upon in six mouths from the 28th day of June, 1S45.

Error from Harrison. 'The cause of action was a judgment rendered in the Circuit Court of the State of Alabama in the month of October, 1841. The pet ¡(¡on was filed on the 26th August, 1846. The defendant demurred, and the demurrer was sustained.

Error from Harrison. Suit commenced November 20th, 1845, on two notes made in Alabama, one falling clue June 2d, 1839, the other January 2d, 1841. Plea of the statute of limitations, amendment of the petition, alleging that the defendant removed to Texas in 1844, and liad not at any time previous thereto been within the limits of the same.

The petition in this case, after the introductory .part, continued: “The petition aucl complaint of the State of Texas, by John W. Harris, attorney general, would respectfully represent unto your honor thm an association and a company of individuals, hereinafter to be called defendants, consisting of Samuel M. Williams, J. A. Reynolds, Jesse J. Davis, Jacob L. Briggs, Michael B. Menard, George Ball, Henry Ilubbell, all of whom arc residents of the said county of Galveston,…

This suit was instituted by the appellees to recover of the appellants a balance due oil the following statement of indebtedness, to wit: 1S46, June 5th. Open account between merchant and merchant at this date. $70 17 Note dated June 13th, 1845, due ten months after date. 120 18 Note dated April 15th, 1846, due 12 months after date. 1,003 73 And interest. Both notes draw 8 per cent, after maturity.

The appellant brought bis action in a Justice’s Court to recover the amouut of sixty dollars, oil an agreement under seal with the •defendant to run a horse-race at a certain time and place. The party failing ■to run was to forfeit the amount bet on (he race. The date set out for the race to be run was on the Sabbath day.

This was a criminal case, not capital. It did not appear that the appellant entered into recognizance as required by the 4th section of.' the act to regulate appeals in criminal cases; but he gave a bond to prosecute his appeal with effect in the ordinary form of an appeal bond in civil cases.. There was no entry of notice of appeal.

-Salt by the appellant against the appellee in a Justice’s ■Court for tlie value of a mare which belonged to the plaintiff and which the plain!iff alleged had been wrongfully killed by the defendant. Judgment for ■the plaintiff for $So.

<p>Where a witness sues for his fees for attendance, he should show the subpoena, or account for its absence; and he should show the time at which he attended.</p>

<p>Where a certiorari is improvidently issued, and the party who was successful in the Justice’» Court moves to dismiss on that ground, and his motion is overruled, he may abandon the case and rely upon having the certiorari dismissed on appeal or writ of error.</p> <p>A certiorari to bring up the case for a new trial is not the proper remedy where a justice of the peace issues an execution after the expiration of twelve months without a revival of the judgment.</p>

<p>Where separate suits on the same note were pending in the same court against two joint and several promissory, and the suits were, on motion of the defendants, consolidated, and one of the defendants prosecuted a writ of error, assigning the consolidation of the suits for error, the court affirmed the judgment with ten per cent, damages for delay.</p>

<p>Where a creditor has several notes against the samo debtor, though they bo all due and in the.-samo right, being each within the jurisdiction of a jnsti»*o of the penco, but in the aggregate exceeding thatjurisdiction,a*suitmay bo brought before ajnstiee of the peace upocD each ol them, or a suit may be brought upon thorn in the aggregate in the District Court.</p>

Error from San Augustine. This was an action originally brought by George W. Reynolds, defendant in error, at the March Teim, ÍS31, of the District Court of San Augustine county, against Alexander Horton, plaintiff in error, for tile recovery of two slaves alleged to have been taken and carried away by the said Horton and others on fhe'l7th day of November, 1840, unlawfully and' against said Reynolds’ free will, and for damages for the detention of said slaves, together with…

<p>Where the petition alleged that one defendant resided in Anderson county and the other in Cherokee county, where the anil wan instifulcd.and process was directed to the sheriff of Cherokee eomity and was returned by him served upon both defendants: Held, There was no error, (he presumption being that the defendant who resided in Anderson was found in the county of Cherokee.</p>

This case originated in a controversy in respect to the county seat of Cass countj'-. It appeared l>y the record that on the 21st day of August, 1831. tho chief justice, of the county, proceeding under flic provisions of the act of the. 9lh of Slay, 1S38, (Hart.

<p>Error from Rusk.</p>

Error from Harrison. The petition in this ease was filed on the 9th December, 1¡>.)(), and it. prayed citation to the defendant to answer at the next, term of the District Court. The session of the next term commenced on the IGtii December, but no citation was issued until the 31st December, [COG] ISJO. On the same day the defendant acknowledged the issue and service of the ula-tiou, and waived copy of the petition.

This suit was brought by the appellee to recover from the appellant a negro and his hire. The defendant claimed the negro as the administrator of Thomas IV. Bell, deceased.

This was a suit by the appellee against the appellant on two notes under seal, each of the following tenor: “$1,120. On the first day of March next I. promise to pay R. S. Pridgen eleven hundred and twenty dollars, for value received, as witness ray hand and seal this 8th day of October, 1S49.

This suit was brought by the appellee by petition for an injunction. Harris, the present appellee, purchased a lot in tlie town of Marshall from the appellant, and gave his notes, payable at different periods, for tlie purchase-money, and the vendor gave his' bond for title, when the money should be paid. On tlie first note falling due, tlie appellant sued tlie appellee and obtained judgment on tlie same.

Tills suit was brought by Cater, as administrator of Shepley, against Parker, the appellant.

This was a suit by the appellee to recover money paid by him for Moore, of whose estate the appellant was administrator. The record disclosed that Valentine G-. Prewitt was. surety for Moore in an injunction bond. Prewitt died, and judgment was recovered on the bond against liis executors, of whom the appellee, Robinson, was one.

This is a suit by the appellee against the appellant on a promissory note. The defendant pleaded failure of consideration, alleging that the note was given for the price of a negro woman, bought by the defendant of tho payee of the note on the 27th day of September, 1S50, and warranted sound, but which was at the time unsound and worthless. It. was in proof that in a few days after the purchase the negro showed symptoms of disease.

<p>Where sureties bring an action in the nature of a bill quia timet, they must show that they are liable, not merely that they once were and may now be liabie; otherwise the petition will be demurrable.</p> <p>Sureties for the faithful performance of the duties of an administrator of a vacant succession under the laws in force before the introduction of the common law were not responsible for breaches committed after the expiration of the year allowed for administering the estate. (Note 67.)</p> <p>Note G7. — Murphy v. Menard, 14 T., G2.</p>

Appeal Rom Harrison. The appellants had a suit in the District Court of Harrison county against the appellee, to recover a piece or parcel of land in the possession of tlio appellee, in which they obtained a judgment in their favor by default.

<p>A judgment for coste merely, without words showing that the subject-matter of the controversy has been disposed of, is not final judgment, and there can be no appeal from it. (Note 71.)</p> <p>Appeal from Harrison. The appellees filed their petition, praying that the proceedings for the collection of a judgment recovered by the appellant against the appellees might he restrained, and that ou final hearing of the cause the. judgment might be perpetually enjoined. The judgment complained oí was set aside, and on new trial being awarded, a verdict was found for the •appellees, who were defendants in the court below. On tiie return of the verdict it was adjudged that the defendants should have and recover of the plaintiff (who is the appellant here) the costs of the original suit since the new trial granted and all costs of the proceedings on the petition for injunction. A motion for new trial was overruled, and plaintiff appealed.</p> <p>Note 71. — Holt v. Wood, 23 T., 474.</p>

Error from Busk. The plaintiff in error sued the defendant for goods sold and delivered.

This suit was brought by the appellee on an open account for money due from the appellant to the appellee’s intestate. The only point relied on was the ruling of the court below that the books of. account kept by the deceased as a merchant should be received in evidence as proof of tile money items for money’ loaned and advanced, on proof being made that the deceased kept correct accounts and had no clerk.

<p>Appeal from Harrison.</p>

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This was a suit, brought by the appellee against the appellant before a justice of the peace to recover twenty dollars, being, as the plaintiiV in the suit alleged, four Limes the excess paid by liim to tlie defendant as the surveyor for Smith county; that the surveyor charged ten dollars and fifty cents for surveying three miles and T2$¡-, when he actually surveyed only half that amount, which amount plaintiff had actually paid.

This action was brought for the recovery of a negro boy named Washington, alleged by the plaintiff to be her property, derived by deed of gift., tinted 20th September, 1841, from one Bnnvell j. Thompson ; that the property was delivered to .the petitioner and her then husband.

Error from Harrison. The defendant in error filed his petition in the District Court of Harrison county, alleging that he. obtained a judgment against t lie plaintiff in error in that court, at the Fall Term thereof, 18-14, for the sum of six hundred and forty-eight 89-100 dollars, which judgment remained unsatisfied, praying that a scire jacios issue t,o the defendant therein, who resided in the county of Upshur, to show cause why execution should not issue, ole.

Error front Harrison. On the T5Mi day of May, 1847, the plaintiff in error iileil lii.s petition in tlie District Court, alleging in substance that lie entered into a commercial partnership with the defendant in the year 1840; that tlie partners were to share alike in tlie profits and losses of the partnership; that in January, 1842, it was dissolved ; that tlie firm was then largely indebted, and that it was agreed between the parties that they should proceed to liquidate…

<p>Error from Cass.</p>

<p>If the grounds of tho action are sufficiently stated to show that, the plaintiff has a just cause of action, it is of no consequence whether the ovidoneo he describes showing such right is of greater or less dignity, or gives the right or is only evidence of it.</p> <p>Under the act of IS‘30, the fees of witnesses abode the event of tho suit, and were recoverable from the party cast, in tile mode provided by the aet only.</p> <p>Under the act of 18hi (Hart. Dig., art.721) witnesses have a claim for their fees directly against tho party summoning them, and may maintain an action for the same as soon as the service is rendered.</p> <p>The certificate of (ho clerk, under the act of 1810, is primo, fació evidence of tho right of witness to recover his fees for tile time and mileage stated in tho certificate. (Note 77.1</p> <p>Where a witness sites for his fees, the subpoena which was served upon linn is admissible in evidence to prove that lie was subpoenaed.</p> <p>Where a witness is subpoenaed in several suits ponding at the samo timo and place, at the instance of the same person, he is entitled under the aet to compensation in each case.</p> <p>The statute of limitations commences to mu against a claim for fees for attendance as a witness, under the aet of 1840, as soon as tile services have been rendered, and the claim will be barred in two years.</p> <p>Note 77. — Crawford ». Crain, 19 T., 145.</p>

This was an action for the recovery of duties accruing to the late Republic of Texas on goods, wares, and merchandise imported into the limits of the then Republic, now State, prim- to annexation. The original petition was filed on the 30th August, lS4ñ, and was brought in the name of th» Republic, suing by Leonard II.

Suit by Thompson against Chumney to recover a slave named Jack. There was no question on the pleadings.

This was an action in the ordinary form for the recovery of a negro slave alleged to have been the property of the deceased intestate.

Error from Rusk. The petition was filed in this ease by William F. Johnson on the 30th day of November, A. D. 1846, (amended by leave of the court 14t.li November, 1848,) against James Smith and II.

The appellee recovered judgment for principal and interest up to the rendition thereof on a promissory note in which interest was contracted for at ton per cent, per annum. A stay of execution was given; and the plaintiff thereupon moved the court so to reform the judgment as to give interest thereon at ten per cent, from tlie date of its rendition. Tiiis motion tlie court refused, and adjudged that no interest be allowed upon the judgment. The plaintiff appealed.

This was an action by the appellee against the appellant to recover the freight for the carriage of a quantity of cotton. The defendant recovered for damages occasioned by injury done to the cotton by exposure during the voyage. Tiie plaintiff proved his demand.

Error from Upshur. This was a suit on a Htlo bond. The bond was executed in 1838, and was conditioned, in effect, that the vendor, the deceased intestate, would make to the vendee, who is plaiutiffin error, just such a deed as lie got from the Government, and in case lie did not get a deed from the Government, lie was to pay hack flFteon hundred dollars, which he acknowledged to have received, or which was secured to lie received.

Error from Havarro. The appellee sued the appellant upon a bill of exchange barred by the statute of limitations, and relied on an acknowledgment in writing made within four years next before the commencement of the suit to take the case out of the operation of the statute. The writing containing the acknowledgment relied on was set out in the petition, as follows: “ Chambers Creek, 26i/i May, 1845. “To IV.

<p>Where the plaintiff claimed priority by virtue of an order of survey obtained by him before the Revolution, the court said: We do not consider it material to discuss tho right of preference claimed by tho plaintiff as an abstract right, because, admitting it in its fullest extent, it was onlv ti personal privilege which he had a right, under his certificate, (obtained from a board of land commissioners,) to waive; and it was not nee.e.ssary that, this waiver should he an affirmative act, necessary to the validity of another locution which ho might choose to make tinder his certificate., as his certificate was issued in the ordinary way hy the board of hind commissioners, on evidence wholly unconnected with and unsupported by the warrant ami survey. And admitting Ins privilege to apply the previous survey to it, hy complying with the requisitions of tho law, in having them duly authenticated and returned into the surveyor’s office constituted under the Republic, it was yet a more privilege, ami he was under no obligation to do so.</p> <p>Whether the plaintiff had abandoned such privilege, and also the preference as an actual settler on tne land prior to the Revolution, by long abandoning the possession, with express and determined intention of never again resuming'it, were questions purely of fact to be determined by the jury.</p> <p>The plaintiff in a suit putting in contestation the title to land must show title in himself at tho commencement oi the suit; and he cannot recover if it appear that he had parted with his title before that time.</p> <p>Qucre? Whether lands within the twenty border leagues could be granted to settlers and col-oni-ts before the Revolution.</p>

On the 4th of January, A. D. 1847, the appellee brought suit against appellant’s intestate for tlie foreclosure of a mortgage made and executed to him in trust in the State of Alabama.

This suit was brought for the recovery of certain negro slaves, named Willis and Clancy, and also some other articles of property. It is alleged by the appellants that the slaves were purchased by Robert Long, the deceased intestate, in 1841, at an official sale in Mississippi, and that they continued until his deatli to be his property.