Volume 9 — Texas Reports

This suit was instituted in tho District Court ior tlie county of G-uadalonpe to recover damages from the appellants for the loss ■of mules and other property whilst attempting to cross tlie river at the ferry kept hy tlie appellants. The suit was brought bn tlie bond given by tlie appellants on their obtaining- a license to keep a ferry. It was taken under the 14th •section of the act of tlie congress of the republic of December 20th, 1836, article 1385 of Hartley’s Digest.

Suit by the appellee, as administrator pendente lite of the estate of Milton Hides, against the appellants to recover a tract of land. There was a motion to dismiss; a demurrer; general denial; special verdict; judgment for the plaintiff; motion in arrest oí judgment overruled. The other facts, so far as material, will he found in the opinion of the court.

The appellee sued the appellant for a trespass committed by the latter upon the person of the former by the infliction of stripes.

Error worn Washington. This suit was brought in 1838 by the defendant in error againd Nancy Kegaus as administratrix of James Kegans, deceased, for the specific performance of a contract hot ween the plaintiff and the defendant’s intestate for the conveyance by the latter to the former of a half league of land. The. defendant in tier answer named the children and heirs of tier intestate, James Kegans, all of whom were minors.

This was a suit brought by the appellee, as administrator of W. II. Carson, against the appellant to recover a tract of land granted by the government of Coahuila and Texas as a headright to tho intestate. The petition set out the grant and ñeld-notes, and charged tho trespass to have been committed by tho appellant.

Indictment under the statute to suppress gaming. The statement of facts showed that the playing was iu a room of the same house, and adjoining the one used by the appellant for retailing- spirituous liquors. The room had been occupied generally as a private apartment by the appellant, sometimes by his hoarders, its approach being from the street. The judge charged the jury that the law applied to playing in the house and included the whole house from the cellar to the garret.

Indictment for assault and battery. The appellant pleaded to the indictment a former recovery before a justice of the peace for the same offense, and produced the certilicate of the justice in accordance with the statute in support of his plea.

Tlie. appellee sued the appellant for tho proceeds of a league of land which (lie hitter liad sold for the former as his agent. The defendant pleaded that lie was not indebted and that lie had fully accounted to the defendant.

This was an action for the establishment of the claims of an empresario.

This was an indictment for playing cards in a house for reddling spirituous liquors in the county of Travis.

Error from Washington. This suit was brought by the, defendant in error against the plaintiffs in error, Alleorn and Chi-isinan, for the. specific performance of a contract to convey land evidenced by a bond for tide made1 by Alleorn in favor of Butler, in September, 1839. Alleorn bad purchased the land of Chrisman, who still retained the legal title.

Tlie appellee recovered a judgment against the appellant., which was regularly entered at tlie Spring Term, ÍS51. At the same term the defendant moved for a new trial, which motion the court took under advisement-, mid continued the case until tlie next term, and at the same time declared .ail further proceedings on the judgment stayed until the motion for a new trial ■should be decided. ‘ At the next term the court acted on the motion and granted a new trial.

<p>Appeal from Nueces.</p>

Suit on a promise to pay under seal. Plea of failure of consideration not supported by affidavit. On the trial the defendants offered evidence in support of their plea, but the court excluded the evidence on the ground that the plea not having been supported by affidavit was no part of 'the pleadings in the cause. The defendants excepted. The affidavit in support of the answer as required by the statute, (Ilart. Dig., art. 710.) is no part of the answer.

An indictment was preferred against the appellee, who moved to quash it on the ground that certain of the grand jury by whom it was found were aliens. The court entertained the motion and heard evidence touching the qualifications of the jurors, and it appearing that one of them was not.'a citizen of the United States or of this State quashed the indictment. The Slate appealed. All the authorities cited Iw appellee except the case of the State of Tennessee v. Duncan, 7 Yerg.

This suit was brought by the appellee to recover oí tlie appellant. 8511.57, the. amount of an account for printing clone by the former for the latter, pursuant to a contract between the parties.

The appellant brought his suit to recover from the appellee the value of a negro girl, a slave, alleged to have been the property of the appellant, and to have died of the cholera in the possession of tlie appellee, to whom she had been hired by the appellant.

<p>As a general rulo the defendant is entitled to be sued in the county of his domicil, but to this rule there aró exceptions, among which are sails for tlie foreclosure of mortgages, in which oases suit may be brought either in the comity whore tile mortgaged property is situated or in the county of the defendant’s domicil.</p>

After the decision of tho case of Horton v. Brown, (2' Te\-.

The record disclosed that in September, 1S37, the .appellant's i.itestale, York, sold to the intestate of the appellee, Gregg, a league of land and executed his bond to make title; $1,000 of tluv purchase-money was paid down, and two notes, one for $1,000 and the oilier for ■$¿,-100. were given for the residue, one payable in February and the other in 3)eeeml>cr, iu:58.

Trespass to try title by the heirs of Jessoe Bartlett against Mary A. Hubert. The plaintiff deraigneil title from Samuel Miller, who received a grant from the government of Coálmila and Texas of one league of laud in 1S24, which lie conveyed, by public act before Horatio Chrisman, alcalde of the municipality of Austin, to Bartlett in 1832.

<p>Error from Washington.</p>

Error from Washington. This was an action upon a promissory note by George J. McCauley against John Ramsey, the plaintiff in error. The defendant answered by plea of general denial,* statute of limitations, and payment. After a trial, appeal to the Supreme Court, and reversal of the judgment, the cause again came on for trial, the record reading as follows: “ J. II.

Munson filed his petition in tlie County Court of Washington county to September Term, 1831, alleging that lie had been appointed guardian of Albert and Ann Jordan, minor heirs of Stephen Jordan, deceased, by (he County Court of Burleson county, at tlie April Term, 1851, of said conn ; that Newson, tlie defendant, at tlie September Term, 1850, of said ('minty Court- of Washington county, had obtained letters of guardianship of said minors, and by virtue of said appointment…

Chrisman had been appointed administrator of one Stephen Jordan in 1S3!); had given bond and returned an inventory; and it did not appear that anything further had been done until Newson, representing himself to be tho guardian of Albert and Ann, minor heirs of said Jordan, iiled a petition in their behalf in 1851, that said Chrisman be required to settle, his account, &c. Olirisman was duly notified, and failing-to appear, the Probate Court made a decree against him.

Beardsley and Adriance obtained a judgment against Hall iu 1840. An execution was issued and placed in the hands of Robert Stevenson, sheriff. At the foot of tins execution, in the transcript of tlie record, were written these words : “ Came to hand April 8th, 1S40, and “ executed.” The margin contained a note by the clerk, u Indorsement of the' “sheriff,” hut the name of the sheriff was not signed.

There is a single question involved in the case: Will the statute of limitations vest the property? It is expressly so decided in Broh v. Jenkins, 2 La. Cond. R., 20. “The statute is not only a bar to the remedy for personal property, but it “ takes away the legal right and vests it in the holder; so that, if the property “ comes to the hands of tiro former owner, the party may bring suit and recover it from him. Legal right and legal remedy are the same thing.” (5 Litt.

<p>The decree of the Supreme Court becomes to the inferior court the law of the particular ease, and the latter maybe by peremptory writs compelled to carry it into execution; ic cannot bo varied nor examined for any other purpose than execution, and to settle so much as has been remanded.</p> <p>Nora 81. — Same case, 7 TÍ, 13; 11T., 122.</p>

This was an action, commenced in January, 1848, upon a covenant, in the following words: Kepublto op Texas, \ This agreement, made aud entered into this tlie Gounty of Bexar, j second day of April, 1838, between J. W. Smith on tlie one part and Joseph Baker on the oilier part, witnesseth, that whereas the said Joseph Baker selected and improved a tract of land lying oil the Salado creek, whore the Gonzales road crosses said creek; and whereas tlie said tract of land has boon…

The appellee Alert Ins petition in the District Court on the 28tii day of September, 1S50, setting forth that on the ISIh (lay of November, 1839, tiie defendant’s intestate executed to the' plainUir his'receipt, whereby lie acknowledged the receipt from the plaintiff of four hundred and fifty dollars, to bo by him invested in the paying government foes for Texas scrip placed in his hands for location; tiiat liethereby became bound to apply the money to the purpose mentioned…

This was a suit under the act of the 4th February, 1841, for tho re-establishment of a certificate which had not been recommended by tho investigating Hoard of Commissioners as a genuine and legal claim against the government.

<p>where the partios submit an agreed statement of the facts to the court for Us judgment upon tho questions of law arising on the case submitted, all other pleadings will be disregarded on an appeal from the judgment.</p> <p>The questions of law upon the case stated as to separate properly are settled in favor of the appellee by the eases of McIntyre v. Chappell, el Tex. R., 1ST,) and Love and Wife v. Robertson, (7 Id., !>.) (Note 30.)</p> <p>Note 36. — Oliver v. Robertson, 41 T., 422.</p>

Error from Rucees. This suit was brought by the appellee against Win. H. Berry, Gideon K. Lewis, and Henry L. Kinney on a note signeil W. H. Perry, Gideon K. Lewis, II. L. Kinney. The petition as originally filed alleged the ■residence of Lewis and Kinney'to be in the county of Nueces, hut did not state the residence of Perry or allege that he resided out of the State or that his-residence was unknown.

Error from Bastrop. The plaintiff in error brought suit against one Walker and anoihiT to recover the possession of a tract of laud. Held: throughout the whole Spanish and Mexican legislation, as the highest consideration and inducement for grants of laud, and they entitled the meritorious parties to a preference over all others.

This was a suit by Miller and wife against Chambers to foreclose a mortgage for $1,000, the mortgage being- filed as an exhibit. The defendant filed an answer, alleging usury and partial failure of consideration. There was a demurrer filed to the answer of the defendant.

<p>As a general rule a question which is in substance a general demurrer to the sufficiency of the plaintiff's petition should, where tho defendant appears, be made in the court below. The verdict or decree cures all defects, imperfections, or omissions in the petition or statement of the cause of action, whether of substance or of form, if the issues joined be such as require proof of tho facts imperfectly stated or omitted, though it will not cure or aid a statement of a defective title or cause of action. (Koto 40.)</p> <p>Where laches or lapse of time is relied on by the defendant in an action for specific performance it should lie set up by plea or special exception in. all eases where the phiintiíf has not in the petition alleged’some grounds in explanation of his apparent laches or delay; in the latter ease the defendant is relieved from the necessity of setting up the mere lapse of time.</p> <p>Where the contract, for the specific performance of which the suit was brought, was of twelve years’ standing and there were no equitable circumstances alleged to account for the delay, the court said, The proof must have been of a potent character to have excused so long a delay, but it may have been adduced, and as there is no statement of facts we must presume that the proof, if necessary, was made. (Note 41.)</p> <p>A suit against a defendant in his individual capacity cannot in any way affect tho rights of those interested in an estate of which such defendant may*at tho timo be administrator.</p> <p>Where assets have been fraudulently alienated by an administrator in collusion with the vendee they may be pursued by-an administrator de bonis non, and the fact that a judgment has intervened, if obtained through fraud, cannot affect the principle or vary the rights of the parties. (Note 42.)</p> <p>Note 40. — MrClellan v. The State, 22 T., 403; Williams v. Warnell, 28 T., 610; Stansbury v. Nichols,30 T.,145. When there is no ba«is in the pleadings for averdiefcin favor of the plaintiff the judgment will be reversed. (Black v, Calloway, 30 T., 232; Elliott y. Wiggins, 16 T., 596; Locke v. Hiding, 24 T., 312.)</p> <p>Note 41. — Mitchell v. Sheppard, 16 T., 484; Stramler v. Coe, 15 T., 211; Holman v. Criswell, 15 T., 394; De Cordova -y. Smith, ante 129.</p> <p>Note 42. — Giddings v. Steele, 28 T., 732.</p>

Wilhelmina Meyer applied to Chief Justice Hemphill, in vacation, for an alternative mandamus against Cavolan, clerk of tlie District Court of the county of Bexar, to approve a certain appeal bond and send up the transcript of the record in a certain case wherein said Moyer was plaintiff and two others were defendants.

<p>Appeal from Bexar.</p>

Error from Bexar. The suit was on the joint and several promissory note of Ililburn, Roaker, and Crump. The defense was that the note was given as a wager on the result of a horse-race, and that the race was not run; that the defendant Crump was only security for Hilburu, and that he, Crump, had no notice that Ililburn had declined running the race.

This suit was brought against forty-six individuals, to recover laud, to stay waste, and for a discovery. Many of them holding by different tenures, and some of them claiming to hold in good faith, if not by the best title, set up a claim for improvements, and there would have been different judgments, as various, almost, as the defenses set up. Under such circumstances three sets of the defendants asked for and obtained leave to sever from the others in their defense.

Action of trespass to try title by Herrera against Swift. Swift denied all and singular, &e.; set up title in liimself by virtue of locations made in 1S49, alleging that the pretended grant to Mansola, under which the plaintiff claimed, was void; that no concession was ever made by the Governor as is stated in said title; that no report of the ayuntamiento was liad as was pretended to be sot forth in said title; that the officer pretending'to grant the same was wholly…

This suit was instituted in the court below by the appellee against the appellants to recover the amount of a note executed by them for the purchase-money of a half league of land, bought by Crayton at a sale made by the appellee as administrator of Pettus, and to foreclose the mortgage executed by Crayton to secure the payment of the same.

<p>where the Supreme Court affirmed a judgment in 1849, and in 1852 it was made to appear to the satisfaction of the court that at the time of the affirmance the appellee was dead, the court vacated and annulled the judgment of affirmance, revoked the mandate, and continued the ease, as on suggestion of the death of the appellee, for want of parties. (Note 49.)</p> <p>Note 4.9. — Whore the death of the plaintiff is suggested by his attorney as eauso for not proceeding to final judgment such suggestion may be contested by the defendant, and it would seem thatthe trial should bo by tho court; and if it be found in the negativo and the suit be dismissed, but it afterward appear that tho plaintiff was dead, tho causo will bo.reinstated on motion at tho next term. (Armstrong v. Nixon. 16 T., 610.) When, after suit is brought, Ihoro is a change in the representativo character of the defendant, so that tho judgment against the defendant is erroneous in fact, it is not void, but simply voidable, as in the analogous cases of judgment rendered in favor of or against a feme covert appearing on tho record as a feme sole, or in favor of or against a dead man, when the fact of marriage or death was not apparent on the record. Tho proper modo of correcting an error of this character is by a proceeding in the nature of a writ of error coram nobis in the court where the error was committed. (Moke and Brother t>. Brackett, 28 T.,443.) A judgment against a deceased defendant is not void, but only voidable, and on writ of error coram nobis in the court where rendered it may be set aside and correctly rendered against tho representative of the deceased defendant. (Giddings v. Steele, 28 T., 7’82; Pullen v. Baker, 41 T., 419.)</p>

The appellant obtained a certiorari to bring- up to the District Court a ease decided by the County Court of San .Patricio county, in the matter of a contested election between himself and the appellee for the office of chief justice of the county, for the purpose of obtaining- a trial of the ease anew in the District Court.

This suit was brought by the appellee, a married woman, lo recover from tho appellant certain negroes, alleged to be her separate propon y. The petit ion alleged that her husband refused to join her in the suit. The, defendant, iu his answer denied the averments of the petition, and asserted title in himself, by purchase from the husband.

<p>Where a right is claimed by virtue of a proceeding of the Probate Court it is not necessary, so far as the admissibility of a transcript of the proceedings of the Probate Court is concerned, that it should purport to be a transcript of all the proceedings.</p> <p>It is competent for a party to give in evidence such of the proceedings of the Probate Court as are material to his case, and it is nob incumbent on him to introduce more.</p> <p>Where, in the fall of 1843, the defendant rendered an account to the Probate Court as executor of an estate, which was received and allowed by the court, the court held that it was sufficient to charge him as executor at that time, and that the presumption was that a previous order for his removal in the spring of 1843, and the appointment of another in his place, which other had qualified and given bond, had been revoked. (Note 52.)</p> <p>The only action which the District Court could take (in 1843) upon an appeal from the Probate 'Court was either to dismiss tho appeal if not prosecuted in a manner to enable the court to take cognizance of and try the‘case, or to proceed to trial and judgment upon the merits.</p> <p>Where, in 1843, an executor filed an account, denominated by the Probato Court an account current, and the court gave judgment against him in favor of the estate for the balance due, from which judgment there was an.appeal, upon which appeal the District Court ordered that, because there did not appear sufficient record to enable said court to proceed to hear and try said cause, the same should be remanded to the Probate Court for further proceedings: Held, That, the judgment appealed from being final, the only further proceeding which the Probate Court’eould take in-respect to that judgment was to carry it into effect, it tumid not revise its own final judgment, rendered at a previous term, and-that, having done so, its subsequent judgment was null and void without appeal.</p> <p>The general rule is well established that an executor or admini?drator shall nob be charged with any other goods or assets than those which came to his hands. An outstanding debt duo to tlie decedent is not assets in the hands of his executor or administrator to charge him where there has not been gross negligence, or where the delay in collecting it has not been collusive, fraudulent, or unreasonable.</p> <p>Note 52. — Where the fiduciary capacity of one acting as administrator is recognized by the Probate Court, his authority cannot be called in question collaterally for the purpose of invalidating his lawful acts done in the duo course of administration. (Poor u. Boyce, 12 T., 440; Hurt r. Horton, 12 T., 285; Dancy v. Stricklinge, 15 T., 557; Bayne v. Garrett, 17 T., 330; Soyov. McCallister, 18 T., 80; George v. Watson, 19 T.,354; Baker v. Coe, 20 T.,429; Giddingsv. Steele, 28 T., *732 ; Davis v. Wells, 37 T., 606.)</p>

This was an action for the recovery of a lot or parcel of land. The plaintiff (who was appellant in this court) claimed under a judgment, of the Supreme Court and by virtue of an execution and sale under said judgment. The suit in which that judgment was rendered was between the parties to this action, and it originated before a justice of tlie peace, whose judgment was taken by appeal to the District Court.

Ake was indicted by the grand jury of William-ion county for permitting clivers persons, to the grand jurors unknown, to play at a certain gamp with cards upon which money was bet, in a house kept by him for the, retail of spirituous liquors, in violation of the act of 1818. (Hart.

This was a prosecution for forcible entry and detainer in a Justice’s Court. The defendants, Thomas and Chapman,'wore tried in said court by a jury, and defendant Thomas fined $50.00 and Chapman $10.00, and costs. The defendant, Thomas, obtained a certiorari from the clerk of the District Court, under the act of 1852. In the District Court the district attorney moved to dismiss the certiorari for reasons which appear in the argument, which motion the district judge sustained.

Suit by John Twohig against F. B. O’Sliea, John Kicli, B. Callaghan, F. Gilbe.au, and J. B. Plummer, for entering upon the premises of (.lie petitioner in said county, and cutting and carrying invay, without plaintiff’s permission, five hundred cords of wood, of the value of fifteen hundred dollars, which they liad in possession and detained from said plaintiff, refusing to deliver it to him, although requested, which refusal to deliver and detention ot said wood by said…

This was an action for the recovery oí a league of land. The allegations of the plaint ill', S. C. Bobertson, were in the usual form. The defendants filed an original and three amended answers.

The appellants brought suit against the appellees on the 17th of February, 1S46, to establish their title to a third of a league of land granted to their ancestor.

This was an action brought by the appellee against the appellant ami H. and E. S. and G. F. Harper, for a trespass committed, by forcibly dispossessing the plaintiff of the bouse and premises where be resided. The plaintiff discontinued as to two of the defendants, II. and G. F. Harper. At the Fall Term, 1850, therqt was a verdict for the plaintiff and a new trial granted. At the Spring Terin, 1851, the canse was continued on affidavit of'the defendant, Cook.

Error from Gonzales. This was an action by tho widow and heirs of Joseph McCoy against Levi Jones, to rescind a contract for the sale of McCoy’s head-right league. It was before the Supreme Court on a former occasion, and the facts, so far as they were disclosed by the pleadings, will he found in tlie report .of the case in 3 Tex. R., 340.

This action was brought for the recovery of tiie amount of a promissory note, and of an order drawn by appellant on one Mc-Mullen, requesting him to pay iifty-oue dollars and seventeen cents in his store to the appellee. The order was drawn on C. McMullen; and tiie petitioner averred that he had used due diligence in presenting it to J. II. McMullen, •the person for whom it was intended; and that tiie said J. II.

Appeals from Galveston. Suits were brought by tlie State against Bock for keeping a house for the retail of spirituous liquors in quantities less than a quart, and for keeping a ten-pin alloy, and against Labadie for selling goods at retail without having paid tlie occupation tax imposed by the act of 1846. (Hart. Dig.., p. 933.) The defendants demurred to the several suits; the demurrers were sustained, and the State appealed.

This was an indictment for playing cards at a public placo, as follows: Tub State of Texas, \ In the District Court of Brazoria county, Fall County of Brazoria, j Term, A. D. 1831: In the name and by the authority of the State of Texas, tlie grand jurors, elected, drawii, impaneled and sworn to inquire in au(t for the body of the county of Brazoria in the State of Texas, 11~Oi1 their oath preseilt, that on the first day of August, in the year of our Loul one thousand eight…

This was an action brought by the appellee against the appellant to recover a town lot in the town of Victoria. Tlie plaintiff claimed under a title issued by Fernando de Leon, as commissioner of lie Leon’s colony, to Eugenio Benavidas, in 1835.

Tho defendant, Daniel McDonald, and tiie sureties on liis official bond as sheriff and tax collector of tiie comity of Victoria, were sued for his allowed dereliction in not paying over four thousand one hundred and seven 88-1 Oh dollars, taxes assessed for tiie year 1841, and collected, as alleged, hy tiie said McDonald.

<p>Appeal from Colorado.</p>

<p>Error from Brazoria.</p>

<p>In an action for damages by reason of the loss of the services of two slaves, proof of the value of eotion that year — the plaintiff being a cotton planter — is too remote and speculative to servo as a measure of damages.</p> <p>"Where a hroaeh of contract is proved, the law gives some damages, though it should be merely nominal. (Note 64.)</p> <p>Consequential damages resulting from a breach of contract may be proved, provided they be immediate and specific.</p> <p>Where the terms of a public sale arc that the bidder shall give a note with good personal securicy for payment, the person conducting the sale, after knocking off the property, has .no right to refuse to take, the note with the. security offered, unless there be a reasonable ground to believe that the security is not sufficient to ensure the payment; but in this case it was proved that the sureties were solvent.</p> <p>Note 64. — 'Damages are given as a compensation or satisfaction for an injury actually received, ami they should be commensurate with the injury — neither more nor less. General damages {ire such as result necessarily from the injury, and they may be recovered on a general allegation of damages. Special damages are the natural but not the necessary result of the act complained of, and they must be averred and proved. (Moore v. Anderson, 30 T., 224.)</p>

Suit by the appellee against the appellant on a promissory note for $120. The note was made payable to the plaintiff or bearer.

Suit by the appellee, executor of one Nelson, against the appellant on a note of hand payable at a particular day.

<p>Quero? Where, under a plea of payment, evidence of a set-off is admitted without objection» and the plaintiff’s demand is thereby reduced to a less amount than one hundred dollars, which party shall recover costs? or in ease the evidence be objected to, out the District Court giving judgment for the plaintiff for costs, he fails to appeal and defendant appeals? (Note 07.)</p> <p>A payment may be made in other articles besides money, and if properly pleaded and the claim of tile plaintiff be thereby reduced to a less amount than one hundred dollars the defendant will recover his costs.</p> <p>.Note 67. — Duel' v.Seydell, 20 T., 61; Davis v. Pinckney, 20 T.,340; Dalbyr. Murphy, 25 T.,354.</p>

- The plaintiffs brought their action of trespass to try title to a league of land. Held: hotti by the courts of the different States and of the Confederacy, that under the ordinary provisions of the tax laws it is necessary for the party claiming under the. tax deed to show outside and independent of the deed that ail the requirements of the law have been complied with by the officer making the deed before it becomes…

Error from Galveston. The defendant appeared and read in evidence a draft drawn upon him by the plaintiff, in the following words : l-Iiram Close, Esqr., Trustee: You will please pay-or order, four hundred dollars, par funds, when collected, of the proceeds of a note now in your hands drawn by Kobert Bose and Bobei-t D. Johnson, and made payable to me, for six hundred dollars, par funds. Wm. Fields. Galveston, March 24th, 1841. Accepted, Hiram Cdose.

Error from Brazoria. Suit by Wilson against McGreal for services “ren- “ tiered in aiding and assisting the ■said Peter McGreal in procuring possession “of certain negro slaves belonging to and in possession of one--— Stafford, “and further, in bringing said skives to the town of Brazoria, and in guarding “the possession of the said slaves, for which services your petitioner “represents that the said Peter McGreal undertook and faithfully promised “your petitioner to…

The appellant was indicted and convicted of playing at cards under article 533 of the Digest. The indictment charged the offense to have been committed “in a room in the eourt-house, the said court-house “being a public place.” There was a motion to quash the indictment, a motion for a new trial, and a motion in arrest of judgment, which, in their order, were considered and overruled.

The appellee, Edward Gicsecke, administrator of. tho estate of Christian Schwarze, caused a writ to bo issued from a Justice’s Court in Brazoria, commanding the appellant, Henry Ahrens, to appear and answer a charge of detaining unlawfully in his possession goods and property of the estate of Christian Schwarze, of the value of ninety-live dollars, attaching to the said writ an inventory of the property alleged to he wrongfully detained.

Error from Colorado. Motion to dismiss, on the ground (1) that there liad been a former writ of error in same case, which had been dismissed;', and (2) that there was no seal of court over tito tie of the transcript. Motion by the plaintiffs in error for a certiorari to perfect tiie transcript.

<p>Error from Galveston. Suit by the defendant in error against tile plaintiff in error for tile purchase-money of two lots in the city of Galveston. Petition filed June 14th, 1S51. The following letter from the defendant to the plaintiff was filed as a part of the petition :</p> <p>GalvestoN, March %4.th. 1849.</p> <p>T. E. Hollis, Liberty.</p> <p>DEAR Sir : I am just in receipt of your much esteemed favor under date of the 14th inst., and contents noted. I am willing- to take three lots, for which tlie enclosed is a deed, at a price; to be named by our mutual friend, E. I-I. Mer-riman, to be settled for when my title is clear to the property. If tins will suit yon, sign the deed before a notary and two witnesses, and send it clown with a letter directing Mr. Merriman to set the price upon them that lie considers as a fair valuation for them at this time. If tho judgment is confirmed at the Supreme Court, I account to you for the price he (Mr. M.) states; but if not, then, of course, the bargain is annulled, and you still remain in m debt. There is no telling what the result will be at the Supremo Court. I am under the impression that it was carelessness on their part that enabled you to get a judgment at all. But Frank will no doubt do bis best and we must wait the result.</p> <p>I will, on the receipt of your deed, send the furniture according to your direction. I would like to see you hero soon, if you can make it in your way to come down, that we may have everything arranged satisfactorily, that there may be no misunderstanding between us. Hoping to hear from you immediately on receipt of this, I remain,</p> <p>Yours, very respectfully,</p> <p>Jno. H. Bennett.</p> <p>The petition alleged that the plaintiff accepted tho proposition contained in the above letter, and executed the deed as requested and sent the same to the defendant; that the defendant’s title to the lots had, within two years last previous to the commencement of this suit, been made entirely olear and perfect in every respect, according to the terms of the aforesaid letter; and that said E. H. Merriman, in said letter mentioned, had fixed the price and value of said lots, at the date aforesaid, at the sum of two hundred dollars each; and that said lots were well worth that sum, &c.</p> <p>The defendant answered December 25th, 1851, (1) by a general demurrer; (2) for special causes, that the petition.contained no averment that the plaintiff had-assented to refer the case to Mr. Merriman. nor that said Merriman had set the price of said lots at the date of said letter; (3) by general denial; (4) by pleading two notes of hand of the plaintiff, payable to the defendant, one for $54.86, due January 1st, 1848, hearing ten per cent, per annum interest from that date until paid; the other for $91.67, due 30th March, 1848; (5) that defendant was on tho 2d day of August, 184S, justly indebted to Win. A. Gold, on account, in the sum of $120, which said Gold for value assigned to the defendant, of which both then and since plaintiff had due notice; (0) and the said defendant further averred that on the-day of-, A. D. 18 — , said plaintiff, who declined to accept the imposition made by defendant in his letter, a cop3>- of which is annexed to petition, and never gave his assent to the terms and conditions thereof, and who never performed the same, executed a deed to defendant for said lots, upon a totally different understanding- from that attempted to he set up in said petition, to wit, upon the terms contained in the following-letter of the plaintiff to defendant, which was sent with the deed :</p> <p>Liberty, April 2cl, 1849.</p> <p>Joi-iN H. Bennett, Esq.</p> <p>Dear Sir: I received your letter with the blank deed, and I will send it down by Dutch Dan, who starts to-morrow. As for calling- in uncle F. II. Merriinan, your word is enough, although Frank’s word is good; but you have always been just to mo. But, John, I want those two lots to pay you and Briggs & Yard ; and I want you to pay them, or keep the lots for to secure yourself and them, or pay them and yourself, and I am satisfied. The deed will be down by Dan, and you will please send the furniture to him and take his receipt in good order and send it to me.</p> <p>Tell Briggs & Yard, if you will pay them, that you will pay them. Write to me, on the receipt of this letter, what you will do. Nothing- more, but remain, Yours,</p> <p>T. F. Hollis.</p> <p>That the actual value of the lots at the time did not exceed $220, which was the valuation placed upon them by plaintiff, as appeared by the following memorandum'in plaintiff’s own handwriting, left by him with the defendant on the 30th of November, 1S47 : •</p> <p>Mr. J. II. Bennett: Mr. J. L. Darragh sent B. G. Merritt to propose to compromise with me about the three lots close to Presbyterian Church; if they will pay jrou two hundred and twenty dollars, make the trade.</p> <p>That (7) having so obtained the claim or alleged title of said plaintiff to said lots, and knowing- that the title of said lots was in controversy in a suit wherein said plaintiff was plaintiff v. • — —— defendant, he, the defendant, on the 4th of May, 1849, paid unto John L. Darragh the sum of $200 by way of compromise and final settlement of said suit, and thus perfected and cleared the title to said lots; that Darragh was the real party in interest in said suit, although he was not a party to the record. That plaintiff himself paid the account of Briggs & Yard, referred to in plaintiff’s letter, amounting to about $120; and that defendant settled and paid and received assignment of the account of said Gold, as aforesaid, the same being- about equal in amo nut to the debt due by said plaintiff to Briggs .& Yard. Wherefore the defendant pleaded the matters aforesaid in rcconvention, prayed an account and for judgment for any balance found due the defendant.</p> <p>The court overruled tlie demurrer of the defendant, and sustained exceptions of the plaintiff to defenses (o) and (7) in defendant’s answer, ovorruling-exceptions as to the residue.</p> <p>The plaintiff gave in evidence the letter of the defendant referred to in the petition ; proved by F. H. Merriman, same referred to in letter annexed to the petition, the lots to have been worth $200 each at that time; that the suit which had been pending between Hollis and Jones, in which the title to said lots was involved, was gained by Hollis, below, and was at the December Term of the Supreme Court, A. D., 1849, disposed of by a dismissal of (he appeal upon suggestion of settlement. It was agreed that Hollis had had nothing to do with the. compromise. The execution and delivery of the deed on the 2d April, 1S49, was agreed to.</p> <p>The defendant introduced in evidence the notes, memorandum, and letter annexed to his answer; proved the lots to have been worth, at the time, from $12» to $100 each.</p> <p>Phiintiff then proved that Hollis, just after April 2d, 1849, wrote to Briggs & Yard that Bennett would pay them on account of the lots in the petition mentioned the amount of his account, which was about $150; that Briggs called on Bennett, who declined to pay it, because he said he had heard that the cause had been reversed in the Supreme Court.</p> <p>There was a bill of exceptions as follows :</p> <p>Be it remembered, &c., the court ex mero motil charged the jury that the letter annexed to defendant’s answer, when coupled with the execution of the deed and delivery of it, was in legal effect an acceptance of the proposition contained in</p> <p>the letter annexed to plaintiff’s petition; to which the defendant excepted.</p> <p>C. W. Buckley,</p> <p> Judge 7th Jud. Dist. </p> <p>]ST. D. Fenton, for plaintiff in error. In behalf of the plaintiff in error it is contended:</p> <p>First. The court erred in ruling out the account purchased of Gold. That it was assignable. (Tide Hart. Dig., art. 012; Story’s Eq. Ju., sec. 1047,105G-7; 2 Bead. Ca. in Eq., 205, 877.) Properly pleader! in reconvention. (Walcott v. Hendrick, in MS.)</p> <p>Secondly. That the court erred in not allowing the $200 paid Darragh to clear the title. (JSTewland on Con., 227; Story’s Eq. Ju., sec. 790 a and d, and note 3, 1237, n. 4.)</p> <p>Thirdly. That the court erred in making a contract for the parties. (Hart. Dig., art. 783.)</p> <p>Fourthly. Admitting the right of the court to decide the question of acceptance or non-acceptance, the construction made of Hollis’s letter was wrong, although accompanied by a deed.</p>

<p>Under our system all distinctions as to forms of actions are wholly disregarded in bringing suits m tho District Courts; and still less regard to forms is required in bringing suits in Justices’ Courts.</p> <p>It is wholly immaterial by what name a justice of the peace may call an action, if the facts entitle the plaintiff to a judgment.</p> <p>In determining whether a ccrtioiari shall be issued to remove a civil ease from a Justice’s Court to tho District Court, substance only, and not form, should be regarded; if justice has been done between the parties the judgment should not be disturbed. (Noto 7:j)</p> <p>The proceedings of tho .Justice’s Court will’be looked to for the purpose only of determining whether the certiorari was properly issued; that being determined in the affirmative, tho case must be tried de novo.</p> <p>Note 73. It is not sufficient for a petition for a certiorari to show that the petition had a good cause of action or ground of defense; but it must also show that the cause of action or ground of defense was properly presented to the justice, or a sufficient legal excuse must be shown for the failure so to present it. (Hope v. Alley, 11 T., 259; Criswell v. Richter, 13 T., 18; Ingo v. Benson, 15 T.,315; Peabody v> Bentillo, IS T.,313; Robinsonv. Lakey, 19 T.,ISO; Givens •y. Blocker, 23 T., 633; Doyle v. Glasscock, 24 T., 200; Clarke v. Hutton, 28 T., 123.) The petition for a certiorari should set out all the evidence before the justice; it should state some material error in the proceedings, that injustice had been done the petitioner, or that he had been unable to avail himself of some legitimate defense. (Oldham v. Sparks, 28 T., 425; Cordes v. Kauffman, 29 T., 179.)</p>

Axipeal from Walker. This was an indictment for playing at a game with cards, on which money was then and there bet, in a house for retailing spirituous liquors. There was no proof that money was bet. But admitting for the present that it sufficiently appears by the proof that the three first ingredients exist in this case, (proof of tlie playing, place, and time,) j'et as to the fourth ingredient, to wit, the betting of money on the game, there is no proof whatever.

Tlie appellant was convicted of murder in tlie second degree at the Spring Term, 1S52, and the punishment assessed at ten years confinement in tlie penitentiary. He prayed an appeal; and it was ordered that he be discharged upon giving a bond with good securities in tlie sum of $2,000, and his own bond in the sum'of $5,000, conditioned for his faithful appearance from term to term, &e. The bonds were given and approved by the clerk.

This was ail action of trespass to try title. The appellee brought the suit against the ancestor and intestate of the appellants. Ho based his claim to the land in controversy upon a deed alleged, to have been executed by William II. Steele, a special commissioner appointed to expedite (lie title in conformity witli a grant or concession made by Viesca, Governor of Coalniila and Texas, on the 20th of April, 1830.

Stewart brought suit against Jones and wife.,' as administrators of Kingston, to recover two 'hundred acres of land, and obtained a decree in liis favor, entered up the 7th of October, 1S-1S. Afterwards, Jones was appointed administrator de bonis non of the estate of Kingston, and on the Gtli of December, A. D. 1840, filed his petition to set aside the decree before mentioned.

This ivas an action on a promissory note made by Hubbell, payable to Tlios. Medley & Co., or order, at their office in the oily of How Orleans, in the State of Louisiana. There was no averment of presentment for payment at the place indicated. Tlic entry of judgment read : “ This “ day came the parties by their attorneys.

This was an action, of debt on a judgment. Among other matters, the defendant pleaded, 1st. That neither had he, nor had his intestate, at any time within ten years next before the commencement of the suit, undertaken or promised to pay in manner and form as the plaintiff had complained. 2d. That the deceased intestate of the defendant had, in his lifetime, paid the sum in the petition mentioned, together with all interest and costs. 3d. That the deceased intestate of the…

<p>Trusts are not included in our statute of frauds, and may therefore he proved, as at common Jaw, by parol. (Not© 79.)</p> <p>It seems that tho testimony of a single witness swearing to the admissions of an alleged trustee is insufficient to establish a trust m lands, although the alleged trustee be living and his answer denying the trust be not under oath. (Note 80.)</p> <p>An administrator is a competent witness in a suit between third parties to prove that a conveyance which was made by his intestate, and which purported to be an absolute sale, was a conveyance in trust to reimburse both contending parties for money paid by them as sureties of the intestate. (Note 81.)</p> <p>It seems that a deputy clerk of the County Court is not authorized to take the proof or acknowledgment of instruments for record. (Note 82.)</p> <p>Where one receives a conveyance of property in trust to reimburse himself and another for money paid, and a suit is brought to enforce the trust oil the part of the second cestui que trust, a decree maybe prayed lor and made to the efFect that the trustee pay to the plaintiff'tho amount intended to be secured by a certain day, and in case of his failure to do so, then that the property be sold, &e.</p> <p>Note 79. — BicClennyy. Floyd, 10 T., 159; Cuney v. Dupree, 21 T.,211; Grooms v. Bust, 27 T.,231.</p> <p>• Note 80. — Hodges v. Johnson, 15 T„ 572; Hull v. Dayton, 16 T., 262. These cases are overruled in Layton v. Hall, 25 T., 20=1, and tlie dissenting opinion of Judge Wheeler in 16 T.. 262, held to bo correct. •</p> <p>* Note 81. — Todd v. Dysart, 23 T., 590.</p> <p>Note 82. — A deputy clerk is authorized to take proof of deeds, <fec., for record. (Rose v. Newman, 26 T., 131; Frizzell v. Johnson, 30 T., 31.)</p>

Error from Brazoria. The plaintiff, Williams, filed his petition in February, 1852, praying an injunction to restrain the execution of the judgment, and for general relief. Tlie judgment sought to be enjoined was rendered against the petitioner and McKinney, in March, 1843; and the petition alleged the payment thereon of two certain sums, one of $042, in April, and oue of $500, in March, 1844.

The appellant was indicted and convicted upon the following charge : “That Henderson Ashworth, being a free person of color, “ of African descent, laborer, and Lititia Stewart, late of said county, spinstress, “ on the first day of April, and on divers other days and times thereafter, and- “ before the finding this bill, to wit, in the county aforesaid, did then and there “ live together iu fornication, contrary to the statute,” &e. The record showed that the defendant asked…

It appeared from the record in this case that at a sheriff’s sale of t.wo hundred acres of laud, pointed out by the defendant in execution, the laud levied on was divided and offered for sale in four' lots of fifty acres each, and marked out and designated upon a map exhibited at the sale as No. 1, 2, 3, 4; that Andrews took the hhl of Phillips, to whom lot No. 1 was knocked off, as the highest bidder at the sale; and that Palmer was the highest bidder for the lot No. 2, and…

<p>Appeal from Jefferson.</p>

Error from Liberty. This case was before the Supreme Court once before, and is reported in 7th Texas Reports, 576. On the receipt of the mandate a decree in accordance with it was made by consent of the parties appearing by their attorneys. Dunman and wife alone prosecuted this writ of error.

This was an action brought in September, 1851, upon 'a judgment recovered by the plaintiff against the defendant in the District Court of Grimes county, at the' Pall Term, 184S. The plaintiff set out the judgment and averred that it was in force, not reversed, satisfied, or otherwise vacated, and that he had not obtained execution thereupon.

<p>’Where there was some circumstantial evidence of payment, and the court told the jury that there was no evidence of payment, whereupon the court was requested to charge the jury that the court could not undertake to say whether there was proof of payment, but that that was entirely within the province of the jury, which charge the court refused to give, but charged in lieu thereof that if there was any evidence of payment they must find accordingly: Held, That the question of fact was not left to the decision of the jury, uninfluenced by an opinion from the judge, as it ought to have been.</p> <p>More indulgence is extended to the representatives of deceased persons in making proof of facts which rest in parol than would be allowed to the persons themselves if living.</p> <p>See this case for a motion for a new trial on the ground of newly-discovered testimony, which ought to have been sustained.</p>

Error from Walker. The plaintiffs in error sued tbe defendants in error for the cancellation of certain deeds, and to quiet their title to one-third of a league of laud, the headlight of Matt. Finch, who died intestate in 1841, leaving tbe plaintiffs in error his heirs at law.

Error from Walker. Suit on a contract for damages. Verdict that both parties were guilty of fraud, and that each party should pay half the costs. Judgment for the defendant for all costs, &c. Errors assigned. 1st. Tile,judgment did not follow the verdict. 2d. It was not founded on any verdict or issue of law.

The County Court had ordered the administrator in the payment of claims admitted and approved as due upon open accounts, not to allow interest upon snob open accounts. The District Court reversed the judgment and adjudged that interest should he computed and allowed upon such accounts from the date of their approval until paid, from which judgment the administrator appealed.

Error from Montgomery. This suit was instituted by Spillars against Bennett and Mixon on their joint promissory note. , After service of process on Bennett he died; and on a suggestion of his death, his executors, Davis and S. J. Bennett, were made parties, and the suit proceeded against them as co-defendants with Mixon. Judgment was rendered against the executors and Mixon.

The appellant was convicted of betting “at a certain “ bank called rondo, the same being then and there exhibited for gaming.” The proof was that tiie defendant did bet at a game called rondo; that one man held the stake, and the bet was against his pile; that it was played with small balls on a billiard table.

Error from ’Walker. The plaintiffs were a mercantile firm, doing business under the name of George Butler & Brother. In setting out the names of the members of the linn tile petition stated them as George Butler aud Jonas Butler. The defendant pleaded in abatement that the names of the members of the firm were not George and Jonas, but were George and E. M. II. Butler. The plaintiff thereupon amended his petition, conforming to the plea, to which the defendant excepted.

Error from Walker. Suit commenced Fall Term, 1852, by the defendants iu error against tbe plaintiffs in error oil a note dated March 5th, 1852, payable one day after date, signed b)' Cummings and alleged to have been indorsed same day to the plaintiffs by Tonsey, the payee. The petition gave the name of one of the defendants as U. S. Cummings. A citation was issued to Uriah S. Cummings, and was returned executed.

Error from Brazoria. The petition was filed by George Huff, administrator of Samuel Sawyer, deceased, representing that oil the 4th day of April, 1838, abridgment was rendered by tbo District Court of Brazoria county in •favor of petitioner, as administrator aforesaid, against Edwin Waller; that, no execution bad issued on said judgment, and tliat the same was still in force and unsatisfied, and that “the said Waller resides in the county of Austin.” The petition prayed…

This suit was instituted to set aside a sale of laud made by Cochran, the former administrator, at which sale Shannon became the purchaser and received the administrator’s title. The ground upon which tlie sale was sought to he set aside was frand and collusion between the administrator and the purchaser. There were other grounds alleged In the petition, but they were not sustained by the record.

Error from Walker. This was an action on a note made by English, the deceased intestate, on the 0th October, 1844, and it became payable on the 1st of November, 1845. Tho petition alleged thatafter the execution of the note tho maker went to tine Slate of Louisiana', where ho resided until he died. Administration was taken out in September, 1SD0, and the note being- presented, duly authenticated, was disallowed.

<p>One justice of tho peace cannot, by consent of parties, be substituted for another in the trial of a case in a precinct to which the former does not belong.</p> <p>Where tho parties having a suit pending before Justice Davis, in precinct No. 7, agreed that Justice Mason, of precinct No. 8, should sit with Jus tico Davis at the trial, and that the decision of Justice Blasón should be final, and the case was triéd in that way; Justice Davis entering up the judgment as the judgment of Justice Mason, and signing his own name thereto. Justiee Davis declining to express an opinion, bub malting no entry to that effect: Ileld, That the judgment was void. (Note 06.)</p> <p>See this case upon the subject of an award in ajustice’s court.</p> <p>Note 90. — Horan v. wahrenberger, ante, 313.</p>

This suit was brought by the appellees against appellant, on a note of hand executed by the testator. The District Court gave a judgment for the plaintiffs. It is not material to refer to the whole petition. It will be sufficient to notice such parts thereof as will show the grounds of the demurrer, which was overruled iu the District Court.

<p>Objections to the admissibility of evidence cannot be first taken in the appellate court. (Note 99.)</p> <p>Irrelevancy is a valid objection to the admissibility of a record in evidence.</p> <p>■Where the husband is sued for cutting and carrying away timber, the wife has no right to become a party on the ground that she claims the land.</p> <p>Note 99. — Hubert v. Bartlett, ante, 97.</p>

Error from Walker. Facts same as in Tousey ». Butler, ante, 525, together with the fact that Tryon was a co-defendant who did not appear and against whom judgment went by default.

<p>Probate sale of a tract of land, reserving a parcel contracted to be sold by the intestate, estimated to contain 185 acres; the proof was that the land sold by the intestate was -sold at one dollar an acre, that the amount sold was 357 instead of 185 acres, that it was worth 62,50 per acre, but that the balance of the land around there was not so valuable; the pro- • bate sale brought only forty cents per acre: Held, The proof was too vague and insufficient to sustain a claim for a greator abatement of the purchaso-money than 40 cents per acre.</p> <p>In the absenco of fraud or mistake tho rulo of caveat emptor applies to probate sales. (Note 101.)</p> <p>Note 101. — Crayton v. Hunger, ante, 285.</p>

<p>The controversy between Powers & Hewitson and De Leon was as to the boundaries of their respective colonies, and as to territory within the ten littoral leagues. The decision of the Federal Executive, in favor of tho latter, therefore, carried with it the assent of the Rodera I Executive to the oolomzafion by him of territory within tho ten littoral leagues and tho boundaries actually established by the subordinate officers of tho Government in carrying the decision into effect, the Coleto and Guadaloupe to the gulf, and acquiesced in by both empresarios, must he regarded as tho true one. (Note 102.)</p> <p>"We have ruled in several ea3es that to authorize the granting of land lying within the littoral or border leagues required the action ot both tho Eedeial and State authorities. So far we have thought we could go in expounding tho law applicable to those lands. Bat whore there 1ms been a contestas to which had the superior claim to tho bounty of the Government, and it had been decided between the conflicting claimants, we never havo claimed the right to revise the correctness of tile decision of the former political or judicial authorities of this country before tlie revolution. (Note 103.)</p> <p>See this case as to presumptions in favor of tho acts of the authorities of the former Government, even if the courts would revise those acts.</p> <p>Quere? As to the rights of an empresario to assign his contract so as to authorize the assignee to discharge the duties of empresario to dispose of it by will with tlie same effect, and whether a part of his succession, in the absence of a will to be administered, &c.</p> <p>■Where the empresario died, the commissioner for extending titles, appointed before the decease of the empresario, was authorized to continue to issue titles to the colonists without the customary report as to the qualifications of the applicants ai\d the vacancy of tlio lands, except where the applicants were foreigners, and the fact that the application was referred to an empresario ad interim, whose authority did not appear, and reported upon by him, did not vitiate the title.</p> <p>Note 102. — Do Leon v. White, post, 508; Kilpatrick v. Sisneros, 23 T., 113.</p> <p>Note 103. — Smith v. Po\vert Id T., 146; same ease, 23 T., 29. The only recognized exception to this rule is where a title m the reserved leagues has been issued under the specific authority of a decree of the Congress of the State of Conhuila and Texas. (lBlount v. Webster, 16 T., GIG, Johnston v. Smith, 21 T., 722; Johnson v. Shaw, 41 T., 428.)</p>

This was an action for the recovery of the balance due on a note and for the foreclosure of a mortgage made to secure its payment. Held: upon principle, “that when the statute of limitations begins to “ run it shall continue, notwithstanding the death of either party.” But the ruling of the court below in this case goes to the extent that the death of a party, when the statute lias ceased to run, revives it again — a position that is thought not to be tenable, either…

Error from TPalker. Suit by the defendants in error against the plaintiffs in error on the promissory note of the latter. The note was payable in Hew York, and the petition averred that tho legal rate of interest at the time the note was made, in the State of Hew York, was seven per cent, per annum. Tho court admitted parol proof of the legal rate of interest in Hew York, to which the defendant excepted.

The facts will he found in the opinion of the court. Tiie briefs are omitted because they were confined to the discussion of questions which were decided in Bissell ». Haynes, and to the question of fraud — nothing upon the point of want of power in tiie commissioner.

Error from Galveston. Tim appellee brought suit against the appellant ora a promissory note for $158.15, ami interest, and appended to his petition a copy of tlie note. The defendant pleaded certain payments and in roeonvention.

Error iron) Galveston. The defendant in error sued the plaintiffs in error on a note which read as follows : “GALVESTON, Oct. Ixt, 184G. “300. Five months after date I iiromise to pay Robert O. W. McMannns, “ three hundred dollars, being in part payment for the steamboat called the “Little Sally. (Signed) Wm.

<p>Error from Walker. Hide against sheriff to show cause why he failed to levy, etc. Answer, that the judgment on which the execution issued was entered on an appeal from a Justice’s Court, and was therefore void. Itappeared that the case in which the judgment was rendered had gone to the Supreme Court, and that the judgment was entered upon the mandate returned to the court below. Entry ofmotion overruled.”</p> <p>The plaintiff takes this position, that a proceeding' cannot he legally void when pronounced otherwise by the Supreme Court; that their decree cannot he inquired into by an inferior court or an executive officer; that their decision was the law ill that case; and though they might afterwards alter the rule, still it could not apply tores adjudicaba, except by a review or some proceeding between the original parties.</p>

Error from Walker. Suit by Weathered against J. C. Smith and S. R. Smith, to recover possession of a note, of which the following- is a copy, together with papers annexed, showing- that it had been allowed aud approved as a just claim against tiie estate of tiie maker : “8S9.G7. One day after date I promise to pay to Francis M. Weathered, sen., “ or hearer, eighty-nine 67-100 dollars, for value received of him this 23d day “ of March, A. D. 1848.

■ Appeal from Walker. The appellees lilocl their petition in the court below against the appellant and Bailey and the executor of Keenan and the admin-istratrix of Farris, praying an injunction.

Proceedings in this case commenced before the Probate Court of Harris county. It was by an application of the appellee, as the .widow of the appellant’s testator, to have the late homestead of her deceased husband stricken from the inventory of his estate, and for the further allowance to her of one year’s support for herself and minor child, and also such other property as is directed by the statute to be exempted from forced sale.

<p>A warrant issued by the Governor of this State for the apprehension of a fugitive from justice from another State should show on its face, by recital at least, that it was issued upon a requisition from such other State, accompanied by an indictment found or affidavit made, charging tho alleged fugitive with having committed the crime. Quere? Whether the indictment or affidavit should not bo fully set forth in the warrant, so as to enable the court, on habeas corpus, to determine whether it is sufficient or not.</p> <p>where, on habeas corpus, the warrant for the arrest of an alleged fugitive from justice from another State is found to be defective, this court has no power to detain the prisoner in order that another warrant may bo obtained.</p> <p>Note. — The motion to detain was called to the attention of the court after the foregoing opinion was read from the bench. The court, without further argument, expressed the'opinion that they had no power to detain the prisoner. Justice Wheeler requests the .Reporter to note that upon this point he gave no opinion. — Rep,</p>