George W. Smith v. Alexander Dunlavy; E. M. Glenn et al. v. Stephen D. Foote; -Neavitt v.-Baker; Atkinson & Chappell v. William H. Cooke; William M. Sledge v. Asa E. Stratton; Atkinson & Chappell v. William H. Cooke; George W. Hooker v. Eliza Horton, 31 Tex. 693

Morrill, O. J. —The legislature of 1840 passed

an act repealing all laws in force prior to 1st September, 1836, with certain exceptions therein mentioned, and on the same day declared the common law of England to he the rule of decision. ■ What is meant by “the rule of decision,” we do not pretend to say, and we have cited the act (Arts. 804, 978) for the purpose of calling attention to the fact, that in the._adjudication of causes the ante-statute law of England forms the substratum, and the constitution and laws..of the United States', together with the constitution. and laws of this state, the superstructure, of our system of jurisprudence.

The laws, statutes, and customs of any country, state, or nation, with the above exception, can have no force or validity as such.

The laws, rules, or regulations relative to bills of exchange, promissory notes, &e., in force in this state, are our own statutes on this subject, inasmuch as by the common law of England a chose in action was not assignable. (Story on Bills, § 17.) What is known as the mercantile law, and which accompanied the emigrants of Europe to this continent as a part of their inheritance, and which is now acted upon and received with the same binding force as a statute in most of the United States, has no validity or force in this state, except so far as it has become statute law, because it was so declared by the thorough-sweeping act above recited. (Art. 804.) The two principal acts on the subject of bills of exchange and promissory notes are the acts of 1840 and 1848. (Paschal’s Dig., Arts. 220, 226, 229, 235.) The 1st

section of the act of 1840 contained certain provisions that are repealed by the 7th

section of the act of 1848, (Art. 235,) and which are not re-enacted, and of course not in force since the repeal. The repealed

section is as follows: “It shall not be necessary for the owner or holder of a bill of exchange, promissory note, check, draft, or other mercantile negotiable instrument, to have any of those instruments protested for non-acceptance or nonpayment; nor shall it be necessary to give notice of sneh dishonor to any drawer, indorser, or assignor of the same, and every such party shall, without any protest or notice whatever, be held responsible as security for the final payment of every such instrument: Provided, however, That in all cases in which either a protest or a notice-was "hitherto necessary, the party that would have been released from responsibility by a failure to make such protest, or to give such notice, shall hereafter be released from all responsibility, unless the owner or holder of such instrument shall use due diligence to collect the same, and every holder or owner shall be adjudged not to have used due diligence who shall" not have instituted a suit against the drawer or maker of such instrument before the first term of the district court after the right of action accrued, or shall not institute such suit before the second term of said court, and also show good cause why he did not institute his suit before the first term.” (Paschal’s Dig., Art; 220.) The act of 1848 was entitled “An act prescribing the mode of establishing the liabilities of drawers and indorsers of bills of exchange and promissory notes,” "and, as has already been said, with some alterations, which will be noticed, contains the law that now governs us.

The 1st

section (Paschal’s Dig., Art. 229) is as follows: “ Tile holder of any bill of exchange or promissory note, assignable or negotiable by law, may secure and fix the liabilities of any drawer or indorser of such bill of exchange, and every indorser of such promissory note, without protest or notice, by instituting suit against the acceptor of such bill of exchange, or against the maker of such promissory note, before the first term of the district court to which suit can be br,ought after the right of action shall accrue, or by instituting suit before the second term of said court after the right of action shall accrue, and showing good cause why suit was not instituted before the first term next after the right of action accrued.” The 4th

section of the same act provides that “The holder of any such bill of exchange or promissory note may also secure and fix the liability of any drawer or indorser of such hill of exchange or promissory note for the payment thereof, without suit against the acceptor, drawer, or maker, by procuring such bill or note to be regularly protested by some notary public of any county for nonacceptance or non-payment, and giving notice of such protest to such drawer or indorser, according to the usage and custom of merchants.” [Paschal’s Dig., Art., 232, Note 293.] The 6th

section of the act extended the provisions of the 4th

section to contracts between merchant and merchant, their factors and agents, only. On comparing the 1st

section of the act of 1840 (repealed by the 7th

section of the act of 1848) with the 1st and 4th sections of [the act of] 1848 on the same subject, it will be seen that the act of 1840 expressly provided, that “ every such party (indorser) shall, without any protest or notice whatever, be held responsible, as security, for the final payment of every such instrument;” while the act of 1848 does not admit that the indorser is security, hut provides the two methods, in which the “holder may secure and fix the liabilities of the indorser,” and virtually providing that, unless the liabilities of the indorser are “ secured and fixed,” as provided, he is released.

To say that the indorser is liable, unless “ fixed,” as provided, would be equivalent to denying that the 1st

section of the act of 1840 was repealed. This act of 1848 continued uninterrupted till the 7th December, 1861, when

an act was passed suspending the collection of debts and liabilities on bills of exchange and promissory notes till 1st January, 1864, or six months after the close of the war. (Paschal’s Dig., Art. 5125.) One of the consequences of the passage of this act was the prohibition of holders of promissory notes, which were not made by merchant to merchant, to fix an indorser, and unless the liabilities of the indorser should be fixed, he would be released. Consequently, at the same session of the legislature, on the 1st January, 1862, the 6th

section of the act of 1848, (Art. 234,) was so changed that the 4th

section was made applicable to bills of exchange and promissory notes of all kinds.

After the 11th January, 1862, and until the courts were opened, in 1865, the only way of fixing an indorser was by procuring the indorsed note “to be regularly protested by some notary public of any county for non-payment, and giving notice of such protest to the indorser.” [Paschal’s Dig., Art. 232.] The appellee insists that, because the note fell due on the 1st January, 1862, and at a time when the laws then in force did not authorize the holder of a note to fix the liability of an indorser in any way, therefore the indorser was liable to pay the note.

This would be plausible if the act of 1840, making the indorser responsible as security, had not been repealed, as hereinbefore stated. And, besides, if the holder had used due diligence in having the note protested as soon as he was able, he could have fixed the liability of the indorser. The maxim that the law favors the vigilant properly applies in this case. We cannot see that this case differs in any material point from Smith v. Harbert, [30 Tex., 670,] decided at the last term of this court. Wherefore the judgment is Reversed and remanded. INDEX AB INITIO. 1.

To the ab initio plea it was replied, that the municipal laws of the state, not in conflict with the constitution and laws of the United States, remained in force during the rebellion, and the present provisional government succeeded it in the administration of criminal justice. (Paschal’s Dig., Note 1162, pp. 904, 905.) Thompson v. The State, 166. 2. All laws passed to aid the rebellion were void. The law authorizing fines and forfeitures to be paid in that currency was in aid of the rebellion, and void. (Texas v. White & Chiles, 25 Tex. Supp., 467.) Boone , v. The State, 557. ABATEMENT. Variance. 1.

The statute requires the place of holding the court to be stated in the writ, and it also requires the sheriff to serve the defendant with a copy. (Paschal’s Dig., Arts. 1431, 1433.) Whittenberg v. Newton, 474. 2. The statute is also equally mandatory in requiring a plea in abatement, except a plea to the jurisdiction of the court, or where the truth of the plea appears of record to be sworn to. (Paschal’s Dig., Art. 1, Note 221.) Id. 3. An error in the copy of the writ is not reached by a motion appending a copy of the writ, and saying that no copy was served upon him. The fact should be sworn to. Id., 475. 4.

The “records” are the books and papers of the court. The copy served is not a record within the meaning of

article 1 of Paschal’s Digest. Id. 5. The defendant cannot be heard after arraignment to aver that he is not indicted by his true name. (Paschal’s Dig., Art. 2937.) Wilcox v. The State, 587. 6. The appellant, against whom a judgment had been rendered for assault and battery, appealed, and died pending the appeal. The whole proceeding abates. (Paschal’s Dig., Art. 18, Note 229; Gibbs v. Belcher, 30 Tex., 79.) Harrison v. Moseley, 608. ABSENCE. Divorce and Alimony, 3. 1. No personal judgment can be rendered against a non-resident without actual personal service of the citation or writ upon the party.

In Index. 702 ABSENCE (continued.) order to acquire jurisdiction through the property, where the party is non-resident or absent from the state, there are certain essential prerequisites prescribed by statute to be performed before the jurisdiction actually attaches, so as to authorize an adjudication of the court upon the rights of parties.

There must be an affidavit made, bond and security given to the absent party, the impetration of the writ of attachment, and its actual levy and return by the ministerial officer of the court, before the jurisdiction attaches in a proceeding in rem. (Paschal’s Dig., Art. 25, Note 233.) Herringtons. Williams, 448. 2. Where none of these requirements had been complied with, no valid judgment could have been rendered either against the land or the person of the administrator and heir. He was in no proper sense a party to the litigation, actually or constructively. Id. ACCOUNT BOOKS. 1.

The best evidence of accounts which it is in the power of the party to produce, by ordinary or extraordinary means, shall be exhausted before books of account are admissible. Werbishie v. McManus, 116. 2. Besides the oath of the party touching the correctness of his books, it shall be proved by others, who are acquainted with the party, among his neighbors and customers, for fair dealing, that his reputation as an honest man and correct book-keeper is untarnished. (Paschal’s Dig., p. 601, Note 832.) Id., 117. ADMINISTRATOR. Estates. Fiduciabt Trusts. Vehdob’s Lies, 2. 1.

If the authority of an executor or administrator be denied, he must produce the letters .of administration, duly signed and sealed, or else the certificate of the clerk that such letters have issued. (Paschal’s Dig., Art. 1286.) Werbishie v. McManus, 116. 2. The payment of the stamp duty required by the act of Congress is a prerequisite to the grant of administration, without which the letters are void. (Int. Rev. Pamph. of 1867, p. 129.) Id. 3.

An administrator may sue to recover the land of his intestate, for the law so requires; but, non constat, that the' administrator, who has never had possession of land, may be sued as a mere fiduciary. (Paschal’s Dig., Art. 1324, Note 500.) Barrett s. Barrett's Adm'r., 344. 4. If the administrator be in possession, he may be sued as a trespasser. Id. 5. By the 112th

section of the administration law all the estate of the intestate vests immediately in his heirs, and the control of ^"administrator is only over the property which is subject to the payment of debts, and it can only he exercised under the orders of the court. (Paschal’s Dig., Art. 1373, Note 517.) Id. 6.

Where the plaintiff declared against an administrator as such, aver- Index. 703 ADMINISTRATOR (continued.) ring that he (the plaintiff) was entitled to a tract of land, and the administrator answered that the plaintiff’s deed had never been recorded, and that credit had been given to the intestate on the faith of the same land, and the heirs were not made parties, the issues made were wholly immaterial, and the verdict determined nothing. Barrett v. Barrett’s Adm'r., 344. ADMINISTRATOR’S SALE. Vendor’s Lien. 1.

To constitute an administrator’s sale, there must be a vendor and vendee, as well as a consideration; jind where the administrator sells and buys, the sale is a nullity. Hamblin v. Warnecke, 91. 2. In all sales made by an executor or an administrator he acts under the decretal order of the probate court, and the purchaser at his own peril is required to ascertain the grounds and authority of the fiduciary, not from his declarations at the time of the sale, but from the orders of the court and the statutes of the state in regard to his special duties in the premises. Hamilton v.

Pleasants, 638. 3., The administrator could make no terms with purchasers at such sales which the orders of the court or the laws of the land did not warrant. Of the nature of such orders and the provisions of the law the purchaser had the same means of knowing and understanding as the administrator. If the law therefore did not warrant a sale for Confederate money, the declaration of the administrator at the time of the sale, that the sale was made for Confederate money, could not operate as a fraud upon the purchaser. Id. ADMISSIONS. Confessions. ADULTERY. Homicide, 10. AFFIDAVIT. Attachment, 1, 2. ALCALDE.

Boundaries, Colonies. ALIEN ENEMIES. Sequestration. ALIENS. Annexation. 1. By the common law an alien could not maintain an action to recover real property. Barrett v. Kelly, 477. 2. An alien might acquire land, but he held it subject to the will of the government, and upon his death the property reverted to the government. Id. 704 Index. ALIMONY. Divobce and Alimony. ANNEXATION. 1. The annexation of Texas to the United States in 1845 removed all objections to a citizen of the United States on account of alienage. Barrett v. Kelly, 477. 2.

Prior to annexation Texas might have forfeited the lands belonging to alien citizens, but after annexation no such right existed against citizens of the United States. (Paschal’s Dig., Art. 43, Notes 153,159,237.) Id. APPEAL. Abbitbation, 4. County Coubt, 3-6. Jubisdiotion. Wbit of Ebbob. 1. When the state appeals from a judgment quashing an indictment, unless the defendant enter into recognizance, the supreme court has no jurisdiction, and the appeal will be dismissed. (Paschal’s Dig., Art. 3187, Note 771.) The State v. Bledsoe, 39. 2.

When a defendant appeals in a case of misdemeanor, he must either be committed to jail or enter into a recognizance to appear before the • district court to abide the judgment of the supreme court. (Paschal’s Dig., Art. 3186, Note 770.) Adler v. The State, 61. 3. The requirements of the recognizance are prescribed in

article 263 of the code; therefore it must state the time, place, and the offense., as well as the court in which the party is required to appear. (Paschal’s Dig., Art. 2731, div. 3, Note 708; Payne v. The State, 30 Tex., 397; Wilson v. The State, 25 Tex., 171.) Id. 4. Where the defendant was convicted of an offense and appealed, but the recognizance did not state the offense, nor any offense known to the law, this court has no jurisdiction and the appeal was dismissed. (Paschal’s Dig., Art. 2731, Note 708; Horton v. The State, 30 Tex., 191.) Breeding v. The State, 94. 5.

The statute requires forty days after the perfection of an appeal or writ of error as the least time in which the party is required or permitted to file the record. The party is also allowed two years from the rendition of the judgment to prosecute error. (Paschal’s Dig., Art. 4615, Note 1026.) Kemaghan v. Kail, 129. 6. A showing that the party applied for the record, but the clerk had no time to prepare it, is no sufficient excuse for not filing it in time. Id. 7.

Whether the judgment be that the defendant go hence, &c., or that the plaintiff recover, &c., or that a new trial be refused, this last act is a final judgment, and, if the defendant appeal from that, he may bring in review the whole record. Kennedy v. Morrison, 207. 8. Where an appeal was sent from Medina (which was assigned to the session of the supreme court at Austin) to the session at Galveston, it was, on the motion of the attorney general, dismissed. Qoodside v. The State, 566. Index. 705 APPEARANCE. Attachment, 7.

As the third maker of the note had died, the payee was not forced to cite his legal representative, hut the legal representative had a right to appear with the other defendants, and have the validity of the note adjudicated; and her voluntary appearance was a waiver of and dispensed with the necessity of a citation. Womack y. Shelton, 592. ARBITRATION. 1.

Where a case had been referred to arbitration, and the arbitrators reported their award, which the court refused to enter; hut, on the petition of the defendant, recited that, because of gross mistakes, both of fact and law, the award was set aside and the matter ordered to proceed de novo, it was such a final judgment as gave jurisdiction by appeal to this court. King & Go. v. Grey, 22. 2. .The umpire, whether selected by the parties or the clerk, is authorized to act as an arbitrator. (Paschal’s Dig., Art. 65, Note 248.) Id. 3.

Where, after a long session of the arbitrators, one of them withdrew from further attendance and the others made the award, it is a fair presumption that the withdrawal was because of disagreement, and the award was sustained. Id. 4. Where the parties did not reserve the right of appeal in the submission, and the court refused to enter the award, this court examined the facts, and, finding that the award was sustained by the evidence, reversed the judgment and rendered judgment upon the award. Id. ASSAULT WITH INTENT TO MURDER.

Article 493 of the Penal Code thus defines assault with intent to murder: If any person shall assault another with intent to murder, he shall he punished by confinement in the penitentiary not less than two years nor more than seven years. If the assault be made with a bowie knife or dagger, the punishment shall be doubled.” (Paschal’s Dig., Art 2155, Note 666.) To deliberately shoot a man with a six-shooter three times and wound him is an offense within the statute. Gonzales v. The State, 495. ASSIGNMENT.

The obligee or assignee of any bond or written instrument may transfer to another, by written assignment, all his interest in the same, and, in' order to hold the assignor liable, the assignee must use due diligence to collect the same. (Paschal’s Dig., Art. 222, Note 285.) An account which had been allowed by an administrator, and approved by the chief justice, is a quasi judgment, and assignable within the meaning of this act. McDonough v. Twtt, 199. ASSIGNMENT OF ERRORS. Pbactioe in Stobeme Cotet, 16. xxxi — 45 706 Index. ATTACHMENT. Reconventioh, 3. 1.

If the petition clearly set forth the cause of indebtedness against the defendant, from which the amount claimed is clear, and the plaintiff swear to the truth thereof, the attachment ought not to be quashed for want of the averment that the “ defendant is justly indebted,” in a specified amount, either in the petition or affidavit. (Paschal’s Dig., Arts. 138, 142, Notes 257, 259.) Morrison v. Kennedy, 207. 2. The petition filed under oath must show clearly the amount due, and whether it be justly due or not does not depend upon the sworn statement, but upon the proofs. Id. 3.

Where the defendant had given special bail in an attachment proceeding, and judgment went against the defendant, the court had to decide, as a final act, whether judgment should be rendered against the sureties, and the refusal to so render was final, from which the plaintiff could appeal. (Paschal’s Dig., Arts. 152, 153.) Id. 4. When the property is attached, the defendant may release it by giving a delivery bond, as provided in the 12th

section of the act, or by giving special bail for the amount of the debt, as provided for in the 14th section. (Paschal’s Dig., Arts. 150, 152.) Id. 5. The 14th

section reads as follows: “Any person against whose property an attachment has issued, his agent or attorney, may at any time before final judgment, upon giving special bail, with good and sufficient sureties, for the amount of the debt and interest, recover possession of the property so attached from the person in whose hands it may be; but the giving such special bail shall be deemed an appearance of the defendant, and the suit shall thereupon proceed as in ordinary cases; but if the plaintiff recover, he shall have judgment against all the obligors in the bail bond.” (Paschal’s Dig., Art. 152.) The defendant can easily replevy, which is not an appearance; or he may give hail under this section, which is as much so as the acknowledgment of service.

Id. 6. Where the plaintiff in attachment had acquired a lien by a levy, other creditors could not intervene upon the mere ground that the defendant was insolvent, and hence they were entitled to a pro rata division with the attaching creditor. The law favors the diligent. (Paschal’s Dig., Art. 149, Note 262. Harrison v. Harwood, 650. 7. A motion was made in the court below to quash and dismiss the attachment for various reasons; some, for matters alleged to he apparent upon the face of the attachment; others, for irregularities in the execution of the levy by the ministerial officer.

Among the first enumerated, were, that causes for the attachment were stated and sworn to, both in the petition and the affidavit; that the affidavit was made, the bond approved, and the attachment was issued and attested by the deputy clerk, though in the name of the principal clerk; that the attachment was for a different amount from that claimed in the petition; and'that the attachment had performed its office when an appearance had been secured. Neither of these grounds is sustained by the facts in the record nor by Index. 707 ATTACHMENT (continued.) the law.

It is no valid objection, that the party swore to the petition and made a written affidavit besides. If good cause were stated in the petition or the affidavit, it was sufficient to warrant the issuance of the writ of attachment. (Paschal’s Dig., Arts. 142, 214, Notes 257, 259.) Harrison v. Harwood, 650. 8. A large discretion is left to the officer by the statute, in fixing the valuation of the property levied upon. The policy of the law is simply to hold the property impounded until final judgment for the ultimate satisfaction of the debt. (Paschal’s Dig., Art. 149, Note 262.) Id., 651. 9.

There is a difference between the mere wrongful suing out of an attachment (upon a ground which may not exist) and the suing it out with malice. If the defendant take the first ground, he should plead upon the bond. If upon the latter, he may rely upon all the incidental injuries. Id. 10. The wrongful suing out an attachment, and the malice with which it may be done, are different causes of action. The one would be an action ex contractu; the other, an action ex delicto. The one would survive to the administrator or executor; the other would die with the person.

With the greatest latitude allowed in our pleading, this court has repeatedly recognized the distinction here taken. This court has heretofore ruled that the malicious suing out of the writ and the mere wrongful suing it out are separate and distinct grounds of defense; and under an answer setting forth one of the grounds proof cannot be introduced establishing the other. (Paschal’s Dig., Art. 3446, Note 797, p. 565.) Id. ATTORNEY AND CLIENT. 1.

Where a defendant had not been served, but an attorney appeared for him, so far as to object to the evidence on account of variance, and to force a plaintiff to take a nonsuit, the nonsuit discharged that party who was only indorser, and released the attorney from further duty and power in the cause, unless he obtained the express assent of his client to renew the litigation. And an agreement of the attorney to allow judgment to go against the client, not served, did not bind the latter. Hoffman v. Cage, 595. 2.

The court cannot recognize the existence of the relation of attorney and client until the court had acquired jurisdiction over the party, or the attorney exhibits a warrant of authority. Id. AWARD. Abbitbation. BAIL. Ab Initio. Bail Bond. Homicide, 10. 1. To justify a denial of bail there must be that evidence of deliberate malice, or those circumstances which prove murder in the first. degree. (Paschal’s Dig., Art. 2267, Note 672.) Ex parteWilliam Cooper, 185. 708 Index. BAIL {continued) 2.

Where the defendant had given bail before a magistrate, and was . afterwards indicted and taken into custody, upon an application to be discharged on habeas corpus the bond is not before the court. Ex parte Mosby, 567. 3. Where the killing was without provocation or extenuating circumstances, it was the result of formed design, and bail was properly refused. (Paschal’s Dig., Art. 2267, Note 672.) Moore v. The State, 572. BAIL BOND. Ab Initio. Bait. 1. A bail bond must contain all the substantial requisites in the 264th

article of the Code of Criminal Procedure. (Paschal’s Dig., Arts. 2732, 2759, Notes 707, 712.) Tierney v. The State, 40. 2. Unless a bail bond recite the offense of which the principal is accused it cannot be the foundation of a judgment of forfeiture. (Paschal’s Dig., Art. 2732, Note 709.) The State v. Miller, 564. 3. The sheriff has no authority to exact a bond of one who voluntarily surrendered himself. He should take the prisoner before an examining court. Id. BAILEE. 1.

Where cotton was delivered to a bailee to sell at a limited price in Confederate money, and the bailee, failing to get the price, converted it to his own use, the measure of damages (under the peculiar circumstances) was the value of the cotton at the time and interest upon that value until the trial. Hatcher v. Pelham, 201. 2. Where a party deposited a promissory note with a bailee, without any instructions to collect it, and the bailee afterwards received from the maker payment in the treasury notes of the Confederate States, it did not discharge the maker. Sansom v. Alexander, 443. 3.

Admitting that the bailee was an agent, he was only authorized to receive payment in lawful currency; no other payment will bind the principal. Id. 4. The Confederate notes were an illegal and treasonable currency, and the attempted payment in such was known to the debtor to be an illegal act. Id. 5. The defendant received the notes after his return in 1866. He remarked to his agent that he would have no difference with him; but that if the defendant did not make it right, as the bailee had told him he must do, he should always think he ought. This is no acquiescence.

An acquiescence, where there was no consideration for it, would have to be very affirmatively proved. Id. BILLIARD TABLE. 1. If a billiard table be kept for “occupation," the occupation was subject to the license tax imposed by the statute; because those “pursuing Index. 709 BILLIARD TABLE (continued.) any occupation, trade, or profession” are by the constitution subject to a license tax. (Paschal’s Dig., p. 942, Art. VII, sec. 27.) Tarde v. Benseman, 277. 2. Trade or profession imports a profitable pursuit, and, if the billiard table was kept for amusement and not for profit, it was not subject to taxation.

Id. 3. The use for which a billiard table was kept ought to have been left to the jury. Id. BILLS, NOTES, &c. Assighheht. Ihdobsebs. Railboads, 1, 2. 1. Where the petition showed that a note, payable to H. or bearer, was transferred, for a valuable consideration, by delivery before due, it matters not if the payee indorsed it after due, so far as the plea of failure of consideration is concerned. (Paschal’s Dig., Art. 221, Note 284.) Davis v. Wilson, 136. 2.

When the liability of the drawer and indorser had not been fixed by protest or timely suit against the acceptors, they were not liable; and, having been sued with the acceptors, there should have been a discontinuance against them, and it was error to take judgment against the acceptors without making any disposition of the cause as to these parties not liable. Young v. Davidson, 153. 3.

It would seem that it is error to sue acceptors, who are liable as a firm, in different suits, and to take separate judgments against them; and it is certainly error to take a separate judgment against one acceptor and a joint judgment against all. Id. 4. On the 11th of January, 1862, the 3d

section of the act of 20th March, 1848, which authorized the fixing of the liability of indorsers by protest, was in force, without any regard to whether the paper was between merchant and merchant or not, because the 6th

section of said act had been repealed so far as the character of the parties to the paper was concerned. (Paschal’s Dig., Arts. 232, 234, Notes 292, 295; and see Smith v. Harbert, 30 Tex., 670.) Green v. Elson & Templeman, 159. 5. Unless the liability of an indorser has been fixed by bringing suit against the maker, as required by the 1st

section of the act of March 20, 1848, he cannot be made liable. (Paschal’s Dig., Art. 229, Note 290.) Griffith v. Gary, 163. 6. A note which omits the word dollars, but inserts the numbers, means dollars. Petty v. Fleishel & Smith, 169. 7. Where a note is payable in currency, and the defendant makes default, it is proper to take judgment for the face of the note in dollars, without a writ of inquiry to find the value of the currency. Id. 8. The failure of a mortgagee to contest the administrator’s sale of mortgaged property is a sufficient consideration for a note. Bender v. Pryor, 341. 710 Index.

BILLS, NOTES, &c. (continued.) 9. Where the defendant proved that the consideration of a note was Confederate money, and therefore void, and the proof was that it was given for horses, about the value of which there was no proof, the court (the case was tried by the judge) did right to find the law and the facts for the plaintiff. Hailey v. Pollard, 604. 10. A note payable twelve months after a treaty of peace -between the Confederate States and the United States cannot be recovered upon the simple averment that it is due and has not been paid. (Shaw v. Trunsler, 30 Tex., 390.) Thompson v. Houston, 610. 11.

In a suit upon a note it is not necessary to state where either the note or the indorsement was made. Wexel v. Cameron, Grier & Co., 614. 12. A promissory note is a written engagement by one person to pay another person therein named, absolutely and unconditionally, a certain sum of money, at a time therein specified. (Paschal’s Dig., Art. 220, Note 283.) Id. 13.

Where the maker resided beyond the limits of the state, and the indorser was sued at the first term of the court after the note matured, he was held to be liable; and also that it was unnecessary to decide upon the effect of the special indorsement or the necessity of a government stamp thereto. Id. 14.

Where the defendant is sued upon a negotiable note, he cannot plead in reconvention, and recover against the holder the balance of an open account against the original payee of the note, even though he detained it after it became due. “Discounts against the assignor” do not mean that the assignee is liable for any balance over and above the amount of the note. (Paschal’s Dig., Art. 221, Note 284.) Seese v. Teagarden, 642. 15. The laws, rules, and regulations relative to bills of exchange, or what is known as the law merchant, have no force in this state, but such instruments are governed by our own statutes.

The Indorsement Cases, 693. 16. The two principal acts on the subject of bills of exchange and promissory notes are the acts of 1840 and 1848. (Paschal’s Dig., Arts. 220-226,229-235.) Id. 17. The 1st

section of the act of 1840 (Paschal’s Dig., Art. 220) contained certain provisions that are repealed by the 7th

section of the act of 1848, (Paschal’s Dig., Art. 235,) and which are not re-enacted, and of . course not in force since the repeal. Id., 694. 18. The repealed

section (Paschal’s Dig., Art. 220) is as follows: “It shall not be necessary for the owner or holder of a bill of exchange, promissory note, check, draft, or other mercantile negotiable instrument, to have any of those instruments protested for non-acceptance or nonpayment; nor shall it be necessary to give notice of such dishonor to any drawer, indorser, or assignor of the same; and every such party shall, without any protest or notice whatever, be held responsible as security for the final payment of every such instrument: Provided, however, That in all cases in which either a protest or a notice was hitherto necessary, the party that would have been released from responsibility, by a failure Index, 711 BILLS, NOTES, &o. (continued.) to make such protest or to give such notice, shall hereafter be released from all responsibility, unless the owner or holder of such instrument shall use due diligence to collect the same; and every holder or owner shall be adjudged not to have used due diligence who shall not have instituted a suit against the drawer or maker of such instrument before the first term of the district court after the right of action accrued, or shall not institute suit before the second term of said court, and also show good cause why he did not institute his suit before the first term.” The Indorsement Cases, 694. 19.

The act of 1848 is entitled “An act prescribing the mode of establishing the liabilities of drawers and indorsers of bills of exchange and promissory notes.” Id. 20. The 1st

section (Paschal’s Dig., Art. 229) is as follows: “ The holder of any bill of exchange or promissory note, assignable or negotiable by law, may secure and fix the liabilities of any drawer or indorser of such bill of exchange and every indorser of such promissory note without protest or notice, by instituting suit against the acceptor of such bill of exchange or against the maker of such promissory note before the first term of the district court to which suit can be brought after the right of action shall accrue, or by instituting suit before the second term of said court after the right of action shall accrue, and showing good cause why suit was not instituted before the first term next after the right of action accrued.” The 4th

section of the same act provides, that the holder of any such bill of exchange or promissory note may also secure and fix the liability of any drawer or indorser of such bill of exchange or promissory note for the payment thereof, without suit against the acceptor, drawer, or maker, by proving such bill or note to be regularly protested by some notary public of any county for non-acceptance or non-payment, and giving notice of such protest to such drawer or indorser, according to the usage and custom of merchants. (Paschal’s Dig., Art. 239, Note 290.) Id. 21. The 6th

section of the act extended the provisions of the 4th

section to contracts between merchant and merchant, their factors and agents, only. (Paschal’s Dig., Art. 234, Note 295.) Id. 22. On comparing the 1st

section of the act of 1840 (repealed by

section 7 of the act of 1848, Paschal’s Dig., Arts. 220, 229) with sections 1 and 4 of the act of 1848, on the same suhj ect, it will be seen that the act of 1840 expressly provided, in reference to indorsers, that “every such party shall, without any protest or notice whatever, be held responsible, as security, for the final payment of every such instrument,” while the act of 1848 does not admit that the indorser is security, hut provides the two methods in which the “holder may secure and fix the liabilities of the indorser,” and virtually providing that, unless the liabilities of the indorser are “secured and fixed,” as provided, he is released.

To say that the indorser is liable, unless “fixed,” as provided, would be equivalent to denying that the 1st

section of the act of 1840 was repealed. Id., 695. 23. This act of 1848 continued uninterrupted until the 7th of December, 712 Index. BILLS, NOTES, &a. (continued.) 1861, when

an act was passed suspending the collection of debts and liabilities on bills of exchange and promissory notes until the 1st of January, 1864, or six months after the close of the war. (Paschal’s Dig., Arts. 5130, 5144.) The Indorsement Oases, 695. 24. The effect of the law of 11th January, 1862, was to so change the 6th

section of the law of 1848, that the 4th

section of the law of 1848 became applicable to all negotiable paper. (Paschal’s Dig., Arts. 232, 234, Notes 293, 295; Smith v. Harbert, 30 Tex., 670.) Id. 25. After the 11th January, 1862, and until the courts were opened, in 1865, the only way of fixing the liability of an indorser was by proving the indorsed note “to be regularly protested by some notary public of any county for non-acceptance or non-payment, and giving notice of such protest to such drawer or indorser.” (Paschal’s Dig., Art. 232, Note 293.) Id. 26. The law making the indorser responsible as surety was repealed by the 7th

section of the act of 20th March, 1848. (Paschal’s Dig., Arts. 220, 235, Note 288.) Id. BILLS OF EXCEPTION. Practice is the Supreme Court, 19-25. 1. Where there was an exception to excluding the deposition of a certain witness, the bill of exceptions must show the materiality of the evidence. (Paschal’s Dig., Art. 217, Note 280.) Bose v. San Antonio and Mexican Gulf Bailroad Company, 49. 2. Where there was neither statement of facts, bill of exceptions, nor assignment of errors, the judgment was affirmed. Gibbs v. Anthony, 157. BOUNDARIES. Surveys, 1-6. BOUNDARIES, COLONIES.

A grant executed by the alcalde of Austin’s colony, the land lying above the Nacogdoches and San Antonio road, is not void for want of power in the officers, although the said road was the northern boundary of Austin’s colony; that the land was within the jurisdiction of the officers who issued the grant has been settled in Hancock y. McKinney, 7 Tex., 348; Pyron v. Jackson, 11 Tex., 391; and Martin v. Parker, 26 Tex., 253. Barrett v. Kelly, 476. BURGLARY.

Article 734 of the Penal Code reads as follows: “If a house be entered in such manner as that the entry comes within the definition of burglary, and the person guilty of such burglary shall, after so entering, commit theft, or any other offense, he shall be punished for burglary, and also for whatever other offense is so committed.” Paschal’s Dig., Art. 2370.) An indictment which stated that the defendant broke and entered, &c., with intent to commit a larceny, is not bad for duplicity. Wilcox alias Niehols v. The State, 586. Index. 713 BURGLARY (continued.) 2.

To charge that the defendant entered the house of one person and stole the goods of another is not had for duplicity. Wilcox alias Nichols v. The State, 685. CARRIERS. Gbimikad Code, 1, 2; CATTLE. Esteays. CERTIORARI. 1. If a petition for certiorari state a case which shows that the plaintiff had no legal defense, it is proper to dismiss the petition. Davis v. Wilson, 136. 2.

Where the petition showed that a note, payable to H. or bearer, was transferred, for a valuable consideration, by delivery before due, it matters not if the payee indorsed it after due, so far as the plea of failure of consideration is concerned. (Paschal’s Dig., Art. 221, Note 284.) Id. 3. If a certiorari be issued without bond, the proceeding would be illegal; but if there has been an effort to give bond, the court should allow the applicant to execute a sufficient bond. (Paschal’s Dig., Art. 468, Note 331.) EdmistonY. Edwards, 172. 4.

The constitution of 1866 gives to the district court power to issue the writ of certiorari and all other writs necessary to their general supervision and control over inferior tribunals. (Paschal’s Dig., Art. IV, sec. 6, p. 935.) But the legislature intended that an appeal should be the usual remedy. Wallerath v. Kapp, 359. 5. The writ of certiorari is not strictly a writ of right in the sense that a party has an absolute right to have it issued for his benefit, but it is issued in the sound discretion of the court, and the court has the same right to dismiss it if it be wanting in merits. Id. 6.

The act regulating the writ of certiorari requires a bond, but it is not necessary that the bond should contain a seal. (Paschal’s Dig., Art. 468, Note 331.) Libdsay, J., dissenting, held that the scroll or seal was only dispensed with in private instruments, not in judicial proceedings. Courand v. Vollmer, 398 CHARGE OP THE COURT. Homicide, 1. Ikstbttctiohs. Peactice, 1. 1.

Where the accused had provoked a fight, in which he got worsted, at fisticuffs, and on rising from the ground snatched his pistol and shot his antagonist, who was unarmed, it was not error to charge the jury that, if they believed the defendant killed the deceased in a sudden and unexpected fight, without previous malice, and with no time for deliberation, and no previously formed design, he is guilty of murder in the second degree. (Paschal’s Dig., Art. 2267, Note 672.) AndersonY. The State, 440. 714 Index. CHARGE OF THE COURT (continued.) 2.

If such, a charge'be subject to criticism, it is yet correct when taken „ in connection with a clear and unchallenged charge which defined all the degrees of homicide. Anderson v. The State, 440. 3. It is a common but an erroneous practice in homicide for the judge to charge the jury upon the whole law of homicide. All charges ought to be founded on the special facts in each case, and the law expounded in the charge hypothetically upon the facts, in all their varying aspects, as conducing to establish the guilt or innocence of the prisoner. (Paschal’s Dig., Arts. 3059, 3060, Notes 744, 745.) Cocker v.

The State, 498. 4. Where the charge was too favorable to the appellant, he has no cause to complain. Id. 5. The charge of the court must be in writing if the defendant object •to its being verbal. (Paschal’s Dig., Art. 3067, Note 747.) Clark v. The State, 575. 6. The judge is not allowed to 'express any opinion in his charge as to the weight of the evidence. (Paschal’s Dig., Art. 3059, Note 744.) Id. 7. A charge which in substance assumes that he who received a blow for words spoken may not return the blow in self-defense is erroneous. Harrison v. Moseley, 608. CHEROKEE COUNTY. . County Tkeasubeb, 2._ CHILDREN.

Descent and Distribution. Wills, 7. CITIZENS. Aliens. CIVIL RIGHTS. 1. The 1st

section of the “civil rights” law gives negroes equal rights with whites to give evidence, and they are competent witnesses. (Paschal’s Dig., Art. 5382.) Ex parte Warren, 143. 2. By the reconstruction laws the government of Texas is “provisional,” and “subject in all respects to the paramount authority of the United States;” and, the commanding general having ordered that there should be no distinction on account of color as to witnesses, the court can make no distinction. (Paschal’s Annot. Const., p. 282, § 3; p. 286,

preamble, &c.) Id. CLERK’S COSTS. Costs. Shebiff, 3. CLERKS. Appeals, 5, 6. Attachment, 8. Deputy Clebk. Index. 715 COMMISSION MERCHANTS. Factoks and Commission Mebohants. COLONIZATION LAWS. The colonization law of Texas and the statutes of the state recognize the right to use water for irrigation purposes. (Paschal’s Dig., Arts. 574, 584, 4523, 3945-3952.) Tolls v. Correth, 362. COLONIES. Boundabies, Colonies. COMMON LAW. Laws, 1. Lien, 1. Seals and Sobolls. 1. The common-law rules of

interpretation are necessarily modified by our peculiar statutes. Paul v. Ball, 10. 2. In adopting the common law, Texas has not adopted any English statute in aid of that system. (Paschal’s Dig., Art. 978, Note 418.) Id. 3. The 13th

section of the IVth

article of the constitution of the republic reads as follows: “The congress shall, as early as practicable, introduce, by statute, the common law of England, with such modifications as our circumstances, in their judgment, may require; and in all criminal cases the common law shall be the rule of decision.” (Paschal’s Dig., Art. IV, sec. 13, Note 138, p. 34.) And the 1st

section of the act of 30th January, 1840, reads as follows: “ The common law of England (so far as it is not inconsistent with the constitution or the acts of congress now in force) shall, together with such acts, be the rule of decision in this republic, and shall continue in full force until altered or repealed by congress.” (Paschal’s Dig., Art. 978, Note 418.) The whole system of the common law of England was not adopted by this act, but simply that portion of it which related to the rule of decision. (Foster v. Ohamplin, 29 Tex., 22.) Gourand v. Vollmer, 397. 4.

Before the revolution, on the 2d of March, 1836, the Mexican civil law and the decrees of Mexico and Goahuila and Texas were the rule of action, and these laws remained in force until repealed. Id. 5. The common-law act substituted the common law of England in place of the civil law as a rule of decision, and for this only; not as a rule of practice, except when something was to be decided, id. 6. No English statute was ever enforced in this state except such as have been re-enacted. Id. 7. The English common law required a bond to be under seal, but this had no application to a bond in Texas. Id. 8.

There are three important eras in the jurisprudence of Texas: first, the laws of Mexico, which were in force until the revolution in 1836; second, the constitution of 1836, and the statutes introduced prior to 1840, together with the Mexican laws not thereby repealed; third, the common law, introduced by the act of 20th of January, 1840. (Paschal’s Dig., Arts. 804, 978, Notes 396, 418.) Barrstt v. Kelly, 477. 716 Index. COMMON LAW (continued.) 9. This common-law act enabled aliens to come to Texas with their household goods. Barrett y. Kelly, 477. 10.

By the common law an alien could not maintain an action to recover real property. Id. 11. An alien might acquire land, but he held it subject to the will of the government, and upon his death the property reverted to the government. Id. COMMUNITY PROPERTY. 1.

Where C. and wife settled, as colonists, upon a tract of land in Peters’ colony, and made improvements and continued to reside upon it until the death of the wife, in 1848, they acquired such property in the land as created a community interest; and, upon the death of the wife, her interest descended to her children, as her heirs. (Paschal’s Dig., Art. 4642, Note 1049.) Gannony. Murphy, 405. 2.

The title at the death of the wife being inchoate, and the husband, after her death, having perfected the title, by obtaining the certificate of the colony commissioner, and having located upon the land and surveyed, he held the title as a “married man,” in trust, for himself and the heirs of the wife; and the purchaser of the whole from the husband took subject to the descent cast upon the children. (Paschal’s Dig., p. 76, § 1, Note 215; Arts. 813, 814, 818, Notes 400, 401.) Id. 3.

By the act of 1856, (Paschal’s Dig., Arts. 4646-4652,) upon the death of either husband or wife, the survivor is empowered “to manage, control, and dispose of the community property, and to sue and be sued with regard to the same,” under certain circumstances. And where the widow appeared and pleaded, and asked that judgment should only be rendered against her as surety, it is presumed that Mrs. Lane had complied with the requirements of the statute before she made her personal appearance in the cause, especially as there is nothing in the record to show that she was not thus authorized to act. Womack v.

Shelton, 593. CONDITIONAL SALE. Vebdob’s Lief. • CONFEDERATE MONEY. Bailee. Cubreft Mofey. Fiduciaey Teusis. Void Laws. 1. A note by which the defendant promised to pay “ three hundred seventy-five dollars” in Confederate bonds is void. Prigeony.Smith, 171. 2. Where cotton was delivered to a bailee to sell at a limited price in Confederate money, and the bailee, failing to get the price, converted it to his own use, the measure of damages (under the peculiar circumstances) was the value of the cotton at the time and interest upon that value until the trial. Matcher y. Pelham, 201.

Index. 717 CONFEDERATE MONEY {continued.) 3. Confederate treasury notes were promises of the Confederate States to pay a certain number of dollars therein mentioned to bearer, within a specified time, after a treaty of peace between the Confederate States and the United States, and as such they were intended to aid the rebellion, were in violation of the constitution of the United States, and were illegal and void. Goodman v. McGehee, 252. 4. Confederate money, whether it forms the consideration on the part of the obligor or obligee, is illegal. Id., 253. 5.

Where a party deposited a promissory note with a bailee, without ' any instructions to collect it, and the bailee afterwards received from the maker payment in the treasury notes of the Confederate States, it did not discharge the maker. Ransom v. Alexander, 443.-6. The Confederate notes were an illegal and treasonable currency, and the attempted payment in such was known to the debtor to be an illegal act. Id. 7. The tender of Confederate treasury notes for a fine and costs, during the rebellion, did not entitle the party to his discharge. (Paschal’s Dig., Arts. 3167, 3167a, Note 766a.) Boones.The State, 557. 8.

Where the defendant proved that the consideration of a note was Confederate money, and therefore void, and the proof was that it was given for horses, about the value of which there was no proof, the court (the case was tried by the judge) did right to find the law and the facts for the plaintiff. Hailey v. Bollard, 604. 9. Where the action was for money had and received, the defendant may show the character of funds in which it was received; and, if in Confederate notes, that fact may be shown. Rogers & Oliver v. Patterson, 605. 10.

A note payable twelve months after a treaty of peace between the Confederate States and the United States cannot be recovered upon the simple averment that it is due and has not been paid. (Shaw v. Trunsler, 30 Tex., 390.) Thompson v. Houston, 610. CONFEDERATE POWER. Ordinance. CONFEDERATE STATES. Confederate Monet, 10. No compliance with a law, rule, or act, designed to aid in the establishment of the independence of the Confederate States, can furnish any defense against a lawful demand. Ransom v. Alexander, 443. CONFESSION OF JUDGMENT.

Article 1477 of Paschal’s Digest reads as follows: “Any person, for a bona fide debt, may, without process, appear in person, or by attorney, and confess judgment for such debt; but in such cases a petition shall always be filed, and the justness of the debt sworn to by the person in whose favor the judgment is confessed, and when confessed by attorney 718 Index. CONFESSION OF JUDGMENT (continued.) the warrant of attorney shall be filed.” This statute has no reference to a case where process has been regularly served and defense filed. It was intended to avoid fraud. Sehroeder v. Fromme, 602. CONFESSIONS. 1.

Articles 661 and 662 of the Code of Criminal Procedure only admit confessions to be used against the accused where they^have been freely made, without compulsion or persuasion; and if the accused was in prison the rule is given in the statute. (Paschal’s Dig., Arts. 3126, 3127,2d ed.) Oreer v. The State, 129. 2.

If under a threat a party show the stolen property, his confession that he stole it should not be used against him, unless it be also proved that it was his voluntary confession before a magistrate, or else made after he was cautioned that it might be used against him. (Paschal’s Dig., 2d ed., Art. 3127, Note 761.) Id. 3. The confessions of a co-defendant, given under torture, that he aided the killing, and his subsequent plea of guilty of murder in the second degree, prove nothing against those who do not confess, Ahe v. The State, 416. CONSIDERATION. Bailee. Gokfedebate Mohey. Costeact, 1, 2. 1.

Where an administrator sold land to which there was no other title than the location of a rejected and fraudulent certificate, the plea of failure of consideration ought to have been sustained. (Paschal’s Dig., Art. 227, Note 288.) Roehl v. Pleasants, 45. 2. The principle of caveat emptor in judicial sales has no application to such a case. It was simply a question of justice, where the estate parted with nothing and the purchaser got nothing. (Paschal’s Dig., Art. 1333, Note 499.) Id. 3. Neither fraud nor mistake, the suppression of truth nor the suggestion of a falsehood, were matters of inquiry.

The law having made it penal to deal in such certificates, to locate them, or survey them, and the constitution having perpetually barred them as claims against the government, the courts cannot respect the sales of them by any person under any proceeding or for any purpose. (Paschal’s Dig., p. 65, secs. 20, 21, Note 197; p. 71, Art. XI, secs. 1, 2, Note 208.) Id. 4.

A promise to pay a railroad company a sum of money when it shall have constructed the road from L. to V., and kept the same in operation, conveying passengers and freight between said points for the period of one year, is for a valuable consideration and binding. Rose v. The San Antonio and Mexican Oulf Railroad Company, 49. 5. The party making the promise is bound to nothing until the promisee, within a reasonable time, engages to do, or else does, or begins to do, the thing which is the condition of the first promise.

Until such Index. 719 CONSIDERATION {continued.) engagement or such doing the promisor may withdraw his promise, because there is no mutuality, and therefore no consideration for it. But after an engagement on the part of the promisee, which is sufficient to bind him, then the promisor is bound also, because there is now a promise for a promise, with entire mutuality of obligation. So, if the promisee begin to do the thing in a way which binds him to complete it, here also is a mutuality of obligation.

But if without any promise whatever the promisee does the thing required, then the promisor is bound on another ground. The thing done is itself a sufficient and a completed consideration, and the original promise, to do something if the other party would do something, is a continuing promise until the other party does the thing required of him. (1 Pars, on Cent., book II, chap. 1, sec. 9, pp. 375, 376, ed. of 1857.) Sosev. The San Antonio and Mexican Gulf Bail-road Company, 49. 6.

If the benefit accrue to him who makes the promise, or if any loss or disadvantage accrue to him to whom it is made, at the request or on motion of the promisor, although without benefit to the prisoner, in either case the consideration is sufficient to sustain assumpsit. (Paschal’s Dig., Art. 220, Notes 283, 290.) Id. 7. The failure of a mortgagee to contest the administrator’s sale of mortgaged property is a sufficient consideration for a note. Bender v. Pryor, 341. 8. The defendant received the notes after his return in 1866.

He remarked to his agent that he would have no difference with him; but that if the defendant did not make it right, as the bailee had told him he must do, he should always think he ought. This is no acquiescence. An acquiescence, where there was no consideration for it, would have to be very affirmatively proved. Bansom v. Alexander, 443. 9.

Where the defendant proved that the consideration of a note was Confederate money, and therefore void, and the proof was that it was given for horses, about the value of which there was no proof, the court (the case was tried by the judge) did right to find the law and the facts for the plaintiff. Hailey v. Pollard, 604. CONSOLIDATION. 1. To justify a consolidation of the suits, under

article 1451 of Paschal’s Digest, they must be between the same parties, the causes of action must be the same, and the subjects must be such as could be joined. Bayrnond v. Coolc, 374. 2. A claim case under the statute (Paschal’s Dig., Art. 5310, Note 1155) cannot be consolidated with an injunction suit, though all the parties in the injunction suit (save the wife of one defendant in the execution) are parties to the execution.

But if, after the consolidation, the claimant dismiss the claim suit without objection, the erroneous consolidation is no longer in the record, the claim bond is no longer before the court, and the cause must be tried upon its equities. Id. 720 Index. CONSTITUTION OF TEXAS. Common Law. County Coubt, 2, 6. Homestead, 1, 5. Stay Law, 4. CONSTITUTION OF THE UNITED STATES. Ab Initio. CoNEEDEBATE MONEY, 3. Slayeby. CONSTITUTIONAL LAW. Slayeby. CONSTRUCTION OF STATUTES. Bills, Notes, &o. License. 1.

Two statutes, strictly in pari materia, enacted at the same session, are considered as one statute, and must be construed together; and each must be upheld, unless their provisions are absolutely repugnant to each other. And repeals by implication are not favored. Napier v. Bodges, 287. 2. There is no repugnancy between the act of 27th October, 1866, and that of 6th November thereafter. In the first, it was intended to guard against the abuses of the privilege of retailing, by requiring a bond with stringent conditions, and making it a misdemeanor for their violation.

In the second, the main object seems to have been to raise revenue upon the subject of taxation, which it was supposed by the legislature would in all probability prove a profitable source of revenue. Id. CONTINUANCE. 1. Where an affidavit for a continuance neither shows justification nor such facts as would reduce the killing to a lower degree of homicide, to overrule it is no error. (Paschal’s Dig., Art. 2987, Note 736.) Balbert v. The State, 357. 2.

Unless an exception be taken to the overruling a motion for a continuance, this court cannot properly revise the action upon the affidavit. (Paschal’s Dig., Arts. 1503,2987, Notes 595, 736.) Cocker v. The State, 498. 3. A motion for a continuance, to get witnesses to prove words of provocation, preceding an aggravated assault, was properly overruled. (Paschal’s Dig., Art. 2986, Note 736.) Boone v. The State, 557. CONTRACT. Bailee. Bills, Notes, &o. CoNEEDEBATE MONEY. Mobtgage. 1.

Where W. had agreed to deliver one hundred bales of cotton at a warehouse, for which F. & Co. promised to pay him 20 cents a pound, Index. • 721 CONTRACT {continued.) W. had no right to demand payment as the cotton was delivered, hut it was his duty to deliver the whole at the warehouse of the third party, and not until then had he the right to demand payment. Kenigsberger v. Wingate, 42. 2.

Where a party is legally bound to perform a contract, which he refuses to perform for reasons which he had no right to exact, and a third person executes to him a note for no other consideration except to secure the performance of an obligation already binding, the note is without consideration and not recoverable. Id. 3. A promise to pay a railroad company a sum of money when it shall have constructed the road from L. to V., and kept the same in operation, ■ conveying passengers and freight between said points for the period of one year, is for a valuable consideration and binding. Bose v.

The Ban Antonio and Mexican Gulf Bailroad Company, 49. 4. The party making the promise is bound to nothing until the promisee, within a reasonable time, engages to do, or else does, or begins to do, the thing which is the condition of the first promise. Until such engagement or such doing the promisor may withdraw his promise, because there is no mutuality, and therefore no consideration for it. But after an engagement on the part of the promisee, which is sufficient to bind him, then the promisor is bound also, because there is now a promise for a promise, with entire mutuality of obligation.

So, if the promisee begin to do the thing in a way which binds him to complete it, here also is a mutuality of obligation. But if, without any promise whatever, the promisee does the thing required, then the promisor is bound on another ground. The thing done is itself a sufficient and a completed consideration, and the original promise, to do something if the other party would do something, is a continuing promise until the other party does the thing required of him. (1 Pars, on Cont., book II, chap. 1, sec. 9, pp. 375, 376, ed. of 1857.) Id. 5.

If the benefit accrue to him who makes the promise, or if any loss or disadvantage' accrue to him to whom it is made, at the request or on motion of the promisor, although without benefit to the promisor, in either case the consideration is sufficient to sustain assumpsit. (Paschal’s Dig., Art. 220, Notes 283, 290.) Id. 6. If any part of the entire consideration for a promise, or any part of an entire promise, be illegal, whether by statute or at common law, the whole contract is void, and every executory contract, the consideration of which is illegal on either side, is void. Goodman v. MaGehee, 252. 7.

Parol evidence to show that a contract is founded on an illegal consideration is admissible. Id., 253. 8. If a contract be illegal, it may be avoided by a proper plea, even though it be a specialty, and the illegality be not apparent on the face of the instrument. [Lindsay, J., concurred, but said: “I cannot agree that a contract, the consideration or performance of which is illegal, is void.”] Id. 9. A party who introduces a merchant into market, and by letter says, xxxi — 46 722 Index. CONTRACT (continued.) “any favor you may show Mr.

R, in introducing him to the different houses, so as he may be able to fill his orders, will be highly appreciated by him, and will be indorsed by me for the amount of his purchases,” is liable, as guantor, to those who acted upon the letter, if he be duly informed that his guaranty was accepted, and of the amount advanced upon the guaranty. Wheeler, Geiger & Go. v. Mayfield, 395. 10. An agreement to erect a hotel,upon the lot purchased of the plaintiff is no consideration for a parol contract to forbear suit for ten years. Hogany. Grawford, 633. 11.

Where the defendant objected to a witness, to prove damages in not finishing work according to contract, on the ground that an architect was to determine the measure of damages, and the architect had not been called, but the contract only stipulated that the payments should be made on the certificate of the architect that he approved the work, the objection to the evidence was not well taken. Bledsoe v. Gonzales County, 636. CONVEYANCES. 1. Where the wife voluntarily joins her husband in a conveyance of the homestead, from that time it ceases to be the homestead. (Paschal’s Dig., Art. 1003, Note 427.) Houghton v.

Marshall, 196. 2. The vendees of the homestead stand in the same relation to the original vendor as the husband and wife who conveyed stood. And if there be a balance due, the vendee, upon discharging it, becomes the absolute owner. Id. 3. A voluntary deed from a husband to his wife is void as to existing creditors and as to subsequent creditors: certainly as to co-sureties, who pay the existing debt. (Paschal’s Dig., Art. 3878, Notes 906-909.) Raymond v. Gooh, 374. 4.

Where a voluntary conveyance is intentionally made to defraud creditors, it seems perfectly reasonable that it should be held void as to all subsequent as well as prior creditors on account of ill faith; as to subsequent creditors, the fraudulent intention must be proved. Id. CORPORATIONS. COUHTIES. Railboads. COSTS. Shebiff. 1. Although the clerk's costs are taxed upon an execution, between suitors he is not a party to such execution, nor has he any right to control it. Be la Garza v. Oarolan, 388. 2.

A clerk may demand security for costs, and, upon the termination of suits, he may issue executions in his own favor, for his costs, against the parties liable; and in such executions he is entitled to

summary motions. (Paschal’s Dig., Arts. 3781, 3796, 3831, 5106.) Id. Index. 723 COSTS (continued.) 3. The plaintiff and defendant in all suits are immediately and directly liable to the clerk for the costs incurred by them respectively. Be la Garza v. Oarolan, 388. COUNTIES. 1. Under the 1st and 2d sections of the act to incorporate the several counties of the state, passed 11th May, 1846, (Paschal’s Dig., Arts. 1044, 1045, Note 430,) the chief justice has no right to bring a suit in his own name for the use of the county. Be la Garza v. Bexar County, 484. 2.

See the facts as to the form, which was held to be a suit in the name of the chief justice, and not in the name of the county. Id. COUNTY COURT. Administeatob, 3-6. Estates. 1. The county court can only order a sale of property where it is necessary to pay debts. Hamblin v. Warnecke, 91. 2. As the homestead is exempt from forced sale by the 22d

section of the 7th

article of the constitution, neither the county court nor a court of general jurisdiction has the right to order a forced sale of it. (Paschal’s Dig., p. 65, Note 198.) Id. 3. Under the 21st

section of the act of 1866, organizing the county courts and conferring on them limited jurisdiction in certain cases, the right of appeal is given to the district court. (Acts 11th Leg., p. 48, sec. 21.) But the appeal had to be prosecuted within ten days, or a better excuse given than that the party did not know the result of the suit. Wallerath v. Zapp, 359. 4. The constitution of 1866 gives to the district court power to issue the writ of certiorari and all other writs necessary to their general supervision and control over inferior tribunals. (Paschal’s Dig., Art.

IV, sec. 6, p. 935.) But the legislature intended that an appeal should be the usual remedy. Id. 5. The writ of certiorari is not strictly a writ of right in the sense that a party has an absolute right to have it issued for his benefit, but it is issued in the sound discretion of the court, and the court has the same right to dismiss it if it be wanting in merits. Id. 6. The county court act limits appeals coming from the county court, through the district court to this court, to controversies amounting to $200 and over. (Acts of 1866, sec. 21, p. 48.) Id. COUNTY TREASURER. 1. The 9th

section of the act of 13th May, 1846, reads as follows: “The county treasurer shall receive and may retain in his hands such' commission, not exceeding five per centum, upon the amount received and disbursed by him, as the county court in their discretion may allow.” (Paschal’s Dig., Art. 1103.) The maximum the treasurer can charge is five per cent., and the county court can curtail this amount. Crossland v. Cherokee County, 141. 724 Index. COUNTY TREASURER (continued.) 2. The act organizing the county of Cherokee gave the county commissioners exclusive control of the funds received from the sale of lots. Grossland v. Cherohee County, 141. CRIMINAL CODE. Indictment. Gamins. License. Rape.

Article 772 of the Penal Code reads as follows: “If any carrier, to whom money, goods, or other property shall have been delivered, to be carried by him; or if any other person, who shall be intrusted with such property, shall embezzle or fraudulently convert to his own use any such-money, goods, or property, either in the mass, as the same were delivered, or otherwise, he shall be deemed guilty of theft, and shall be punished as prescribed by articles 756 or 757, according to the amount of the value so embezzled or misapplied.” (Paschal’s Dig., Art. 2423.) Held, that where money was delivered to the wife of the accused, to be carried to a third party, which money the husband converted to his own use and failed to pay on demand, he was guilty of theft within the meaning of this article.

He Gaultie v. The State, 32. 2. But the indictment having charged that De G. stole the money from the "person" of B., proof that the money was delivered to the wife in New Orleans to hand to H. in Houston does not sustain the charge of theft from the person. Id., 33. 3. The facts only constituted a breach of trust at common law; being a purely statutory offense, the allegata and probata should agree. Id. 4. To deliberately shoot at a man with a six-shooter three times and wound him is an offense within the statute. Gonzales v. The State, 495. 5.

There are certain houses denominated “public houses,” and there are certain places considered as “ public places ” in the statute. If either of such “houses” or “places” is averred in the indictment, the allegation is sufficient. But if the houses or places mentioned in the indictment are not designated and charged as enumerated in the code, then sufficient facts must be stated and averred to show, by the charge itself, that the place designated is a “ public place.” (Paschal’s Dig., Art. 2044, Note 640.) The State v. Fuller, 559. 6. The 392d

article of the Penal Code declares the punishment for fornication. But articles 293, 294, and 295 are confined to adultery alone; and fornication is nowhere defined in the code. (Paschal’s Dig., Arts. 2022-2025.) The State v. Foster, 578. 7. No person can be punished unless the offense is defined and the penalty affixed by the written law of the State. (Paschal’s Dig., Art. 1605.) Id. CRIMINAL LAW. Cbiminal Code. Index. 725 CRIMINAL PROCEDURE. Bail Bohd. Charge of the Court. Cohfessiohs. CoUTISrUAHCE. Dtihg Declarations. Forfeited Recognizance, 1-3. Indictment, 9. 1.

When the state appeals from a judgment quashing an indictment, unless the defendant enter into recognizance the supreme court has no jurisdiction, and the appeal will be dismissed. (Paschal’s Dig., Art. 3187, Note 771.) The State v. Bledsoe, 39. 2. When a defendant appeals in a ease of misdemeanor, he must either be committed to jail or enter into a recognizance to appear before the district court to abide the judgment of the supreme court. (Paschal’s Dig., Art. 3186, Note 770.) Adler y. The State, 61. 3. The requirements of the recognizance are prescribed in

article 263 of the code; therefore it must state the time, place, and the offense, as well as the court in which the party is required to appear. (Paschal’s Dig., Art. 2731, div. 3, Note 708; Payne v. The State, 30 Tex., 397; Wilson v. The State, 25 Tex., 171.) Id. 4. Where the defendant was convicted of an offense and appealed, but the recognizance did not state the offense, nor any offense known to the law, this court has no jurisdiction, and the appeal was dismissed. (Paschal’s Dig., Art. 2731, Note 708; Horton v. The State, 30 Tex., 191.) Breeding v. The State, 94. 5. The 609th

article of the Code of Criminal Procedure reads as follows: “If the jury shall find any person guilty of murder, they shall also find by their verdict whether it is of the first or second degree; and if any person shall plead guilty to an indictment for murder, a jury shall be summoned to find of what degree of murder he is guilty, and, in either case, if they shall find the offense of murder to be of the second degree, they shall also find the punishment.” Where the indictment was in the general form, charging the offense of murder, and the verdict was, “We the jury find the defendant guilty,” it was not a response ter this article, (Paschal’s Dig., Art. 2268,) and should have been set aside.

Isbell v. The State, 138. 6. To justify a denial of bail there must be that evidence of deliberate malice, or those circumstances which prove murder in the first degree. (Paschal’s Dig., Art. 2267, Note 672.) Ex parte Cooper, 185. 7. As it would be proper to detain the accused until an indictment could be procured to suit the facts, the case was remanded to give an opportunity for an affidavit, should that be desired. (Paschal’s Dig., Art. 2976.) Marshall v. The State, 471. 8. By the 726th

article of the Code of Criminal Procedure notice of appeal must be given and entered of record in open court. (Paschal’s Dig., Art. 3190, Note -772.) Hieklin v. The State, 492.

Article 1490 of Paschal’s Digest was intended to apply to all cases 726 Index. CRIMINAL PROCEDURE (continued.) of appeal, criminal as well as civil, and there is to be found in the Code of Criminal Procedure no provision changing its terms or provisions when applied to criminal cases. On the contrary, the rules of practice in criminal cases seem to require its observance. (Paschal’s Dig., Arts. 3193, 3196, 319V, 3198, Note VV3. Sieklin v. The State, 492. 10. In this case the recognizance for appeal did not comply with the 263d

article of the code, but only with the 722d article. (Paschal’s Dig., Arts. 2731, 3186, Notes 708, 770.) [And see this point decided in The State v. Stout, 28 Tex., 327; Horton v. The State, 30 Tex., 191; Payne v. The State, 30 Tex., 397; Bennett v. The State, 30 Tex., 446.] Id. 11. The tender of Confederate treasury notes for a fine and costs; during the rebellion, did not entitle the party to his discharge. (Paschal’s Dig., Arts. 3167, 3167a, Note 766a.) Boom v. The State, 557. CURRENT MONEY. 1.

Where the defendant himself requested the court to charge the jury that they would find the meaning of the words “current money,” and, if the deposit was Confederate money, they would find the value of the same and render a verdict accordingly, the defendant will not be heard to complain that the court had given a charge of similar import. Ziegler v. Stefanek, 29. 2. The court does not judicially know that a certificate of deposit dated May 12,1862, for $300, deposited in “current money,” meant Confederate treasury notes. Id. DAMAGES. 1.

In a suit upon a warranty of a chattel, the measure of damages is ordinarily the purchase-money and interest, and the fact that the payment was made in another chattel at an agreed price is the same as if made in money. Goss v. Dysant, 186. 2. Where, in consideration of a tract of land sold, the defendant gave his note for four thousand pounds of picked cotton, which he failed to pay, the measure of damages was the highest market value of the cotton from the maturity of the note until the day of trial. (Paschal’s Dig., Note 283, p. 144.) Brasher v. Davidson, 190. 3.

If in suing out an attachment the plaintiff was not actuated by malice towards the defendant, nor other motive than a desire to secure the payment of the debt sued upon, the rule of damages, if the attachment be dissolved, is the damages actually sustained. (Paschal’s Dig., Art. 3446, Note 797.) Clark v. Wilcox, 322. DEMURRER. Where no notice is taken of the demurrer, it is presumed to be abandoned. Myers v. The State, 173. DEPOSITIONS. 1.

Where depositions had been taken in Mexico by “ a vice commercial agent,” the objection goes to “the manner of taking depositions,” and it Index. 727 DEPOSITIONS (continued.) must be in writing. (Paschal’s Dig., Art. 3742, Note 851.) Pauska v. Daus, 67. 2. The object of the rule is to prevent technical objections and surprise. Id., 68. DEPUTY CLERK. The deputy clerk, ex virtute officii, may perform all official acts in the name of the principal clerk which the principal himself can perform in discharging the duties of clerk.

Where duties are imposed upon the clerk by statutes, not necessarily belonging to his office as clerk, the rule is different. (Paschal’s Dig., Arts. 142,496, 501.) Harrison v. Harwood, 651. DESCENT AND DISTRIBUTION. Heirs. Where a grandfather died intestate, a distributive share of his estate passed to his two grandchildren, born of a deceased daughter.

Where one of these children died, leaving only its father and its brother (or sister) surviving, its interest descended and passed in equal proportions to that father and brother (or sister.) And when the other child died its moiety of the distributive share in the grandfather’s estate passed absolutely to the surviving father, thus substituting him to all the rights of the descendants of the daughter of R. J. Chandler, deceased. Chandler v. Copeland, 151. DISCOUNT AND SET-OFF. Reconvention. DISTRICT COURT. Abatement. Confession of Judgment. Continuance. Non est Factum. ■ Process. Reconvention.

Service. 0 Writ of Error. 1. Where the cause of action accrues upon the performance by the payee, the statute of limitation did not run until the completion of such condition. (Paschal’s Dig., Art. 4604, Note 1017. Rose v. San Antonio and Mexican Gulf Railroad Company, 49. 2. Where there was an exception to excluding the deposition of a certain witness, the bill of exceptions must show the materiality of the evidence. (Paschal’s Dig., Art. 217, Note 280.) Id. 3.

Articles 661 and 662 of the Code of Criminal Procedure only admit confessions to be used against the accused where they have been freely made, without compulsion or persuasion; and if the accused was in prison 728 Index. DISTRICT COURT (continued.) the rule is given in the statute. (Paschal’s Dig., Arts. 3126,3127,2d ed.) Greer v. The State, 129. 4.

If under a threat a party show the stolen property, his confession that he stole it should not be used against him, unless it be also proved that it was his voluntary confession before a magistrate, or else made after he was cautioned that it might be used against him. (Paschal’s Dig., 2d ed., Art. 3127, Note 761.) Id. 5. A petition based upon a note should aver who executed or made and delivered it. (Paschal’s Dig., Art. 1427, Note 537.) Belcher v. Wilson, 139. 6. The 140th

section of the district court act, in reference to the service of a writ of error, reads as follows: “And if the party is a nonresident of the state or cannot be found, the citation may be served on the attorney of record.” (Paschal’s Dig., Art. 1495, Note 587, p. 371.) The fact to authorize service on the attorney must be averred in the petition. The mere fact that the defendant cannot be found is not enough. McLamore v. Heffner, 189. 7. The statute requires the petitioner to plainly and distinctly set forth the cause of action.

If the party sue in his representative character, he must aver such facts as show his authority. (Paschal’s Dig., Art. 1427, Notes 526, 527.) Beal v. Batte, 371. 8. The statute requires the place of holding the court to be stated in the writ, and it also requires the sheriff to serve the defendant with a copy. (Paschal’s Dig., Arts. 1431,1433.) Whittenberg v. Newton, 474. 9. A defendant maybe examined as a witness against himself, but not against his co-defendant. (Paschal’s Dig., Art. 3754, Note 857.) Rogers & Oliver v. Patterson, 605. 10. The 1st

section of the act of 1846, to regulate proceedings in the district court, declares that'“no person who is an inhabitant of this state shall be sued out of the county where he has his domicil,” with eleven exceptions. (Paschal’s Dig., Art. 1423, Note 533.) Where it was clearly proved that the defendant’s domicil was in the county of N., and he was sued in the county of 0., the fact that he did business in the county of 0. did not give jurisdiction, and the plea should have been sustained. Blucher v. Milsted, 621. DIVORCE AND ALIMONY. 1.

In a divorce case the jury found the facts which constituted a good cause for divorce and the marriage, but the court refused to enter a decree of divorce. The supreme court reversed the judgment, and upon the verdict and the evidence rendered a decree of divorce, and also for the partition of the property between the parties. Rice v. Rice, 175. 2. The divorce having been granted on the part of the wife, the court decreed one-half of the community property to the wife, including the homestead, and the other half to their only child. This was error. Whether the husband could thus be divested of

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