1. Against new county, for pro-rata share of old county debt; presentation of claim to Commissioners' Court.-An action at law lies against a new county, in favor of one of the old counties from which it was taken, for its pro-rata share of the existing debt of the old county, as ascertained and certified by its Commissioners' Court, if the Commissioners' Court of the new county refuses to issue its certificate of indebtness, as required by the statute (Rev. Code, § 29); and it is not necessary that such debt shall be presented within twelve months (Ib. § 909), as required in the case of other claims against a county.-Chambers County v. Lee County, 535.
2. When action lies between tenants in common; adverse possession and ouster.— In ejectment, or a statutory real action in the nature of an ejectment, between two tenants in common, if the defendant pleads not guilty, and makes a claim for valuable improvements under a suggestion of adverse possession (Rev. Code, §§ 2602, 2614), and claims under deeds which purport to convey the entire interest in the premises to his vendor and himself-these facts are sufficient evidence of an ouster, and dispense with the necessity of proving a demand and refusal before suit brought. Philpot v. Bingham, 435.
3. Action by administrator of deceased heir, against surviving heirs, for money had and received.-The administrator of a deceased heir may maintain an action at law against the surviving heirs, to recover his intestate's share of the purchase-money, received by the defendants, from the sale of a tract of land, which belonged to them and the intestate as tenants in common, and was sold before his death; and consequently, having an adequate remedy at law, he can not come into equity to enforce such demand; nor can he charge it, as an equitable lien, on other unsold lands, which he seeks to have sold for partition.—Cockrell v. Coleman's Adm'r, 583.
4. Against factor, for money had and received.—If a factor receives cotton for sale, from a lessee who has the lawful possession and a right to ship it, and is notified of the lessor's paramount right to be paid his rent out of the proceeds of sale, at any time before he has actually paid over the money to the lessee, he becomes liable to the lessor in an action for money had and received; and although he may retain the ordinary commissions for making sales, and charges actually paid on account of the transportation and sale, he can not assert, as against the lessor, a factor's lien for advances made in good faith to the lessee before notice of the lessor's title.-Booker v. Jones' Adm'x, 266.
5. Splitting entire cause of action. If a lease for three years reserves an annual rent of $500, but stipulates that it is payable in two installments of $750 each, at the end of the first and second years, the lessor can not maintain a statutory attachment on the crop for $500 (Rev. Code, § 2961), and an ordinary common-law action for the residue of one of the installments, since this would be splitting up an entire, indivisible cause of action.-Campbell v. Hutchett, 548.
6. Repeal of statute; effect on existing causes of action.-When a statute pro
hibits an act under a penalty, and a violation of its provisions is such
an act of negligence as, on common-law principles, subjects the offender
to a civil action for damages on account of a loss or injury thereby
proximately caused, the repeal of the statute does not take away or
impair a right of action which has already accrued by reason of such
negligence.-Grey's Executor v. Mobile Trade Compang, 388.
ADULTERY. See CRIMINAL LAW, 1.
1. What constitutes statutory lien, and how far recitals are conclusive.—To create
a statutory lien for advances to make a crop (Rev. Code, §§ 1858-60), it
is not only necessary that the prescribed forms should be followed, but
the advances must be actually made in good faith, and for the specified
purpose; and a stranger to the contract, not being bound by its recitals,
may show that they are untrue, and that the instrument was in fact given
to secure an antecedent debt.-Boswell & Woolley v. Carlisle, Jones & Co.
2. Application of money advanced. The statutory lien extends only to the
crops of the current year, although the instrument may purport to give
a lien for that year and the next ensuing year; and the person making
the advances is not required to see to their proper application, nor
responsible for any misapplication made without his knowledge or
3. Tille under statutory lien.-An instrument creating a statutory lien for
advances to make a crop does not confer on the person making the ad-
vances such title to the crops as will enable him to maintain a statutory
action for a trial of the right of property therein; but, if it also
contains apt words to make it operative as a mortgage, it will be suffi-
cient.-lb. 554.
1. When brought into hotchpot.-In the settlement of a decedent's estate,
where there is a will disposing of the entire estate, advancements received
from the testator should not be charged against a distributee, unless the
will so directs; but the appellate court can not, in the absence of all
averment and proof as to the contents of the will, presume that such
charge was erroneously made.-Coleman v. Smith, 369.
See LIMITATIONS, STATUTE OF.
1. Sufficiency of plea in bar, negativing fault and negligence.--In an action
against a common carrier for the non-delivery of goods, a plea in bar,
averring that the steamboat, on which the goods were shipped, "was ac-
cidentally destroyed by fire, without the fault or negligence of this de-
fendant," sufficiently negatives negligence on the part of the defendant's
agents and servants. -Grey's Executor v. Mobile Truule Company, 387.
1. Charge to jury, as to defense of alibi.-A charge to the jury in a criminal
case, instructing them that they "should consider the evidence of an
alibi with great caution--that the law so considered it, because it was
so easily manufactured, but that an alibi, when once established to the
satisfaction of the jury, was as good as any other evidence" [defense],
is not erroneous.-Provo v. The State, 222.
2. Unsuccessful attempt to prove.--An unsuccessful attempt to prove an alibi
does not "create a strong presumption against the prisoner," though,
like an unsuccessful attempt to prove any other material fact in defense,
it is a circumstance to be weighed against him; and a fraudulent at-
tempt to prove a simulated alibi, sustained by perjury, will, if detected,
be a circumstance of great weight against him.-Porter v. The State, 96.
1. Amendment of indictment.—An indictment for larceny, or for receiving
stolen goods, may be amended, with the consent of the defendant, in
the averment of the christian name of the person to whom the goods be-
longed (Rev. Code, § 4143); and the fact that the defendant objected to
the amendment, and only consented to it to avoid being bound over to
answer a new indictment at the next term, does not render the allow-
ance of the amendment improper.-Ross v. The State, 177.
2. Amendment of sheriff's return on venire, showing service on prisoner.—The
sheriff's return on the venire, in a capital case, not showing that a copy
was served on the prisoner one entire day before the day appointed for
the trial (Rev. Code, § 4171), the defect may be supplied by amend-
ment, when a motion is made to quash the venire on account of it.-
Gray v. The State, 86.
3. Amended bill in chancery.—An amendment of a bill in chancery, seeking
to hold a mortgagee liable as a trustee in invitum for creditors, will not
be allowed to relate back to the filing of the original bill, so as to hold
him liable for moneys paid out by him in good faith in the meantime.
Crawford v. Kirksey, 283.
APPEAL. See ERROR AND APPEAL.
Submission of pending cause to arbitration; power of court to set aside or-
der, and render judgment by default.--When a pending suit is submitted
to arbitration, and the submission is made an order of court (Rev. Code,
§ 3148), the statute contemplates that the cause shall remain on the
docket, and be subject to the order of the court; and if the submission
is not executed by the next term, the court may set it aside at a subse-
quent term, and render judgment by default, without any notice to the
defendant, since he is presumed to be in court.--Shelby Iron Company v.
Cobb & Lewis, 636.
1. Warrant of arrest; form and sufficiency of.-A warrant issued by a justice
of the peace, stating in its caption the State and county, dated, signed
by the justice with the addition of the letters "J. P." to his name, di-
rected to any constable of said county," and commanding him to ar-
rest and bring before the justice a certain person therein named, "to
answer the criminal offense of larceny," is regular on its face (Rev.
Code, §§ 3982, 2687), and justifies the constable in executing it.— Mur-
phy v. The State, 252.
2. Same; when not functus officio.-A warrant of arrest does not become
functus officio, so soon as the defendant is arrested under it, and brought
before the magistrate; if the defendant escapes from custody, he may
be pursued by the constable, and re-arrested under the warrant, without
any new process.-lb. 252.
3. Limitation and commencement of prosecution.-A warrant of arrest, issued
and returned by a proper officer, is the commencement of a criminal
prosecution (Rev. Code, § 3954) within the meaning of the statute of
limitations.-Ross v. The State, 177.
ARSON. See CRIMINAL LAW, 2.
1. General assignment for benefit of creditors.-An absolute deed, executed by
an insolvent debtor to his largest creditor, in satisfaction of an antece-
dent debt; and a mortgage executed on the next day, conveying the
greater part of the residue of his property to said creditor and another
person, to secure them against a supposed liability as his sureties on an
official bond, cannot be construed together as constituting a general as-
signment (Rev. Code, § 1867), when the deed is upheld as a valid con-
veyance, although the mortgage is held to be without consideration, and
therefore constructively fraudulent and void as against creditors, be-
cause the supposed liability proved to be merely nominal.-Crawford v.
Kirksey, 282.
ASSUMPSIT. See ACTION, 3, 4.
1. Attachment for rent; splitting entire cause of action.-If a lease for three
years reserves an annual rent of $500, but stipulates that it is payable
in two installments of $750 each, at the end of the first and second
years, the lessor cannot maintain a statutory attachment on the crop for
$500 (Rev. Code, § 2961), and an ordinary common-law action for the
residue of one of the installments, since this would be splitting up an
entire, indivisible cause of action.--Campbell v. Hatchett, 548.
ATTORNEY-AT-LAW.
1. Purchase by plaintiff's attorney, at execution sale.-An attorney may, with-
out impropriety, represent his client at a sheriff's sale under execution,
and buy in the property for his client.-Fubel v. Boykin, 383.
1, When bail are discharged, by confinement of principal under legal process.
To a scire facias on a forfeited recognizance, it is not a good plea by the
sureties, that their principal was, at the time of the rendition of the
judgment nisi, confined in the penitentiary of another State, under a
conviction for felony there had before a court of competent jurisdiction;
for, non constat that the confinement did not terminate before plea
pleaded, or before the rendition of final judgment. But such confine-
ment, even if it still continued, would not discharge the sureties; since
the impossibility of performance created by act of the law, such as ex-
cuses the non-performance of a condition, must be by the act of the law
which creates the obligation. --Cain v. The State, 170.
2. Judgment final against bail; for what amount rendered. When judgment is
made final against bail, the court is authorized by the statute (Rev.
Code, § 4258) to make it absolute for the full amount of the penalty, or
any part thereof, according to the circumstances of the case; and the
confinement of the principal in the penitentiary of another State under
a conviction for felony, since it renders his appearance or surrender im-
possible, "might be a circumstance inducing the court to mitigate the
judgment to a sum less than the penalty."-Ïb. 170.
3. Undertaking of bail, on suspension of judgment of conviction pending error or
appeal.-When a judgment of conviction in a criminal case is suspended,
because legal questions have been reserved for the decision of this court,
and the defendant gives bail for his appearance at the next term to
"abide the judgment rendered" (Rev. Code, § 4305), the legal effect of
the undertaking is, that the defendant shall appear, not only at the next
succeeding term, but at any subsequent term to which the case may be
continued, until decided by the appellate court.-Williams v. The State,
4. Same; variance.-In scire facias against bail on a forfeited recognizance,
if the undertaking of bail is described in the judgment nisi according to
its legal effect, though not according to its literal terms, there is no such
variance as will support a plea of nul tiel record, or a demurrer to the
sci. fa. setting out the undertaking on oyer. --Ib. 71.
5. Same; what will discharge bail, and how pleaded.-If the undertaking of
bail, instead of being conditioned as required by the statute, is condi-
tioned for the defendant's appearance at the next term, "to abide the
judgment rendered at this term," the reversal of that judgment by the ap-
pellate court would probably discharge the sureties; but this defense
must be set up by the plea of nul tiel record, craving oyer of the under-
taking, and sustained by evidence from the record, and cannot be taken
by demurrer to the sci. fa.-Ib. 71.
6. Bail in capital cases; how appellate court revises refusal.-In capital cases,
the accused is not entitled to bail as a matter of right, where the proof
is evident, or the presumption great; and if bail is refused by the pri-
mary court or magistrate, on habeas corpus, this court will not reverse
the decision (Rev. Code, § 4242), where its correctness depends greatly
on the manner, conduct, and demeanor of the witnesses, unless it clearly
appears to be wrong. -Ex parte Weaver, 250.
7. Same. On application for bail in a case of homicide, after its refusal by
an inferior tribunal or magistrate (Rev. Code, § 4242), where the right
to bail depends in a great degree on testimony given ore tenus, this court
will not reverse the decision of the lower court, unless it clearly appears
to be wrong.Ex parte Allen, 258.
BAILMENT. See COMMON CARRIERS,
BAWDY HOUSES. See CRIMINAL LAW, 4, 5.
BIGAMY. See CRIMINAL LAW, 6-9.
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1. Sufficiency of exception to refusal of charges asked. --When the bill of excep-
tions states that "the defendants requested the court to give each of the
following charges in writing," setting them out, but the court refused
to give either of said charges, and to such refusal the defendants ex-
cepted," the exception brings up for revision the refusal of each one of
the charges, as if a separate exception had been reserved to each.—
Lehman, Durr & Co. v. Bibb, 411.
2. General exception to entire charge. -A general exception to an entire charge,
consisting of several distinct paragraphs, is not sufficient to reach any
minor defect in a particular proposition, to which the attention of the
court below is not specifically directed.--Jacobson v. The State, 151.
3. Exception to charge; when sufficient in certainty. - An exception which is not
presented with reasonable certainty, will not be entertained; an excep-
tion "to the latter portion of said charge," when the charge consists of
several sentences, or "to so much of the charge as commences with the
words, if the jury believe,' on the fourth line from the bottom of the
preceding page," is wanting in certainty and definiteness.-Stroud v.
The State, 77.
1. Supersedeas bond on appeal; liability of sureties.-On appeal to this court
in a chancery cause, if a supersedeas bond is given, and the decree is
here affirmed (Rev. Code, § 3500), this court will render a summary
judgment against the sureties; or, if the bond does not conform to the
provisions of the statute, an action at law for its breach may be main-
tained; but, if the decree is reversed, although a part of it is held to be
free from error, and the cause is remanded for further proceedings, the
chancellor has no power to render a summary judgment against the
sureties on the bond.-Crawford v. Kirksey, 282.
2. Special supersedeas bond.-In cases where a special supersedeas bond is re-
quired (Rev. Code, §§ 3489-90), it should contain not only the condi-
tion prescribed in ordinary cases, but a superadded condition, accord-
ing to the circumstances of each case, providing indemnity against such
damage or loss as the appellee may sustain by the appeal; but any re-
covery on such bond, beyond the costs of the appeal, must be by suit on
the bond.-Hughes v. Hatchett & Trimble, 539.
BURGLARY. See CRIMINAL LAW, 10-17.
CANCELLATION OF DEEDS. See CHANCERY, 4, 5.
CARRYING CONCEALED WEAPONS. See CRIMINAL LAW, 18.
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