The Texas Republican. [volume] (Marshall, Tex.) 1849-1869, 1850-06-20

such evidence be disclosed anu SCI ""l !"
the application nor when the application
!. supported only by the affidavit ol The
party' \ party applying for new tnal on
hi. ground must show that the evidence
ha. come To his knowledge since the trial
that he used due diligence 10 discover It
previously; and it must appear that II would
lsobablv produce different result upon
new trial. This court viii not revise a
Judgment refusing new trial, applied Tor
on this ground, unless statement OF 'ac's
be- contained in the record. Madden v
.>fephdrd
> An appeal or writ of error must be
prosecuted a, the term next succeeding the
application therefor The case cannot he
docketed a, any subsequent term. 'ita'
tions ON wrils of error should issue i'm
mediaiely after the wit is sued out. with
aiias and pinries citations IN ease the first
b. not served otherwise the proceeding
lose. AL iis vitality. and cannot be revised
hy citation. which should never be issued
when a term OF the supreme Court has in
tervencd after the application for the writ
of error The ---------n such case lit
there be oucl has It's force after the explra
ton Of the term of the supreme Court sue
ccpdnp ,s issue, and the defendant may
proceed As If no such appeal had been Ia
ken. or writ was in existence. II the ap.
pcllam ~ plaintiff in error should not
have his ease placed on The docket at the
first term after the suing OF w1t OF
error. or taking an appeal the appellee, or
defendant, may obtain the usual certificate,
that the cause i not Oh the docket OF this
court. and have his execution below. Rob'
eris a. Smith v Ldndrum
3. 1t is the duty of the appellaut-no,
of the appcllee-to see that the record IN
an appeal r. properly brought up, and pre-
scented for revision. \ Judgment is not
necessarily to berevcrsed. for every irrcgu.
aritv or error in mere matters of form,
not eiFecting in any way the rights of par.
ties. or the merits of the controversy In
suit, 10 try the title and recover the posses.
sion of land the act of Isl, Up. 70, :. ~
seems 70 hay' contemplated that under the
plea Of not guilty" the dcfcudan, should
be- nj liberty to give in evidence special mat
ter in hi defence, To rehut the plaintiff : ov.
idcncc OF title. or to support some matter
upon which he relies and intends 10 avail
himself OF in defence. Pundcrson Y. Lorc.
l. The writ Of mdnddmus will not issue
against public officer, unless to compel
the performance of an act enjoincd by law,
and therefore is ministerial in lis nature.
The ordinary instrument by which the Com.
missioner of the General Land Office tests
the commences of certificates is the report
of the investigating commissioners, and this
report should be signed by themselves and
f,Airncd to the General Land o,iicc.
GdWcock y. Conn. q. T.. -.
D. In trials for minor offences, and in
civil causes. the separation of the jury
without the permission Of the Court, before
rende -ia. their verdict will not of itself
,iiate the verdict, though it Is misdemenn.
or for which the jurors may be punished
An application for a new trial on such
ground Is invariably denied where no injury
has cnsucd II il general rule, seldom
departed from, that a Juror cannot be com.
PEELED, nor will he be permitted, to testify
10 his own misconduct, or that OF hIs icl-
low Jurors The rule ~ now established
is that the aiidayits Of jurors may be re.
cciycd in support Of their verdict, thou II
not to mpcach 1t. Cannon v The State,
u. \ motion to reinstate a cause dis.
mssedundcr rule for security for costs,
IN the absence of any showing or reason.
able excuse for compliance, will not be
Sc, aside. Mississippi v b v. Hud,con
g. Myers Pope v The Same
= An execution not sued out within n
year from the rendition OF Judgment oses
its lien. The ludgmen, must be revived by
siere tacias before an execution can ISSUE.
An appeal sued out but not prosecuted will
operate to excuse a party for neglectng to
sue ont his execution within year from the
time when, by due diligence, the fact Of
such n failure to prosecute might have been
.scertained. II an appeal is taken and the
record is not filed with the clerk Of the
-oremc Court, on or before the first day
OF the term To which the case was lasen or
returned. nor good cause shown whyit was
not So filed, the plaintiff in execution may
have the appeal dismissed for such failure,
or after the end of the term, the appeal not
being taken up the supersedeas is Mt an end
The right TO sue out execution accries on
the adjournment Of the court. Title cannot
be- set up under void execution. Shepard
" Ba,lieu.
( :. 4 record Of discharge in bank.
ruptcv with the proceedings therein proper.
+ " certified, is admissible to establish such
discharge 4 party who seeks to inpeach
discharge for fraud, or conceame', must
allege and specify such fraud. Tsmpkins
et al V Benncf, Admr.
/ q Upon nm application for continuance,
the discretion OF the cour, is a legal not an
arbitrary. discretion. Where thcr. are Ger.
tain and definite conditions upon compll.
. ance with which party is by stitute en-.
titled to continuance, and he brings him.
self strictly within their meaning il is not
within the discretion OF the Court to refuse
the application; and such refusal viii be
error. 1t is only where there IS no final
rule, or not applicable, that discretion not
subject to revision is exercised. H,pp V,
B,sseH
10. Where party has had repeated con.
linuanccs granted 20 him, farther contn.
uance may properly be refused, though he
make oath ;hat material witness, who has
been duly summoned, is absent aud sick.
An application for new trial too late
after "A motion in arrest Of judgment The
provision Of the statute which gives party
the right to testify in his own case before a
justice, is equally applicable II that case
when tied in the District Court HIM Y.