text:
    P. F. Ross v. F. V. Hogan.
    (No. 111.)
    Liability of sheriff.—The judgment of the court below, sitting as a jury, is conclusive, and will not be disturbed unless it is against the evidence or without any evidence to support it.
    Appeal from McLennan county. Opinion by Watts, J.
    Statement.— [We adopt the statement of the appellants’ counsel, as found in their brief, the same being correct.]
    In which the court states, in substance, that it was shown that before the levy Winn had sold to plaintiff, Hogan, and was in possession of the goods. That they had been conveyed by a valid conveyance; that the evidence does not tend to show that, as between Winn and Hogan, it was not the intent to pass the title.

    It was not shown that Winn was insolvent, nor that the sale was made to defraud Winn’s creditors.
    That the writ of attachment was regular on its face, and that Winn was indebted, as alleged, to plaintiffs, in attachment, and they had obtained judgment as alleged.
    Plaintiff prays for damages and the value of the goods taken.
    Peter F. Boss, defendant, answered:
    1. By general denial.
    2. By special plea that he was, at the time of the seizure of the goods, wares and merchandise set forth in plaintiff’s petition, and before, sheriff of McLennan county, Texas, and that he seized the same by virtue of a writ of attachment issued out of the county court of McLennan county in a suit entitled Gr. Seeligson & Go. v. W. M. Winn; that the levy was made upon the goods as the property of W. M. Winn; that these goods were the goods of W. M. Winn at the time of the levy, and that any claim of plaintiff, Hogan, to said goods was pretended, feigned and simulated because before and at the time of plaintiff, Hogan’s, pretended purchase, Winn was largely indebted to many persons, among whom were Messrs. Seeligson & Co., and very much pressed by his creditors, and that said pretended sale was fraudulent, and mtide by Winn with the intent to delay, hinder and defraud his said creditors; that the'pretended sale was made just before the levy. And these goods levied upon were embraced in the sale. And that plaintiff, Hogan, knew of Winn’s fraudulent intent; that, indeed, there was no consideration paid in fact. And that the goods were, at the time, Winn’s goods and subject to the attachment against Winn.
    The 'cause was submitted to the court without a jury and judgment rendered for the plaintiff, Hogan, for $1,210.25 and costs of suit, being the value of the goods seized and interest at eight per cent, from date of levy.
    Defendant, Boss, appealed.
    At request of counsel for defendant the presiding judge assigned the following facts and conclusions found by the court at the trial of said cause, which was embodied as part of the record of said cause :
    1. That the goods were seized, as alleged, by P. F. Boss, and that at the time of their seizure they were in the possession of plaintiff, and had been conveyed and delivered to him by a valid conveyance from Winn, the owner of the same. The evidence does not tend to show that, as betAveen Winn and Hogan, it was not the intention to pass title.
    2. It was found that Winn was indebted to the original plaintiff in attachment as alleged, and that he had obtained a judgment at the time alleged. It is not shown that Winn was insolvent, nor that the conveyance to Hogan was made to defraud his, Winn’s, creditors.
    3. It appears that Boss, as sheriff, by his deputy, levied on the goods by virtue of a writ of attachment, regular on its face, but the record of the case in evidence shows that the attachment was not legally issued, and in such case where it is the intention of the vendor and vendee, as between themselves, to pass title, and the vendee is in possession, the sheriff cannot justify the levy under an attachment not legally issued, nor attack the conveyance, though it should be fraudulent as to creditors; and in this case it does not appear, by the evidence, that the conveyance was colorable between the parties or fraudulent as to creditors.
    It appears that plaintiff is entitled to recover the value of the goods and legal interest thereon from date of seizure, the amount for which judgment is rendered.
    Several errors are assigned; all amount to this: that the finding and judgment of the court are against, and not supported by, the evidence.
   Opinion.'—See Smith v. Warren, decided by us at the present term. In the case before us the court, sitting as a jury, heard the testimony of the witnesses, had an opportunity to observe their manner, and was enabled to determine their credibility, and the weight to be attached to the statements of each witness.

The court determined that the appellee and his witnesses were credible, and that their statements were entitled to full "weight. The finding of the court in these particulars is conclusive.

The court also, as a conclusion from the whole testimony, after weighing the same and giving to the statement of each witness the weight to which he had determined they were entitled, found that the sale of the merchandise by Winn to appellee was bona fide, and passed the title to appellee. The only question that we can consider is this: Is the finding of the judge either against the evidence or without any evidence to support it.

The appellee himself testified that he purchased the merchandise from Winn and paid him the full value therefor in money and a note, and that he did not know at the time that Winn was indebted to any person. One of the witnesses to the bill of sale testified that he was present and saw Winn sign the same, and at the same time saw appellee pay Winn some money, he supposed it to be about $5,000, and also saw him give Winn his note for something over $900. Without further detailing the testimony of the witnesses, this is sufficient to sustain the finding of the court.

Affirmed.

       60 Tex., 462.


source: Caselaw Access Project

license: Public Domain

text:
    James P. Sherwood v. Christian Jordan.
    (No. 821.)
    Surety, privilege of.—The privilege of a surety not to be sued . unless the principal has been previously sued, or to be simultaneously sued, must be taken advantage of in abatement. It is not available in bar.
    Co-surety on sheriff’s bond, right of contribution.— Where the sureties, according to the terms of the bond, were liable for the entire amount of the bond, and they did not undertake to bind themselves respectively separately to pay different or various sums, the right of contribution amongst the co-sureties exists and can be enforced.
    Interest.— The doctrine that interest is recoverable by a surety is adopted as being in accord with a proper equitable construction of the rights of the parties, and in harmony with the spirit of both law and equity.
    Appeal from Galveston county. Opinion by Walker, P. J.
    Statement.— This suit was brought by the appellee, Jordan, against the appellant, Sherwood, to recover the alleged pro rata liability of the defendant as one of the plaintiff’s co-sureties on the official bond of one Derks, as sheriff, alleged to be a defaulter in respect to the county taxes collected for Galveston county, and not paid by the said sheriff as he was by his duty and the bond of office required to do.
    The plaintiff alleged that when Derks defaulted, he, plaintiff, made terms of compromise with the county authorities in behalf of the sureties of said Derks, and, in pursuance of the same, he paid in full satisfaction of the liability of the sureties for the defalcation of Berks (which in fact amounted, according to the proof, to between five and six thousand dollars) the sum of §2,740.02.
    On the trial the evidence as to the payment by the plaintiff to the county treasurer showed the payment of §1,980, and also a certificate of indebtedness of Galveston county for §214.06, which said payments the receipt, which was produced, recited as having been made by the plaintiff to the county treasurer. The plaintiff also proved the payment to the county attorney as fees as such officer §250 on account of his claim on account of the settlement and oompromise of the matter referred to. The aggregate of payments thus made, according to the evidence, embraced in the foregoing items, amounted to $2,414.06.
    The petition alleges that the sureties of Berks upon his official bond are mainly insolvent, except only the defendant and two others, who are named. Plaintiff alleges that ° the defendant, for his share in a proper contribution in the premises, is indebted to him in the sum of $550, with eight per cent, interest thereon from the date of the settlement which he had made, as has been stated, with the county authorities, to wit, 11th day of September, 1874.
    The items of payments upon which plaintiff i-n his petition seems to base his claim to the above pro rata contribution of $550 are as follows: $2,195.02 paid to said county treasurer; $250 to Walter Gresham, district attorney, for his fees, as already stated; $125 for copies of papers, and $150 to Ballinger, Jack & Mott, his attorneys, for representing the matter before the county court of Galveston in effecting a compromise for the benefit of the sureties, making a total of $2,740.02.
    The statement of facts contains the record evidence of the proceedings had in the premises before the county court on the proposition of the plaintiff to compromise the liability of the sureties, the terms proposed and the acceptance of the same, which need not, perhaps, be fully stated in this place.

      The cause was submitted to the court without a jury upon the law and the fonts. The defendant pleaded by a general demurrer and the general issue. The demurrer does not seem to have been urged before the court, and may therefore be deemed to have been waived. Judgment was rendered for the plaintiff for the sum of $514.49. From this judgment the plaintiff appealed, and assigned sixteen grounds of error.
   Opinion.— Of the numerous grounds which are relied on by the appellant for the reversad of the judgment, a due and proper consideration of this appeal requires a consideration only of such as have been presented in the brief and argument of appellant’s counsel, and to these we shall mainly confine our remarks.

The seventh assignment of error is as follows:

“ The court erred in giving judgment for the plaintiff as a surety against his co-surety, the defendant, when it is not alleged in plaintiff’s petition that the principal in said bond was insolvent or beyond the jurisdiction of the court.”
This proposition is predicated upon article 1449, P. D., as follows; “ The principal and the indorser or surety upon any instrument in writing may be joined in the same suit; but no judgment in any such suit shall be rendered against the indorser or surety; unless judgment is at the same time rendered against the principal, except when the plaintiff discontinues as to the principal because he resides beyond the limits of the state or because he is insolvent, in which case he may discontinue and take judgment.”
And also article 1426, P. D., as follows: “FTo person shall be sued as an indorser, as guarantor or as security unless suit shall have been or is simultaneously commenced against the principal, except in cases where the principal resides beyond the limits of the state or in a county that is not organized, or where he is insolvent.”

This ground of error is not maintainable. There was no exception taken by the defendant in the court below to the want of any necessary or proper party; there was no plea in abatement to that effect, nor exception to such defect as shown upon the face of the record; the answer of defend-an t was only a general demurrer and a general issue, and it does not appear that the demurrer was presented to the court or relied on by the defendant. If,-however, the general demurrer had been relied upon, it seems clear from the authorities that it could not have prevailed. The privilege of a surety to be sued unless the principal has been previously sued, or be simultaneously sued, must be taken advantage of in abatement; it is not available in bar. Ritter v. Hamilton, 4 Tex., 325. And see, also, Petty v. Cleveland, 2 Tex., 404.

In addition to these considerations, which are deemed to be conclusive of the question which is urged under this assignment, it is to be added that it appears in evidence that the principal in the bonds, Berks, the. sheriff, was notoriously insolvent. Evidence as to this fact was introduced by the plaintiff without objection by the defendant, so far as is shown by the record, and there is no testimony in the record which tends to qualify or impeach the force of this statement. It being apparent from the learned and able opinion in the case of Petty v. Cleveland, supra, by Justice Wheeler, that the legal question involved is not a fundamental one which reaches to the substantial ground or cause of action, it is clear that if it had been a technical error even to have, omitted the principal as a party unless by the averment of facts which would bring the case within the statutory exceptions, nevertheless, as the evidence developed facts showing that the principal, by reason of his insolvency, need not have been sued, that the error would have been merely abstract, and such as would not require the reversal of the judgment.

The eighth, ninth and tenth assignments of error present the following point:

“The court- erred in giving judgment for the plaintiff and against the defendant, when, from the proof, plaintiff had not paid move than his fixed and stipulated portion of the bond; it appearing from the proof that there had been no breach of the bond as between the co-sureties, inasmuch as plaintiff had paid nothing in excess of his stipulated portion of the same.”

This proposition assumes the existence of the unequal liability on the part of the sureties on this bond, and it presents a legal question which, as we conceive, is not supported, or, indeed, is not presented under a proper interpretation of the terms of the bond itself.

The sureties, according to the terms of the bond, were liable for the entire amount of the bond, and they did not undertake to bind themselves respectively, separately to pay different or various sums.

If our construction of the bond in this respect be correct, obviously, then, there remains no basis on Avhich to rest the complaint of the appellant under the above-quoted proposition contained in the brief of appellant’s counsel.

It is urged in argument in the brief of counsel as the predicate of the foregoing proposition that the appellee, Jordan, bound himself in the bond for $5,000 only, the bond itself being for $60,000; that the amount which he has paid out and makes the basis for his contribution is less than one-half the sum of $5,000. If the bond in question does not alloAV of this construction as its legal effect, it is needless to consider the validity of the abstract legal question which would arise under the facts supposed by the appellant’s counsel.

It is true that it is laid down in Story on Contracts, section 886, thus: “ So if it be agreed between the parties that each surety shall be responsible only for a stated portion of the whole sum, the right of contribution amongst the co-sureties cannot be enforced.” Citing Pendleburg v. Walker, 4 Young & Coll., 424; Burge on Suretyship, 385.

Under no view of the record, however, is this hypothetical case fairly presented to us for consideration, for upon the general principles of laAV and equity upon Avhich rests the doctrine of contribution between sureties, the right to exact it exists if the contract of each is made a part of the other. See Story on Contracts, sec. 886, and. 1 Story Eq. Jur., secs. 495, 498.

The official bond of Frank Berks, sheriff, and the nine persons who constituted the sureties thereon was, in substance, a joint obligation made by them, payable to the county court of G-alvestoa county, in the “ penal sum ” of $60,000, for the payment of which well and truly to be made they bound themselves, their heirs, executors and administrators jointly and severally.

The conditions of said bond need not be set out in full, the same no.t being involved in controversy here. It is sufficient to say that it is in the usual and apparently proper form, and the statement of said conditions concludes the terms and specifications of said bond, which are followed by the signatures of the principal and said sureties, together with the approval thereof signed by each of the judges of said county court."

This instrument we construe and deem to be and hold that it embraces, and comprehends fully, completely and entirely, the contract and cónditions intended to be evidenced by it;

How, the argument presented in the brief of the appellant’s counsel is founded upon an opposite conclusion with respect to the relation which this instrument bears to another which succeeds, and is apparently appended to or attached to it.

An instrument prepared and executed seemingly in compliance with the requirements of article 7613, Pasch. Big., which is, viz.; “All persons offering themselves as security for a sheriff or justice of the peace shall append to their bond or accompany their recognizance with an affidavit that they are actually wTorth the amount for which they render themselves liable, over and above all their liabilities, and such affidavits shall set forth a description of their property, or so much thereof as will be sufficient to cover the amount for which they bind themselves, and its value, and all incumbrances thereon of every nature.”

The instrument referred to and which seems to have accompanied this bond is too lengthy to be here inserted in full; it is sufficient to-say that it is prepared formally as far as the affidavit contemplated by the article above quoted, but.the oath of the parties seems-not to have been taken nor certified by the officer as having been taken; although the jurat appears in due form on the face and in the conclusion of the instrument, yet it is not signed as an affidavit by either parties or officer. FTor is it signed by the parties at all, but consists, in effect, of nothing more than a description of property designated with its value belonging to the securities respectively-, who are named in the bond as such, with the statement “ that they are each of them worth in property, subject under the laws to execution, the amount for which they each render themselves liable as sureties on said bond over and above all their separate liabilities; . . . that the following is a correct and true description of so much of their property as will be sufficient to cover the amount for which they bind themselves and the value thereof, and all incumbrances thereon of every nature.”

This statement is succeeded by the several lists of the sureties respectively of certain of their property, real estate, with the respective values thereof attached, as has above already been indicated, which concludes and completes this instrument without signature of the parties to it or other action of the officer, namely, E. D. Johnson, notary public, than an acknowledgment before him by Frank Derks, sheriff, principal and said sureties, “that they had, each of them, executed, signed, sealed and delivered the foregoing bond for the purposes and considerations therein stated.”

This acknowledgment can have reference and application to no other instrument than the bond itself, which, as has been seen, is complete within itself. The instrument which has just above been described, as the statute plainly shows, can be held to be no more than an auxiliary instrument which the law contemplates shall accompany the bond as a necessary or proper precaution for the security of the state and county in obtaining sufficient bonds.

The bond contemplated by the statute must and does contain whatever conditions or limitations it is competent under the law may be prescribed in behalf of the sureties. The bond in this case contains none whatever in their behalf. The instrument contemplated by article 7613, P. D., is one according to the very terms of the statute itself, is separate and distinct from the bond, but is to be “appended to” or “ may accompany ” the bond, and the subject-matter of its provisions is other than the matter of the contract, but is purely collateral thereto. It provides merely for an affidavit concerning the value of the property of the sureties over and above all their liabilities, together with a description of such property ;■ or in case that any surety or sureties may have seen proper to bind themselves for any specific or particular sum, it seems to be contemplated' by the article referred to that the suretxr shall give a description of so much of his property only as shall be sufficient to cover the amount for which he or they may have bound themselves. Whatever may be the legal effect of this article in admitting sureties to bind themselves, or to disallow them in binding themselxres for sums less than that required to be given in the bond by the principal, it is, nevertheless, clear that the affidavit and description contemplated by it to be appended to the bond does not constitute or form any part of the obligation and contract entered into by the parties signing the bond.

There is nothing, xve conclude, to cast a doubt upoti the proposition that the sureties xvere equally bound under the instruments signed by them construed in connection and with every-faxmrable intendment with the instrument appended to said bond, and therefore that the proposition of appellant’s counsel under the eighth, ninth and tenth assignments of error cannot be maintained.

The next ground of error relied upon by appellant’s counsel in their brief relates to the alleged error in giving judgment against defendant for the fees of Walter Gresham, district attorney. It is sufficient to reply to this ground that there is sufficient legal evidence which warrants and supports the judgment rendered, without taking into account the item referred to and embraced in this assignment; and also that it does not necessarily appear that this item of account or charge was included by the court in the estimate of liability in favor of the plaintiff against the defendant. Without taking into the estimate the fees of office paid by the plaintiff to Walter Gresham, there appears from the other items claimed by the plaintiff as a proper subject for contribution, an amount greater than that for which judgment was rendered. The judgment was well supported by ample and competent evidence independently of the item complained of, as will be seen readily by the most cursory consideration of the facts in evidence.

The plaintiff was entitled to a pro rata reimbursement from those sureties who were solvent, of whom it was alleged, and there was evidence to show, there were but three besides the plaintiff (see De Colvar on Guaranties, etc., p. 349); the amount actually paid by plaintiff, aside from the fees of Gresham, amounted to more than $2,100, and the judgment rendered was for $514.49.

The next and last remaining ground relied upon by counsel for appellant is that the court erred in giving judgment for plaintiff for interest on the amount of the claims against the defendant as found by the court. Counsel cites authority to sustain this position. It is laid down by Burge on Suretyship, 387, citing cases, that a surety is not entitled to recover from his co-surety the interest on the money paid by him.

The doctrine of contribution rests rather upon the principle of general equity than upon legal rights springing from contract. De Colvar on Guaranties, p. 339 and note. It was formerly held in equity that a surety could not claim Interest on the money paid by him or on any part thereof (see Oange v. Twelock, 2 Molloy, 44; Bell v. Free, 1 Swanst., 90); but in a note on De Colyar on Guaranties, page. 350, note 3, it is said there is- no doubt now that interest is reooverable, citing Swann v. Wall., 1 Ch. Rep., 81; Lawsan v. Wright, 1 Cox, Ch. Cas., 275, 277; Pete v. Duncan, 15 Jur., 86; 20 L. J. (N. S.) Q. B., 221.

This latter conclusion we incline to adopt as being in accord with a proper equitable construction of the rights of the parties and in harmony with the spirit of both law and equity. See, also, Hicks v. Bailey, 16 Tex., 232, and Jordan v. Hudson’s Executors, 11 Tex., 82.

Affirmed.


text:
    John Speiss v. Charles Stoeltze.
    (No. 455.)
    Hearsay evidence.— It is a general and elementary principle in the law of evidence that the statements made by a party out of court, in his own favor, cannot be received on the trial to prove his case. And it is also true that the declarations of a deceased person not under oath cannot be used as evidence in behalf of those representing his estate to defeat a claim asserted against it. Such self-serving declarations come fully under the condemnation of the law as hearsay, and are not admissible as evidence.
    Appeal from Austin county. Opinion by Watts, J.
   Opinion.— The appellant instituted this suit against appellee the 10th day of March, 1874, in the district court of Austin county, to recover the amount due upon a note executed by Barbara Speiss to appellant, dated the 1st day of January, 1868, for the sum of $515.66, due and payable one day after date. The petition averred that Barbara Speiss, at the time of the execution of the note, was the surviving widow of Edward Speiss, deceased, a son of appellant, who also left two minor children by said Barbara. That subsequently to said 1st day of January, 1868, said Barbara intermarried with appellee, Charles Stoeltze; said Barbara died in 1872, leaving appellee, the two minor children by Edward Speiss, deceased, and two minor children by appellee, as her sole surviving heirs at law, and a considerable estate which had gone into the possession of appellee, as the guardian of the two Speiss children, and also community'property of herself and appellee that had gone into his possession as surviving husband.

The appellee answered, in effect, that the note was given without any consideration; that the plaintiff went to Europe in 1860 and wrote back to his three children, then in Austin county, the said Edward Speiss and two others, to divide between them the property that he had left in Texas, claiming that it was a gift from appellant to bis children, and that in accordance therewith the said children did divide the same among themselves, and that appellant returned to Austin county after the death of said Edward Speiss, and demanded and received from said Barbara the note sued on for that portion of said property that said Edward had received in said division, and therefore the same was given without any consideration whatever.

The case was tried by a jury on the 24th day of July, 1874, and resulted in a verdict and judgment in favor of appellee and against appellant, from which he appeals and assigns errors, only one of which, in our view of the case, is necessary to be noticed in the disposition thereof, and that is the following:

1. The court erred in overruling plaintiff’s objections to the testimony of defendant, Charles Stoeltze, and permitting the same to go to the jury, as shown by the bill of exceptions, and for the reasons therein stated.

As disclosed by the record, the contest in the court below was as to the consideration for which the note sued on was given; appellant claimed that the note was given for money loaned by him to Barbara Stoeltze and money she had collected and used of his; appellee claimed that the same was executed for that part of the property given by appellant to Edward Speiss, Upon this issue each party introduced evidence tending to establish the fact respectively asserted by them.

The appellee, as a witness for himself,'testified that while he and said Barbara were living together as husband and wife, that he had frequently heard her speak, of the said note, and that she declared that it was not a just claim, and that the consideration therefor was the property given to her deceased husband, Edward Speiss, by appellant in 1860. The appellant objected to the introduction of the same on the ground that it was hearsay. The objection was overruled by the court and the testimony was admitted. The point was saved by bill of exceptions, assigned as error and insisted on in appellant’s brief.

It is a general and elementary principle in the law of-evidence that the statements made by a party out of court, in his own favor, cannot be received on the trial to prove his case. Wharton’s Law of Evidence, vol. 2, sec, 1100; Q-reenl. on Ev„, vol. 1, sec. 149.

And it is also true that the declarations of a deceased person, not under oath, cannotfbe used as evidence in behalf of those representing his estate, to defeat a claim asserted against it. Such self-serving declarations come fully under the condemnation of the law as hearsay, and are not admissible as evidence. G-feenl. on Ev., vol. 1, seo. 99.

The ruling of the court in admitting said evidence was erroneous. However, the appellee insists that the same did not influence the jury in making up their verdict, and, therefore, the error ought not to work a reversal of the judgment. We are not able to concur in this view of the case. The illegal evidence was addressed to the real issue between the parties, and on this, the turning point in the case, the testimony was conflicting, and did not greatly preponderate either way. Under such circumstances the declarations of the deceased" lady, to the effect that the note was given for the property, admitted as legal evidence, thus going to the jury stamped by the court as worthy of their consideration, so far as anything disclosed in the record to the contrary, might have influenced the jury in finding their verdict, and it might be remarked that, at least, it does not manifestly appear that such was not the case.

Bevebsed and demanded.


text:
    Strauber et al. v. Waller.
    (No. 2735.)
    Injunction.
    Sufficiency of petition.
    Lost papers, — Where the appellants depend upon their original petition for injunction, which had been lost or mislaid, to show the error of the court below in dissolving the injunction, it was . their duty to supply the deficiency of the record by the legal mode for substituting lost records and papers.
    Appeal from Erath county. Opinion by Walked, P. J.
    Statement.— This appears to have been an injunction suit brought by the appellants against W. Q-. Waller, as sheriff. There are no pleadings of the plaintiffs in the record; the clerk of the district court certifies that the original petition for injunction has been lost or mislaid, and cannot be found after diligent search amongst the papers where it should be kept. There is nothing in the record to indicate its contents, or to show what were the grounds upon which the plaintiffs sought relief. The defendants excepted to the sufficiency of the petition, and moved to dissolve the injunction.
   Opinion.— The exception, however, is not signed, either by the defendant or by counsel, nor do the matters contained in it throw any intelligible light upon the grounds stated in the plaintiffs’ petition. It does not appear when the suit was filed; it is to be inferred, from the defendants’ exceptions, that the plaintiffs were probably seeking to enjoin the enforcement of a judgment of a justice of the peace on a forfeited appearance bond, given for the appearance of a person for whom the plaintiffs were sureties, who was charged with an aggravated assault and battery, and that possibly the plaintiffs may, in their petition, have questioned the jurisdiction of the justice of the peace over the subject-matter, concerning which he had acted in taking the bond, or in rendering judgment on its forfeiture. If aid could be given to the appellants by referring to the defendants’ exceptions, as is suggested by the brief of appellants’ counsel, to supply the contents of the petition, we would be unable to ascertain from them either the matter of objection urged to the jurisdiction, or under which of the various statutes which had previously regulated the jurisdiction of the justice’s court the questions involved had arisen.

The assignment of errors is not signed by the appellant, nor by any counsel for him. If, however, we might deem such a paper an assignment of errors, filed “ by the plaintiff in error,” we could only say, in response to the complaint which it makes against the action of the court in dissolving the injunction, that the record fails to make the supposed error apparent, for want of the necessary information afforded by it as to what were the merits of the petition for injunction, or any of the grounds on which the appellant insists that he was entitled to maintain his suit.

It was the duty of the appellant to supply the deficiency of the record.

Whilst this would have been, -apparently, impracticable, in the ordinary method, by application for a certiorari, yet the law provides a mode for substituting lost records and papers; and if he has not seen proper to avail himself of its benefits, and the transcript here is submitted to us for decision as it stands, he must content himself with the neeessary consequences of his inaction,

Affirmed.


text:
    S. J. Spiers v. Wm. O. Purcell et al.
    (No. 2717.)
    Practice.—Under article 1591, Paschal’s Digest, errors assigned without distinctly "specifying the grounds thereof are considered as waived.
    Statute of frauds — Trust.—It is well settled that an agreement creating a trust upon land is not required to be in writing, and is not affected by the statute of frauds. And it has been held that although reduced to writing a verbal trust may be shown to have been annexed to the contract.
    Costs.—In an equitable proceeding, and also when the judgment as to portion of the matters in controversy is given for one of the parties and against him as to other matters, the question of costs is left to the discretion of the court below.
    Appeal from Bastrop county. Opinion by Watts, J.
    Statement.— The appellant instituted this suit on the 9th day of July, 1873, against appellees as the minor children of James B. Purcell, deceased, prayed for and had a guardian ad litem appointed by the court for said minors. The petition is in substance as follows:
    That Mahlon Purcell and wife did, on the 24th day of March, 1870, convey the land described therein to said James B. Purcell. And notwithstanding the conveyance' •was to said Purcell, yet the purchase money for the land, to wit, $1,250, was paid by appellant with the understanding and agreement between him and said Purcell that the. land was, in fact, the property of appellant, and was to be held in trust by said Purcell for him until the purchase money, with interest thereon, was paid to him by said Purcell; and in the event the latter failed to pay said purchase money and interest, then the property was to belong to appellant. He prayed for judgment divesting all right and title to the premises out of said minors, and vesting the same in him. He also prayed in the alternative for a judgment for the $1,250 and interest. He also alleged that said amount had not been paid to him by said Purcell in his life-time, nor any one else since his death; also alleged. Purcell’s death, and that said minors were his sole heirs.
    The said minors, through their guardian ad litem, answered July 31, 1873, by a general demurrer, general denial, and specially denying that the appellant paid the purchase money for the land; that Purcell borrowed the money with which he paid for the land, executing his- notes for the same, and that appellant was only security on said notes. Also pleaded the statute of frauds and claimed the land as their homestead, etc. By amended answer they withdrew the averments in their original answer as to appellant being surety on said notes, and say he had no connection with the purchase of said land. The cause was tried on the 28th day of July, 1874, and resulted in a verdict and judgment in favor of appellant for the $1,250 and interest, and in favor of appellees for the land. Appellant’s motion for new trial being overruled, he brings this case before the court by appeal, and assigns the following errors:
    1. The court erred in each and every portion of its charge to the jury.
    2. The court erred in refusing to give the charge (sections 1 and 2) asked for by plaintiffs.
    3. The verdict of- the jury is contrary to the evidence.
    4. The verdict of the jury is contrary to the law.
    5. The court erred in overruling plaintiffs’ motion for new trial.
    6. Judgment of the court is erroneous in not directing the premises in controversy to be sold to satisfy the judgment against the defendants.
    7. The court erred in allowing judgment for defendants for the land.
    8. The court erred in allowing judgment against plaintiff for the costs.
   Opinion.— Many of the errors assigned could not be considered by the court, as the appellant therein fails to distinctly specify the grounds of error; in such case the statute in force at the time this appeal was perfected requires them to be considered as waived. P. D., art. 1591.

. Counsel for appellant, in their brief, only insist that the court erred in the charge given and those asked and refused.

The appellant sets up in his petition a trust upon the land created by parol agreement. Since the decisions in the case of James v. Fulcrod, 5 Tex., 512, it has been considered as well settled that such an agreement is not required to be in writing and is not affected by the statute of frauds.

In the case of Cuney v. Dupree, 21 Tex., 219, it is said: “It has been held that, although reduced to writing, a verbal trust may be shown to have been annexed to the contract. To be enforced, however, a rule of equity requires that it shall be established with clearness and certainty.”

These trusts are of two kinds: such as arise from a verbal agreement, and such as are implied or result from the nature of the transaction. The case made by the petition is that of a trust created by verbal agreement between the appellant and Purcell; and the court, in the charge, confined the appellant’s right to recover to the allegations contained in his petition, and in that view of the case fully and clearly submitted the law to the jury. The first charge asked by appellant and refused sought to present to the jury an issue of the existence of an implied or resulting trust in his behalf in the land; this was correctly refused, because it was an issue not made by the pleadings. The other charge asked and refused correctly presented the law of the case, but it was also properly refused for that it was embraced in the general charge of the court in almost the same language as that which was asked and refused. The verdict of the jury upon this branch of the case is well sustained by the evidence. We are of the opinion that the evidence disclosed by the record not only does not clearly show the existence of the trust as claimed, but would not support a verdict affirming the existence of such a trust.

As to the question of costs, this was an equitable proceeding, and this question is left to the discretion of the court. Anderson v. McKinney, 22 Tex., 654.

Also when the judgment as to a portion of the matters in controversy is given for one of the parties, and against him as to other matters, the question of costs is left to the discretion of the court. Cannon v. Hemphill, 7 Tex., 207.

There is no error in that portion of the judgment appealed from, and therefore a proper disposition of this appeal will be to affirm the judgment.

Affirmed.


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    J. W. Smith and wife v. City of Dallas.
    (No. 2742.)
    Assignment OF EBRORS.—Assignment of errors must conform to the requirements of the statute, and unless gross injustice or some fundamental error appears of record, this court will not interfere.
    Appeal from Dallas county.
   In this case there is nothing in the transcript which we are authorized to regard as an assignment errors. We find pasted between pages 79 and 80 what seems to have been intended for an assignment of errors, but it is not signed. by counsel, nor is- it marked filed, is on different paper and in a different handwriting from that of the transcript, and has evidently been interpolated after the record was made up. How, when, or by whom this was done we have no means of knowing. There is nothing in the minutes of the court to show that leave was granted here to file such a paper, nor does it appear to have been done by consent. The briefs of counsel filed make no reference to any assignment of errors. They discuss the case without the slightest allusion to it.

Our statute (Pasch. Dig., art. 1591) says; “The appellant or plaintiff in error shall, in all cases, file with the clerk of the court below an assignment of errors, distinctly specifying the grounds on which he relies before he takes the transcript of the record from the clerk’s office, and a copy of such assignment of errors shall be attached to and form a part of the record, and all errors not so distinctly specified shall be considered by the supreme court as waived.”

The court has sometimes, when this has been neglected, permitted to withdraw the record and assign errors, and by agreement it has permitted an assignment of errors to be filed here and considered as part of the record; but we think it would be wholly irregular, and indeed improper, for the court to notice this paper not signed by counsel and which has never been filed in any court.

Unless, then, there appears in this record some error of a fundamental character, or it is manifest that gross injustice has been done, the judgment must be affirmed. And this we cannot say does so appear.

This suit was brought by Smith, and his wife subsequently joined in it, to recover of the city of Dallas damages which they claim to have suffered from the unlawful taking of certain of their lands, part of their homestead, in 1872, to make streets.

The defense was that plaintiffs had dedicated the ground to the public and that it was not homestead.

There was abundant proof, we think, to show that Smith had so dedicated the ground. He mapped the land, in 1859, into lots and blocks, showing streets running through the land, and since then has made very many sales of lots by reference to this map.

As to the homestead, there was proof tending to show that the homestead tract was not encroached upon by the streets. Mrs. Smith also had joined in a conveyance of several “ blocks of ground as laid down on the map or plan of the town of Dallas.” This ground was embraced within what had been claimed as her homestead, and to this conveyance her privy examination had been taken.

But there was also proof tending to show her acquiescence in the laying off of streets through this land, and that she had, indeed, moved away from the land in 1873, and lived, at another place for a considerable length of time, and was, at the time of the trial, living on a lot which once was part of the homestead but belonged to a Miss Lane.

There was some conflict, of course, in the testimony, but it cannot be said that there was none to warrant the verdict of the jury, and it is not manifest that gross injustice has been done. In truth, when the ground in controversy was mapped off into streets, the land appropriated for them. was of very trifling value.

But in the lapse of twenty years the prairie village has grown into a thrifty and populous city, and this trifling strip of ground has become of considerable value. This controversy over it seems to be an after-thought stimulated by this sudden growth and the sight of such abounding wealth. The claim for damages is laid at $20,000. The ground over which the city has made an easement is a strip of twenty by three hundred and twenty feet, the damages to the homestead, its use and enjoyment, “ nominally nothing.”

Dedications of land for the purposes of streets, etc., have been established in every conceivable way by which the intention of the party to dedicate could have been manifested. The proof may be any act of the party — by deeds, by parol or written declarations, or by acts. It may be made by a single act, if positive and unequivocal, and especially where purchases have been made upon the faith of it.

It may be made by laying down and describing streets, squares and other tracts set apart for the public, on the plan of a town, and filing such plan for record, and by the sale of lots with reference to such plan. And where a street is laid down on a plan and lots sold, but there may have been no effectual dedication to the public, the purchasers have a right to have the street opened and to use it. Wiggins v. McCleary, 49 N. Y., 348; Bayard v. Hargrove, 45 Ga., 342; Wilder v. St. Paul, 12 Minn., 204; Washburn, Easements, 138; Clements v. West Troy, 16 Barb., 251; Oswald v. Grenault, 15 Tex., 118; Lamar Co. v. Clements, 49 Tex., 348.

Affirmed.


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    Sil. Stark v. W. S. Ingram.
    (No. 1058.)
    Homestead exemption — Allegation of in petition.— Answer setting up homestead exemption not subject to a general exception to its sufficiency; nor to a special exception that the answer does not show that the lot is claimed as a residence or a business homestead.
    Renting homestead — Rules as to.—If the homestead character has otherwise been impressed upon the property, that the owner was living on another’s property while renting his own would not necessarily affect the question of homestead, if the premises were used for the purposes of a home, or to exercise the calling or business of the head of a family, or both.
    Irregularity in sale—Inadequacy of price—Rule as to.— The difference between the case where plaintiff in execution, or his attorney, becomes the purchaser, and where it is a stranger, induces a different rule so far as concerns the irregularities in the proceedings merely. But where gross and palpable inadequacy of price concurs with such irregularities, the rule applies to both alike if connected.
    Future intention to occupy homestead, when available.— The mere general intention of both the husband and wife, no matter how long entertained, at some future and uncertain day to make property their homestead, unconnected with such acts of preparation to do so, and to carry out that intention and direct it toward a mature consummation, will not avail.
    Appeal from Jack county. Opinion by Walker, P. J.
    Statement.— This was an action of trespass to try title to recover lot Ho. 3, block Ho. 3, in the town of Jacksboro, in Jack county, Texas. The plaintiff’s title was derived through a judgment in a justice’s court and a constable’s deed to the plaintiff as purchaser.

      The defendant answered by general.denial, the general issue of “¡Not guilty,” and special plea setting up the defense of homestead exemption, the defendant being the head of a family, and that the property was sold for a grossly inadequate price, and that the officer in making the levy did not call on the defendant to point out the property.
    He alleged that at the time of levy and sale of said lot, and the purchase of the same by the appellant, he was a married man and the head of a family, living in the town of Jacksboro, about one hundred and fifty yards from said lot, on another lot not his own, and was at said date using and enjoying said lot for the use, comfort and convenience of defendant and his family, and is still using and enjoying said lot, with the house thereon, as his homestead and place of business; that for a long time before the levy and sale of said lot he was a merchant and doing business in the house upon said lot, and it was notoriously claimed by defendant as his homestead, and he had no other homestead or place of business; that at the time of said levy and sale he- had his family supplies and household goods in said property, and a portion of the same was rented for a butcher shop, and by which he supplied his family with butcher’s meat. There was also a plea of inadequacy of price, etc.
    The plaintiff filed exceptions to the answer, which were overruled. There was a trial, verdict and judgment for defendant, and the plaintiff appealed.
    The exceptions filed to the answer were general and special. The points of the special exceptions were that the facts alleged in the answer are contradictory and ambiguous, in that they do not show whether the lot in suit is claimed as a residence or as a business homestead, and that, therefore, the plaintiff is not notified upon what ground defendant bases his homestead rights. Also, a general exception to the legal sufficiency of the defense set forth as to the inadequacy of price paid for the lot by the plaintiff at the constable’s sale of the property.

      The errors assigned are as follows, viz.:
    1. The court erred in overruling plaintiff’s exceptions to defendant’s first amended original answer.
    2. The verdict of the jury is palpably against the law and in open violation of the charge of the court, and shows a reckless disregard of the instructions of the court as to the law of the case; for that the jury were instructed, in effect, that they should find for the plaintiff unless the defenses set out by defendant should defeat his recovery ; and they were further instructed, in effect, that these, under the evidence- introduced, were insufficient in law to defeat plaintiff’s recovery; that is, that the law arising on the state of facts disclosed by the evidence was against defendant. 8
    3. The verdict of the jury is clearly against the law and evidence, and without any evidence whatsoever to support it; for that the evidence disclosed without any conflict and beyond a doubt that plaintiff had title to the land in controversy by virtue of a judgment, execution, levy, sale and constable’s deed, all of which were regular and valid, the property so sold to plaintiff having been levied on July 10, 1883, under said execution, as the property of defendant, and at that date defendant had never occupied said property as a home, and if he had at any time such intention, which is doubtful, there was no evidence that this intention was coupled with any such act of preparation as would reasonably give notice of such intention; and the evidence further, showed, without conflict or question, that at date of - said levy defendant was doing business at another place and on other property, and not on the property in controversy; and there was not before the jury a single fact proven showing any homestead rights in the property in controversy.
    4. The verdict of the jury is clearly against the evidence, and without any evidence to support it; for that if said property sold for a grossly inadequate price, there was no irregularity or other circumstance shown in evidence attending said sale calculating to prevent said property from, bringing something like its value.
    5. The court erred in overruling plaintiff’s motion for a new trial for the reasons stated in the second, third and fourth assignments above, as well as on the grounds stated in said motion; that the court erred in overruling plaintiff’s motion for a new trial, because the jury returned a verdict clearly against.the law and the evidence, and in strict ac: cordance with the most overwhelming prejudice; for that the foreman of the jury had already sworn, before he went into the jury box, that he would shoot a man from behind a log that would take property from him as plaintiff is endeavoring to do in this case.
   Opinion.— The answer setting up the homestead exemption is not subject to a general exception to its sufficiency. The averments which are necessary to show a homestead right are direct and comprehensive, and they fully meet the requirements of the law to show the exemption which the answer claims. Nor is it obnoxious to the.special éxception that is urged. It is sufficient if the answer shows' that the premises constituted a homestead of either of the two species provided for in the constitution, viz.: either the domestic or residence homestead, or a homestead made such by its use and dedication as a place of business. The answer claims it as the defendant’s homestead and place of business. The defendant alleged that at the time of the levy on the property he was using and enjoying it with his family both “as his homestead and place of business;” that he was at the same time claiming it as such — as his hornestead and place of business. Of course, in the nature and construction of the subject, it was susceptible of being both his family residence or domestic home, and at the same time his place of business. His answer, indeed, negatives the idea of his having any other residence, homestead — alleging, as it does, that he is residing on property which he does not own.

The answer, however, proceeds to allege, in effect, that he has been using the premises in dispute in a way consistent with the adoption of them as a home, and that he has thus used them in connection with the domestic life and affairs of himself and his family, notwithstanding that he was not actually residing on said premises.

The constitution (sec. 51, art. 16) in terms provides “ that any temporary renting of the homestead shall not change the character of the same, when no other homestead has been acquired.” Therefore, if the homestead character had otherwise been impressed upon the property, the- fact that he was living on another’s property while renting his own would not necessarily affect the question, if the premises were “ used for the purpose of a home, or as a place to exercise the calling or business of the head of a family (Const., sec. 15, art. 16), and, a fortiori, if used for both, it would constitute the defendant’s homestead.”

The special exception to the answer setting up the homestead exemption was properly overruled, and so, too, was that to the answer alleging inadequacy of price arising from irregularities of the proceedings under execution. Kauffman & Runge v. Morris, 60 Tex., 119; Allen v. Pierson, id., 604; Atchison v. Owen, 58 Tex., 616; Chamblee v. Tarbox, 27 Tex., 140; Allen v. Stephens, 18 Tex., 658; Pearson v. Flannegan, 52 Tex., 266; Taul v. Wright, 45 Tex., 394. And see, also, Pearson v. Hudson, id., where the doctrine relied on in the answer was applied to an irregularity of the same kind as that specified in this answer, the difference in the cases being that in Pearson v. Hudson the plaintiff in execution bid off the property.

The difference between the case where plaintiff in execution, or his attorney, becomes the purchaser, and where it is a stranger who does so, induces the application of a rule different as to the one and the other, so far as concerns the consequence of the irregularities in the proceeding merely. See Freeman on Executions, sec. 340. But where .gross and palpable inadequacy of price concurs with such irreguIarities, the rule applies to both alike, if the inadequacy can be connected with the irregularity. Freeman on "Executions, and authorities there cited.

The second assigned error is objected to by the appellant as being too general and indefinite, and because it is not a legal proposition. This objection is well founded. As presented, this assignment of error is but an argumentative construction which the appellant places upon the action of the jury under his deductions from the whole evidence under the charge given by the cause applicable to the defense of homestead exemption. It does not specify any particular departure by the jury from following the instructions of the court in its application to any special point involved on the subjects charged on by the court. Rule 24 for the Supreme Court.

The third assigned error, however, sufficiently presents the merits of the question arrived at in the second ground of assigned error, for all purposes. It presents for consideration certain facts shown by the evidence which afford a decisive test as to the verdict which ought to have been rendered. We are of opinion that giving to the defendant’s evidence the benefit of the most favorable implications fairly and reasonably deducible from it, two important facts result, which, taken together, are fatal to the maintenance of his homestead claim. The first of these is, that beyond controversy it had long before the date of the levy, by the defendant’s voluntary act of abandoning it as such, ceased to be his place of business, and that it had not, up to the time of his abandoning it as such place of business, been claimed, or had any pretensions to be considered, as defendant’s residence or domestic homestead. The next fact that is shown with almost equal,conclusiveness is that, after he had thus abandoned it as a business homestead, no act clearly manifesting an intention by preparation to occupy, or by actual occupancy of, the premises as a homestead was done by the defendant up to the time of its sale under execution. If the property had ever previously been invested with the attributes of a homestead, it had been stripped of them, and was not afterward rehabilitated with them.

The cases which have determined in our supreme court the constituent elements which give by incipient and initiatory acts of one who may intend to designate, or who does not actually so designate, a place as his homestead, are comparatively numerous, and are too well known and understood to render it necessary to review, discuss, or even to quote from them — a citation of them might, perhaps, even be pretermitted. Franklin v. Coffee, 18 Tex., 415; H. & G. N. R. R. v. Winter, 44 Tex., 605; Brooks v. Chatham, 57 Tex., 33; Anderson v. McKay, 30 Tex., 190; Moreland v. Barnhart, 44 Tex., 280; Barnes v. White, 53 Tex., 628.

Applying the familiar and oft-quoted rules pertaining to the subject under consideration to the facts of the case, we are of opinion that the mere general intention of both the defendant and his wife, how long soever previously it had been entertained, at some uncertain and indefinite period in the future to make the property in dispute their homestead, cannot avail to give it that effect, unless it was connected with such acts of preparation to do so and to carry out that intention and direct it toward a mature consummation. The intention to presently make it their homestead must be illustrated by acts showing an actual designation of it as a homestead; and acts of preparation to do so have been held in many instances quite sufficient and equivalent in their legal effects to the consummation of the intention by actual occupancy.

The evidence shows that the defendant made use of the premises in certain ways for his convenience in storing away and keeping various articles of domestic and household and of business utility to himself. Also, he used the proceeds of the rent of it to obtain meat for his family use. The evidence does not indicate that such uses were connected with any intention that was identified or associated with making it his home, but rather that he used it thus as he might have used any other building owned or controlled by him as a mere place for deposit of surplus articles for his convenience, and for ordinary income or profit.from rent as from any other house he might have owned. Effinger v. Cates, 61 Tex., 591. The law does not presume a house owned, but not used or occupied as a residence, to be the homestead; the burden was upon him to show by evidence reasonably clear and satisfactory that notwithstanding his non-occnpancy of it as a home, or as a place of business, that it was nevertheless his homestead by reason of his intention to make it so, connected with acts indicating an appropriation and designation of it as such. McDonald v. Campbell, 57 Tex., 614.

Appellee’s counsel cites Scott v. Dyer, 60 Tex., 135, to support defendant’s homestead claim. That case presented the single question whether a lot xvhich had formed part of the homestead, and had been reserved for a homestead in the deed conveying the other part of the lot, had been lost as a homestead by reason of removing away for a year or more without performing any act indicating preparation to again use it as a homestead; It was held that it having been impressed with homestead character it continued so until abandoned or another home acquired. It does not apply to a case like this.

Whether the jury found their verdict on the homestead issue, or upon that of inadequacy of price, we cannot determine from the record, as the finding was a general verdict simply for the defendant, and as, under the charge given by the court on the latter issue, as applied to the evidence, it may well be questioned whether the jury found their verdict upon it, but probably did so on the homestead issue, we do not think it proper to affirm the judgment simply because it may be our opinion that the verdict would be sustained under a correct charge on the issue of inadequacy of price. The charge on that subject was, we think, correct so far as the leading proposition in it was concerned, to the effect that if the inadequacy of price was palpably and grossly disproportioned to the value of the propert}”-, irregularities that in their nature were calculated to prevent the property from bringing something like its value would entitle the defendant to a verdict. But the court qualified this proposition in various ways, which we think the law of the case did not require nor warrant, and under those qualifications we may well doubt whether the jury could, if they followed the instructions given, have found for the defendant on that issue. If it were clear to us that the jury found for the defendant on any issue that was involved in the case, if there was neither a fundamental error nor any assigned error that would reverse the judgment, it would be affirmed, and the finding of the jury would be referred to any one of the issues under which it was apparent that the verdict could be properly sustained. We shall not enter upon a discussion of the features referred to in the-charge on the subject of the inadequacy of price deemed by us objectionable, as the charge given on that subject is not presented to us for decision under any assigned error, and for the further reason that we deem it unnecessary to do so in view of the elementary character of the law governing the subject and the many decisions of our supreme court applicable to the whole question.

On another trial a charge on the subject free from objection will doubtless be given, and allusion has been made to the matter incidentally merely, and for the purpose- of showing the propriety of reversing the judgment in a case where the verdict may have been rendered correctly on one of the issues, and where, on another issue, it was not supported by the evidence.

Reversed and remanded.


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    Lemuel Sawyer v. Milam County.
    (No. 2909.)
    Pay of special policemen under act of July 1,1870.
    Appeal from Milam county. Opinion by Watts, J.
    Statement.— Appellant instituted this suit against appellee on the 22d day of May, 1875, to recover, as assignee of certain special policemen appointed for Milam county under and by virtue of the act of May 2, 1871, entitled “An act to amend an act entitled an act to establish a state police and provide for the regulation of the same, approved July 1, 1870.” The amount claimed in the petition was $1,219.
    The petition alleged that said special policemen, naming them, were duly appointed by the governor and were duly sworn, and that thirteen of them served as such for the term of twenty-four days, beginning on the 12th day of September and continuing to the 6th day of October, 1871, at the rate of $3 per day. That three others of said policemen had been duly appointed, etc., and were in actual service each, from the 12th day of August to the 6th day of October, 1871, and that they were each entitled to $3 per day; for which the adjutant-general, as chief of police of the state of Texas, issued vouchers; that he had purchased the same for a valuable consideration and attached the vouchers as part of the petition. The appellant had presented said vouchers to the county court of Milam county, and said court rejected the same. The appellee demurred generally and specialty. Majr 22, 1875, the case was tried and the demurrers were sustained and mdgment rendered against appellant for costs, etc., frr t/hich this appeal is taken. The record contains ** ^nment of errors.
   Opinion.— The purported voucher sued on and made part of the appellant’s petition is as follows:

“Adjutant-General’s Office,'State of Texas, Austin, May 19, 1874. I certify that the following exhibits a statement of service and pay due to special policemen of Milana county as taken from the record of this office:

No, 1. Wm. A. Dorrak, 24 days, September 12 to October 6,

1871.......................i............................... §72 00”

Then followed the names of twelve others with time and amount for each corresponding to the above entry; then followed:

“Account signed by E. Yan Slyker) registrar, approved November 17, 1871, and forwarded to registrar same day:

John Williams 30 days, August 12 to September 11.. .........§90 00

Eugene Slater 30 days, August 12 to September 11 ......... 90 00

Braxton Robinson 30 days, August 12 to September 11......... 90 00

“ Called out by the governor and adjutant-general during disturbance in Milam county against Mr. Sawyer and L. W. Caldwell. Approved and handed to Mr. L. Sawyer, July 11, 1871.”

The above is a true copy taken from the records of this office.

(Signed) Wm. Steele, Adjutant-General.

The act of 1871, under which the said special policemen were appointed, provided that their compensation should “be paid out of the county treasuries of the counties where employed on vouchers certified to by the chief of police.” P. D., art. 7212.

In the case of Leon County v. Houston, in considering "an instrument almost in the very terms of that sued on in this case, Chief Justice Eoberts, delivering the opinion of the court, said: “It was evidently contemplated that each special policeman should have given to him a certificate, signed by the chief of police, stating the time of his service as special policeman, the county in which he was employed and the amount of his compensation, which should be his voucher for his services.. This certificate of the registrar is not provided for by the statute.”

The purported certificate in the case before us does not appear to have been approved or signed by the chief of police, as was the case in Leon County v. Houston, supra. It is certainly true, as was held in that case, that such an instrument could not be made the basis of a recovery against the county under the act of May 2, 1871.

The judgment of the court below ought to be affirmed..

       46 Tex., 575.


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    John Toohig & Co. v. W. H. Elliott.
    (No. 2763.)
    Evidence — Manner of examination.— In the examination of witnesses and the manner in which they may be permitted to give in their testimony, something must be left to the discretion of the trial judge. It is proper to permit a witness to refer to memoranda made by him of the circumstances .of a transaction for the purpose of refreshing his memory, especially if made soon after the occurrence.
    Judgment will not be disturbed when.— Where the evidence is conflicting this court will not disturb the verdict of the jury and judgment of the court below on account of a mere preponderance of testimony.
    Appeal from Bexar county. Opinion by Quinan, J.
    Statement.—This suit was brought by Elliott .to recover from Toohig & Co., bankers, a large sum of money, the balance of a deposit-made with them, which he alleges they withhold.
    They, the defendants, pleaded the general denial, and that Elliott represented to them that the money deposited was his part of the capital of the firm of G-oggan & Co. and to be used in the business transactions of that firm, and that under his instructions they had paid the drafts of Goggan & Co. until the full amount of the deposit was exhausted ; that plaintiff was a member of the firm and held himself out as such.
    The plaintiff replied, denying that he was ever a partner in the firm of Goggan & Co.

      Goggan & Co. were made defendants also, the plaintiff charging them with confederating with Toohig & Co. Goggan & Co. reconvened, claiming that plaintiff was indebted to them, and they recovered judgment for their debt against plaintiff: From that judgment no appeal is taken, and no further notice need be taken of that branch of the case.
    The jury found a verdict for the plaintiff against Toohig & Co., upon which judgment was rendered and the defendants appealed.
    The testimony is voluminous and conflicting. The charge of the judge was full and is not complained of. '
    The only errors assigned are:
    1. That the court erred in permitting the plaintiff, when testifying, to read his testimony from a written statement, as set forth in a bill of exceptions.
    2. That the court erred in overruling the motion for a new trial.
   Opihioh.— As to the first assignment, the judge, in the bill of exceptions, certifies that what he ruled was, that if the witness could and would swear that the facts, as stated in the memorandum from which he was reading, were true independent of the memorandum, he could read from the same. ‘ What the particular facts were concerning which the witness was testifying does not appear. The memorandum seems to have been made about the time or shortly before the institution of the suit, and the .record shows that the suit was instituted very soon after the cause of action accrued. We'do not think there was error in this ruling for which the verdict should be disturbed. In the examination of witnesses and the manner in which they may be permitted to give in their testimony, something must be left to the discretion of the judge. It is proper to permit a witness to refer to memoranda made by him of the circumstances of a transaction for the purpose of refreshing his memory, especially if made soon after the occurrence. On the other hand, where statements are made up by the witness in view oí the trial, and not so much, perhaps, for the parpóse of refreshing his memory of the events, but to instruct him how he shall relate them, he shall not be permitted to read his testimony from his statement. The witness here underwent a vigorous cross-examination upon his testimony in chief, and there is no reason to apprehend that any mischief was done by permitting him to use his written statement. It was fair subject of comment to the jury. Greenleaf, Ev„, 44; Whart., 516, 518.

2. The ground of the motion for a new trial, which only is relied upon, is that the verdict is unsupported by the testimony.

It is only necessary, in reply to this assignment, to say that the testimony is conflicting. If the plaintiff and his witnesses are to be believed, the testimony is sufficient to' warrant the verdict. On the other hand, the defendants’ evidence tends abundantly to establish their defense. In such case it is not for us to say which scale shall tip the beam.

It was for the jury to determine the credibility of the witnesses and to weigh the testimony. A review here of it, with its mass of discrepancies and contradictions, without the lights with which the jury looked upon it, could lead us to no certain conclusions even if it were proper for us to undertake the task. The able judge who tried the case below was satisfied with the verdict of the jury upon it. And it would be against the settled rule of the court sitting here to reverse the judgment of the lower court upon, a question of the sufficiency or mere preponderance of the testimony to sustain the verdict of the jury, when it is not without testimony to sustain it, merely because we might be inclined to arrive at a different conclusion from reading the statement of facts.

Aeeibmeb.


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    Ed. Sacra v. Ed. H. Semple et al.
    (No. 3431.)
    Conditional sale.— Where the right to receive payment before delivery is waived-by the seller and immediate possession given to the purchaser, and yet, by express agreement, the title is to remain in the seller until the payment of the price upon a fixed day, such payment is strictly a condition precedent, and until performance the right of property is not vested in the purchaser. Such conditional sales are not, in effect, chattel mortgages, and therefore void because not recorded.
    When demand necessary before institution of suit.— In order to make a demand necessary before suit the defendant must have come into possession of the property lawfully and without fault, as in the case of bailments, and even then it is not necessary if the defendant had appropriated the article to his own use.
    Appeal from Grayson county. Opinion by Walker, P. J.
    Statement.— This suit was brought by the appellees against the appellant for the recovery of the value of a threshing machine, or damages for its conversion, which they sold and delivered to one Enfield; the petition alleg-. ing that the said Enfield gave them his note fpr $400, payable six month's after date, another of $100, payable.at thirty days, and $100 cash, as the consideration of the purchase. The plaintiffs allege that it was expressly agreed between the parties, and made a condition of the sale, that the title to the machine was not to pass to Enfield until it was fully paid for; that the plaintiffs are the legal owners of the notes, and that they are wholly unpaid. The contract of sale was made the 17th of June, 1874. The plaintiffs allege that the appellant, Ed. Sacra, on the 15th of January, 1875, having full notice- of the conditions of the sale, and of the rights of the plaintiffs, took possession of the machine and converted it to his own use; and that notwithstanding their demand made upon the defendant for the delivery of the property the same was refused. Damages laid at $500.

      The defendant demurred to the petition and answered by-general denial, and a special answer, claiming title himself in the machine. On the trial there was no evidence to prove the alleged demand. The plaintiffs produced in evidence the notes, as described, dated June 17, 1874; also proved the contents of an instrument of writing, executed at the same time by Enfield, as follows: “ I, Andrew McElroy, agent for Semple, Berge & Go., have this day sold unto W. II. Enfield one certain Pitts thresher for the sum of $G00, payable thus: One hundred dollars down, $100 in thirty days, and $400 in six months; and it is expressly understood that the ownership of the thresher is in Semple, Berge sfc Go. until said two notes are paid.” Signed and dated. It was proved that the notes were unpaid.
    The defendant purchased the thresher at a United States marshal sale through an agent who was present and bid off the same for him. The plaintiffs’ agent was present and gave full notice of plaintiffs’ claim on the machine to defendant’s agent before he purchased; stating to him. “ that he wanted his money out of it; and gave notice of plaintiffs’ claim at the sale; held up the foregoing contract and shook it, and read it to the crowd.”
    The cause was submitted to the court without a jury, who rendered judgment for the plaintiffs against the defendant for $300 and costs of suit, from which judgment this appeal was taken by the defendant.
    The appellant, among other errors assigned, says that the court erred in rendering judgment for the plaintiffs; that the judgment should have been for the defendant.
   Opinion.— The only questions that .seem to require consideration, or, indeed, to which the appellants’ counsel appear, in their brief, to attach importance, are, whether the contract between the plaintiffs and Enfield was, in legal effect, a conditional sale, or whether it was a chattel mortgage; and also whether a demand by the plaintiffs on defendant for the property, before suit, was necessary.

The contract which was entered into between the parties constitutes, in the clearest and most unmistakable manner, a conditional sale. If, by the express terms of a contract for the sale of property, even though delivery of it is made, the seller withholds his consent to divest himself of his right of property in it, his ownership, it cannot be deemed that he has made a valid and effectual sale of it. In such case he has but agreed to sell, and consented to part with the possession as an act towards the consummation of the contract for the sale only on the condition which he has stipulated -in the contract. The right in property, which is the subject of a contract of sale, is determinable by ascertaining whether the transaction was a sale or whether it was a contract of sale; and w'hen that question is determined, another may, in some instances, remain, as to the right to the possession of the property as to either vendor or vendee, even though a valid sale had been made.

Whilst the delivery of possession of personal property, under a contract for its purchase, often, with other facts, affords conclusive evidence of a final and consummated change of right, title and ownership, in other instances does not affect the question of transfer of title, nor is conclusive upon the right to possession of it. “ A sale is a transfer of the absolute title to property for a certain agreed price.” Story on Sales, sec. 1. “ A sale takes place only when there is a transfer of the title to property for a price.”- Ibid. The transfer may be complete without the delivery; as, where the seller has performed all that is required of him by the terms of the contract, and delivery alone remains to be made, the property vests in the vendee, and subjects him to the risk of any accident which may befall the subject of the sale. Id., sec. 300. “ It is not necessary for the seller to deliver the goods to the buyer in order to transfer the title, since ^he right of property does not depend upon the actual possession.” Id., sec. 300.

Although, therefore, the seller has a right of lien upon them, and cannot be forced to surrender possession until payment is made of the price, yet the goods may be, nevertheless, the property of the buyer. Ibid. Reversing the facts by delivery of possession, under circumstances showing that the purchaser has not performed all that is required by the terms of the contract for him to do, if the agreement concerning making such delivery shows that the vendor does not waive a compliance by the purchaser in order to vest title in him, but on the contrary expressly negatives such an inference by a positive and direct reservation to himself of the right of property, the same principle and rule is equally applicable. The sale in such case is not complete; it would be a sale upon condition that the purchaser, notwithstanding his possession, should not own, or have title to, the property until the condition of payment of the price was complied with. And so it is laid down that, “ Where the right to receive payment before delivery is waived by the seller, and immediate possession given to the purchaser, and yet, by express agreement, the title is t(^ remain in the seller until the payment of the price upon a fixed day, such payment is strictly a condition precedent, and until performance the right of property is not vested in the purchaser.55 1 Parsons on Contracts (5th ed.), 538.

The appellant insists that the legal effect of the contract was to make it a chattel mortgage, and not a conditional sale.

It is said in a note to the above quoted text (note o\ that “ it has been decided that such conditional sales are not, in effect, chattel mortgages, and therefore void, because not i ecorded.” Buson v. Dougherty, 11 Humph., 50. “ And where, upon a sale and delivery, it was agreed that the vendor should retain a lien upon the property until the price was paid, it was held that this agreement of the parties created a valid lien in the vendor against the vendee and purchasers from him, and that such lien was not within the purview of the statute requiring mortgages of chattels to be recorded.” Sawyer v. Fisher, 32 Me., 28. See, also, Barrett v. Mason, 7 Ark., 253.

For cases deciding upon the construction of contracts of sale, to determine whether the effect was to render it a sale or a chattel mortgage, under terms of reservation of title by the vendor, quite similar to the contract in this case, reference is made by us to Grant v. Skinner, 21 Barb., 582; Brewster v. Baker, 20 Barb., 368. Held in those cases to be conditional sales, and not chattel mortgages, upon the force given to the terms of the contract, reserving to the vendor the title until the performance of conditions, notwithstanding the delivery of the possession of the property. See, also, Strong v. Taylor, 2 Hill, 326; Herring v. Willard, 2 Sand. (N. Y.), 418.

The plaintiffs, therefore, in this case were the owners of the property. Enfield’s notes bad long been due and unpaid at the date of the institution of this suit; and the defendant, acquiring possession of the property with full notice of the plaintiffs’ claim of right in the property, acquired no better or higher title than did the original vendee. The'plain tiffs, therefore, having the right of ownership, had the right to assert their right to possess and enjoy their property, unless they were precluded, under their contract, from doing so at the time of the institution of their suit.

The fair interpretation of the contract and the accompanying act of delivery of the property entitled the purchaser to the possession of it as against the seller, at'least, until the maturity of the first note. The maturity and nonpayment of both of them would entitle the seller and real ' owner to resume his dominion over his property.

Judgment affirmed.


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    The Texas Mutual Life Insurance Company v. Mordells S. Munson et al.
    Life insurance — Payment of premium by draft.— Where the premium assessed against a policy-holder in a life insurance company is paid by a draft on a third party, and same accepted and receipted for by the company, action against assured was not on the policy, but upon the draft.
    Appeal from Galveston county. Opinion by Watts, J.
    Statement.— Appellees as executors of the last will of S. S. Perry, deceased, brought this suit against appellant September 21, 1875, to recover 02,000 and interest on a policy of insurance issued by appellant on the life of Stephen S. Perry, making the policy part of the petition; said policy was dated May 20, 1873.
    The petition represented a compliance by the deceased with all the stipulations and conditions specified in the statute, among which was the payment of premiums by the deceased. That he died in the county of Brazoria on the 15th day of September, 1874, and that satisfactory proofs were made and presented to the company on the 20th of the same month; that the company refused to pay the amount of the policy, etc.
    The appellant answered that the assured had failed to pay the premium due May, 1874, and that his policy had been indorsed forfeited before his death.
    The appellees averred the payment to have been made in draft upon Hendly & Co., and that the same was accepted by the company as a payment of the premium. This was denied by the company.
    November 22, 1876, the cause was tried before the court and resulted in a judgment in favor of appellees for $1,907.79. This appeal was taken from that judgment. The principal error assigned is that the judgment is against and not sup- ■ ported by the evidence.
   Opinion.— Only one question is presented by the record that it is deemed necessary to consider in disposing of this appeal. That is, was the acceptance by the company of the draft on Hendly & Co., and the delivery of the receipt to the assured, a payment of the premium?

By the stipulations contained in the contract of assurance the president and secretary of the company were alone authorized to sign receipts for premiums and to waive forfeitures.

Some seventeen days after the premium about which this controversy arose had become due the general agent of the company applied to the assured for payment of the same, and agreed to accept the assured’s time draft on Hendly & Co. for the premium; the interest for the delay was counted in, and the receipt for the premium, signed by the secretary of the company and countersigned by the general agent, was at the same time delivered to the assured; the draft was accepted by. the company; there was nothing said by either party as to the effect of non-payment of this draft by Hendly & Co. It was shown that the company had been in the habit of receiving deferred drafts for premiums.

In the case of the Life Insurance Company v. Ray, 50 Tex., 518, it was averred that the payment of the premium had been made to the agent by the assured with his draft on a third party, which was accepted as a payment; the company replied that the agent had no authority to accept such drafts in payment for premiums. Chief Justice Moore, delivering the opinion of the court, said: “ Concede that the appellant forbade its agents to accept drafts or bills in payment of their policies, the want of authority of the agent to receive payment in this way might be waived and such payment acquiesced in and accepted by the company. There was, unquestionably, evidence tending to prove that such was the fact in respect to this policy. If so, the payment was just as valid and effectual as if it had been made in cash.”

There is no question about a want of authority in this case; the act was that of the general agent, and the draft was accepted by the company without objection.

If the acceptance of the draft was not a payment of the premium, and the non-payment of it was ground for a forfeiture, why, then, after its dishonor, did the company write to the assured urging him to promptly remedy the matter?

These extreme and harsh forfeitures contained in policies of assurance are no favorites with courts. And that construction of the policy or acts of the company which leads to the enforcement of the same will not be eagerly sought for, if another construction, equally as just, and which precludes the exercise of a right of forfeiture, may be applied.

The conclusion arrived at by the court below, that the acceptance of the draft by the company, and the delivery to the assured of the receipt, was a payment of the premium, is fully sustained by the facts and circumstances of the case, and is certainly the most natural and just result that could have been obtained. The premium was paid by the draft; thereafter the company’s right of action against the assured was not upon the policy, but upon the draft. That premium debt had been merged into the draft.

■ But if it be conceded that the acceptance of the draft was not a payment of the premium, still we think that it does not admit of doubt, that, from the facts and circumstances of this case, the company could not forfeit the policy without first giving the assured a fair opportunity to pay the premium.

We conclude that the judgment of the court below is fully sustained by the evidence, and that it ought to be affirmed.


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    Aby Thompson, Adm’r, v. Robt. A. Rutherford.
    (No. 3061.)
    Evidence.— Error in admissipn in evidence of certified copies of written documents is rendered immaterial by the introduction of the original documents themselves.
    Case stated.— The original documents offered in evidence were over thirty years old at that time, came from proper custody . unclouded by suspicious circumstances, and it was shown that possession of the land had been taken and held under the location made by virtue of these instruments. Held, no additional evidence was necessary and they were admissible as ancient documents.
    Appeal from Travis county. Opinion by Watts, J.
    Statement.— As the original certificate issued to Apple-gate and his transfer thereof to Crockeron were properly admitted as evidence, any error committed by the court in admitting the certified copies from the general land office of these instruments became immaterial. These original papers were more than thirty years old at the time the suit was brought and the trial had. They came from the proper custody; no circumstances of suspicion appear to have attended them, and it is shown that possession of the land has been taken and held under the location made by virtue of these instruments. No additional evidence of their execution was necessary; they were admissible as ancient instruments.
    Appellant’s objections to the field-notes of this survey, as returned to the general land office, are not supported by the record.
    These field-notes are authenticated by the official certificate of the surveyor and are indorsed as recorded in his office.
    With respect to the three thousand acres of land claimed by appellee under this location, it clearly and unmistakably appears from the record that the three years’ limitation had interposed an effectual bar to any recovery of the land by T. J. Chambers long prior to the date of his death. Appellee shows title in himself to the four hundred acres of the Brook survey by regular chain of transfers from the sovereignty of the soil, and that actual possession of the land was taken under that title as early as the summer of 1857, and that such possession has been continuous since that time. Hence appellee had secured title to the land by the three years’ limitation before the statute of limitations was suspended by the civil war.
    The decree of partition in the suit of Wm. R. Redding against the surviving wife, heirs at law and legatees of Robt. L. Redding, deceased, divested, all right and title to the five hundred acres of land out of the Redding survey out of these heirs and legatees and vested the same in W. B„ Redding. This decree of itself constituted sufficient evidence of title in Wm. R. Redding, and it was not necessary for appellee in making out his chain of transfers from the state to adduce other evidence as to this particular link.
    Article 1481, Paschal’s Digest, provides that “in all cases where the district or supreme court shall decree a conveyance of real estate or the delivery of movable property or effects, they may, by decree, pass the title of such property without any act to be done on the part of defendant, when it shall be proper.”
   Opinion.— It will be noticed that tbve decree under consideration by its terms purports to pass the title of the five hundred acres of land from, these heirs and legatees to Wm. R. Redding, and that the decree wras fully .warranted by the above-quoted section of the statute. Appellants do not pretend that the evidence of possession by appellee, of this five hundred acres-of land, was not ample to sustain the plea of three years’ limitation. The .record shows that the limitation had interposed an effectual bar in behalf of the appellee prior to the 1st day of January, 1861. In deraigning title to the other tract of four hundred acres of the Redding survey, appellee shows title in himself to a" five-sixths undivided interest in the same; the other one-sixth appears to be in one of the legatees.

To this chain of title it is objected that the evidence disclose the fact that the land was the common property of Eobt. L. Eedding and his wife, and that therefore he could only vest title in one-half of the land in his other legatees. This proposition is not maintainable. By his will special bequests were made to the wife, and the remainder of the property, including that in controversy, was bequeathed to their children. From the record it may be presumed that Mrs. Eedding had elected to and did take under the will; for it does not appear that she ever interposed any objection to it, and the appellants are not in a position to do so for her at this late date.

Clearly appellee had held and occupied this land for the legatees (who claimed the same under a regular chain of title) for more than three years prior to the 1st of January, 1861; and that he had continued to hold and occupy the same since his purchase from the five legatees. This vested in him the superior title to the five-sixths undivided interest by limitation, and established a paramount outstanding title in his co-tenant, the other legatee, for the remaining one-sixth interest. In any event the appellant could not recover the land, for the reasons heretofore given; therefore the other errors assigned could not affect the result, and will not be considered.

Affirmed.


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    Witt, Murphy & Co. v. Repey, Hardee & Co.
    (No. 2774.)

    Charge of court.—A charge not wrong in point of law, but not embracing all the law applicable to the case, will not furnish reason for reversing the judgment unless proper instructions were asked and refused.

      Appeal from Dallas county. Opinion by Watts, J.
    Statement.— On the 12th day of- September, 1872, the appellees instituted this suit against W. E. Witt, R. B. Murphy and Alexander Buchanan, as partners, under the style and firm name of Witt, Murphy & Buchanan, on an account for §760.60 for merchandise sold and delivered by the appellees to the appellants at their special- instance and request; appending to their petition as an exhibit thereto a bill of particulars or invoice of the merchandise sold, bearing date May 8, 1872, verified by the affidavit of one of the plaintiffs (appellee in this court), and by the bookkeeper of appellees.
    October 9, 1872, defendant answered by general demurrer and general denial, and on the 21st day of October, 1873, the defendant Witt (appellant) filed a special plea denying that he was “a member of the said supposed firm styled Witt, Murphy & Buchanan, in and about the matters and things charged in plaintiffs’ petition, and if the goods were sold to such a firm it was without his authority, knowledge or consent.”
    February 4, 1875, defendant, R„ D. Murphy, filed special plea of same tenor and effect.
    February 15,1875, plaintiffs (appellees) filed special exceptions to these special pleas, for that they did not deny the partnership, but tacitly admitted it. Did not aver a dissolution and notice thereof given to plaintiffs, and was otherwise uncertain and insufficient, and on same day filed a motion to strike out these special pleas because they were not filed in due order of pleading.
    • By bill of exceptions March 6, 1875 (after trial), it appears that on trial (February 15, 1875) these exceptions were sustained and special pleas stricken out, defendants given leave to amend, who declined to do so in consequence of the presiding judge stating that he would permit defendants to prove, under their general denial, that they were not partners, and did not purchase the merchandise set out in the account sued on.
    On the 15th of February, 1875, trial on pleadings and evidence. Verdict and judgment rendered in favor of plaintiffs for §912.81.
    Motion by appellant Witt for new trial filed February 16, 1875. February 17, 1875, he files additional grounds for new trial, claiming judgment to be excessive. February 19, 1875, he “ amends his grounds for new trial,” asking it on account of newly-discovered evidence, and also files affidavit of himself and Murphy as to newly-discovered evidence on February 22, 1875.
    February.24, 1875, plaintiffs filed a-motion to strike out motions for new trial filed by defendants on the 19th and 22d of February, 1875, first, as coming too late; second, failing to show diligence in the discovery of testimony; third, that the newly-discovered evidence was cumulative. March 16, 1875, motions for new trial all overruled, and Witt appeals. March 8, 1875, plaintiffs entered a remittitur of $20.50.
    The errors assigned are, in effect, as follows:
    1. The court erred in sustaining exceptions to special plea denying partnership.
    2. The court erred in holding the onus of proof as to the partnership was on appellant.
    3. The court erred in the charge to the jury.
    4. The court erred in not granting motion for new trial.
   Opinion.— It is not necessary for us to determine the correctness of the ruling of the court in sustaining appellees’ exceptions to appellants’ special plea denying the partnership. It is manifest from the record that appellant was in no way injured thereby. • He was allowed to introduce under his general denial all his evidence tending to show that he was not a partner in the concern, etc. When' the exceptions were sustained, as shown by bill of excepiions, the court granted appellant leave to amend, but announced to him that it was not necessary to do so, as he would be allowed to introduce his evidence on that issue under his general denial; and appellant did not amend, but, as shown by the record, accepted the suggestion of the court and had the full benefit thereof.

The second assigned error is not sustained by the record. It does not appear therefrom that the court held or ruled that the onus was upon appellant to disprove the partnership, as alleged in the petition.

The charge of the court was a correct exposition of the law applicable to the case made by the evidence, to the extent that it went; and if it did not embrace all the law-applicable to the case, the appellant -should have asked such additional instructions as he thought proper to have been given.

In the case of Robinson v. Varnell, 16 Tex., 382, the court held “that a charge not wrong in point of law, but not embracing all the law applicable to the case, will not furnish reason for reversing the judgment unless proper instructions were asked and refused.”

The appellant did not ask any additional instructions, nor did he except to the charge of the court as given.

A careful examination of appellant’s motions for a new trial, and affidavit thereto attached, fails to disclose any merit in said motions. It does not appear but that by the exercise of reasonable diligence the newly-discovered evidence set forth therein could have been made available on the trial.

The same appears to be merely cumulative of evidence introduced on the trial by appellant.

The cause was fairly submitted to the jury, and their finding is fully sustained by the evidence, and we see no valid reason for reversing the judgment.

Affirmed.