state introduced the controverting affidavit of Darst, in which he stated: "That he was a member of the grand jury at the March term, 1897, which found the bill of indictment against the defendant, but he had no recollection of the testimony before said body respecting the return of an indictment against said defendant, if such was heard; affiant was on defendant's appearance bond, and brought defendant into court on Monday, the 28th of March, 1898; and affiant's feelings towards the defendant were and are kindly. When this case was called for trial on the 28th of March, affiant, whose name was on the venire of jurors in the case, stated to the court, in open court, that he was on the grand jury at the March term, 1897; that he was on defendant's bond, and did not want to serve on the jury, and asked to be excused; and, notwithstanding this, he was accepted as a juror by both the state and defendant, and served as such, much against affiant's own wishes." The state also introduced the affidavit of C. C. Everett, who stated: "That he was present at the impanelment of the jury which tried the case; that the juror Darst was one of the defendant's bondsmen; and at the request of the court brought the defendant into court on the morning of the trial. The fact that said Darst was on the defendant's bond, and the said Darst felt kindly towards the defendant, was well known to the defendant and his counsel. Said Darst's name was on the venire of jurors in this case, a copy of which was in defendant's possession before and at the time. The customary questions asked jurors in a murder case---that is, as to scruples about capital punishment, bias or prejudice, and formation of an opinion as to the case-were propounded to Mr. Darst in open court and in defendant's presence. In answer to the last question Mr. Darst said, in substance, that he knew Dave Self, the defendant; was on his bond; had heard the killing discussed and talked about considerably, but could, he thought, render a verdict according to the law and evidence; but that he did not want to sit as juror because he was on defendant's bond, and also because whatever conclusions he might come to might be misconstrued, and was insistent that he be excused. The defendant's counsel asked Mr. Darst several questions on how far what he had heard might lead to a fixed opinion in Mr. Darst's mind, and was given every opportunity to test the qualifications of the juror, and had not exhausted his challenges. The state's counsel accepted the juror, and he was turned over to defendant for acceptance or rejection; and the defendant, after consulting with Mr. Kirkland, his counsel, for some considerable time, deliberately accepted Mr. Darst as a juror."

The law makes the fact that the juror served on the grand jury which found the indictment a cause for challenge. See Code Cr. Proc. 1895, art. 673, subd. 7. It will be noted

that a juror who may have sat upon the grand jury is not disqualified as a juror; but, as provided by statute, it is a mere cause for challenge, of which a defendant may or may not avail himself. Appellant, however, insists that he was unacquainted with this cause of challenge from no fault of his own; that he used due diligence to discover the fact when the juror was impaneled by asking him if he had formed an opinion in the case, and, on the juror replying that he had not, according to the testimony of the juror himself and according to the testimony of Everett that the opinion he had was not a fixed opinion, he did not prosecute the inquiry any further, because, from the answer of the juror, he was authorized to assume that he did not sit upon the grand jury. So that the question presented to us is one of diligence in discovering the cause of challenge, and, if he failed in the exercise of this diligence, then he cannot be heard to complain. See And v. State, 36 Tex. Cr. R. 76, 35 S. W. 671. We understand the claim to be that, while the statute makes the sitting on a grand jury a distinct cause of challenge, yet this is based on the apprehension that a person having sat upon the grand jury which found the bill of indictment must necessarily have formed an opinion in the case adverse to appellant, and that therefore he is subject to challenge. This may be true; but does it obviate the necessity that appellant, when the jury is impaneled, shall ask all the statutory questions which bear upon the matter of disqualification? A juror might very truthfully answer that, notwithstanding he may have served upon the grand jury that returned the bill of indictment, he had no present recollection of having formed an opinion in the case; whereas, if his attention had been called directly to the fact as to whether or not he sat upon the grand jury that found the bill of indictment, he might recall the fact. The law makes the having sat on the grand jury that found the bill of indictment, and the formation of an opinion in the case, two distinct grounds of challenge; and we hold that the interrogation of a juror as to one of these grounds might not suggest to him the other. Evidently, in this case, the questioning of the juror under the thirteenth subdivision of article 673, as to whether or not he had formed an opinion in the case. did not recall to him the fact that he had sat upon the grand jury which found the bill of indictment. And we further hold that it was not diligence on the part of appellant to rest simply upon questioning the witness as to the formation of an opinion; but he should have covered the other grounds named in the statute, if he desired to avail himself of them, before he could be held to have used due diligence as to the particular cause for challenge. It furthermore appears from the record that appellant was on very friendly terms with the juror Darst,-said juror having gone on his bond,-and, if we look to the

affidavit of Everett, this witness states that the juror informed counsel that he had an opinion in the case. It is not shown that counsel was even diligent in pressing his inquiries on this line. If he had been, possibly he might have developed the fact that the juror Darst had sat upon the grand jury which presented the bill. At any rate, it appears to us that counsel, knowing that the juror was friendly-disposed towards him, from some cause failed in diligently pressing the statutory inquiries as to grounds for challenge, and, having so failed, he cannot now be heard to complain. See Trueblood v. State, 1 Tex. App. 650; Franklin v. State, 2 Tex. App. 8; Lester v. State, Id. 432; 6 Cr. Law Mag. 305, and authorities there cited.

The evidence amply supports the verdict, and the judgment is affirmed.

SPENCER v. JONES.1

(Court of Civil Appeals of Texas. June 18, 1898.)

PARTNERSHIP

SCOPE POWER OF PARTNERS PLEDGES-APPEAL-ASSIGNMENTS OF ERROR. 1. Two parties purchased land under an agreement that title be taken in the name of one for their joint benefit. Notes secured by lien were given the vendor, signed by the party who took title. While these notes were outstanding, said party conveyed the land, taking notes in his name for the price, secured by liens. Before such notes were collected there was a settlement between the original purchasers, in which there was a division of the notes received from the subpurchasers, with an agreement that the party in whose name title had been taken should, out of the notes allotted him, pay those given by him to the original vendor. Held, that said transaction constituted a partnership, from which authority could be inferred for the purchaser who took title to bind his co-purchaser in the negotiation of the notes allotted to the former in the settlement.

2. An assignment of error reading, "If the evidence shows such a partnership, and if the agreements between C. and S. constitute a partnership, it is clear from all the evidence that the partnership was dissolved prior to the time plaintiff bought the notes sued upon," is insufficient, as it does not complain of any proceeding in the trial court.

3. An assignment of error reading. "Plaintiff could acquire no higher interest in the land than C., and C. could not ask that this defendant should pay the notes due. to Z.," is insufficient, as being a mere argument.

4. A sale under which the seller reserves the privilege of buying back the property is not a pledge.

Appeal from district court, Erath county; J. S. Straughan, Judge.

Action by M. G. Jones against A. A. Chapman, R. B. Spencer, G. W. Simpson, and William C. Vowell. From a judgment in favor of plaintiff, defendant R. B. Spencer appealed. Affirmed.

Frank & Young, for appellant. Martin & George, for appellee.

1 For opinion on motion for rehearing, see 47 S. W. 665.

STEPHENS, J. This suit was brought by M. G. Jones against A. A. Chapman, R. B. Spencer, G. W. Simpson, and William C. Vowell, to recover of Simpson as maker and Chapman as indorser the amount of three negotiable promissory notes executed August 2, 1892, by Simpson to Chapman, to pay for a tract of 105 acres of land, a part of the G. Rockfeller survey, in Erath county, conveyed by Chapman to Simpson, by deed of even date with the notes, in which the vendor's lien was expressly retained upon the 105 acres of land so conveyed. The main purpose of the suit, however, was to subordinate a prior lien claimed by R. B. Spencer upon said Rockfeller survey, arising out of a sale and conveyance made April 21, 1890, from Z. Bartlett to A. A. Chapman, of 420 acres of said survey, including the 105 acres upon which Jones sought to foreclose his lien. Vowell was made a party, as vendee of Simpson. The conveyance from Bartlett to Chapman was made in pursuance of an agree ment between Chapman and Spencer that the title should be taken in the name of Chapman for their joint benefit, it being the agreement that they would divide equally the profits of the venture. Besides a cash payment, five notes of $420 each were executed, secured by a lien on the land. While these notes were outstanding, Chapman conveyed the land in four several tracts of 105 acres each to the following persons, respectively: Simpson (G. W.), Hayden, Clardy. and Petty,-taking their several notes for the deferred payments in his own name, with liens reserved on the land, that conveyed to Simpson being the tract involved in this suit. Thereafter, and before the Simpson, Hayden, Clardy, and Petty notes had been collected, in the latter part of the year 1892, the evidence tended to show that Chapman and Spencer had a settlement, in which the notes of Simpson and Hayden were allotted to Chapman, and those of Clardy and Petty to Spencer, with the further agreement that Chapman should pay out of the notes allotted to him those held by Bartlett. In the spring following, Chapman sold and assigned, for a valuable consideration, the Simpson and Hayden notes to Jones, falsely representing at the time, and thereby deceiving Jones, that the Bartlett notes had been paid off, and that lien extinguished. The evidence tended further to show that, in the transaction between Chapman and Jones. Chapman promised Jones to redeem these notes in the fall of that year if Jones should desire him to do so. After Jones acquired these notes, Spencer, who still held the other notes (Chapman having become insolvent), paid off the Bartlett debt, and took an assignment thereof to himself, under which, pending this suit, he became the purchaser at execution sale of the 420 acres, under a judgment foreclosing the Bartlett lieh. On the first trial. Jones was denied any recovery against Spencer; but upon appeal to this

court that judgment was reversed, and the cause remanded. See 41 S. W. 527. But upon the last trial he prevailed, and Spencer now appeals.

The first error is assigned to the verdict, upon the ground that the evidence failed to show a partnership between Chapman and Spencer; but, as we read the record, the evidence did not admit of any other conclusion than that Chapman and Spencer bought the Rockfeller land from Bartlett in partnership, and that, in disposing of the notes assigned to Jones, Chapman was acting within the scope of this partnership. This assignment must consequently be overruled.

What is copied in the brief as the second assignment of error reads: "If the evidence shows such a partnership, and if the agreements between Chapman and Spencer constitute a partnership, it is clear from all the evidence that the partnership was dissolved prior to the time plaintiff bought the notes sued upon." We are of opinion that, as this statement does not complain of any proceeding in the trial court, we cannot consider it as an assignment of error. But, if so treated, we are of opinion that it would not necessitate a reversal of the judgment, since, in assigning the notes sued upon to Jones, Chapman was acting in pursuance of an understanding with Spencer to the effect that he should use the proceeds thereof in the liquidation of the original partnership liability. Jones had no notice of any dissolution, but, according to his testimony, understood when he acquired the notes that Spencer was still interested with Chapman; and, whatever private dissolution may have taken place between Chapman and Spencer, it is clear that Spencer was still liable to Bartlett for the original partnership debt, though his name did not appear in any deed or note. It is also clear that Spencer in the first instance had clothed Chapman with the apparent ownership of the notes. See the latter part of our opinion on the former appeal.

The third and fourth assignments are not copied in the brief, and are consequently waived. What is submitted as the fifth assignment is similar to the second, quoted above, and reads: "Plaintiff could acquire no higher interest in the land than Chapman, and Chapman could not ask that this defendant should pay the notes due to Z. Bartlett." This complains of no proceeding in the court below, and is but an argument. What is submitted as the sixth assignment is of like import. The seventh complains of the court's failure to instruct the jury upon a given point, but it does not appear that any such instruction was requested.

This brings us to the eighth and last assignment found in the brief, which complains of the court's refusal to give special instruction No. 1 requested by appellant, reading: "If from the evidence you find that there was a partnership between A. A. Chapman and R. B. Spencer, as herein defined,

and if you find from the evidence that M. G. Jones, the plaintiff, loaned money to A. A. Chapman, and took as security therefor, then you are instructed to find for the defendant Spencer, unless you find that the contract of co-partnership extended to and included an agreement to borrow money upon the security of the notes, of the contract of partnership, if one existed, did not extend to and include an agreement to borrow money upon the notes as collateral, then Chapman, as a partner, was not authorized to borrow money upon them as security." The charge, as copied in the transcript, is hardly intelligible, and perhaps should have been refused on that ground. We infer from the brief that in requesting it appellant sought to have the jury instructed that in the event they found that Chapman had not sold the notes to Jones, but had only pledged them as collateral security for a loan, they would find in favor of Spencer, unless they should further find that the partnership included an agreement to borrow money upon these notes as collateral security. We are, however, of opinion that, if sufficient in form, the charge should not have been given, because the evidence did not tend to prove that Chapman had borrowed money from Jones, and pledged the notes as security therefor. It is true. Jones testified that Chapman promised him at the time he purchased the notes from him that he would redeem them in the fall if Jones so desired; but there was no evidence that Chapman had obligated himself to pay to Jones at any future time any particular sum of money. In fact, it is clear from the evidence that the relation of debtor and creditor did not at any time exist between them. and it is also clear that Jones did not obligate himself to surrender these notes to Chapman upon the repayment to him of any sum of money. The most that could be claimed is that Jones bought the notes from Chapman, with the privilege of a resale to him.

These conclusions dispose of all the assignments of error. Independent reasons might be given, we think, why this judgment, upon the whole record, should be affirmed; but we deem it unnecessary to do so. Judgment affirmed.

TARLTON, J., not sitting.

HARDEMAN COUNTY v. FOARD COUNTY. 1 (Court of Civil Appeals of Texas. June 18, 1898.) 2

COUNTIES CREATED OUT OF OTHERS BONDS-IsSUANCE-VALIDITY-REGISTRATION-CORRECTION OF TAX ROLLS BACK TAXES LIMITATION PARTIES.

1. Rev. St. 1895, tit. 23. art. 764, makes a county created in part out of another county liable for its proportionate part of the indebtedness of the parent county. Held, that the 1 For opinion on rehearing, see 47 S. W. 536. 2 Writ of error denied by supreme court.

taxpayers of the portion of the new county taken from the old, in a suit for such proportion, were not necessary parties.

2. In an action by a county to recover of a new county, formed partly out of it, the latter's proportion of indebtedness accrued prior to its formation, the latter pleaded limitations of two years. The new county had paid on its proportion of the indebtedness to within two years of the filing of the suit. Held no defense, since the cause of action did not arise until the discontinuance of payment.

3. The commissioners' court of a county, in issuing bonds, failed to make provision for their payment. The legislature, however, in authorizing the issuance of such bonds, provided for the levy and collection of the necessary taxes. Held, that the bonds were valid.

4. Sayles' Rev. Civ. St. 1888, art. 986b, prescribes a limit within which a county already indebted shall issue bonds. A county already indebted issued bonds in excess of such limit. Held, that they were void as to the excess.

5. Bonds described in their registration as being payable to the "State of Texas" were payable "to bearer." Held not to invalidate them, since the statute does not prescribe what the registration shall contain.

6. Rev. St. 1895. art. 765, provides that in an action by a county to recover of another, created out of it. its proportion of the indebtedness of the original county, the tax rolls shall be conclusive evidence of the property therein. Held that, in order to ascertain whether a given survey appearing in such rolls is in that territory, its locality would be looked to, and the map of the county was admissible to determine where it was situated; and where the tax rolls, together with such map, show that the same land had been twice listed, the rolls were not conclusive.

7. A county created out of another, in an action by the latter for its proportion of the indebtedness that accrued prior to the creation of the new county, was not entitled to a credit for the back taxes collected by the parent county in the excised territory after the organization of the new county.

Appeal from district court, Hardeman county; G. A. Brown, Judge.

Action by Hardeman county against Foard county to recover the latter's proportion of their indebtedness incurred prior to their separation. From a judgment, plaintiff appeals. Reversed and rendered.

S. J. Osborne, Co. Atty., B. E. Green, and Duncan G. Smith, for appellant. Huff & Hall and M. M. Hankins, for appellee.

STEPHENS, J. Bonds to the amount of $10,000 were issued by Hardeman county in the year 1886, to pay for the construction of a jail at Margaret, then the county seat. In the year 1890 the county seat having been moved from Margaret to Quanah, bonds to the amount of $18,000 were issued to build a court house; and afterwards, during that year, bonds were also issued to the amount of $43,000, to build bridges across Pease river and Groesbeck creek, in Hardeman county; and in the early part of the year 1891 still other bonds, to the amount of $10.000, were issued to build a jail at Quanah. On March 3, 1891, an act of the legislature was approved creating the county of Foard out of parts of the territory of Hardeman, King, Cottle, and Knox counties, but largely out

of the territory of Hardeman; and in the following month the county of Foard was duly organized. All of the bonds above referred to were issued prior to the creation of Foard county, though the jail at Quanah, for which the last issue of jail bonds was made, was not accepted until March 23, 1891, which was after the creation and before the organization of the new county. Up to April 10, 1896, Foard county made regular annual payments to the treasurer of Hardeman county of her proportionate part, as agreed upon by the county judges of the two counties, of the interest and principal of all the bonds of Hardeman county in existence at the date of the creation of Foard county, which money was regularly applied by the treasurer of Hardeman county, together with the corre sponding payments of the latter county, to the extinguishment of the annual interest in full, as well as to the principal, of certain of the bonds so paid off. Hardeman county had already paid a portion of the Margaret jail bonds when Foard county was created, and the rest of those bonds were thereafter extinguished by the conjoint payments of the two counties, made in the manner above stated, leaving outstanding against Hardeman county the court-house bonds, bridge bonds, and Quanah jail bonds. Of these, Hardeman county, between April 10, 1896, and April 10, 1897, besides paying the annual in terest, amounting to $3,960, redeemed three of the court-house bonds, aggregating $3,000, and four of the bridge bonds, aggregating $4,000. Foard county refused to make any further payments after April 10, 1896. This suit was consequently brought by Hardeman county, August 16, 1897, against Foard county, to recover of the latter its proportionate part of the indebtedness and liabilities of the former. The defenses interposed were (1) that the people and taxpayers residing in the territory taken from Hardeman county, rather than Foard county, were necessary parties defendant; (2) the statutes of limitation of two and four years; (3) the invalidity, upon various grounds, of the bonds; (4) a mistake or double assessment in the tax rolls of Foard county for the year 1891, to the amount of $131,150; and (5) an offset claimed not only on account of payments made by Foard county upon void bonds and in excess of her share, but also an offset or counterclaim of $553.56 for back taxes collected by Hardeman county after the creation of Foard county, upon renditions made by citizens of the excised territory prior to the creation of Foard county.

The case was submitted to the court, without a jury; and upon conclusions of law and fact, printed in appellant's brief, judgment was entered to the effect that the original issue of jail bonds made in 1886, to build the Margaret jail, were void; that the bridge bonds issued in 1890, for $43.000, were excessive to the amount of $16.557, and hence illegal and void to that extent; and that as