
    George W. Carroll v. Wm. and Eliza Watson.
    (No. 2812, Op. Book No. 4.)
    Appeal from Milam County.
   Opinion by

Willson, J.

§ 402. Evidence in rebuttal; to what extent admissible in our practice. Appellant having by his evidence established aprima facie right to recover against appellees for the cattle, closed his evidence. Appellees having fully rebutted the prima facie case made out by appellant, and by their evidence made good their defenses to the action here, closed their testimony. In rebuttal, appellant proposed to prove by several witnesses that appellees had not complied with the conditions named in the deed of conveyance of the cattle; that they had never had possession of the cattle until February, 1882, and up to that time had not claimed the cattle as their property, but had all the time prior to that date admitted that the cattle belonged to appellant’s wife, Mary Carroll. This evidence was objected to by appellees, and rejected by the court upon the ground that it was merely cumulative and was not in rebuttal of any new and independent evidence introduced by appellees, and that appellant could introduce in rebuttal only such evidence as would be in reply to new matter introduced by appellees about which appellant, in opening his case, had introduced no evidence. Held, error. At common law the rule adopted by the trial judge in rejecting this evidence would be sanctioned, but the common law rule upon this subject has not been followed in this state. In Markham v. Carothers, 47 Tex. 21, it is held that the usual and correct practice is that the party holding the affirmative of the issue is only required to make a prima facie case in the opening, and may reserve confirmatory proof in support of the very points made in the opening till he finds on what point his opening case is attacked, and then fortify it upon those points.

June 2, 1883.

Reversed and remanded.  