
    John Mays v. Lewis.
    An affidavit for a continuance should not be so general in its terms as to make it impossible to have a conviction for perjury in ease it be willfully false.
    It is not sufficient in a first application for a continuance to state that due diligence had been used to procuro the necessary testimony; the facts constituting due diligence must be shown. (Note S.)
    It is no objection to the jurisdiction of the District Court that one of several demands sued on is for a less amount than §100; and it is equally immaterial whether any ono of the claims amount to that sum, provided that all of them in the aggregate do so.
    Counts in pleading, technically speaking, arc entirely unknown to our practice. The plaintiff sets out in his petition his grounds of action, distinctly alleging the facts on which his right to recover is based. If it ho founded on contracts or promises in writing, ho is required so to desorillo them as to adviso the defendant of the grounds on which he relies.
    In an action by the vendor against the vendee for the purchase-money, where the vendee answered that the vendor had no title: IIeld> That evidence offered by the vendee that that the vendor had relocated the land subsequently to the sale was properly rejected.
    A vendee not only takes the title held by the vendor at the time of the sale, but whatever other additional title the vendor may afterwards acquire inures to his benefit.
    It is a very common occurrence in this country for a man, out of abundant caution, to fortify an old title that ho believes to be valid by locating on it again, thereby uniting the old and the new in himself; and in doing so lie is not thought to be repudiating his old title.
    Where the jury found “thatthe plaintiff shall be entitled to the full amount specified in the “promissory notes adduced in the case and drawn by defendant in favor of said plaintiff, together with the legal interest due thereon, making deduction of all amounts indorsed “on them as paid: ” Held, That the verdict was not sufficiently certain to authorize the entry of judgment. (Note 9.)
    In considering a verdict with a view to its sufficiency, the first object is to ascertain what the jury intended to find; and this is to be done by construing the verdict liberally, with the sole view of ascertaining the meaning of tlie jury, and not under tile technical rules of construction which are applicable to pleadings,
    ■Wherever a verdict is neither certain in itself nor finds facts from which certainty can be attained, it ought to be set aside.
    Appeal from Guadalupe. Tlie appellee sued (.lie appellant upon three promissory notes, one of which was for less than $100. There were some credits indorsed upon the notes. The, defendant answered by a. general denial of indebtedness, and pleaded that the notes were given for land sold by the plaintiff to the defendant., as would appear by reference to a bond for' title given by plaintiff to the defendant; Unit the plaintiff had no title to tlie land, and had, subsequently to the sale to defendant, located on the same; and that he, the defendant, had made considerable improvements on the land. The bond for title was not exhibited nor offered to be surrendered. The defendant, however, averred that it was worthless. The plaintiff excepted to the defendant’s answer; but the record does not show that any disposition ivas made of the exception.. At the second term of the court the defendant, applied for a-continuance, making affidavit that he could not go safely to trial 'for the want of certain testimony; that he had used duo diligence to obtain it, but had not had sufficient time to do so. The continuance ivas refused. On the trial the defendant offered testimony to prove that after the sale of the. land from, the plaintiff to the defendant the former had located it. The plaintiff objected and the testimony was excluded.
    There was a verdict for the plaintiff in the following words: “We, tlie jury “impaneled in the case of M. B. Lewis v. John Mays, render verdict in favor “ of said Lewis, to the effect that the said M. B. Lewis shall be entitled to the “ full amount specified in the promissory notes adduced in the case and drawn “ by tlie said Mays in favor of said Lewis, together with tlie legal interest due “thereon, making deduction of all amounts indorsed on them as paid.” Judgment was rendered for the amount of the notes and interest, less tlie credits indorsed. The defendant appealed.
    
      Sneed Sf Oldham, for appellant.
    I. The affidavit presented by the appellant for a continuance of tlie cause in the District Court we think strictly conforms to the provisions of tlie act of the Legislature upon tlie subject. Ít ivas the first continuance asked for by him, and tlie refusal of tlie court to grant the continuance was erroneous. (Hipp v. Bissell, 3 Tex. B., 18.)
    II. The jurisdiction of tlie District Court is special and limited by the Constitution. It cannot take cognizance of matters in controversy under the value of $100. (Const., art. 4, sec. 10.) A note for $30 is not within its jurisdiction ; and it is insisted that such a note cannot be blended with another, over $100, so as to give the District Court original jurisdiction of the smaller one. Each note is a separate and distinct contract. Tlie amount in controversy, which determines the jurisdiction, is the subject-matter of each contract, and not of several consolidated contracts. (Ligiitfoot v. Dayton, Hard. B., 3; Harris v. Smith, 7 Mon. B., 311; Berry v. Linton, 1 Ark. E., 252; Fenter v. Andrews, 5 Ark. B., 34.)
    III. We conceive that the verdict is so decidedly uncertain and defective that no judgment could be pronounced upon it. It is the province of the jury to find the facts in issue between the. parties, and of the court to pronounce the law upon such finding. The verdict is tlie basis of the judgment, aud tlie latter should conform to the former.
    In this case the jury determine nothing- by their verdict upon which a judgment could bo based. They “find that the plaintiff shall ho entitled to the “ full amount specified in the notes adduced in the case and drawn by the said “ Mays in favor of the said Lewis, together with tlie legal interest due thereon, “making deduction of all amounts"indorsed on them as paid.’-’ It was the duty of the jury to assess tlie damages, to calculate the interest upon the sum due, and deduct the credits, and thereby ascertain the amount still due, fot which the judgment of the court was to ho rendered. But upon tills verdict no judgment whatever could he rendered; and to enable tlie court to render a judgment, it was compelled to assume the prerogative of the jury, and assess the damages, which they had left to be doue. The judgment then is rendered, not upon the verdict of tlie jury, hut for the damages assessed by tlie court. The court calculated the interest, deducted the credits, and ascertained the balance duo. Iu certain cases, where the damages are to he assessed by calcula! ion upon the instrument sued upon, tlie statute authorizes the court to assess them; but iu no case, even where it depends upon a mere matter of calculation, when the parties submit tlie cause to the determination of a jury, has tlie court, as we conceive, any province to ibid the facts; but can only pronounce tlie sentence of tlie law upon tlie facts found.
    IV. The evidence excluded by tlie court tended to show that the appellee hml no title to tlie land alleged as constituting the consideration of tlie notes sued on. The proof, taken in connection with other proof, might have established the fact that there was a failure of or no consideration for tlie notes. That the vendor had no title is a good defense to an action for tlie purchase-money was decided in Tarpley v. Poage’s Adm’r, (2 Tex. It., 189.)
    Jlf. B. Lewis, for appellee.
    There was no error in overruling the motion for a continuance. Tlie right to a continuance is statutory, and tlie requirements of the statute must be strictly complied with. The affidavit does not state any diligence to procure tlie testimony. It admits that- no diligence was used, and would excuse non-user thereof, on the ground of impossibility, for want of time, &c.
    There was no error in excluding evidence that the plaintiff had located the land subsequent to tlie sale. To lity and prove one title in tlie plaintiff in order to defeat another would be absurd)
    Tlie verdict is a good verdict; the finding is sufficiently certain to sustain the. judgment. Tlie only issue was debt on tlie notes specifically set out in the petition. Tlie jury rendered verdict in favor of the said Lewis for tlie full amount specified iu tlie promissory notes adduced in tlie ease and drawn by tile said Mays in favor of tlie said Lewis, together with tlie legal interest due thereon. This is certainly finding the fact of indebtedness and the amount. Calculation of the amount of the liotcs and interest due was but a clerical duty which tlie clerk might perform, and which it was not indispensably necessary for the jury to do in order to make their verdict good. No miscalculation of tlie clerk or court or plaiuCiff could ever defeat tlie verdict in this case and give a different amount from that found by the jury and rendered by their Verdict. If any such error had been made in the case the defendant could easily have detected it by calculation; and on application to this court the error would have been revised and judgment corrected. (3 Pet. Dig., p. 689, sec. 7 ; Id., sec. 20; Id., p. 690, sec. 27 ; Burton v. Anderson, 1 Tex. R., 93; Briscoe v. Bronangli, Id., 326; 3Ü.S. Dig., p. G27, secs. 1, 3, 5, 7,11,14; Id., p. 629, sec. 63.)
   Lipscomb, J.

Tlie first error assigned that will be considered is tlie refusal of the court- io grant a continuance. We believe that the motion for a continuance ought to liave been overruled, as tlie affidavit showed no sort of diligence used to procure the absent testimony, and was so general in its terms as to make it impossible to liave a conviction for perjury liad it been willfully false; and it. was at the second term of tlie court when, tlie application was made. It does not define the character of (lie evidence, where it is to be obtained, nor any reason why efforts had not been made Io procure it.. He swears that, duo diligence liad been used to obtain it, '"hut ilia same cannot be prepared and u shown at the present, term.” Hi lie liad used diligence, lie certainly could have shown in what it. consisted. The motion for a continuance ivas very properly overruled by the court.

The iiext error assigned is that the court lias no jurisdiction iu tlie case. This assignment is founded on the fact that one of the notes set out in the plaintiff’s petition is for a sum under the jurisdiction of the District Court, and cognizable before a justice of the peace. It is a rule applicable to a declaration, according to the English practice, that where different notes or acknowledgments are sued on, each one must be separately counted, and that each count, must show of itself a sufficient cause of action; but even a strict compliance with that system could not oust the jurisdiction in this case, because two of the counts would be good, as two of the notes are for an amount sufficient to give jurisdiction, and the objection would be confined to one count only; and if that was-bad, it would not vitiate the two good counts. This would have been the result of a strict application of the rules of practice to a common-law declaration; but it is believed that a less stringent rule would now prevail even under that system. If the largor note would give the court jurisdiction, it would then attach to the smaller one. It is needless, however, further to discuss the effect of the common-law rules of practice; wo have a different system. Counts in pleading, technically speaking, are entirely unknown to our practice. The plaintiff sets out in his petition his grounds of action, distinctly alleging the facts on winch his right to recover is based. If founded on contracts or promises in writing, he is required so to describe them as to advise the defendant of the grounds on^vhieh ho relies1. But I apprehend that the amount of the defendant’s indebtedness to him at the time suit is brought must form (lie criterion for determining the, jurisdiction of the court; and if the aggregate of the indebtedness, being by distinct promises of different amounts, be within the jurisdiction of the court, it is sufficient. I am fully asvare that, in those courts governed by common-law rules of practice, it luis been held otherwise; and that a party will not he permitted to unite two distinct promissory notes, neither of them alone of sufficient amount to give jurisdiction to the court. I apprehend, however, that (his arises from the form of their declaration, and that eacli separate count must show a right of action. I can see no reason why, under our practice,, it should not be allowed. Tiie.se different notes would be, only evidence showing the amount of indebtedness ; and the cost and inconvenience to parties would in all probability be not so great attending one suit in a higher tribunal as they would be if several suits were brought, one on eacli promise, in an inferior jurisdiction.

Tlie objection to the judgment of the court below, founded on the rejection of testimony offered by the defendant, as set out in the hill of exceptions, merits hut little consideration. The evidence was intended to prove that (he notes sued on were given for the purchase oí a tract of laud from the plaintiff, and that it was the same' land on which, the defendant llien resided; that the plaintiff liad,'since his sale to the defendant, made a location on the land. The evidence amounted to no defense against the action; and id is a singular objection to come from the vendee that his vendor lmd strengthened the title sold by the additiou of another title; as it is a principle not to be controverted that the vendee enjoyed not only the title held by the vendor at, the time of making the sale, hut whatever additional title the vendor might afterwards acquire would inure to the benefit of his vendee. It is a very common occurrence in this country for a man, out of the abundance of caution, to fortify an old title that lie believes to be valid by locating on it again, thereby uniting the, old and the new in himself; and in doing só lie is not thought to be repudiating iiis old title.

Tlie next error assigned is one of some difficulty. It is that the verdict docs not support tlie judgment of the court for want of certainty. Tlie verdict will bo found to bo expressed in the following terms:

“We, (lie jury impaneled in the case, of M. It. Lewis v. John Mays, render “verdict in favor of said Lewis, to tlie effect that tlie said M. It. Lewis shall be “entitled to tlie full amount specified in tlie promissory notes adduced in the “case and drawn by the said Mays in favor of tlie said Lewis, together with “the legal interest due thereon, making deduction of all amounts indorsed on “ them 'as paid. James P. IIeotob, Foreman.”

i Note s. — The affidavit, must specify the mode and time of sending commission to take deposition, (Johnson v. Evans, 15 T., 39.) the time when a subpoena was delivered to the sheriff, (Williams v. Edwards. 15 T., 41.) In accounting for tiie absence of the use of tile ordinary means of obtaining testimony, where tiie ignorance of any cire.umstaneo is stated as a ground therefor, it should appear that such ignorance was not owing to the want of proper diligence. (Lewis v. Williams, 15 T., 47.) When made by tile attorney it must exclude the conclusion that it was so made because the party himself could not conscientiously make it. (Robinson v. Martel, 11 T., 149.) The issuance of a subpoena is not sullicient when tho witness resides in another county. (Baker v. Kellogg, 16 T., 117.) Continuance will not be granted where there is no defense. (Fowler v. Buckner, 23 T., 84.) When tho facts are disclosed by the affidavit the coin-twill cousider them in acting upon tho application. (Williams v. Talbot, 27 T., 159; Flournoy v. Marx, 33 T., 786, Douglass v. Neil, 37 T., 528.)

Note 9. — When tiie question of fraud or notice was the controlling issue in tho case, and the jury found "for the defendant on tiie account of fraud,” it was held that the verdict -was a general finding for tiie defendant of all tiie material facts well pleaded in tho answer. (Hamilton v. Rice, 13 T., 382.) In a suit upon an open account the jury rendered the following verdict: '• Wo, tho jury, find for the plaintiffs, and (hat the defendant pay tiie costs,” &c.; hold to bo insufficient. (Harrell a. Babb, 19 T., 148.) Where in an action of trespass to try title the verdict of tiie jury found for tiie plaintiff "the land described in tho petition, less 767½ acres, .as described in tiie deed read in evidence from B. F. Hooper to C. M. Adams,” held, that no judgment could he rendered thereon. (Smith v. Tucker, 25 T., 594.) But it is sufficient if tho verdict is intelligible, can be rendered certain, and finds substantially the material issues submitted by the pleadings. (Burton v. Anderson, 1 T.,93; McMullen v. Kelso, post, 235; Randon v. Barton, post, 289; James v. Wilson, 7 T., 230; Wills v. Barnett, 7 T., 584; Horton v. Reynolds, 8 T., 284; Smith v. Johnson, 8 T., 418; Parker v. Leman, 10 T., 116; Avery v. Avery, 12 T., 54; Reynold v. Johnston, 13 T., 214; Galbreath v, Atkinson, 15 T., 21; Moke v. Fellman, 17 T., 367; Darden v. Mathews, 24 T., 321; Secrest v. Jones, 30 T., 596; Loggins v. Buck, 33 T., 113; Wood v. Wilder, 42 T., 396.)

If the meaning of the jury in this vei-clicfc is certain ancl definite, or famishes sufficient facts to enable the court to render their intention certain, the judgment ought not to be set aside if it conforms to the finding of the jury. The Supreme Court of Kentucky has laid down tiie rule for construing verdicts tobe: “In considering the verdict itself, with a view to its sufficiency, “the first object is to ascertain what the jury intended to find; and this is to “be done by construing the verdict liberally, with the sole view of ascertaining- the meaning of tire jury, and not under the technical rules of construe-“tiou wliieh are applicable to pleadings.” (Miller et al. v. Shackelford, 4 Da. R., 271.) Again, it is said that “ every reasonable construction is to be adopted “in support of a verdict.” (Huntington v. Ripley, 1 Root. R., 321; U. S. Dig., title Verdict, 5.) And this court, in the case of Burton v. Anderson, (1 Tex. R., 98,) says: “ The rule is believed to be well settled that if the verdict is sufficiently certain to he rendered certain, it is good.” In the case before us, after giving tiie benefit of the rules cited, caii it be sustained? I am constrained to say that from the best reflection I have been able to give tiie question, and with a strong- inclination of mind to sustain it, I find nothing in the verdict itself nor in tiie record to render it certain.

The difficulty, in my mind, arises from tiie words “adduced in the case.” If, instead of these words, tiie jury had said “set out in the petition,” or had. made direct reference to the notes described in the plaintiff's petition, I should have found no difficulty, under the rule laid down by the court, in saying that “ it was sufficiently certain to he rendered certain.” But tiie words used, I believe, can llave no definite reference to the petition, and were intended to refer to tiie notes in evidence before the jury. I understand, from the rule in the case cited from Dana, that the language of the jury must not be confined to the technical import of tiie words, but to their common-sense meaning in their- ordinary acceptation. How, if the jury meant, as I believe they clearly did, tiie notes read in evidence, wo should be left totally at a loss to say what notes, whether two or all tln-ee of tiie notes set forth in the petition, or some other notes. Tiie rule of this court in the case of Burton v. Anderson can be better illustrated by its application to tiie case thou before the court. After laying down the rule, we proceed to say: “Tiie jury, by finding tiie •“rate of interest, the amount upon which it is fo he calculated, and the date “from which it is to run, leave nothing uncertain as to the judgment which ■“should be rendered on their verdict.” Tiie verdict, in the case under consideration, fails to fiu-nish any such certain data by which to make it certain; and I am unwilling to extend tiie rule further than it lias been extended. I believe that it would he unsafe to do so, and that when a verdict is not certain in itself, nor finds facts from which certainty can he attaiued, it ought to be set aside. I believe that on this ground the judgment ought to be'set aside and tiie cause remanded.

Judgment reversed.  