
    McCoy's Heirs v. Jones.
    Where the judgment of the District Court is for specific real estate, tlie bond on appeal or writ of error is not required to be for a greater amount than is sufficient to secure the costs of tho suit.
    A continuanco to a future day of tlie term cannot be claimed as a matter of right. When a cause is called for trial, in its order, it is incumbent on tho parties to try or continue for the term.
    An objection to the admissibility of evidence comes too late in arrest of judgment, even where tho trial was cx parte. But, queref Whether the trial could, be said to have been ex -perte in this case.
    Repeated decisions of this court have settled that where the defendant has pleaded in recon-vontiou, tho plaintiff*cannot deprive him of his right to ail adjudication upon tho nmttcis embraced in his plea by taking a nonsuit. And this rule applies to a case whore the plaintiff sues to rescind a contract for the sale of land, and the defendant admits the contract and prays for its specific peiformance.
    Error from Gonzales. This was an action by tho widow and heirs of Joseph McCoy against Levi Jones, to rescind a contract for the sale of McCoy’s head-right league. It was before the Supreme Court on a former occasion, and the facts, so far as they were disclosed by the pleadings, will he found in tlie report .of the case in 3 Tex. R., 340. It was agreed by the attorneys of the parties, .by agreement filed October ISth, IS49, that S. B. Conley should act as special judge, or, in case of bis failure or refusal, that A. S. Cunningham or W. II. Stewart should do so, tho district judge being incompetent to sit in tlie case. The next entry was at April Term, 1850 : “Come the parties by their “attorneys, and William 11. Stewart, osq.., special judge hy agreement, 'having “taken the seat as judge, his Honor, Fielding Jones, district judge, being inter- “ cslcd in the.cau.se; whereupon the defendant asked and obtained leave to lile “an amended answer; upon which being done, the plaintiil’s attorney asked “ leave of the court to set tlie cause for a particular day, to enable him to exam“ine the answer and flic amended pleadings if necessary, which the court “refused, but. granted him half an hour to examine tlie pleas and tile others, “and ruled the parties to trial thereafter; whereupon the plaintills hy at.tor-“ney asked leave to take a nonsuit, which tlie court refused; to all which “rulings the plaintiil’s attorney excepted, and the party defendant proceeded “ ex parta with the ease before the following jury, to wit: ” &e. It appeared also tiiat the ease was called in tlie afternoon of the first day of the term.
    The defendant then read all (lie pleadings in tho case; gave in evidence the original contract, by which McCoy sold to Jones tho league of land in controversy, and another half league to which McCoy undertook to perfect his title, in consideration of which Jones paid $1.000 in hand and gave his note for $¿,¿25, payable to McCoy at the house of Logan and Jlagnet, aFMaeogdoehes. sixty days after date. Tlie note and agreement were both dated 17th clay of April, 1830. Tlie contract stipulated that tlie $1,025 should he payable sixty days after date or as soon as a good and indefeasible title for the said lands should be made; for tlie execution of general warranty deeds; that, incuse tlie title to the half league could not be perfected by McCoy. Jones was to pay him $1.000 instead of die $1,025. Tho plaintiff then proved hy two depositions of Oscar Farisli, taken in answer to Lavo sets of interrogatories, of only one oE which notice appeared to have been given to tho opposite parly, that Jones left Columbia about the 1st of June, 1S3G, for Nacogdoches, to pay Ins note to McCoy and receive liis titles ; that he had the money; that he, Farish, accom-pri'-iied him ; that they arrived at Nacogdoches before the 17th of June, learned that McCoy was dead, and that there was no one authorized to receive the money. The defendant thou proved, by several witnesses, that the land was sold at its full value at the time ; that Jones was in the couutrv at the date of the declaration of independence, and has been here ever since. He then proved that at his instance, in 1840, Fielding Jones, his brother, called on Mrs. McCoy and stated to her that Levi Jones was anxious to close the contract, and was prepared to pay the money, and wished her to take the proper stops to make the title; that Mrs. McCoy replied that she was unwilling to make the title or complete the contract. There was a verdict for the defendant, and a decree to the effect that the contract bo canceled as to che half league; that if Jones should pay the $1,000, and live per cent, per annum interest thereon, from the 17th of June, 1830, within ninety days, to the plaintiffs, or deposit the amount with the clerk of the court for them, he should have, the land; otherwise the defendant should recover from the plaintiffs one thousand dollars and interest tnereon at live per cent, per annum from the 17th of April. 1830, and the contract should he rescinded at the plaintiff’s costs.
    There was a motion in arrest oE judgment, on tile ground—
    1st. That the court erred in not continuing the case, as requested, to a future day of the term.
    ¿d. That the court erred in not permitting the plaintiff to take a nonsuit.
    3d. That the court erred in allowing the deposition of Oscar Farish, taken on the interrogatories of which the plaintiff had no notice, to he read to the jury.
    Tim plaint id's prosecuted a writ of error, nearly (wo years after a final decree had been rendered, giving' a bond in the sum of $100. The defendant in error, moved to dismiss, on the ground that the bond was for too small an amount.
    
      A. Neil/, for plaintiffs in error.
    
      A. II. Phillips, for defendant in error.
   lVirKELBR, J.

The undertaking of the sureties upon an appeal or writ-of-error bond is for the prosecution of the appeal or writ of error with effect. IE this he done and the judgment reversed, the sureties have performed their undertaking and are discharged. The said bond is funclus officio. It is the affirmance of judgment winch fixes the liability of the sureties, and it is only in that case that the sureties are bound for the performance of their principal.

.If, as assumed on the part of the appellees, as it is perhaps to be inferred, the appellees have, complied with the decree of the court on their part by paying the money adjudged to be paid by them, they were entitled merely to a writ of possession to recover the land in controversy. And there was no necessity that the bond should be in an amount more than sufficient to secure the costs of the suit. (Hart. Dig'., art. 7!X).) In this view the bond is deemed sufficient ; and we are of opinion that the. motion to dismiss be overruled.

In respect to the merits, it is to be observed that there is no rule of law or practice, which required the court, at the request of the plaintiffs, to set the case for trial "at a future dav". It. might have been proper, under the circumstances, to make such an order; but the plaintiffs coidd not demand it as a matter of right. IVlieu the cause was called for trial in its order it, was incumbent on the plaintiffs to try or continue. If they required further time to prepare for trial they should have moved a continuance. Not having done so, the court did not err in requiring them to proceed to trial.

The objection to the admissibility of evidence was not entitled to consideration when first taken on a motion in arrest of judgment.

The only remaining objection to the judgment deserving of notice is the refusal of the court to permit the plaintiffs to take a nonsuit. The defendants had pleaded in reconvention; and repeated decisions of this court have settled that where the defendant has thus pleaded, the plaintiff cannot deprive him of his right to an adjudication upon the matters embraced in his plea by taking a nonsuit. The judgment is affirmed.

Judgment affirmed.  