with intent to defraud his creditors. Newbauer also made affidavit in the case of Heidenheimer against Cohn, whose attachment was sued out upon the same ground.

Sayles & Bassett, for appellees, Bassett & Bassett.

(1) There was no error in overruling appellant's application for continuance, because the application did not show the exercise of due diligence to secure the attendance of the witness. The deputy-sheriff could not execute process in a suit to which the sheriff was a party. The statute requires process to be issued "to the sheriff or any constable," (Rev. St. art. 1215,) and, the sheriff being a party to the suit, the service should have been executed by the constable, (Kirk v. Murphy, 16 Tex. 654; Powell v. Wilson, Id. 59; Oliphant v. Dallas, 15 Tex. 138; Sample v. Irwin, 45 Tex. 567.) Due diligence must be shown by the application, (Rev. St. art. 1277; Greenl. Ev. § 310;) and due diligence required the tender of fees to the witness, since his attendance could not otherwise be enforced, (Rev. St. art. 2212; Hensley v. Lytle, 5 Tex. 497; Bryce v.Jones, 38 Tex. 205.) It appearing that the witness Shepard was sick before the issuance of the subpoena, and that that fact was known to appellants' attorney, the issuance of a subpoena was not due diligence. Act April 21, 1879, (Sixteenth Leg. 126;) Cotton-press, etc., Co. v. Bradley, 52 Tex. 587; Galveston, H. & S. A. Ry. Co. v. Gage, 63 Tex. 568; Texas & P. Ry. Co. v. Hardin, 62 Tex. 367. The affidavit, being made by an agent, is defective, in that it does not show why it was not made by the party in person. Robinson v. Martel, 11 Tex. 149.

(2) The tendency of the questions propounded to the defendant Newbauer was to show that he had been guilty of a criminal offense, and he had a right to refuse to answer them. The matter sought to be elicited from said Newbauer was in any event immaterial, the judgment being divisible, and the testimony relating to his own attachment only, and the entire proceeds of the attached property having been appropriated to prior attaching creditors.

WILLIE, C. J. We are of opinion that the court erred in overruling the appellants' motion for a continuance. The affidavit upon which the motion was based, was in strict conformity with the statute regulating applications for a first continuance. The service of the subpoena upon the witness was all the diligence required, and it was not necessary that his fees should be tendered. This is too well settled in our practice by decisions of this court to require further discussion. Transportation Co. v. Hyatt, 54 Tex. 215; Prewitt v. Everett, 10 Tex. 283; McMahan v. Busby, 29 Tex. 191; Cleveland v. Cole, 65 Tex. 402. These cases are not in conflict with Hansley v. Lytle, 5 Tex. 497; for there no subpoena had been served on the witness, and the party making the affidavit had relied solely upon his promise to attend court. The court did not say that it was necessary to tender fees, but it is plain from the whole decision that the continuance was held properly denied because a subpœna had not been served upon the witness.

We are pointed to no statute forbidding a deputy-sheriff to serve a subpœna issued in a cause wherein the principal sheriff is a party. The statute provides that, where the sheriff is a party to a suit, the citation shall be directed to any constable of the county. Rev. St. art. 1217. Specifying this particular process impliedly excludes all others, and permits their service by officers other than the constable, as in other cases. At any rate, there is no law disqualifying the sheriff or his deputies from serving a subpœna in a suit like the present, and, the statute not disqualifying them, we cannot do so.

Our Revised Statutes expressly authorize an agent to make any affidavit that it may become necessary or proper for his principal to make during the progress of a civil suit or judicial proceeding, (article 5;) and the facts set forth in the motion seem in this case to have been sworn to on the personal knowledge of the agent. The case of Robinson v. Martel, 11 Tex. 75, was

decided before any statute of this kind was in existence. That decision, too, was placed upon the ground that the agent or attorney could not know that the witness was not absent through the procurement or consent of the principal. This fact becomes important only upon a second or some subsequent motion for a continuance, and is not required to be stated in a first application. The reason for the rule, as stated in that case, does not, therefore, apply to the present.

The other grounds upon which the court's ruling upon the motion to continue is sought to be sustained are not such as to demand attention.

The court did not err in excluding the testimony set forth under the second and third assignments of error. It was sought through this testimony to prove a custom to contradict a fact plainly established by positive testimony. This is not allowable, as has been held in the case of International & G. N. Ry. Co. v. Gilbert, 64 Tex. 541. It had been positively testified that Cohn got in money from Bassett & Bassett every dollar for which his notes to them were given. It was therefore a matter of no importance that other bankers would not have let him have the money under similar circumstances, or that it was out of the course of the business of bankers in the place to make such loans. Bassett & Bassett chose to violate such a custom in this particular; and that they did so was no evidence whatever of fraud on their part, or of a collusion with Cohn to defraud his other creditors, but rather to the contrary, as it was a step towards enabling Cohn to continue in business.

We cannot see what bearing the amount of taxes for 1883, given by Bassett & Bassett to the assessor of Washington county, had upon the question in dispute, and the brief of counsel does not show its pertinency.

The questions to the witness Newbauer were also properly ruled out. Suppose he had answered that he knew no facts that tended to show that Cohn was about to transfer his property for the purpose of defrauding his creditors, what bearing would the answer have had upon the questions at issue? It might have subjected him to a civil suit by Cohn for wrongfully obtaining the attachment, but it would not have entitled a subsequent attaching creditor to take precedence over him in satisfaction out of the same property. But, admitting that it would have been a link in a proper chain of evidence to show that the attachment was sued out by collusion with Cohn, there is nothing in the statement from the record made by the appellant to show that a single fact was proved which, taken in connection with any answer the witness could have made, would have proved collusion between himself and Cohn, the defendant in attachment. The isolated fact proposed to be proved would not have benefited the plaintiff's case under the circumstances, and he was not, therefore, prejudiced by its exclusion. The question propounded to the witness, however, was too obviously without relevancy to the controversy between the plaintiffs and the defendants to require any argument to show that it was justly excluded. But for the error of the court in refusing to continue the cause, as pointed out, the judgment is reversed, and the cause remanded.

CANNON v. CANNON and another.

(Supreme Court of Texas. November 12, 1886.)

1. APPEAL-INSUFFICIENT ASSIGNMENTS OF ERROR.

Where three several special exceptions are taken which set up two separate, distinct, and independent objections to the petition in the suit, an assignment of error as follows: The court erred in not sustaining defendant's special exceptions to plaintiff's supplemental petition filed November 6, 1885,"-is bad, as not complying with the rules of the supreme court of Texas, and will not be considered on appeal.

2. SAME-PAPER ADMITTED BELOW WITHOUT OBJECTION.

An objection not taken below to a paper offered in evidence cannot be taken for the first time on appeal.

3 SAME ASSIGNMENT OF ERROR-TO REFUSAL TO GIVE SEVERAL CHARGES.

An assignment of error which is taken to the refusal of the court to give several charges is in violation of the rules of the supreme court of Texas.

4. EVIDENCE-CONSTABLE'S DEED-PROOF OF AUTHORITY.

Where a constable signs a constable's deed as such, his signature is prima facie evidence of his authority, and such a deed is rightly admitted in evidence in the absence of proof to the contrary.

5. SAME JUDGMENT OF ANOTHER COURT-CERTIFIED COPY.

The admission in evidence of certified copies of judgments of other courts is governed by Rev. St. Tex. art. 2252, and not by Rev. St. Tex. art. 2257; and a certified copy of a judgment of another court may rightly be admitted without notice.

Appeal from Rockwall county.

This is a suit brought by W. S. and W. B. Cannon against Emberry Cannon, in the form of an action of trespass, to try title to certain premises described in the petition. Appellant answered by general demurrer and general denial, and pleaded specially that the land sued for was purchased by him from one G. B. Davis, who at the time made the deed to appellees for the use and benefit of appellant; that appellant was placed in possession of the said premises by said Davis, and had held the same continuously, and was still in possession of the same, and paid all taxes thereon, and held the said deed from Davis to appellees in his possession, and they, with full notice and knowledge of his rights, had accepted the trust, and held said premises for his use and benefit up to and until the institution of said suit. The appellant prays for cancellation of the pretended title of appellees, removal of the cloud from his title, and for general relief. Appellees filed a supplemental petition denying generally the allegations in appellant's original answer, and pleading specially that the conveyance was taken in the name of appellees for the purpose of hindering and defrauding the creditors of appellant, and was intended as a gift to appellees. They also pleaded statute of 10 years' limitation. Appellant filed supplemental answer demurring both generally and specially to the supplemental petition of appellees, and a general denial of its allegations. On May 3, 1886, the court overruled appellant's demurrers to appellee's supplemental petition, and on May 4, 1886, the cause was submitted to a jury, and resulted in a verdict and judgment for appellees. May 5, 1886, the appellant moved for a new trial, which being overruled by the court, he excepted, and gave notice of appeal, and 10 days were allowed in which to file a statement of facts; and having, within proper time, filed an appeal-bond and assignment of errors, he now brings the cause before this court for revision. Allen & Vesey and T. L. Stanfield, for appellants.

The court erred in not sustaining defendant's special exceptions to plaintiff's supplemental petition filed November 6, 1885. The facts constituting the fraud must be stated.

The court erred in admitting in evidence certified copy of judgment rendered in the county court of Rockwall county. Copies of judgments from other and different courts having different jurisdiction stand no higher, as to the authenticity of the copy, than a copy of a recorded instrument, and should be filed with the papers of the cause, and information given to the opposite party. The copy of judgment was admitted over objections of appellant, without having been filed with the papers, and without any notice to appellant. Rev. St. Tex. art. 2257.

The court erred in admitting in evidence, over objection of defendant, an original execution and venditioni exponas, purporting to be issued out of the county court of Rockwall county on the nineteenth day of September, 1883, as shown by defendant's bill of exceptions No. 2. An original record or a paper of another and different court is entitled to no authenticity or standing unless found in the custody of the legal custodian. The instruments were admitted in evidence without notice, and without coming into court in the

custody of the clerk or custodian thereof. 1 Greenl. Ev. §§ 484, 485; 1 Starkie, 195.

The court erred in admitting in evidence what purported to be a constable's deed to the land in controversy, without sufficient proof of the execution thereof.

The court erred in refusing to give the first special charge asked by the defendant. The defendant asked the court to charge the jury that if they believed from the evidence that on the fourth of November, 1875, the defendant having purchased the land in controversy from G. B. Davis, and paid to said Davis the purchase money therefor, and procured from said Davis a deed to W. S. and W. B. Cannon, the plaintiffs, and that said plaintiffs did not pay to Davis, nor have ever paid to defendant, said purchase money, then the effect of such conveyance, so made, would be to vest the equitable title to the land in the defendant, and in that case defendant would be entitled to recover the premises in controversy; and you will so find, unless you should believe, under the evidence and instruction hereafter given, that defendant was estopped from setting up such claim, or has subsequently parted with his title. Neill v. Keese, 5 Tex. 23; 2 Greenl. 267; 2 Story, Eq. 1201; Cole v. Noble, 63 Tex. 432; Hempstead v. Hempstead, 2 Wend. 109; 3 Wait, 33.

The court erred in refusing to give the jury special charge No. 2 asked by defendant. If the defendant paid the purchase money for the land, before he can be estopped from setting up his claim thereto, it must clearly appear, at the time the land was conveyed by Davis, that the deed was made to plaintiffs for the purpose of hindering, delaying, and defrauding his creditors, and placing the property beyond the reach of his just debts; and the burden of proving such fraudulent intent devolves upon the plaintiffs. Word & Charlton, for appellees.

WILLIE, C. J. The first assignment of error is as follows: "The court erred in not sustaining defendant's special exceptions to plaintiff's supplemental petition filed November 6, 1885.' "The special exceptions were three in number, and set up two separate distinct and independent objections to the petition. Which one of these objections the court should have sustained is not pointed out by the assignment. The proposition seems to refer to either the first or second exception; we cannot tell which. Besides, the assignment, if improper, cannot be aided by the proposition. It must stand or fall according as it complies with the rules; which this does not, and will not, therefore, be noticed.

The admission in evidence of the certified copy of the judgment of the county court of Rockwall county was proper. Article 2257, Rev. St., does not apply to such a judgment, but to instruments, the originals of which are permitted or required to be recorded in the county clerk's office under the registration acts. Judgments of another court are governed by article 2252 of the Revised Statutes, and the certified copy in evidence fulfilled the requirements of that article.

The objections taken below to the reading in evidence of the venditioni exponas were different from those urged in this court. It was not objected below that the paper did not come from the custody of the proper officer. If so, the plaintiffs might have supplied proof of that fact. An objection not taken below to a paper offered in evidence cannot be taken for the first time in this court. Sharp v. Schmidt, 62 Tex. 263; Galveston, H. & S. A. Ry. Co. v. Gage, 63 Tex. 568.

It was not error to admit in evidence the constable's deed to the land. Ketchum, who purported to act as constable in making the deed, and who signed it as such, testified to the genuineness of the signature. The fact he signed the deed as constable was prima facie evidence of his authority, and there was no proof introduced to the contrary. This was held by this court

in the case of Deen v. Wills, 21 Tex. 642, in reference to a receipt purporting to be signed by a person as tax collector, when there was no proof that he held the office at the time it was signed. The rule holds good in a case like the present. Besides, the court judicially knew that Ketchum was constable at the time the deed was signed. Judicial knowledge extends to all county officers, and has often been held to embrace sheriffs and marshals. A constable has the powers of a sheriff in executing the process of the district court and carrying out its orders, and his authority and signature must be known to them. 1 Greenl. Ev. § 6, and authorities cited.

The court did not err in refusing to give the first special charge asked by the defendant. This charge ignores the fact that the grantees in the deed were, at the date of its execution, the minor children of the appellant, living with him, in which case the presumption of law would be that, in taking the deed in their name, their father intended the land as a gift or advancement to them. Higgins v. Johnson, 20 Tex. 393, 394; Saufley v. Jackson, 16 Tex. 579. This charge also overlooks the point made by the appellees that the deed was made by their father to them for the purpose of defrauding his creditors. It in fact gives the land to the appellant if the appellees did not pay the purchase money, no matter what may have been developed by the evidence as to the intention of their father in reference to the title. This would have been in direct contradiction of the court's general charge upon these questions, which was a correct exposition of the law bearing on them.

The seventh assignment is as follows: "The court erred in refusing to give the jury the special charge No. 2 asked by defendant. If the charge alluded to embraced only one instruction, this assignment would sufficiently comply with the rules. But, under the designation of a single charge, it includes four distinct instructions, each involving a separate proposition, and some of them have no relation whatever to each other. The assignment of error is actually taken to the refusal of the court to give several charges, and is therefore in violation of the rules, as has been frequently held by this court. Byrnes v. Morris, 53 Tex. 220; International & G. N. R. Co. v. Gilbert, 64 Tex. 536.

The third special charge asked by the appellant was not the law of the case. There was no question of specific performance of a voluntary gift before the court. The gift to the appellees, if made at all, was fully consummated by the execution of the deed, and was not executory. There was no mere promise to give, but an absolute gift evidenced by writing, and taking effect in præsenti; and as the grantees were, at the time, children of tender years, living with their father upon the land, it was accompanied by all the possession which they were capable of receiving under the circumstances. This is the theory of the appellees' case, so far as the gift to them of the land is concerned. The appellant's theory is that there was no gift whatever, either executed or executory, but that the appellant's promise was that the appellees should have the land when they paid the purchase money given to Davis for it. Any charge, therefore, that set forth what circumstances would authorize the appellees to compel a specific performance of a gift was not authorized by the evidence, and would have misled the jury.

It is enough to dispose of the fourth charge to say that it required a verdict for the appellant, if the constable's sale was void, or if the judgment under which the land was sold had been paid off; whereas, there were other important issues, which, if found for the appellees, entitled them to a recovery.

The court properly refused to withdraw from the jury the issues as to the gift of the land, and the intent of appellant to defraud his creditors in having the deed made to his sons, and to place the case before them solely on the legality and binding force of the constable's sale.

The twelfth assignment is not well taken, as is apparent from what we have said, and the authorities we have referred to, under the sixth assignment of