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. *22This 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.)*23If 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.