Its execution was acknowledged, and it has been recorded, though the date is not shown.

It appears, also, that one of the minor daughters, after marriage, claimed a share in the land; and upon the whole, there was but slight ground for the verdict of the jury; and which, had they been properly instructed as to the force of the presumption for the wife, would most probably have been deemed by them as insufficient.

In the course of the trial the following instrument was offered in evidence by the defendant, as one executed by the plaintiff for himself and wife, viz.:

"Know all men by these presents, that I this day bargain and sell to William H. Strahan my interest in the tract of land that he is now living on in Reel's Bend, for one hundred and fifty dollars, having giving his note for the same, this twentieth March, 1849.

But although much evidence was offered as to the execution of this instrument, and the jury found that it was signed by Smith, the plaintiff, for himself and wife, yet no question has been made upon it in argument before this court, although the finding of the jury as to its execution has been assigned as contrary to evidence.

Without argument, we forbear the discussion of the important question how far even the wife might be concluded in equity by an arrangement for the settlement of family disputes, or for the partition of an estate upon a reasonable consideration, even where the mode of assurance is not sufficient in law to convey the interest of the wife. In Hartwell v. Jackson, 7 Tex. 576, it will be seen that after the institution of suit agreements by way of compromise, signed by the husbands alone, will bind the wives, though neither signed nor acknowledged by the wives. But no question seems to have been made on this point below, and the instrument is stated in the argument of appellee to have been relied on by way of estoppel as against the husband alone. This presents a very important question, but upon which, as there has been no argument, it will not be necessary to express a decisive opinion.

The judgment is ordered to be reversed, and the cause remanded for a new trial.

Reversed and remanded.

RESULTING TRUST, WHERE PURCHASE PRICE OF LAND IS PAID BY ONE AND TITLE IS TAKEN IN ANOTHER'S NAME: See Irwin v. Ivers, 63 Am. Dec. 420, and cases cited in the note 424.

ADVANCEMENT TO WIFE WILL BE PRESUMED, WHERE HUSBAND PAYS FOR LAND and directs conveyance to be made to her, in the absence of his manifestation of a contrary intention: Spring v. Hight, 39 Am. Dec. 587; see Warren v. Brown, 57 Id. 191, and note 194 et seq., discussing the effect of a purchase by and deed to a married woman. When a deed for land purchased with the separate property of the husband is taken in the wife's name, the presumption arises that it was a gift from him to her so as to make it her separate property: Baldridge v. Scott, 48 Tex. 189; though the presumption may be rebutted: Wormley v. Wormley, 98 Ill. 553; Peck v. Vandenberg, 30 Cal. 39. It is a question of intention on the part of the husband in so taking the deed: Id. 41. A deed to the wife from a third person may be shown to be in reality a gift from the husband: Id. 54. The above cases cite the principal case.

LAND PURCHASED WITH COMMUNITY PROPERTY AND DEED TAKEN IN WIFE'S NAME.-When a deed for land purchased with the separate property of the husband is taken in the wife's name, it is presumably an advancement to the wife. But if the purchase is made with community property, it presumably remains community property, though this presumption may be rebutted by showing that the husband intended the land as a gift to the wife; and the expressions of opinion in the principal case to the effect that the motives of the husband in purchasing land with community property cannot change the land purchased from community property are, as far as they are in conflict with this decision, overruled: Higgins v. Johnson, 20 Tex. 393, 397. Although, as between parties to the deed in the wife's name, the consideration of which is community property, and their privies or vendees without value or with notice, the legal import of the deed may be changed, and the land may be shown to be the separate property of the wife; yet parol evidence cannot be introduced to this effect so as to ingraft upon the property, after it has passed to innocent purchasers from the husband, a trust to their detriment: Cooke v. Bremond, 27 Tex. 460. Land purchased with community property, and the deed taken in name of the wife, may be shown by parol to be intended as the separate property of the wife: Peck v. Brummagim, 31 Cal. 447. The foregoing cases cite the principal case.

GIFTS AND CONVEYANCES BY HUSBAND TO WIFE will be supported in equity against himself and his representatives: Garner v. Garner, 57 Am. Dec. 583, note 585; Shepard v. Shepard, 11 Id. 396. A husband cannot grant anything to his wife: People v. Mercien, 38 Id. 644. A freehold estate cannot be granted by a husband to his wife to vest in her after his death: Benedict v. Montgomery, 42 Id. 230; see also Fisk v. Cushman, 52 Id. 761, and note. A deed from a husband directly to his wife is void at law: Shepard v. Shepard, 11 Id. 396. But the conveyance may be made effectual by the intervention of a trustee: Spring v. Hight, 39 Id. 587. The principal case is cited to the point that under enabling statutes similar to those under which the principal case was decided a husband may make a gift or grant of property to his wife by conveyance to her directly, without the intervention of trustees: Story v. Marshall, 24 Tex. 307; Peck v. Vandenberg, 30 Cal. 46. The husband, when free from debts, may make a gift to the wife out of the community property: Peck v. Brummagim, 31 Id. 447. The prima facie presumption arising from a deed of the husband to his wife of community property is that it was intended to change its character from community property to separate property

of the wife; and a subsequent sale of the property by the husband does not rebut this presumption; and the deed is effectual against such subsequent purchaser: Story v. Marshall, 24 Tex. 308.

PURCHASE BY PARENT IN CHILD'S NAME IS PRESUMED TO BE ADVANCEMENT: Listoff v. Hart, 57 Am. Dec. 203; Phillips v. Gregg, 36 Id. 158, note 166; Dudley v. Bosworth, 51 Id. 690. But otherwise in case of brothers: Smitheal v. Gray, 34 Id. 664.

CHARACTER OF TRANSACTION AT ITS INCEPTION DETERMINES WHETHER ADVANCEMENT or resulting trust is created by purchase by one person when the deed is taken in another's name: Dudley v. Bosworth, 51 Am. Dec. 690. RESULTING TRUST, AS IT MAY BE ESTABLISHED, MAY ALSO BE CONTRADICTED BY PAROL: Strimpfler v. Roberts, 57 Am. Dec. 606; Baker v. Vining, 50 Id. 617; Dudley v. Bosworth, 51 Id. 690.

HYDE V. STATE.

[16 TEXAS, 445.]

RULES GOVERNING APPLICATIONS FOR CONTINUANCE OF CAUSES are, in general, the same, both in civil and criminal cases, though in the latter the matter is to be scanned more closely.

CONTINUANCE OF CAUSE IS MATTER OF RIGHT WHEN AFFIDAVIT THEREFOR CONFORMS TO STATUTE, and want of proper diligence cannot be imputed, and there is no cause to suspect that the application is for delay. COUNTER-AFFIDAVITS TO SHOW WANT OF DILIGENCE AND IMPROBABILITY OF ANY REASONABLE EXPECTATION that the proposed testimony can be obtained at all, or at the time to which it is proposed to postpone the trial, may be received on application for a continuance of a cause for the purpose of the production of evidence.

IN ADMINISTRATION OF CRIMINAL LAW IN TEXAS, COMMON LAW, where not modified by the constitution or statutes, furnishes the rule of decision, as well in matters of practice as principle; though a departure from the common-law system of pleading has caused a corresponding departure from the common-law practice in civil cases.

TO ENTITLE PARTY TO POSTPONEMENT OF TRIAL ON GROUND OF ABSENCE OF WITNESSES, three things are necessary: 1. To satisfy the court that the persons are material witnesses; 2. To show that the party applying has been guilty of no laches nor neglect; 3. To satisfy the court that there is reasonable expectation of his being able to procure their attendance at the future time to which he prays the trial to be put off. AFFIDAVIT ON SECOND APPLICATION FOR CONTINUANCE ON GROUND OF AB

SENCE OF WITNESSES, after one continuance granted for the same cause, should be more explicit, and show what are the facts of the case, and what means of information applicant's witnesses possess; and if the second affidavit is less full, this may furnish ground to suspect that the object was delay.

FACT THAT WITNESSES ARE BEYOND LIMITS OF STATE is not good ground for continuance, when the defendant has had time to prepare his defense. MOTION FOR CONTINUANCE ON GROUND OF ABSENCE OF WITNESSES should

not be refused because adverse party admits that the witnesses, if present,

would testify as stated in defendant's affidavit; but notwithstanding this admission, the refusal of the motion will not be error if based upon a wellfounded doubt of the verity of the affidavit itself, and a belief that the application was for delay.

EVIDENCE PRODUCED AT TRIAL WILL BE CONSIDERED IN REVIEWING RE

FUSAL TO GRANT CONTINUANCE, when, upon appeal, a motion for a new trial brings before the court a statement of the evidence; and if from such evidence there appears a cause to apprehend that a continuance was improperly refused, a new trial must be granted; but if it appears that the application for a continuance could not have been well founded in fact, it affords an additional reason for refusing a new trial or a reversal of the judgment on that ground.

IT IS GOOD CHALLENGE TO JUROR, FOR CAUSE, ON PART OF STATE, that he has conscientious scruples against finding a verdict of guilty where the punishment is death

INDICTMENT for murder. The principal question involved is the refusal of an application for a continuance. The defendant moved for a second continuance, on the ground of the absence of certain witnesses, Milly Hyde, Newton Hyde, and Jasper Hyde, and E. A. Fogle. He alleged in his affidavit due dili gence in causing subpoenas to issue against them; that Milly Hyde had been served, but no return of service had been made of the subpoenas against Newton and Jasper Hyde. He referred to the papers in the case, and to his former affidavit, and made the same a part of this affidavit. He asked for attachments to enforce the attendance of Milly Hyde and the other witnesses. He alleged that the subpoenas were issued to the sheriff of Travis county, where Milly resides, and where Jasper and Newton resided, as defendant had no doubt. No subpoena had issued against E. A. Fogle, but she was on her way to attend the trial. He stated that he expected to prove by these witnesses that "he did not kill the said Butler, but that it was his brother, Benjamin Hyde, who killed him." The affidavit for the former continuance, which was granted, was for the absence of the same witnesses, with the exception of E. A. Fogle, and stated that subpoenas had issued to Bastrop county for Newton and Jasper Hyde, and to Austin county for Milly Hyde. This affidavit stated somewhat more fully what the defendant expected to prove by these witnesses. The attorney for the state proposed a counter-affidavit by Joseph J. Young; and also proposed to admit that Milly Hyde, the only witness the defendant had subpoenaed, would, if present, testify to the facts alleged in the defendant's affidavit. Defendant's objection to the hearing or receiving of this counter-affidavit was overruled, and the affidavit was heard. It stated that the affiant had made diligent

search in Bastrop and Travis counties for Jasper and Newton Hyde, and ascertained by inquiry that two boys bearing those names had formerly been there. Their step-mother said that she was told that a man came to the place where they were living and removed them to parts unknown; and it was her opinion and that of the neighbors that they had been removed to Arkansas. These boys were the reputed children of Benjamin Hyde, the defendant's brother, and Milly Hyde was their step-mother. The affiant endeavored to procure the attendance of Milly Hyde, but she refused, alleging that all she knew was against the defendant, and she feared if she testified to this, and the defendant should be acquitted, he would take her life. The court, after considering the affidavits of the defendant, the counter-affidavits, the record in the case, and all the circumstances thereof, and also the admission of the facts to be proved by Milly Hyde, overruled the motion for a continuance, on the ground that it was not satisfied of the truth of the defendant's averments, that due diligence did not appear to have been used to procure the attendance of the witnesses, and there seemed to be no reasonable ground to expect their attendance at another term. To this ruling defendant excepted. Exception was also taken to the allowance of a challenge for cause to five of the jurors on the ground that they answered on the voir dire that they had conscientious scruples against finding a verdict of guilty where the punishment was death. At the trial the testimony of three persons present, besides other evidence, showed quite clearly the guilt of the defendant.

J. W. Henderson and C. B. Sabin, for the appellant.
Thomas J. Jennings, attorney general, for the appellee.

By Court, WHEELER, J. The rules governing applications for the continuance of causes are, in general, the same both in civil and criminal cases: Rex v. D'Eon, 1 W. Black. 515; S. C., 3 Burr. 1514; State v. Lewis, 1 Bay, 1, 2; People v. Vermilyea, 7 Cow. 369. The statutory provisions on the subject do not seem to be materially variant: Hart's Dig., art. 815; Laws 5th Legis., p. 72, sec. 85. "The rule," said Sutherland, J., in People v. Vermilyea, supra, “is substantially the same in civil and criminal cases; though in the latter the authorities all agree that the matter is to be scanned more closely, on account of the superior temptation to delay and escape the sentence of the law. . . . . In cases where the common affidavit applies, the court has no discretion. The postponement is a matter of right, resting on what has be