Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 476
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476 WARREN v. WALLIS, LANDES & CO. [Term of
Opinion of the Court.
Supreme Court decided certain points of law in regard to the
rights of partners over their common property, and in what
cases an attachment will lie against their property for the separate
debt of one of them, and as to the burden'of proof in
such cases. On these points the force of the judgment depended.
They were questions of law for the District Court,
to be applied, by the jury to the facts in proof under the charge
of the court, subject to the action of the court on motion for a
new trial, and not otherwise.
The issues of fact were questions for the jury, to be decided
from the evidence introduced on that trial, and not from evidence
which may have been before another jury on a former
trial. The finding of the jury, as just remarked, is under the
control of the court, as in other cases.
We are of opinion that the court did not err in excluding
from the jury the mandate and opinion of the Supreme Court
as evidence in the case, nor for refusing to give the charge
asked by appellant.
The evidence offered by appellant to explain the testimony
of the witness Sullivan was clearly inadmissible for the purpose
for which it was proposed to be introduced. Sullivan's
testimony had been taken by deposition and read in evidence
on the trial, with such explanations as he gave in answer to
questions asked him by both parties; and if such evidence as
that proposed to be shown by another witness was competent
to explain what he had said, he should have been asked to give
the explanation when his deposition was taken, to afford the
opportunity to the other party for cross-examination. Sullivan's
statement to the witness appears to have been made
after the dissolution of his partnership with Green, and after
appellee's lien was fixed by the levy of their attachment, and
when they were not present. After the levy of the attachment
a lien was thereby created, and no private settlement made by
the partners thereafter showing a balance due from one of
them to the other, was admissible in evidence to the prejudice
of appellees, who do not appear to have been present or to
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/484/: accessed May 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .