this money to the Albion Bank. They deposited it with the Third National Bank, the correspondent of the Albion Bank, and the bank from which they received the money on the checks from the Albion Bank. In fact, therefore, the money was placed where it was before it was taken,-in the possession and under the control of the Albion Bank. Not only that, the Third National Bank, in its due course of business, by monthly reports, informed the Albion Bank that they had received this mouey, and held it subject to its order; and it was subsequently used by the Albion Bank in drafts drawn by it in favor of other parties. If it be said that no officer of the Albion Bank knew of these deposits except Warner, the wrongdoer, and that he subsequently drew out most of these moneys in drafts to further other wrongs, the reply is that the other officers and directors of the Albion Bank were chargeable with knowledge of these deposits. If, through their negligence, they did not in fact know, that is a matter for which the Albion Bank, and not the defendants, were responsible. Kissam, Whitney & Co. had no supervision over its affairs, no knowledge as to how those affairs were managed. They were not called upon to go to Albion, and hunt up the various officers and directors, and inlorm them, one by one, personally, that these moneys had been deposited to their credit in the Third National Bank. It was enough that they deposited them, and that that bank, in the regular course of business, by monthly statements, informed the Albion Bank that it received and held those moneys. The learned ciruit judge seemed to be of the opinion that, as they had ussisted Warner in withdrawing these funds from the bank, they could not escape responsibility, unless the sum total of his defalcations was reduced by their deposits to an amount less than that received from him. In his opinion overruling the motion for a new trial he thus expressed himself: "Here all the money returned by Warner was insufficient to replace his defalcations by an amount much larger than the sum sought to be recovered of the defendants, and the bank had no knowledge that he had returned anything to replace what he had misapplied until he had again misappropriated it. It is not unjust or unreasona. ble to compel the defendants to restore such of the funds of the bank as they received, when they are unable to prove that the bank was not directly or ultimately a loser in consequence of their acts. It may be that Warner would have misappropriated the money of the bank in other ways if they had refused to receive the checks, but certainly one temptation would not have been in his path if he had found that he could not use the paper of the bank for his speculations with the same facility as though it were his own money.' surely they cannot be held for his subsequent wrongdoing. If they have returned A part of that they assisted him in wrongfully withdrawing, they are pro tanto relieved from responsibility, and are not to be chargeable with his after misconduct, In respect to which they had no part. It

But

will not do to say that they put the money where he could check it out, and therefore are responsible for what he did with it. They deposited it to the credit of the Albion Bank, and it was for the officers and directors of that bank to take care of its deposits. The rule might be different if Warner, the cashier of the Albion Bank, was the only officer authorized to draw on the Third National Bank or charged with knowledge of the state of the account; but the president and teller had equal authority, and were equally chargeable with knowledge; in fact, it appears that these officers did draw drafts on the New York bank, and thus diminished the total amount of deposits, and the other directors, also, were. under some obligation to know the affairs of the bank; and it will not do. to say that the bank can ignore the negligence of all its officers, and profit by their omis sion of duty. At the least, it was a question to go to the jury whether the officers of the bank, other than Warner, in the exercise of reasonable and proper care, could have ascertained that these moneys had been deposited to the account of the Albion Bank, and would or would not have accepted such deposits as the return of the moneys to the bank.

For the error in this respect the judg. ment must be reversed, and the case remanded for a new trial.

1. Under Rev. St. Tex. 1879, art. 4802, making it unnecessary for plaintiff in trespass to try title to deraign title beyond a common source, it is immaterial whether or not a deed to a common grantor, introduced by plaintiff, is a forgery, when it appears that defendants rely for their title on their deed from the common grantor.

2. In an action to try title, plaintiff claimed under a marshal's deed, which conveyed "a certain tract or parcel of land, containing,

by estimation, 890 acres of land," lying in a named land district "on Cow bayou and Bull Hide streams, patented to the heirs of James Stewart for 960 acres." Held, that the deed was not void on its face for insufficiency of description, and, it appearing that two tracts in the same vicinity wore patented to the heirs of James Stewart for 960 acres, it was for the jury to determine whether the tract described was the one sued for.

3. Rev. St. Tex. 1879, arts. 4818-4820, provide that in trespass to try title, when the lands are adjudged to plaintiff, he shall be entitled to a writ of possession within one year on paying the adjudged value of improvements made in good faith; in default whereof defendant may retain the land upon paying within six months the adjudged alue thereof without the improvements; in default whereof a writ of possession shall issue to plaintiff. Held, that on the expiration of both, options without action by either party plaintiff is entitled to recover the lands without paying for the improvements, and defendants cannot have an execution against him for their value.

4. The granting or refusing of a continuance is in the discretion of the trial court, and its ac tion is not reviewable on error.

In error to the circuit court of the United States for the northern district of Texas. Affirmed.

On the 2d of July, 1849, the state issued "to the heirs of James Stewart, deceased, their heirs and assigns,' "two patents, each for 960 acres of land, in McLennan county; patent "No. 379, vol. 5," describing the land embraced in it as "being in Milam district, on the waters of Bull Hide creek and Cow bayon, about 12% miles S. W. from Waco village, by virtue of bounty warrant No. 308, issued to James Stewart by William G. Cook, adjutant general, on the 9th day of August, 1847," etc.; and patent "No. 380, vol. 5," describing the land embraced in it as being in "Milam district on Bull Hide creek, about eleven miles S. W. by S. from Waco village, by virtue of bounty warrant No. 308, issued by William G. Cook, adjutant general, on the 9th day of August, 1847," etc. The relative situation of the two tracts to each other appears from the following copy of a map proven to be a correct draft from a report of survey made under the order of court:

by demurrer, general denial, pleas of not guilty, and limitation, and some of them suggested improvements made in good faith, for the value of which, in the event the plaintiff succeeded in the action, they asked judgment under the statute of Texas.

The jury found that the appellee, Hart, the plaintiff below, was entitled to the land in controversy; that the defendant Cox had made valuable improvements upon 700 acres of it, worth $6,250, and the defendant Echols on 325 acres of it, worth $3,750; that the plaintiff was not entitled to rents; and that, without the improvements, the lands held by Cox were worth $10,500; those held by Echols, $4,875.

In conformity with the verdict it was adjudged that the defendants Cox and Echols were possessors in good faith of the lands held by them, respectively; that no writ of possession should issue for those tracts before the expiration of one year from the date of the judgment unless the plaintiff paid to the clerk of the court for Cox the sum of $6,250, and for Echols the sum of $3,750, with interest; that, if he neglected for one year to pay such sums, with interest from the date of the judgment, and if Cox and Echols, within six months after the expiration of the year, paid to the clerk, Cox the sum of $10,500, and Echols the sum of $4,875, then the plaintiff should be forever barred of his writ of possession as against the defendant so paying, and from maintaining any action whatever against Cox and Echols, respectively, for the above-described tracts; that if Cox and Echols did not within six months after the expiration of one year from the judgment pay to the clerk the above respective sums for the plaintiff as above provided, writs of possession might issue in his favor against Cox and Echols, or against the defendant so failing, for the lands recovered by plain. tiff in this action; and that writ of pos session issue, as provided by law in ordinary cases, in favor of the plaintiff against all of the defendants for the land recovered by him in this action, except the tracts adjudged to be held in good faith by Cox and Echols.

Motions for new trial and in arrest of judgment having been overruled, a severance was had, upon notice, between the defendants, so that Cox, Tinsley, and Echols might prosecute this writ of error separately from their codefendants. The writ of error has been heretofore dismissed as to Echols.

At the trial below, the plaintiff, Hart, for the purpose of showing title in him. self, introduced in evidence a copy of pat ent No. 379 to the heirs of James Stewart, followed by proof, in the deposition of Mrs. Catharine Stewart, that the only heirs of James Stewart, on the 12th of April 1854, were William H. Stewart and Johr T. Stewart, and that they were dead, Mrs. Stewart surviving them; a certified copy from the clerk's office of McLennan county of a deed by William H. Stewart, John T. Stewart, and Catharine Stewart, wife of William H. Stewart, dated April 12, 1854, purporting to convey to John De Cordova the land embraced in patent No. 378,

which deed was filed for record May 8, 1854, and recorded two days afterwards; the original of a deed, dated September 7. 1858, by the marshal of the United States for the western district of Texas, to Edmond J. Hart, Barnett B. Hart, and Isaac N. Marks, which, it was claimed, conveyed all the right, title, and interest of De Cordova in the land in dispute; a deed by B. B. Hart to E. J. Hart, of date July 30, 1874, conveying to the latter all the right, title, and interest of the grantor in the partnership property, including real estate, personal property, and assets of every description; and a deed from I. N.* Marks to E. J. Hart, of date August 19, 1874, conveying to the latter all the grantor's real estate in Texas or elsewhere.

For the purpose of showing a common source of title with the defendants under De Cordova, the plaintiff also introduced a deed, dated May 29, 1884, from L. B. Davis, administrator of the estate of De Cordova, purporting to convey to Cox 960 acres of land patented to the heirs of James Stewart by patent No. 379; a deed from Cox to Tinsley, dated December 31, 1884, conveying an undivided half interest in the same land; and deeds to Echols from Cox and Tinsley, dated September 4, 1885, for 320 acres of the land in controversy.

The defendants introduced in evidence the original of a deed from Mrs. Catharine Stewart, Mrs. Fannie Finnerson, joined by her husband, William H. Finnerson, Virginia Sexton, and Josh H. McAllister to the defendants Cox and Tinsley, acknowledged November 16, 1889, (which was after the institution of this action,) before a notary public in Baltimore, conveying to the grantees therein the land described in patent No. 379; the above deed of 1884, from De Cordova's adminisrator to Cox, for the purpose, the bill of cxceptions states, "of showing in themselves the defendants' title and good faith improvements made on the land since defendants had possession thereof;' the deed from Cox to Tinsley of December 31, 1884, conveying an undivided half of the land; and the deeds from Tinsley and Cox to Echols, of September 4, 1885.

Eugene Williams, for plaintiffs in error. W. Hallett Phillips, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

When this case was called for trial there was on file a deposition of Mrs. Catharine Stewart, taken by the plaintiff, as well as a copy of the above deed to De Cordova of April 12, 1854. The defendants moved for a continuance in order that they might take the depositions of Mrs. Stewart and E. J. Hart, Jr.; the motion being based upon two affidavits made by Tinsley. One of those affidavits stated that Tinsley had, then recently, held a conversation with Mrs. Stewart, during which "affiant by her statement was led to believe, and does believe, said deed to be a forgery, and that her evidence concerning the same will be material." The application for a continuance was de

nied, and that action of the court is assigned for error. But the granting or refusing of such an application was in the* discretion of the court, and its action in that regard cannot be reviewed on error. And it is here referred to only because of the supposed bearing upon other assignments of error of Tinsley's affidavit relating to the alleged deed to De Cordova.

The certified copy of what purported to be the deed of April 12, 1854, to De Cordova set out the specific boundaries of the lands in controversy, and also described them as lands containing "nine hundred and sixty acres of land situated and being in Milam district, on the waters of Bull Hide creek and Cow bayou," and as "the same which were granted to the heirs of James Stewart, deceased, by virtue of bounty land warrant No. 308, issued to James Stewart by William G. Cook, adjutant general, under a patent from the state of Texas, No. 379, issued from the general land office upon the twenty-eighth day of February, one thousand eight hundred and fifty-four, as by reference thereunto had will more fully and at large appear."

That deed appears to have been signed, sealed, and delivered in the presence of two witnesses named, and was certified by E. R. Sprague, commissioner of deeds for the state of Texas, resident in Balti more, to have been personally acknowledged before him by the several grantors, to be their act and deed, (they being known to him as the individuals described as and professing to be the parties of the first part,) and that Catharine Stewart, being examined out of the presence and hearing of her husband, stated that she executed the same freely, voluntarily, and without being induced to do so by fear, threats, ill usage, or the displeasure of her husband. On the copy introduced there was no scroll or character showing that the commissioner affixed his seal to the original.

To the introduction of the copy the defendants objected, in different forms, and at various stages of the trial, substantially upon these grounds: (1) There was on file an affidavit of forgery, meaning Tinsley's affidavit used on the application for a continuance of the case. (2) It was not proven as an ancient instrument, because there was no evidence of possession, payment of taxes, or other act by any claimant under the deed, or by any one else, to free it from just grounds of suspicion, or to lead the minds of the jury or the court to a conclusion of its genuineness, nor was there any accounting for the absence of the seal from the certificate of the commissioner, Sprague, before whom it purported to have been executed. (3) The proof does not show its execution as required under the affidavit of forgery.

After the evidence on both sides was concluded, but before the final submission of the case to the jury, the court stated its view of the law to be that, as no proof had been offered of any act or assertion of ownership under the deed from the heirs of James Stewart to De Cordova, that deed could not be read as an ancient document;

a

his possession, and throws upon him the burden of disproving the plaintiff's case or showing a superior title in himself; as, for example, that he holds a title from the Sovereignty of the soil of older date or superior right to that of the plaintiff; that by a subsequent possession to that on which plaintiff counts he has title by prescription, or has barred the plaintiff's right of recovery; or, though he has a title under a common source with plaintiff, he also has, or there is outstanding in a third party, a superior title to that which they claim from a common source, which it must not appear that he is estopped from setting up.) In Crabtree v. Whiteselle, 65 Tex. 111, 115, which was an action of trespass to try title to land which had been partitioned among mother and her children, the part in controversy falling to the mother, the court said: "If there was a mistake in the partition, by which she got more than her share, still what she got was the land in controversy, and by agreeing that she was the common source of title the appellant is precluded from claiming any interest in the land not derived from her. Again, in Burns v. Goff, 79 Tex. 236, 239, 14 S. W. Rep. 1009: "The rule which renders it unnecessary for a plaintiff to deraign title beyond the common source is one of convenience, and does not deprive defendant of the right to show that he has the superior right through the common source or otherwise. The statute provides that 'proof of a common source may be made by the plaintiff by certified copies of a deed showing a claim of title to the defendant emanating from and under such common source.' Where a deed is introduced which shows such a claim by a defendant, that is sufficient, although the deed may be for some cause inoperative. If a defendant claims through a purchaser under execution against a plaintiff, the sheriff's deed may not for some cause pass the title, yet such a deed will be sufficient evidence of common source, and the plaintiff need not deraign title beyond himself as common source. If defendant has superior right to the land, whether "this arises from adverse possession or other fact, this he is not precluded from showing; but, in the absence of some evidence on his part tending to show such superior right, the plaintiff would be entitled to recover on proof of claim of title emanating from and under the common source, made in the manner prescribed by the statute." See, also, Pearson v. Flanagan, 52 Tex. 266, 279; Stegall v. Huff, 54 Tex. 192, 197; Sellman v. Hardin, 58 Tex. 86; Calder v. Ramsey, 66 Tex. 218, 219, 18 S. W. Rep. 502.

These adjudications make it clear that it was not necessary for the plaintiff— even if Tinsley's affidavit for continuance was sufficient as an affidavit of forgery under article 4802-to prove the genuineness of the alleged deed of April 12, 1854, to De Cordova. He claimed under De Cordova, by virtue of the marshal's deed conveying all his right, title, and interest in the lands in dispute. The plaintiff introduced the deed from De Cordova's administrator to Cox for the purpose of showing a com

mon source of title with the defendants. The defendants introduced the same deed without disclaiming the title conveyed by it, for the purpose, the bill of exception distinctly states, (and this court must accept that statement as conclusive,) of showing title in themselves, as well as good faith in making improvements; so that upon this branch of the case-it appearing that the parties claimed under a common source-the law was clearly for the plaintiff, unless the defendants had established a superior right in themselves, or unless the plaintiff had failed to ac quire by the marshal's deed the right, title, and interest of De Cordova.

In reference to the deed to Cox and Tinsley from Mrs. Stewart and others of November 16, 1889, which was introduced to show a superior title in the defendants, (they assuming that the deed of April 12, 1854, was a forgery,) it need only be said that there is an entire absence of proof that the grantors in that deed were the heirs either of the patentee, James Stewart, or of William H. Stewart and John T. Stewart. Moreover, we do not find from any of the defendant's numerous requests for instructions that anything was claimed by them, at the trial, on account of the deed of November 16, 1889, obtained just before the commencement of the trial.

*So that the vital question in the case is* as to the validity of the marshal's deed of September 7, 1858; for that deed, if valid, passed to the plaintiff before the date of the deed from Davis, administrator, to Cox, the entire interest of De Cordova, the common source of title; but if, for any reason, it was void, and if the deed of April 12, 1854, could not have been read in evidence as an ancient document, the plaintiff must fail for want of sufficient proof that he acquired that interest.

The marshal's deed recites a judgment rendered on the 24th day of March, 1856, in favor of Edmond J. Hart, Isaac N. Marks, and Barnett B. Hart for $1,061.50 and costs in the district court of the United States for the easteru district of Texas, against J. De Cordova, execution upon which was August 16, 1858, levied on (the deed containing no other description of the premises) “a certain tract or parcel of land as the property of said J. De Cordova, containing, by estimation, eight hundred and ninety acres of land, lying in Milam land district and county of McLennan, aforesaid, on Cow Bayou and Bull Hide streams, patented to the heirs of James Stewart for nine hundred and sixty acres. It recites also the sale of the land at pub. lic auction to the plaintiffs in the execu tion, and conveys to them, their heirs and assigns forever, all the right, title, and interest of De Cordova in the land levied on and sold.

The defendants objected to the admission of the marshal's deed as evidence upon the ground that it did not sufficiently describe any land, and, if any, not the land embraced by patent No. 379. We are of opinion that the charge to the jury in reference to this deed was unobjectionable. In White v. Luning, 93 U. S. 514, 523, this court said: "The policy of the law does