211, 1 Am. Dec. 643, the same court reaffirmed the doctrine. That case involved, as we think, substantially the same principles which are involved in the case now before us. Since that time the doctrine has frequently been applied in numerous decisions in our state courts: White v. Heylman, 34 Pa. St. 142; Hackley v. Headley, 45 Mich. 569; Crawford v. Cato, 22 Ga. 594; Bennett v. Ford, 47 Ind. 264; Foshay v. Ferguson, 5 Hill, 154; Spaids v Barrett, 57 Ill. 289; 11 Am. Rep. 10; Thurman v. Burt, 53 Ill. 129; Nelson v. Suddarth, 1 Hen. & M. 350. The supreme court of Kentucky seem to have adhered to the English rule: Hazelrigg v. Donaldson, 2 Met. (Ky.) 445. The weight of American authority is in favor of the doctrine that detention of goods under certain circumstances may constitute duress, and we think it is in accordance with the better reason. Notwithstanding the doctrine of the English courts, it is well settled by them that money paid in order to get possession of goods unlawfully detained may be recovered back: Atlee v. Backhouse, 3 Mees. & W. 650. The two rules recognized by the courts of England, it seems to us, lead to an obvious absurdity; that is to say, that when one pays money in order to obtain possession of his goods when unlawfully detained by another, he may recover it back; but if he gives his note under the same circumstances and for the same purpose, he cannot successfully resist its payment.

In White v. Heylman, 34 Pa. St. 142, the supreme court of Pennsylvania say: "If, therefore, such be the case where money has been paid, a fortiori is such a defense available in an action upon a promissory note extorted in the manner alleged in the offer made by the defendant and rejected by the court." Certainly, upon principle, the position of a defendant who resists the payment of a note is as favorable as that of a plaintiff who, instead of promising to pay, has actually paid the money and seeks to enforce its recovery. It would seem that where money has been paid to obtain a release of property unlawfully withheld by the defendant, the want of consideration would be a sufficient reason why the action ought to be maintained; and upon the same principle the maker of a note given for a similar purpose ought to be able to defeat an action upon it. The opinion expressed by this court in the case of McGowen v. Bush, 17 Tex. 201, though not necessary to the decision of that case, is in accordance with the conclusions to which we have arrived upon the question now under consideration. For the reasons stated, we are

of the opinion that the second defense set up in the special answer presented a good defense to the suit on the note.

There are number of assignments of error based upon the court's charge, but we think that none of them are well taken. The instructions given to the jury by the court very fully and correctly presented the law of the case and of each phase of the case made by the evidence. But we will consider briefly some of the points presented by the assignments.

Paragraphs 2 and 3 of the charge are not inconsistent with each other. They merely presented different phases of the case.

We think there was no error in instructing the jury that J. S. Markham had no power to pledge the notes of T. W. Markham and Son. If he was merely the clerk or salesman and agent of the firm, there could be no plausible pretence that his agency gave him the power to pawn the firm's assets for his own debts. It is not claimed that he had any special authority to do this. Whether the court held or not that there was no evidence tending to show that J. S. Markham was a partner in the firm of T. W. Markham and Son we do not know. If it was held that he was not a partner, we do not see that the holding was erroneous. T. W. Markham testified that he had promised to give him a third interest in the profits to work for the firm, but that there were no profits, and that he quit and went into other business. Subsequently the firm employed him on a salary of fifty dollars per month. This last employment was before he had the transactions with Jones which gave rise to this suit. It is evident from this testimony that he was the mere clerk or agent of the firm when the claims which belonged to the firm were attempted to be pledged. But if it had been shown that he was a partner, we do not see that the result would have been different. A partner's interest in the partnership property is only his proportionate share of what remains after the payment of the partnership debts. He has no such distinct interest in any distinct parcel of the partnership property as enables him to pledge it for his own debts. Such interest in a part of the firm assets is too remote and indeterminate to admit of its being conveyed as security or otherwise.

The charge of the court upon the question of duress was in accordance with the principles we have announced, and was not erroneous. If not sufficiently full, additional instructions sifould have been requested.

It is assigned that "the court erred in telling the jury 'that if they found that Jones bought futures for Markham and advanced money for that purpose, etc., then this rendered the transaction illegal, and plaintiff could not recover,' for the reason,-1. That this part of the charge was contrary to law; and 2. Because there were no averments or evidence to authorize such charge or to show that Jones ever bought futures for Markham."

We think that the proposition of law announced in the charge is correct, and that there was both pleading and evidence to sustain it. The only evidence bearing upon the immediate question was that of Jones and J. S. Markham. Jones testified that he did not buy futures for J. S. Markham, and J. S. Markham, upon his examination in chief, testified to the same effect. But upon cross-examination he admitted that some time previous to the trial he had stated, in substance, that Jones acted as his agent in keeping up the contracts, and that what he then said was the more likely to be the truth. This testimony made the charge proper.

There was probably nothing in the testimony which justified the court in telling the jury that if they found "the note sued on was invalid on the ground of being a gambling debt, then they would find for defendant T. W. Markham," but we do not see how it could have prejudiced the appellant. Contracts such as the defendant sought to prove are not strictly gambling contracts, but they are in the nature of wagering agree ments, and for that reason it is held contrary to public policy for the courts to enforce them. A wager and a gambling contract are so nearly allied that it is not at all likely that the jury mistook the court's meaning. That meaning was made clear beyond dispute by the previous part of the charge.

The other assignments of error question the sufficiency of the evidence to support the verdict. The evidence was amply sufficient to show that T. W. Markham executed the note solely for the purpose of obtaining possession of the claims of his firm which were unlawfully withheld by Jones, and this entitled him to a verdict.

There is no error in the judgment, and it is affirmed.

PLEADING-General DemurrER TO ANSWER. — If any of several grounds of defense set up in an answer is good, it is error to sustain a general demurrer thereto, on the ground that it does not set forth any defense to the action: Munn v. Taulman, 1 Kan. 254; 81 Am. Dec. 508.

CONTRACTS-GAMBLING IN FUTURES. — As to what contracts are illegal as gambling transactions, or dealings in futures, and the rights of the parties growing therefrom, see Cashman v. Root, 89 Cal. 373, post, p. 482, and note; Snoddy v. Bank, 88 Tenn. 573; 17 Am. St. Rep. 918, and note; Sondheim v. Gilbert, 117 Ind. 71; 10 Am. St. Rep. 23, and note 33, 34; Jackson v. City Nat. Bank, 125 Ind. 347; Schmueckle v. Waters, 125 Ind. 265.

DURESS — EFFECT of, upon CONTRACTS. — Duress of one's property is a good plea to an action on a bond given to release it: Collins v. Westbury, 2 Bay, 211; 1 Am. Dec. 643, and note 644, 645; note to Hatter v. Greenlee, 26 Am. Dec. 376-378; Adams v. Schiffer, 11 Col. 15; 7 Am. St. Rep. 202, and note. But a seizure of personalty of a wife under a writ against her hus band is not duress such as will avoid a receipt given by her to obtain a release of the property: Kingsbury v. Sargent, 83 Me. 230.

Partnership. — One partner has no authority to make use of the partner. ship property or assets in discharging his own private debts: Davies v. At kinson, 124 Ill. 474; 7 Am. St. Rep. 373, and extended note 377-380,

FOWLER v. SIMPSON.

[79 TEXAS, 611.]

HEARSAY EVIDENCE OF PEDIGREE, WHEN ADMISSIBLE. The rule which admits hearsay evidence of pedigree is restricted to the declarations of deceased persons who were related by blood or marriage to the person, and were therefore in the succession in question. The testimony of a party suing as heir of his father after his death is competent evidence of his father's declarations touching the land in litigation, and the latter's declaration that he was the surviving brother and only heir of the former owners of the land is admissible in evidence.

SERVICE OF PROCESS BY PUBLICATION, RECITAL OF DUE SERVICE IN JUDOMENT BY DEFAULT UPON, WHEN NOT CONCLUSIVE. When the recitals in a judgment by default, rendered upon service of process by publication, show conclusively that the process was never lawfully served, the judgment is a nullity, the court being without jurisdiction, although such judgment recites due service.

ATTORNMENT BY TENANT INVALID WHEN.

A person who is in possession of land as tenant of another cannot, without surrendering possession or giving notice to his landlord, by agreeing to become the tenant of a stranger not deriving title from the same source with that of the origi. nal landlord, transfer to such stranger the possession. Nor does it make any difference that the land had descended to the heirs of the original landlord, and that the tenant did not know who such heirs were. TAX DEED DOES NOT PASS TITLE WHEN. — - A tax deed which is not executed with the prerequisites of the law authorizing its execution does not pass any title; but a deed for the property, sufficiently describing it, properly acknowledged and recorded, without the existence of any authority upon the part of the tax collector, may become the basis for the acquisition of a title under the five years' statute of limitations.

ACTION to recover land. The opinion states the case.

Foard, Thompson, and Townsend, for Simpson.

Adkins and Green, for appellants Fowler and Haynes.

HENRY, A. J. This was an action of trespass to try title. The tract of land in controversy is composed of two contigu ous surveys, of 640 acres each, patented to Samuel Fowler. The defendants pleaded not guilty and the statute of limi tations of five years.

The cause was tried without a jury, and judgment was rendered for the plaintiffs for an undivided one-half interest in the land. Both parties perfected appeals and assign errors.

The court filed the following conclusions of fact: "The court finds that the two tracts, of 640 acres each, were granted to one Samuel Fowler in July, 1841; that Samuel Fowler died in 1862, leaving as his sole heirs James Burton Fowler and John Fowler, two brothers of the said Samuel, and that John Fowler died in 1881, leaving as his sole heir at law his brother James Burton, who conveyed the land in controversy to the plaintiffs herein by deed dated May 28, 1889, and that this suit was instituted by them on the seventh day of September,

1889.

"2. Also, that John Fowler was in possession of the land by his agent, one Kinchler, at the time of his death; that Kinchler resided on the land by virtue of and under a written contract, dated August 15, 1879, in which he was to hold pos session until the first day of January, 1884, as the agent or tenant of said John Fowler, and that in 1881 the said Kinchler, while still in the possession of the land, agreed to hold the same as the tenant of defendant, Simpson, and afterwards, on the tenth day of March, 1884, executed and delivered to defendant, Simpson, a written instrument or acknowledgment of his tenancy, and that his wife now holds possession of the land as tenant, under said agreement and by virtue thereof.

"3. Also, that the defendant, Simpson, purchased the 1,280 acres at a tax sale made by Toliver, who was the state and county collector of taxes, by deeds dated in 1878 and 1879, and that the description of the land in said deeds was amended in a deed dated October 20, 1879, which deeds convey to Simpson the interest of John Fowler.

"4. Also, that Simpson recovered a judgment in the district court of Colorado County, at its March term, in 1884, in a suit brought by him against the heirs of the said John Fowler; that the judgment recited that the defendants were duly