Opinion of the Court.

to conflict with either of them, it uses the name J. H. Chism in the body and the name J. H. Chisholm in the signature, and it omits the number of the certificate altogether, and mentions no day of the month, the day being also omitted in one of the records. Under this condition of the proof, the court was obviously correct in not taking the question of fact from the consideration of the jury.

4th. The court refused to charge as follows at the request of the defendant:

"The certificate was issued to a person whose name was spelled therein Chism. The transfer in evidence shows that the person who transferred the same spelled his name Chisholm. Now, if the person who so transferred the certificate was the same to whom it issued, it is not material in what form he signed it, you will find for the defendant; and in determining whether he was the same person you may consider the fact, if a fact, that the person who sold to Baker was a soldier, the date of his certificate, the whereabouts of J. H. Chism about the time, and the evidence introduced by plaintiffs that J. H. Chism was in Texas about the time of the transfer."

This charge was also correctly refused. In some particulars it assumed the existence of facts not proven by asking the court to state to the jury that Chism was in Texas about the time of the transfer, December 2, 1838, whilst there was evidence that he returned to Kentucky in November, 1838. Besides, we think the charge of the court, as actually given to the jury, furnished all that the defendant was entitled to on this point. It was as follows:

"The defendants have offered what purports to be a transfer of the certificate granted J. H. Chism to one E. M. Robinson, which transfer is signed J. H. Chisholm, and in order for this transfer to convey title to said certificate the proof must satisfy you that the person who made said transfer was the same man to whom said certificate was issued, and unless it does so satisfy you the defendant cannot defeat the plaintiffs' recovery of two-thirds of the land sued for; and on this issue as to the person who made the transfer being the same person

Opinion of the Court.

to whom said certificate No. 990 issued the burden of proof is on the defendant; and if the proof does not so satisfy you, the plaintiffs are entitled to recover the whole land unless defeated by the defendant's plea of five-year limitation, as to Mrs. Van Horn's one-third interest therein."

5th. The court refused to give, at defendant's request, the following charge:

"It is shown by the evidence that the certificate has been in the land office since 1857, and is now there, and if the certificate or paper about which plaintiffs testify was burned in Dallas or elsewhere, then the paper testified about by them is not this certificate."

This charge was also correctly refused. It asked the court to instruct upon a purely hypothetical statement of fact and was calculated to confuse, and was, moreover, fully covered by the charges actually given.

6th. The court refused to give the following requested charge: "The transfer introduced by the defendant to the certificate is not a forgery in law, whether signed by the person who was the owner of said certificate acquired from the person to whom it issued or by the person to whom it issued, and you are instructed that if in this case you should find for the plaintiffs, in any event you will find for the defendant one-third of the land as against M. S. Van Horn, and for the other plaintiffs only two-thirds of the land.”

This charge was correctly refused. There was no evidence tending to show that the transfer was made by any person. claiming to have acquired the certificate from Chism; on the contrary, the testimony of Baker and all the testimony in the case on both sides presented the issue of whether Chism, the person to whom the certificate had been issued, signed the transfer. There was no proof in any way to indicate that Chism had transferred to some one else his certificate, and that this other person had signed J. H. Chisholm in the alleged transfer to Baker. That portion of the charge which asked that the jury be instructed that if the transfer was signed by Chism, to whom the certificate issued, it was not a forgery, was fully covered by the charge given.

Opinion of the Court.

7th. The court gave the following charge, and exception was taken thereto:

"If you believe from the evidence that W. R. Baker falsely made or caused or procured to be made falsely, or in any way aided, assisted, advised, or encouraged the false making of the transfer to E. M. Robinson, signed J. H. Chisholm, and purporting to convey the land certificate 990, issued to J. H. Chism, with intent to make valuable thing or money thereby, or with intent to set up a claim or title or to aid or assist any one else in setting up a claim or title to the land in controversy, or in any way to injure, obtain the advantage of, or prejudice the rights or interest of the true owner of the land, then the said transfer is a forgery, and you will find for plaintiffs for the land in controversy."

It is claimed that this charge was erroneous, because it submitted issues not raised by the evidence, and was calculated to impress the jury with the belief that there was some proof of such action on the part of Baker, and thus prejudice the defendant's case. But this objection takes it for granted that there was nothing in the testimony indicating that Baker made the false endorsement, if one was made. We have already stated the tendency of the testimony on both sides, and that the very nature of the direct, as well as the circumstantial, evidence necessarily raised the question of forgery vel non, and of Baker's connection with the forgery, if there was any. Nor is this charge amenable to the criticism that it assumes the fact that the transfer was false. It is true that the court used the words "in any way aided, assisted, advised, or encouraged the false making of the transfer to E. M. Robinson, signed J. H. Chisholm." But it is manifest from the connection in which these words were used, and from the entire charge given, that the court left to the jury the question of whether the transfer was forged or not, without expressing any opinion thereon. Indeed, it was expressly charged that on the issue of the forgery the burden of proof was on the plaintiffs.

8th. The following charge was also objected to:

"If you believe from the evidence that a man of the name of J. H. Chisholm or of any other name who was not the iden

Opinion of the Court.

tical party to whom the certificate No. 990, issued to J. H. Chism, did falsely make the transfer to E. M. Robinson, signed J. H. Chisholm, with the intent to make money, or other valuable thing thereby, or with intent to set up a claim or title, or aid or assist any one else in setting up a claim or title to the land in controversy, or in any way to injure, obtain the advantage of, or prejudice the rights or interest of the true owners of the land, or with any fraudulent intent whatever, then said instrument you will find to be a forgery, and you will bring a verdict for plaintiffs for the land in controversy. If you believe from the evidence that J. H. Chisholm or any other person not being the identical person to whom certificate No. 990, in the name of J. H. Chism issued, did falsely counterfeit the original grantee in making the transfer to E. M. Robinson, signed J. H. Chisholm, with the intent to make money or other valuable thing thereby, or with the intent to set up a claim or title, or aid or assist any one else in setting. up a claim or title, to the land in controversy, or to cast a cloud upon the title, or in any way injure, obtain the advantage of, or prejudice the rights of the true owner of the land, or with any fraudulent intent whatever, then you will find said instrument a forgery, and will find for plaintiffs for the land in controversy."

This charge, it is said, is erroneous, (a) because it presents an issue not raised by the evidence; and (b) because it excludes the hypothesis that a person to whom J. H. Chism may have transferred the certificate by delivery was the person who signed the transfer "J. H. Chisholm;" and (c) because if such person signed his own name "J. H. Chisholm," his signature was not a forgery under the law then existing in Texas.

There was, as we have already said, no evidence tending to show a transfer by J. H. Chism, the grantee, to another person, and an assignment by such person to Baker. The entire proof on both sides was addressed to the question of whether the certificate was in the possession of Chism at the time that Baker claimed that it was delivered to him, and so remained thereafter. The whole case turned upon this question, and the issue of whether the transfer was a forgery or not in a large

VOL. CLIX-2

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measure depended on the conclusions formed by the jury as to this fact. But the claim that if the name of J. H. Chisholm was signed by one bearing that name, the writing of this signature could not under any circumstances constitute a forgery, is unsound. It is asserted by the plaintiff in error that the law of Texas as to forgery prior to 1876 was as follows:

"He is guilty of forgery who, without lawful authority, and with intent to injure and defraud, shall make a false instrument in writing, purporting to be the act of another, in such manner that the false instrument so made would (if the same be true) have created, increased, diminished, discharged, or defeated any pecuniary obligation, or would have transferred or in any manner have affected any property whatever." Art. 2093, Paschal's Digest of Laws.

Clearly, if one whose name was J. H. Chisholm took a certificate issued to J. H. Chism, and, falsely personating J. H. Chism, signed his name as J. H. Chisholm, intending thereby to counterfeit the signature of J. H. Chism, and, by reason of the fact that the names were idem sonans, to produce the impression that the name signed was that of J. H. Chism, this act would have been a forgery under this statute. The case of Commonwealth v. Baldwin, 11 Gray, 197, cited to the contrary, sustains this view.

9th. The ninth assignment is covered by what we have already said.

10th. The court gave the following charge, which was objected to:

"The defendants have offered what purports to be a transfer of the certificate granted J. H. Chism to one E. M. Robinson, which transfer is signed J. H. Chisholm,' and in order for this tranfer to convey title to said certificate the proof must satisfy you that the person who made said transfer was the same man to whom said certificate was issued, and unless it does so satisfy you the defendant cannot defeat the plaintiffs' recovery of two-thirds of the lands sued for; and on this issue, as to the person who made the said transfer being the same person to whom said certificate No. 990 issued, the burden of proof is on the defendant; and if the proof does not so