1. The motion to dismiss the suit so far as it related to Albert Wadhams was rightly overruled.

There had been a general appearance for the defendants, a general answer had been filed, and a previous trial had without objection. The second trial, at which Albert Wadhams was present, had been nearly finished before the motion was made. It came too late. Any defect of service or of jurisdiction, so far as the person of the defendant was concerned, had been waived by his appearance and answer. If the want of jurisdiction had been of the subject matter, it could not have been cured by the appearance of the defendant. The want of jurisdiction as to the person was cured by the defendant’s voluntary submission. The distinction is a familiar and sound one.

2. The construction given to the bond in the instructions to the j ury was correct. It was a bond to give to Caleb and Almira Loomis, within twenty months from its date, a good operative deed of five hundred and twenty five acres of land in the State of Texas, from any land owned by Willard Wadhams at the time of his decease, excepting such land as might have been sold at the date of the bond, and also two tracts reserved by name.

The implication, that there were at the date of the bond lands from which the five hundred and twenty five acres might be taken, seems to us too plain for discussion. It was the very substance of the contract.

As however the evidence showed that there were in fact lands in Texas of which Willard Wadhams died seised, and which were not sold at the date of the bond, and other than those specially reserved, the question of the existence of the implied covenant became comparatively immaterial.

3. The allegation of the declaration is, that there were no lands from which the plaintiff’s intestate could make his selection after his arrival in Texas, within the time limited. The evidence showed that though there had been lands answering to the description of the bond, they had been sold, so that the obligors could not comply with their contract. The declaration does not allege there were no such lands at the date of the bond. This *562distinction seems to have been overlooked in the argument of the defendants’ counsel.

4. The instructions as to the selection of the five hundred and twenty five acres, upon whom the duty devolved, as to the time when to be made, and as to the method of making up the quantity, are liable to no just exception.

5. It appearing by the evidence that there were parcels of land of which Willard Wadhams died seised, and which had not been sold at the date of the bond, there could be but one rule or measure of damages, and that was the value of such five hundred and twenty five acres as the. plaintiff’s intestate might have selected under the limitations stated by the presiding judge.

6. The objection to the admission of a portion of the deposition of Orrin Loomis is not tenable. The part objected to is a statement of an admission of a party to the record. “ What a party says,” observes Mr. Justice Parke, “ is evidence against himself, as an admission, whether it relates to the contents of a written paper, or to anything else.” Earle v. Picken, 5 Car. & P. 542. See also remarks of the same judge and of Lord Abinger in Slatterie v. Pooley, 6 M. & W. 668, 669; 1 Greenl. Ev. § 203 ; and Smith v. Palmer, 6 Cush. 520.

Exceptions overruled.