It was no doubt the primary purpose in the enactment of our jury law to elevate the standard as respects both the moral and intellectual capacity of those to whom the delicate and important duties of a juror should be intrusted above what had been previously demanded. To secure this desirable result jury commissioners, appointed by the District Court, are authorized to select the requisite number of persons from the body of citizens from different portions of the county to act as jurors at each term of the court, who should be free from all legal exception, of good moral *394character, of sound judgment, well informed, and, as far as practicable, able to read and write. It -was also a leading object of the law to avoid the expense of keeping juries in constant attendance upon the court while business in which juries were not required was being transacted. The first of these objects is attempted to be attained by specific though somewhat complex rules regulating the selection of the jury from the body of the citizens of the county, while the latter is to be effected by simply placing all cases in which a jury is demanded on what is denominated in the statute a “ jury case trial docket,” and keeping a jury in attendance only while the court is occupied with this docket. With the exception of appearance cases, the causes on the “jury case trial docket ” are to be tried or disposed of for the term, in their regular order, before those cases in which no jury has been demanded and a jury fee deposited. Mo civil case filed since the enactment of the law is to be tried by a jury, unless the party demanding it shall deposit the jury fee as therein prescribed, or make oath before the clerk that he has no money or property on which he can procure the money required to make such deposit, by 9 o’clock a. m. on the day of the court set by the judge for the trial of jury cases. But parties in cases filed before the passage of the law need not deposit the jury fee until the case is called for trial.

Evidently a demand for a jury must be made or notice given to put the case on the “jury case trial docket” before the time fixed by the court for its call. Otherwise this docket could not. be made up so that the cases upon it could be tried in their regular order, or jury cases tried and disposed of for the term before the trial of cases in which a jury is not demanded. An inspection of the various provisions of the law unquestionably, in our opinion, leads to the conclusion that all parties who intend claiming a jury trial must take steps to have their cases placed upon the “jury case trial docket ” by the time fixed by the court for its call, or certainly before it is finally disposed of and the jury dismissed *395for the term. Appellants’ bill of exceptions not only shows that they failed to do this, but, further, that although the court before discharging the jury inquired of the members of the bar whether there would be any further necessity for a jury, their counsel made no response to this inquiry. In view of these considerations, to hold that the court should have stopped its business and impanelled another jury for the trial of this case, or have continued it until the next term, that it might he then tried by a jury properly selected, would be in effect to say that the jury law is a failure and a farce.

The questions presented by the other assignments of error do not require serious notice. It cannot be denied that there was evidence before the court tending to support its judgment. It was in effect so held when the case was before this court on a former appeal. (48 Tex., 241.) We then thought, and still believe, all the questions raised had been previously ruled upon by this court in its former decisions. And I may add that it was only by reason of this conviction that it had my assent; for, having long entertained the opinion that the entire equity doctrine of an implied lien for unpaid purchase-money for land is in violation of the statute of frauds as well as contrary to sound public policy, I could not liavegiven my assent to the original doctrine as first announced by the court, much less the manifold extensions which from time to time it has received, had I not felt constrained to do so by the action of my predecessors, or by that of the majority of those with whom I was called to act.

When this case was before the court on a former appeal it turned mainly upon the ruling of the court below in excluding the testimony of the witness Webster Flanagan, which was, in effect, the same as in the present record. The main objection, as I recollect, made to his testimony and discussed by counsel, was that it was immaterial, and if admitted was not, in connection with the other evidence in the case, sufficient to establish the lien. The evidence having been excluded, there was not, as I remember, (and could hardly have *396been, properly,) in the record, any evidence to impeach the witness or contradict his testimony. In the opinion reversing and remanding the case for the error of the court in excluding the proposed testimony, I, inadvertently perhaps, discussed the questions of law which we were called upon to decide as if the proposed evidence was an existing fact instead of a potential one.

Appellant’s counsel insists that the judgment should be reversed because the opinion on this account might have unduly influenced the court below in finding in favor of appellee. But, admitting the mere literal and technical correctness of-the criticism to which the opinion is thought to be subject, it cannot be admitted that there can be the least uncertainty in the mind of any one who reads it as to its legal effect, or doubt as to the precise point ruled in it by the court. If the case had been tried by a jury instead of the judge, it would unquestionably require a strain upon the imagination to suppose they could have been misled. But to insist that the learned district judge who presided on the trial of the case in the court below could believe that this court, because it had discussed the legal effect of a particular state of facts as if they had been proved, in determining that the court should not have excluded the evidence of the witness by whom it was proposed to prove them, had passed upon the credibility of the witness, or had given to his testimony controlling weight over other witnesses, is a proposition which could not have been made by one of the uniform frankness and candor of appellant’s counsel, unless to some extent blinded and misled by the zeal of advocacy, and which, when calmly considered, we are confident, no one will repudiate more readily than the counsel by whom it is now urged.

The judgment is affirmed.

Aebtbmed.