16 Tex. 311 | Tex. | 1856
The appellant, who was the defendant in the Court below, by an amended answer, pleaded by way of set-off a claim against the plaintiff below, founded upon the draft of the plaintiff on Brooks & Hanson, in favor of Phelps, and assigned to the appellant after the commencement of suit. He alleged that the draft was drawn on Brooks & Hanson, and
It is strange that such discrepancies should be presented by the record ; but as the bill of exceptions is the appropriate form, in which the ruling of the Court, objeefed to by the adverse party, should be reserved for revision, we are not authorized to disregard it, upon the ground that the Judge, in the statement of facts, without any explanation, says, in the face of the bill of exceptions allowed and signed by him, that it was not excluded from the jury. The record does not disclose the grounds of the exception to the plea, nor the grounds upon which the Court, after overruling the exception and permitting the evidence to be given to the jury, excluded it from them. That it was assigned after.suit had been commenced, afforded no ground of objection to its admissibility ; if sustained, it would have devolved on the defendant to pay the costs of suit if the set-off had exceeded the amount sued for by
Reversed and remanded.
Wheeler, J., being unwell, did not take part in the decision of this case.