22 Tex. 405 | Tex. | 1858
The petition alleges that the appellant, McClellan, and one Martin, “are indebted to the State of Texas in the “sum of two hundred dollars, for so much money had and “received by them, for the use and benefit of the said State.” The petition then explains the circumstances, under which the
There was a general demurrer filed by the defendants, hut it does not appear to have been acted on by the court. The defendants answered further, denying all the allegations of the petition, and pleading also the statute of limitations. There was a trial and verdict for the State. There was no motion for a new trial, and the record contains no statement of facts. The error assigned and relied on, is, that the petition discloses no cause of action, there being no allegation that McFarland, the principal in the bond, was indicted by the grand jury.
The petition ought to have stated distinctly the facts, which constituted a breach of the bond. The material facts were, that McFarland was indicted, and failed to make his appearance to answer the indictment. There was, however, an allegation, in general terms, that McFarland did not comply with the conditions of the bond, and we think the petition might have been held sufficient, upon general demurrer. The general demurrer, however, does not appear to have been relied on in the court below; and we are clearly of opinion, that the verdict
In the present case, the fact that McFarland had been indicted, was involved in the issue submitted to the jury, and must have been found by them, before they could give their verdict for the State.
If there had been special exceptions to the petition, in the court below, the State’s attorney would have had an opportunity to amend, and to have stated the cause of action with more precision. There having been no demurrer relied on in the court below, we are of opinion, that the deficiencies of the petition are cured by the verdict; and the judgment is therefore affirmed.
Judgment affirmed.