| Tex. | Jul 1, 1856
We are of opinion that there is no error in the judgment. The plaintiff avers the execution to have been void. This is not disputed by the defendant. Of course there can be no controversy on that point.
The defendant alleges facts in her cross petition, which would entitle her to a recovery. These are sustained by proof, and the verdict could not be set aside for the want of evidence.
Nor was there error in overruling the plea in abatement. The suit to revive by scire facias had been discontinued before the plea in abatement to the cross petition was filed, and in a case decided at the last Term, not yet published, it is believed to have been held that a plea setting up the pendency of a prior suit, should not be sustained, provided that before the filing of the plea, the first suit were discontinued.
Judgment affirmed.