
    John W. Moore et al. v. The Republic of Texas
    Writ of Error from Harris County.
    Where verdict and judgment are rendered for a greater amount than is claimed in the petition, such judgment will he reversed on appeal, unless the amount of the excess is released. [3 Tex. 130,170; 9 id. 85.]
    Where suit was instituted upon a tax collector’s bond payable in “ good and lawful money of the republic of Texas,” and verdict rendered against the defendant for the amount of the bond: Held, that there was no error in the judgment, because it provided that such amount might be discharged in the promissory notes of the republic.
    This was a suit brought agaiust Moore as tax collector for the county of Harris, and the securities on his official bond, to recover of him and them the sum of five thousand dollars, the amount of the bond.
    The petition alleges that the bond had been violated by the failure of Moore to collect and pay over taxes, amounting to $7,181.70, and prays for judgment against him and his securities for the amount of the bond as aforesaid. It does not ask j udgment against Moore for the excess alleged to be- due by him over and above the amount of his bond. The process was executed on Moore and all his securities, excepting one, on the 15th October, 1841. At the fall term, 1841, one of the securities pleaded the general issue, and at the spring term, 1843, judgment by default was entered against Moore and the rest of his securities. Before this judgment became final, Moore filed his answer containing a general denial of the allegations in the petition. And at the spring term., 1844, without asking leave to amend his answer, he offered to plead, as an offset, the amount of a debt alleged to be due him from the republic, to wit, the sum of §7,750. The record does not show why this plea was not offered sooner, or why it was then offered by the defendant, without obtaining leave to amend his answer. The plea was rejected by the court. The jury found the bond forfeited, and rendered verdict against Moore for §7,181.70, being for the amount of the assessment for the year 1839, and against the obligors for the amount of the bond. Judgment was entered accordingly, stating that the above amounts might be discharged in Texas promissory notes. The court instructed the jury that if they® believed from the evidence, the sheriff failed to discharge the duties required of him by law as tax collector, he and his securities were liable; that it was the duty of the defendant to show that he had paid over the whole amount of taxes collected, and to have performed the duties required in the 12th section of an act to raise a public revenue by direct taxation, etc.; that if the jury believed from the evidence he had failed to discharge these duties, he was responsible; that if they believed from the evidence, the defendant had made out and furnished a list of delinquents to the secretary of the treasury, then he was not responsible for failing to collect, unless the secretary had returned such list to the clerk, and the clerk of the district court had issued his executions and the sheriff had received them.
    
      Jamas W. 'Henderson, for plaintiff in error,
    contended:
    1st. That the court erred in refusing to entertain the plea of setoff. 2 Brokenbrough, 9; United States v. Wilkins, 6 Pet. 135; United States v. McDaniel, 7 Pet. j
    2d. That the action being a joint one against all the defendants, upon a bond of §5,000, the finding of the jury against Moore being for an amount greatly exceeding that of the bond was erroneous. Cox & Dick v. the United States, 6 Pet. 172; Dinsmore v. Austill, Minor (Ala.), 89; Flournoy v. Childress et al. id. 93; United States v. Arnold, 1 G-allis. 348; Groldhawk v. Duane, 2 Wash. C. C. 323; Cox Dig. 538, 539; Wilson v. Daniel, 3 Dallas, 401; 7 Terg. 71; 6 Term, 307; 1 East, 436; 1 Atk. 75; Brown Ch. 489, 490.
    3d. That the judgment of the court should have been but was not in accordance with tbe verdict. The obligation sued upon was for good and Icmful money, and tbe court transcended its powers in permitting it to be discharged in Texas promissory notes.
    4th. That the charge of the judge was erroneous and calculated to mislead the jury. The statute referred to in the charge was passed in 1840, while Moore and his securities were liable, if at ail, under different statutes.
    
      Harris, Attorney General, for defendant in error,
    argued:
    1st. That the answer being only a general denial, neither payment or setoff could by proven under it. Laws Texas vol. 4, p. 62, sec. 2.
    2d. That the indebtedness as found by the jury was charged in the petition and denied in the answer, and therefore the verdict was literally responsive to the issue.
    3d. That the court committed no error in not ascertaining the value of Texas money and in not giving judgment for that sum. No such benefit was claimed by the defendants and there was no such issue made. Besides, the defendant having violated the condition of his bond and not having paid the taxes due at their maturity, the government elected to sue for the good money and could recover it accordingly.
    4th. That though the charge of the court was given according to the statute of 1840, which was enacted after the execution of the obligation sued on, this constituted no objection to the correctness of the charge, for the legislature (after a contract has been made) has the power to pass laws that will affect or change the remedy only, and which do not impair the rights.of the parties under the contra'ct.
    The facts of the case were stated before the delivery of the opinion.
   LipscoMb, J.

"We do not believe that the question, whether a defaulting tax collector can legally offset a demand he may have, when sued on his bond, is presented. If such a defense could have been set up. he certainly could not, after so much delay and on the eve of going into trial, have filed an additional answer as a matter of right, and it could only have been done by an application to the discretion of the court. As presented, it is not subject to revision. There were other objections taken to the opinion of the court below, but (there being no statement of facts) they have the appearance of abstract questions of law; such as a request to charge on the right of the defendant to credits for insolvencies, when we are not informed that the slightest evidence was introduced or offered of an insolvency. A party wishing to avail himself of any supposed error in the opinion of the court should present it in such form as to show its relevancy. Had there been testimony offered of an insolvency in a tax payer, it ought to have been shown in the statement of facts or connected with the charge of the court, supposed to be erroneous, in the bill of exceptions. From what appears on the record, the opinion of the judge on this subject, whether right or wrong, was wholly irrelevant and must be dismissed from our consideration in this case. There is another ground on which we have been asked to reverse the judgment in this case; that is, that as to Moore, the collector, the verdict of the jury and the judgment of the court is for more than the plaintiff claimed in his petition. ¥e believe this objection to be well founded. If the object of the suit was to seek a judgment against Moore for the full amount of his defalcation, the petition should have been so moulded as to embrace that object. Against the securities the judgment could not have exceeded their bond, but it might, have been rendered against the collector for the excess. The petition sets out the bond to be for five thousand dollars good and lawful money of Texas, and prays judgment for that amount. The verdict is for so many dollars without reference to the currency. The judgment follows the verdict as to the amount, but proceeds to add that it may be discharged in the promissory notes of the government. This was added for the benefit of the defendants, the court knowing that by law the taxes were allowed to be p^id to the collector in that currency. Third, from the history of the times that it was not equal to gold and silver. This was no ground of objection on the part of the defendant.

But on the ground above mentioned the judgment will be reversed as to the said Moore, and remanded unless the excess over the amount of the bond is released in this court.  