
    Thomas Dever v. E. T. Branch and Another.
    It seems that where a suit is brought against an agent for failing to pay over money, if the defendant would avail himself of the objection that a demand is not alleged, it must be taken specially by exception.
    "Where an agent is sued for damages for breach of duty, whereby less money came to his hands for plaintiffs than otherwise would, and also for failure to pay over all that did come to his hands, it is not necessaiy to allege a demand and refusal.
    Appeal from Liberty. Tried below before the Hon. Peter W. Gray.
    Suit by appellees, commenced in the District Court, August 25th, 1854, for damages and failure to pay over money. For the facts out of which this case arose, see previous case of Branch v. Dever.
    Verdict and judgment for plaintiffs for $250, and interest, making $291 22. No statement of facts, or bill of exceptions.
    
      
      B. C. Franklin, for appellant.
    
      E. B. Pickett, for appellees.
   Wheeler, J.

Upon the general demurrer the question was whether the petition set out substantially a good cause of action ; and it cannot be doubted that it did. If it was intended to object that a demand should have been averred, the objection ought to have been taken specially by exception. But upon the case as stated no demand was necessary. (Mitchell v. McLemore, 9 Tex. R. 151.)

That this Court will not revise the ruling of the Court below upon instructions where there is no statement of facts, is settled beyond question by repeated decisions. (Lipscomb v. Armstrong, 11 Tex. R. 649.)

There is no error in the judgment and it is affirmed.

Judgment affirmed.  