
    Wm. M. Gay and another v. Thomas A. Raines.
    Where there is a verdict and judgment for a greater amount than is claimed in the petition, such judgment will be reversed unless the excess is released,
    Error from Rusk. Tried below before Hon. C. A. Frazer. The facts are stated in the Opinion.
    
      N. G. Baghy, for plaintiff in error,
    cited York v. Gregg, (9 Tex. R. 85.)
   Hemphill, Oh. J.

Suit on note, copy of which is as follows: $367 00.

Twelve months after date we, or either of us, promise to pay Taylor Brown, administrator of David B. Brown, deceased, or bearer, the sum of two hundred and sixty-seven dollars for value received, bearing ten per cent, interest after maturity, until paid. February 10th, 1854.

(Signed,) H. M. Gay,

William Bailey.

And the petition alleges that defendant promised to pay the sum mentioned in the note, to-wit: two hundred and sixty-seven dollars.

There was possibly a mistake in copying the note, and in the averment of its amount, as the figures at the head of- the note are for three hundred instead of two hundred and sixty-seven dollars. The verdict at the Spring Term, 1857, for $449 07 1-2 was probably come at on the supposition that the note was for the former sum; but is clearly excessive on. a note for two hundred and sixty-seven dollars. This is the amount however for which the plaintiff has sued, and the defendant in error having failed to release the excess the judgment must be reversed and remanded.

Reversed and remanded.  