
    James W. Zacharie vs. William Bryan — Appeal from Galveston County.
    It is unusual to put questions of fact to the jury before questions of law arising upon exceptions or demurrer have been disposed of; and after verdict a-reviewing court would be apt to consider such pleas as having been waived. [11 Tex. 157.]
    If upon a new trial it is discovered that pleas, presenting questions of law by way of exception or demurrer, were accidently omitted to be disposed of on the first trial, it would not be error then to pass upon them, especially if they went to defeat the action.
    The effect of a general demurrer is to admit that the facts stated are true, but to deny that such facts give any right of action. [7 Tex. 517; 28 Tex. 610.] A draft drawn by one agent of the government on another, and accepted by the drawee as agent, gives to the payee or holder no right of action against the acceptor, or drawer.
    But if the principal for whom the draft was drawn and accepted has paid the amount to the acceptor, it is so much money in his hands for the use of the payee or holder, and for which an action may be maintained.
    This suit was instituted by the appellant to recover from the defendant the amount of a draft which he had received by indorsement. The draft was drawn in New Orleans on the-26th of January, 1836, by Edward Hall as purchasing agent of the republic of Texas, upon the defendant as general agent of the republic, and accepted by him as agent.
    The plaintiff in his original petition declared against Bryan as acceptor, in his individual capacity, as well as agent; but afterwards amended his petition by leave of the court, and in which amendment he charged him with being personally liable, because the government of Texas had, previous to the commencement of this suit, placed funds in his hands to pay the draft, which he had failed to apply and neglected and refused to make the payment.
    The defendant excepted to the plaintiff’s amended petition, on the alleged ground that it “ introduced into the suit a new cause of action that did not exist, and had not accrued to-the plaintiff at any time before the filing of the original petition, to wit, on the 18th of September, 1844.” The defendant also at the same time demurred generally to the plaintiff’s original and amended petition, and pleaded a general denial and the statute of limitations.
    The plaintiff’s original petition was filed on the 18th of September, 1844, and the amended petition on the 22d of October, 1846. In the amended petition it is averred that in pursuance of a joint resolution of the congress of Texas, passed on the 16th of January, 1843, drafts to the amount of twenty-one thousand eight hundred and fifty-nine dollars and seventy-one cents were issued by the treasury department to the said defendant, being, the amount of his account rendered against the government up to the 18th day of December, 1841, and that the draft, which is the foundation of the present suit, was one of the items in the account thus rendered and settled; that said drafts were payable, one-fourth on the 1st day of January, 1844; one-fourth on the 1st day of January, 1846; one-fourth on the 1st day of January, 1847, and the remaining fourth on the 1st day of January, 1848; and that said defendant had received said drafts and appropriated them to his own use.by selling, and otherwise disposing of them.
    At the trial a verdict was returned in the following words r “ We, the jury, find that Bryan has received from the government satisfaction and pay for this claim, but under the charge of the court, find for the defendant, for the reason that there was no cause of action against Bryan.”
    Upon the motion of the plaintiff a new trial was granted, and at the ensuing term of the court the exception and demurrer, which were filed previous to the first trial, were taken up, argued and sustained by the court, and the cause dismissed. The plaintiff appealed.
    
      Webb and Duval, for appellant.
    
      Franldin, for appellee.
   Mr. Justice Lipscomb

delivered the opinion of the court.

It is contended in this court that the court below erred in giving judgment on the exceptions and general demurrer to the plaintiff’s petition, after the cause had been once put to the jury, subsequent to their being filed. It is certainly out of the usual order of tbe court to put questions of fact to the jury before the exceptions or general demurrer had beeu disposed of, and after verdict a reviewing tribunal would be apt to look upon such pleas as having been waived. This, however, may be one reason influencing the court to set aside the verdict, ascertaining that these pleas had been passed over by an accidental omission to present them to the consideration of the court for its judgment. After the verdict had been set aside and a new trial granted, if in point of fact those pleas had not been either waived or decided by the court, we do not conceive there would be error in passing upon them. If the court believed they were well taken, they went to defeat the action, and the sooner acted on the better. We will now proceed to inquire whether the plaintiff’s petition is subject to the exceptions taken to it. The first is easily disposed of. It is not supported by the law and the facts charged, “ that it sets up a new cause of action that did not exist when the suit was commenced.” The petition as amended seeks to make Bryan liable, because he had received payment of the draft from the government, and the time when the law was passed under which it is alleged that he had received satisfaction is averred and shown to the court to have been anterior to the commencement of this suit. Now if that be correctly stated, the cause of action did exist when the suit was instituted, and the exception was not well taken. The next is a general demurrer. The effect in law of a general demurrer is an admission that the facts stated are true, but a denial that such facts give any cause of action. We have no doubt that the draft of itself is insufficient to give a right of action against Bryan; because it was accepted by him as an agent. But if it be true, as stated, that the agent’s principal has settled that draft with him, and credited him with the amount, it would be so much money in his hands to the plaintiff’s use; and although no action could be sustained on the bill itself, yet the amount can, under such circumstances, be recovered from the agent. We cannot say the amended petition sets up a new cause of action, and that there was error in permitting it to be made. It refers to the same original inducement, the bill or draft, and avers a new fact only to fix the personal liability of the defendant for the amount of the draft.

"We believe that the court erred in sustaining the general demurrer and dismissing the cause. The judgment is therefore reversed and the cause remanded.  