
    Towner v. Sayre.
    Ifc is too late to except to tho petition, after taking issue on it.
    "Where the defendant had given the plaintiff an order on a third person for twenty-five head "of cattle, and the order had been dishonored: Held^ That in an action on the order for damages it was not necessary to aver tho value of the cattle separately, hut that it was sufficient to pray that the defendant pay him the amount he is damaged, which ho esti- “ mates at one hundred and fifty dollars.”
    The distinction of actions, as known to the common-law practice, has never been acknowledged in onr courts.
    
      It seems that defendant may, after the plaintiff has introduced all his evidence, demur to tho samo. (Note 0.)
    It is not necessary to set out the instrument sued on in hcec verba; it is sufficient to state the suhstauee and legal effect of it. •
    A defendant cannot he permitted to give in evidence, under a general denial, any facts which confess and avoid the action.
    Appeal from Guadalupe.
    
      Neill, for appellant.
    
      Hancock, for appellee.
   XiiPSCOMB, J.

Suit was brought by Sayre, the appellee, against Towner, the appellant, on an order drawn by the latter in favor of the former, or to his order, on one Smith, for the delivery of twenty-live head of average, stock cattle.

The petition sets out that the order had been given to him for a valuable consideration; that lie had placed the order in the bauds of one Anderson (o bo presented for payment; that Smith refused to deliver the cattle; that plaintiff afterwards liad the order presented to said Smith, who Anally protested the same, lie refers to the order, and prays that it should be made a part of his petition. lie does not, in the body of his petition, assume to set the order out in hcec verha. and does not designate, the cattle to be average stock cattle, but onlv describes the order as for stock cattle. A copy of the order sued on poems to be appended to tlic petition. “He prays that the defendant, ‘‘Towner, be condemned to pay him the amount he is damaged, which he “ estimates at one hundred and fifty dollars and costs,’’ &e.

The cause was continued the first term, on the affidavit of the defendant, before answer filed. At tlic nest term of the court the .defendant filed his answer, in the first place, that he did not promise, undertake, or assume, and of this puts himself upon’the country; and for further answer, that he is not guilty as charged, and of this he puts himself upon the country.

The defendant then proceeds to except to the plainü/1'’s petition—

First. That it does not pray for any specific judgment, except for damages, without alleging that damage lias been committed!

Second. Because the action is not in debt, or damages.

These exceptions were overruled by the. court, anil it is not conceived that there was error in so ruling.

The exceptions ought not to have heen sustained, because in point of time it was too late to except to the petition after taking' issue on it; and again, neither of them could liavo heen sustained if taken before issue, because the petition, does pray a specific judgment, “lie prays that the defendant, Towner, be “condemned to pay him (lie amount he is damaged, which lie estimates at one “hundred and fifty dollars and costs.” This is not as ftirmal as we usually find, but it is sufficiently clear what lie seeks as well as the amount. It would have heen more in conformity with established rules of practice liad he distinctly stated the value of the cattle and prayed judgment for the amount; hut it is believed tobe substantially good as stated.' Tito petition must be taken as a whole, and when we so view it the cause of action and the amount claimed are not at all doubtful. To the second exception we need only answer that the distinction of actions, as known, to the common-law practice, has never heen acknowledged in our courts.

The case was then put to the jury, and the evidence of the plaintiff in support of his action given, some of which was excepted to by the defendant and the exception overruled. On the. closing of the plaintiff’s testimony, the defendant offered some evidence, which was ruled out as inadmissible under the issues; the defendant excepted, and (hen demurred to plaintiff’? evidence; on which demurrer judgment was given for the plaintiff. The first exception, as presented by the bill of exceptions, is to the admissibility of the order sued on. It is on the ground that it liad not Ticen described in the plaintiff’s petition, tiie petition not having shown its date, and not showing that it was payable in average slock cattle, and payable lo tlie plaintiff or order. The last is not sustained in point of fact, becaiise it is set forth as payable to the plaintiff or to his order. Tile two first may be disposed of together. The plaintiff was not required to set out the order in the precise words contained in it; the substance and legal effect was sufficient; and this he has done. Again, the plaintiff refers to'lhe order as annexed to it, and prays that it bo taken as part of his petition. It seems to have been copied, on tlic petition, and no doubt was copied oil tlic copy served on the defendant. The bill of exceptions shows' that it iras sealed to the petition. This was sufficient to give tlic defendant all tlie notice necessary or material to his defense. (Dewees v. Lockhart, 1 Tex. R., 535.)

The next exceplion is to the decision of the court in rejecting the evidence offered- by the defendant. Tlie substance of this evidence was that tlie cattle were, used by one Davis, and Sayre, the plaintiff; and offered to prove, by two witnesses, that the cattle had been levied on and sold as the property of Sayre, and that. Sayre liad admitted to witnesses, if these cattle were so used, he would not hold Towner hound, hut would look elsewhere for other cattle. It may he questioned whether such evidence would have made out a good defense to tlie action if it. had been set up in tlie pleading; but it is clear that under the defendant's answer it is inadmissible. It should have been specially pleaded, so as to advise the plaintiff of the character of tlie defense relied on. This subject lias been so frequently discussed and adjudicated in this court that it would not be proper again to enter into the principles and reasoning of tlie court on the subject. (See Mims v. Mitchell, 1 Tex. R.; Coles v. Kelsey, 2 Tex. R., 541: and Hall & Jones v. Jackson, at the last term of this court, not yet reported.)

Note 6.—Mitchell v. Wright, post, 283; Hughes v. Christy, 20 T., 230; Booth v. Cotton, 13 T., 359; Bradbury v. Reed, 23 T.. 258; Harwood v. Blythe, 32 T., 800; Cooper v. Hugo, 37 T., 445; Holliman v. Griffin, 37 T., 453; Stephens v. Hix, 38 T., 656.

Judgment affirmed.  