
    The State v. Algernon P. Thompson and Another.
    Where the case was submitted “ to the Court upon the record and evidence,” and judgment rendered that the plaintiff take nothing by the action, dec., and the assignment of error was to the overruling of the plaintiff’s demurrer to the defendant’s plea, it was held that it did not appear that the Court acted upon the demurrer, or that it was brought to the notice of the Court.
    
      In a scire facias on a forfeited recognizance to answer a charge of assault and battery, where the defence of the surety was that he had since taken the body of the prisoner and then tendered the same in open Court; and there was judgment for the defendants ; on appeal by the State, there being no statement of facts, and no assignment to the effect that the answer presented no defence, it was held not to be a case in which the Court would notice errors not assigned; and the judgment was affirmed.
    Appeal from Harris. Tried below before the Hon. Peter W. Gray.
    
      Scire facias on forfeited recognizance of John Henesy and Algernon P. Thompson, for the appearance of said Henesy, to answer a charge of assault and battery. Answer by defendant Thompson, of general demurrer ; that there has been no judgment rendered by this Court against this defendant upon said recognizance, upon which an execution can rightfully issue. At next Term, amended answer, alleging,
    1. That since the last Term of this Court, and before the commencement of the present Term, the defendant took into custody the body of John Henesy, for whose appearance this defendant was bound, and delivered him. to the Sheriff in discharge of his liability, and said Sheriff took from said Henesy a bond for his appearance, as will be seen by reference to the records of this Court.
    2. And said defendant here tenders the body of said Henesy in open Court, &c.
    “ The State takes issue upon No. 1, and demurs to No. 2 of above pleas.” (Signed by District Attorney.) This was subscribed at the foot of the amended answer, and filed with it.
    The case was submitted “ to the Court, upon the record and evidence,” and judgment rendered that the State take nothing by the said action, &c. The defendants to pay the costs. There was no statement of facts, nor bill of exceptions ; and the only assignment of error was, that the Court erred in overruling the demurrer of the State “ to the amended plea of the defendant.”
    
      
      Attorney General, for appellant.
    
      A. P. Thompson, for appellees.
   Wheeler, J.

The only error assigned is the overruling of the demurrer to the defendant’s amended plea. But no such ruling appears. It does not appear that the Court acted on the demurrer, or that it was brought to the notice of the Court. According to the settled practice of the Court, therefore it must be deemed to have been waived. (9 Tex. R. 236.) There is no statement of facts ; and it is not deemed that the record presents a case requiring the Court to notice errors not assigned. The judgment is affirmed.

Judgment affirmed.  