Jacobs v. Cunningham

32 Tex. 774

• Court: Texas Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinion

Lindsay, J.

Two objections seem to be urged against the judgment in the District Court. 1. That the suit was brought by a feme covert, without the joinder of her husband. 2. That there was no canceled revenue stamp upon the note, which was the foundation of the action, and the instrument of proof upon the trial.

1. The statute, Art. 4636, allows the wife, upon the failure or neglect of the husband, to sue for any of her effects by authority of the court. In instituting suit by the "wife, it would be most regular to aver in the original petition the cause of such failure or neglect. But, with leave of the court, this averment may be made in the amended petition, and the cause proceed to trial. In this case a plea of abatement was interposed to the original petition for the want of such averment. Upon a virtual confession of the truth of the plea, the plaintiff asked leave to amend, and in the amendment alleged the insanity of the husband. The court, therefore, did right to entertain the suit and to admit the proof of the insanity of the husband, which the statement of facts shows was sufficiently made manifest. The existence of the cause of the failure or neglect of the husband was also impliedly admitted by the defendant in his execution and delivery of the note sued upon to a feme covert.

2. The mere failure to cancel the revenue stamp upon an instrument, required by law to be stamped, as it does not defraud the government, is not made invalid as an instrument of evidence. The judgment is affirmed.

Affirmed.