A. S. Walkeb, J.
1. The plea in reconvention set up matters, of which the note sued on formed a part, and by which damages are alleged to have been inflicted by plaintiff upon defendants. The acts so pleaded are necessarily connected with the note sued on. The exceptions to the plea were properly overruled.
2. The amendment of 28th September, 1874, cannot be regarded as interposing in fact a new plea. It is an amendment omitting a part of the former answer, repeating the substance of other parts, adding circumstances and details. The main facts are the same in the plea of reconvention as amended as in the original. There was no point of time since its original filing when the plea was not on file. That the words prefacing the statements in it admit of a construction different from the actual facts should not give to the amendment the effect, as we think, of affording the benefit of limitation against the plea as if filed on that day.
[299]*2993. That only a partial transcript of the attachment proceedings in case of W. H. Lee v. Wilkins & Bro., or W. G. & J. B. Wilkins, was produced, was not a reason for its rejection as evidence. The use of duly certified transcripts of parts of proceedings had in the same estate in the probate courts has been sanctioned. Guilford v. Love, 49 Tex., 727; Townsend v. Munger, 9 Tex., 300. The reasoning, in these cases is general, and applies with equal force to the testimony offered and admitted in this case.
4. The bill of exceptions shows that objections were made to questions and answers in the depositions of the witness Dulaney; the more important is the tenth: “Oan you give an estimate of the pecuniary injury which the defendants sustained by reason of the said attachment proceedings?” Ans. “That is rather a difficult question to answer. Merely as a matter of opinion as a business man, I should say that their pecuniary injury up to this time as a result of the said proceedings was not less than $25,000 currency.” It appears that objections to the question were overruled and the answer was then read. “ The court then remarked that‘the answer was not proper testimony.’ Ho further notice of the matter was taken by the parties, and the evidence was not withdrawn from the jury further than was implied in the remark of the court.”
This is the condition most favorable to the defendants. The evidence was not admissible. The objections to the question should have been sustained. The answer was read as evidence, and no caution was given to the jury by the court to correct its effect, nor does it appear that the remark by the judge was made in hearing of the jury. The admission of the answer was error and its effect was nob corrected. Clardy v. Callicoate, 24 Tex., 170, and cases cited; Hunt v. Riley, 50 Tex., 104; Wharton on Evidence, sec. 509.
5. Several of the instructions given by the court are subject to criticism.
The third paragraph shows a confusion of ideas — confounding the right of set-off with the plea in reconvention. “The plaintiff is entitled to recover the amount of the note [300]*300sued on and interest, which is to be offset by such damages (if any) as may be awarded by the jury to the defendants under their plea in reconvention.” Had such been the legal effect of the plea it should have been set aside on the demurrer of the plaintiff to it. The plea in reconvention extended to and explained the consideration of the note; and while in reaching results the jury may have taken some such process in their labor, it was not a matter of law upon which they should have been instructed. Pas. Dig., 3447.
6. The fifth charge of the court we think was properly given, unless, perhaps, the damages should have been limited to the “ natural and proximate result or consequence ” of the attachment. Drake on Att., § 175. The charge was: “ If the attachment complained of was wrongfully sued out, the defendants are entitled to recover such actual damages as the proof shows they suffered in consequence thereof.” The unlimited consequences as constituting the matters upon "which damages should be computed may have injured the plaintiff.
7. The tenth charge, and which is assigned as error, is as follows: “If you believe from the evidence that the attachment was issued against W. G-. & John B. Wilkins, on a debt due by James A. Wilkins & W. G. Wilkins, then the attachment was wrongfully sued out.”
This charge is warranted by the pleadings and the evidence, and we think it correct and the law in such case. The other hypothesis, that the suit was properly brought and the attachment ran against the interest of W. G. Wilkins, may have been given. The testimony actually before the jury was not sufficiently explicit to render the failure to submit this erroneous.
8. The eleventh charge is: “A party is bound by the acts of his agent, and more especially so if, after full information, he approves or ratifies the acts of his agent or fails to repudiate.” This, as a general proposition, is law. In this case it was liable to be applied to the injury of plaintiff, unless it had been modified by the explanation; and that the natural result of such liability ivas only for the wrongful [301]*301act and not for malice of the agent. Wallace v. Finberg, 46 Tex., 50, and cases cited. The evidence as to the agency is that the claim was placed in the hands of the attorney for collection, with authority to collect. There is no evidence ofW.H. Lee’s actual knowledge of the errors and mistakes of the attorney.
9. The twelfth charge asked, relating to the existence, etc., of a settlement, is as follows:
“ Any settlement or compromise between the parties after the levy of attachment would be binding to the extent of such settlement and compromise; but the giving the note sued on, and the payment of the $600 by the defendants, would not release the damages claimed by them in this suit, unless they were expressly and unequivocally released by the defendants; and the burden of showing such release is on the plaintiff.”
The statute requires that the judge “ shall frame his charge so as to submit questions of fact solely to the decision of the jury.” “ He shall not in any case charge or comment on the weight of evidence.” Pas. Dig., 1465. It was a question of fact whether there had been a settlement or compromise. It was proper that that fact should be submitted to the jury. That the note on its face was not a release of damages was properly enough told the jury, if it had been so given. But that the giving of the note sued on and the payment of the $600 by the defendants, under the facts in evidence, was or not a release, or whether the transaction was a settlement, was a question of fact, and a most material issue. The court therefore encroached upon the work of the jury when they were told that they “ would not release the damages claimed.” Besides the jury were instructed that the burden of showing" a release of the damages, expressly or unequivocally made, was upon the plaintiff. Whether the emphatic words, “expressly and unequivocally,” be applied to the quantity of proof, or the mode of showing the release, or to the terms of a contract for release (for they may apply to either), they apply to the work of the jury a degree of certainty not required by the law in civil [302]*302cases. The release could be proven, as any other fact, with reasonable certainty and with preponderance in testimony.
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A. S. Walkeb, J.
1. The plea in reconvention set up matters, of which the note sued on formed a part, and by which damages are alleged to have been inflicted by plaintiff upon defendants. The acts so pleaded are necessarily connected with the note sued on. The exceptions to the plea were properly overruled.
2. The amendment of 28th September, 1874, cannot be regarded as interposing in fact a new plea. It is an amendment omitting a part of the former answer, repeating the substance of other parts, adding circumstances and details. The main facts are the same in the plea of reconvention as amended as in the original. There was no point of time since its original filing when the plea was not on file. That the words prefacing the statements in it admit of a construction different from the actual facts should not give to the amendment the effect, as we think, of affording the benefit of limitation against the plea as if filed on that day.
[299]*2993. That only a partial transcript of the attachment proceedings in case of W. H. Lee v. Wilkins & Bro., or W. G. & J. B. Wilkins, was produced, was not a reason for its rejection as evidence. The use of duly certified transcripts of parts of proceedings had in the same estate in the probate courts has been sanctioned. Guilford v. Love, 49 Tex., 727; Townsend v. Munger, 9 Tex., 300. The reasoning, in these cases is general, and applies with equal force to the testimony offered and admitted in this case.
4. The bill of exceptions shows that objections were made to questions and answers in the depositions of the witness Dulaney; the more important is the tenth: “Oan you give an estimate of the pecuniary injury which the defendants sustained by reason of the said attachment proceedings?” Ans. “That is rather a difficult question to answer. Merely as a matter of opinion as a business man, I should say that their pecuniary injury up to this time as a result of the said proceedings was not less than $25,000 currency.” It appears that objections to the question were overruled and the answer was then read. “ The court then remarked that‘the answer was not proper testimony.’ Ho further notice of the matter was taken by the parties, and the evidence was not withdrawn from the jury further than was implied in the remark of the court.”
This is the condition most favorable to the defendants. The evidence was not admissible. The objections to the question should have been sustained. The answer was read as evidence, and no caution was given to the jury by the court to correct its effect, nor does it appear that the remark by the judge was made in hearing of the jury. The admission of the answer was error and its effect was nob corrected. Clardy v. Callicoate, 24 Tex., 170, and cases cited; Hunt v. Riley, 50 Tex., 104; Wharton on Evidence, sec. 509.
5. Several of the instructions given by the court are subject to criticism.
The third paragraph shows a confusion of ideas — confounding the right of set-off with the plea in reconvention. “The plaintiff is entitled to recover the amount of the note [300]*300sued on and interest, which is to be offset by such damages (if any) as may be awarded by the jury to the defendants under their plea in reconvention.” Had such been the legal effect of the plea it should have been set aside on the demurrer of the plaintiff to it. The plea in reconvention extended to and explained the consideration of the note; and while in reaching results the jury may have taken some such process in their labor, it was not a matter of law upon which they should have been instructed. Pas. Dig., 3447.
6. The fifth charge of the court we think was properly given, unless, perhaps, the damages should have been limited to the “ natural and proximate result or consequence ” of the attachment. Drake on Att., § 175. The charge was: “ If the attachment complained of was wrongfully sued out, the defendants are entitled to recover such actual damages as the proof shows they suffered in consequence thereof.” The unlimited consequences as constituting the matters upon "which damages should be computed may have injured the plaintiff.
7. The tenth charge, and which is assigned as error, is as follows: “If you believe from the evidence that the attachment was issued against W. G-. & John B. Wilkins, on a debt due by James A. Wilkins & W. G. Wilkins, then the attachment was wrongfully sued out.”
This charge is warranted by the pleadings and the evidence, and we think it correct and the law in such case. The other hypothesis, that the suit was properly brought and the attachment ran against the interest of W. G. Wilkins, may have been given. The testimony actually before the jury was not sufficiently explicit to render the failure to submit this erroneous.
8. The eleventh charge is: “A party is bound by the acts of his agent, and more especially so if, after full information, he approves or ratifies the acts of his agent or fails to repudiate.” This, as a general proposition, is law. In this case it was liable to be applied to the injury of plaintiff, unless it had been modified by the explanation; and that the natural result of such liability ivas only for the wrongful [301]*301act and not for malice of the agent. Wallace v. Finberg, 46 Tex., 50, and cases cited. The evidence as to the agency is that the claim was placed in the hands of the attorney for collection, with authority to collect. There is no evidence ofW.H. Lee’s actual knowledge of the errors and mistakes of the attorney.
9. The twelfth charge asked, relating to the existence, etc., of a settlement, is as follows:
“ Any settlement or compromise between the parties after the levy of attachment would be binding to the extent of such settlement and compromise; but the giving the note sued on, and the payment of the $600 by the defendants, would not release the damages claimed by them in this suit, unless they were expressly and unequivocally released by the defendants; and the burden of showing such release is on the plaintiff.”
The statute requires that the judge “ shall frame his charge so as to submit questions of fact solely to the decision of the jury.” “ He shall not in any case charge or comment on the weight of evidence.” Pas. Dig., 1465. It was a question of fact whether there had been a settlement or compromise. It was proper that that fact should be submitted to the jury. That the note on its face was not a release of damages was properly enough told the jury, if it had been so given. But that the giving of the note sued on and the payment of the $600 by the defendants, under the facts in evidence, was or not a release, or whether the transaction was a settlement, was a question of fact, and a most material issue. The court therefore encroached upon the work of the jury when they were told that they “ would not release the damages claimed.” Besides the jury were instructed that the burden of showing" a release of the damages, expressly or unequivocally made, was upon the plaintiff. Whether the emphatic words, “expressly and unequivocally,” be applied to the quantity of proof, or the mode of showing the release, or to the terms of a contract for release (for they may apply to either), they apply to the work of the jury a degree of certainty not required by the law in civil [302]*302cases. The release could be proven, as any other fact, with reasonable certainty and with preponderance in testimony. This instruction was erroneous, and likely to injure the plaintiff.
10. The thirteenth charge is only subject to the criticism urged against the third. It cannot be regarded as having been injurious to plaintiff.
11. The fourth assignment of errors is the general one that the court erred in refusing the charges asked by the plaintiff. The instructions were numerous. The third and Eighth ought to have been given as explanatory of the corresponding charges given. It may have been proper to have given the ninth, relating to payments made during the war to Confederate States receivers. Such payments under the Confederate States sequestration law were only voluntarily made, not enforced beyond current interest, and could not affect the right of the owner to any extent beyond such interest, even allowing to the Confederate States sequestration proceedings all the validity that could be claimed for them. Simpson v. Foster, 46 Tex., 623.
12. The fifth, sixth and eighth errors question the propriety of the verdict under the law and evidence.
The statement of facts shows that Lee was the holder and recognized owner of a debt on Wilkins & Bro.; that one of the members of the firm had sought to compromise it with him since the war; that the same member of the firm, in his assignment for the benefit of his own creditors, provided for the payment of this debt in the hands of W. G-. Wilkins, one of the defendants in this suit. This must either have recognized W. G. Wilkins’ ownership in the Emerson, Brewster & Co. debt or was an attempt to provide funds in his hands for its settlement. (This repudiated any ownership through the Confederate States receiver proceedings, as J. A. Wilkins himself had paid (biddings and had taken up the note.)
The claim had been placed in the hands of an attorney by plaintiff at Hew York for collection; there was property in Hew York of W. G-. Wilkins subject to attachment; the [303]*303attorney took proceedings for the purpose, but by some carelessness did not set out the full amount in his suit, nor obtain the full names of the firm of Wilkins & Bro.; attachment was issued and levied upon property, one-half interest in which was subject to the attachment if regularly sued out. The amount in value of the goods seized are stated by one at $3,000 and by another at about $10,000. On the seizure plaintiff wrote to the defendant W. G-. Wilkins of the attachment, the costs likely to be incurred, and suggesting settlement; to this defendant replied stating his efforts to settle the old debts of the firm of Wilkins & Bro. and asking a reduction, etc. To this the plaintiff responded, making a reduction of about fifty per cent, of the amount actually due, half cash, balance on time. This was accepted, and the release of the goods was to follow; the money and note did not leave Brenham until the goods reached the de-,. fendants. They had been seized the 23d of August, 1872, and were released September 27, and actually reached defendants October 7, 1872. The defendant W. Gr. Wilkins, who-had advanced the money, was at once or had already been provided for by J. A. Wilkins among his creditors, and from which twenty per cent, appear to have been realized.
The plaintiff in his letter expressed his intent as not to injure defendant but to obtain his debt; his settlement does not contradict his statement. The mistake of his attorney in the attachment proceedings, while subjecting defendants to damages for the wrongful suing out the attachment, should not form the basis of exemplary damages. For the payment and note, defendant W. Gr. Wilkins had his goods released, and his old debt, for about double the amount paid, canceled.
To the extent of exemplary damages we think the verdict not sustained by testimony.
13. The motion for new trial, while showing material testimony, does not excuse want of diligence. The testimony of the complete record in the attachment proceedings might not correct the effect of the seizure as wrongful, yet it would show that the purpose was to pursue the real parties and [304]*304to subject such property only as would be liable to seizure under the amended proceedings and writ. It might be of importance on questions of exemplary damages.
[Opinion delivered May 24, 1880.]
14. The subject of practice in regard to the right to open and close has been discussed in cases from the same district court, and reference is made to the case of Franklin v. Smith et al.
For the error in the admission of the testimony in allowing witness Dulaney to give his opinion as to the amount of damages, the errors in the charges of the court noticed above, and because the verdict as to vindictive damages is not supported by the testimony, the judgment below should be reversed.
Beversed and remanded.