Spann v. Glass's

Citations

• 35 Tex. 761

Syllabus

<p>1. When the plaintiff sues as executor, his character as such can be put in issue only by a plea in abatement. A general denial of the plaintiff’s petition, nor an unsworn allegation that he is not executor, will not raise the issue.</p> <p>S. In a suit on a note the defendant pleaded part payment, and as evidence introduced a receipt for §1000, dated in 1863, and purporting to have been given by an agent of the plaintiff. The court permitted the plaintiff to prove that the party who gave the receipt was not his agent, and that the money referred to was Confederate money, which he refused to accept when sent by the defendant. The defendant asked the court to charge the jury that, inasmuch as the plaintiff had not under oath denied the agency or the genuineness of the receipt, and had not pleaded that the money was Confederate money, therefore the jury could not question the agency alleged, nor consider what kind of money was paid the agent. Held, that the court below correctly refused these instructions, and did not err in charging the converse of them.</p> <p>3. A witness is presumed competent to testify, until the contrary is shown by the objector. Even while interest disqualified witnesses in this State, it was not sufficient to show that the witness was an heir or legatee of the estate whose interests were involved in the suit;—it was further necessary to show that the estate was solvent.</p>