Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 149
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1875.] RtorBsTSON V. 3[ARSH. 149
Statement of the case.
court refused to permit appellants to amend, the record
does not support the assignment. Instead of making the
proper amendment, so that the case might have proceeded
to trial in the name of the proper party, the plaintiffs submitted
to the judgment upon the issue of law upon which
they had gone to trial, and, on a joint appeal, are still endeavoring
to prosecute the suit in their joint names.
Neither this court nor the one below is authorized to
dismiss a suit as to one of the plaintiffs, and require it to
be prosecuted by the other against their wish. When parties
plaintiffs are improperly joined, if the court, on being
asked to do so, give the parties leave to amend, so as to obviate
the objection, it is all that can be expected or required
of it. But if the plaintiffs, through design or neglect, fail
to make the necessary amendment, the court has no alternative
but to give the proper judgment in the demurrer,
which is to dismiss the petition.
There is no error in the judgment, and it is affirmed.
J. M. ROBERTSON V. MARSH & MCKELLER.
1. ILLEGAL CONTRACT.-Money paid to effect the release of one accused
of theft cannot be recovered, nor will money so paid be allowed to
support a plea of payment upon account held by the party so receiving
the money; otherwise if the credit had actually been allowed.
2. Nor would a subsequent promise to allow such payment as a credit on
account be enforced.
APPEAL from Rusk. Tried below before the Hon. J. B.
Bryant Marsh, Ed. McKeller, and John McKeller, as
surviving partners of Marsh & McKeller, of Shreveport,
Louisiana, and Miller & McKeller, of Texas, sued J. M.
Robertson on an account.
Defendant pleaded payment.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/157/: accessed June 22, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .