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: 322

322 STEPHENSON v. MCFADDIN. [Term of
Syllabus.
l-resent case. A verdict cannot cure or supply the failure in a
petition to state a cause of action; and omission to act, or rely
on a demurrer to a petition fatally defective, will not prevent
a party from availing himself of such defect, on appeal, or writ
of error to this court. (Holrnan et al. v. Criswell, 13 Texas,
38; Brackett v. Devine, 25 Texas, Sup. 194.)
In this case plaintiff alleged the execution of the note by
defendants, his ownership of the same, with a prayer for citation,
and for "judgment against them for the principal and
"interest due upon said note;"' from this it might be inferred
that the whole or a portion of the debt remained unpaid, as
was said in the case cited from 25 Texas: " The plaintiff has
"failed to state a cause of action, in that he does not aver a
"breach of the contract sued on," he does not aver that defendants
failed or refused to pay the note, and such failure must
be averred to support the judgment.
The petition being wanting in such averments, is wholly insufficient
to support the judgment, which must be reversed,
and the cause remanded, when plaintiff can amend his petition.
Reversed and remanded.
GILBERT STEPHENSON AND OTHERS V. WILLIAM MICFADDIN.
1. PARTIES. In a suit on an executor's bond, where one of the principals
and one of the sureties are dead, the principal surviving cannot object
to the non-joinder of the legal representatives of the deceased executor,
or of the deceased surety.
2 CONFEDERATE MONEY-CONSTRUCTION OF WILL. When, by a will
made in 1862, a bequest was made of five hundred dollars, and suit was
brought for the legacy against the executor, it was not error to refuse
evidence offered by the executor, in defense, to show that the bequest
was intended to be paid in Confederate currency, or that it was to be
discharged by a Louisiana bank bill of that denomination.
8. RESPONSIBILITY OF EXECUTOR TO PAY LEGACY. Where the assets were
sufficient, it is no defense to a suit for money bequeathed, against the
executor, that the estate has been parti tioned among the heirs, or other
legatees.