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: 487
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1875.] HOUSE & Co. AND BURNETT V. COLLINS. 487
Statement of the case.
trix, as between the same parties, to put in issue her testator's liability
on the alleged indorsement of the note on which the judgment by default
against him was founded.
2. PLEADING-SCInE FACIAS. Nor would the affirmance of the judgment
by default by the Supreme Court on appeal, preclude such equitable
defense from being set up in a scire facias proceeding to revive the
3. SET-OFF. An executrix cannot set off damages for harassment and attorney's
fees paid against a claim prosecuted against the estate she
ERROR from Houston. Tried below before the Hon. L. W.
On the 31st of December, 1859, W. D. Williams executed
and delivered to T. P. Collins his note for three hundred and
eighty-four dollars and eighty-six cents, due one day after date,
bearing ten per cent. interest, and payable to the order of T.
P. Collins. This note was duly indorsed, and delivered, for a
valuable consideration, to House & Co., and they, in January,
1861, brought suit on it against Williams and Collins.
Williams and Collins, it is alleged, were served, the former on
the 2d of February, 1861, the latter on the 6th. Both failed
to answer, and on February 22, 1861, judgment by default
was rendered against them for four hundred and twenty-eight
dollars and fifty-nine cents. They sued out a writ of error to
this court, where the judgment was affirmed.
In the meantime, however, the court-house, with the records
of Houston county, had been destroyed by fire, Williams had
died, and one Bridges been appointed his administrator.
However, before the fire, the cause had been taken to this
court, from where the plaintiffs in error obtained certified
copies of the original petition, citations, and judgment, as found
in the transcript.
On July 3, 1867, the plaintiffs in error, alleging the above
facts, filed their petition to have said judgment revived,
* For former action of this court on motion to dismiss writ of error in this cause, see
UEouse & Co. v. Burnett, 40 Texas, 346-361.
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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/m1/495/: accessed June 28, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .