William C. Tompkins & Co. ex rel. Oakey v. Bennett , 3 Tex. 36 ( 1848 )

Mr. Justiee Wheelem

dissented from the opinion of the court as pronounced, but stated that he was not prepared to say that the judgment ought not to be affirmed. He was inclined to think it ought to be, for the reason that it was not proved at the trial that the account sued on was presented to the administrator previous to the institution of the suit. The fact, having been put in issue by the general denial of all the allegations in the petition, should have been proved, to entitle the plaintiffs to recover. It was expressly so decided by the supreme court of the republic, in the case of Cummings’ Adm’r vs. Jones. [Dallam, 531.] And that decision was recognized and affirmed in the subsequent case of Daily vs. Chevallier. [Ibid. 555.]