Watson v. Loop , 12 Tex. 11 ( 1854 )

Wheeleb, J.

It is objected on behalf of the plaintiff, that the Court erred in permitting the defendant to amend by filing a demurrer after he had answered by a general denial. This Court has often deprecated, as irregular, the practice of filing the demurrer or exceptions after the defendant has answered by a general denial or other matter presenting an issue of fact in bar of the action. But we have never decided that the having entertained a demurrer to a petition which disclosed no cause of action, under such circumstances, was error. In the due order of pleading, undoubtedly, the presentation of issues of law should precede those of fact. But where the petition is so fatally defective as that it must be adjudged insufficient on demurrer or on a motion in arrest of judgment, it would be idle to require the parties to proceed to a trial of the issues of fact, and drive the defendant to his motion in arrest of judgment. There is no rule of practice or decision of this Court which requires such an unnecessary and useless expense and consumption of time. We had occasion to notice a similar objection in the case of Fowler & Clepper v. Stoneum, lately decided at Galveston, (11 Tex. R.,) and in accordance with the opinion then expressed, we hold that the Court did not err in sustaining the demurrer.

We are of opinion, also, that the demurrer was rightly sustained. It is free from doubt, that, by the Common Law, the action in this case abated, and the remedy was determined,.by the death of the defendant. It was the general rule of the Common Law, that the right of action for torts unconnected with contract, did not survive the death of the wrongdoer, but was determined by it. And we are aware of no statute which has changed the rule of the Common Law in relation to statutory actions of the character of the present. The action given by the statute is penal in its nature; and is given, not specially to the party agrieved, but to any person who shall become the informer or plaintiff in the prosecution. (Dig. Art. 2380.) It is not founded upon any contract, express or implied, but solely upon a wrong committed by the defendant, and in such a case the principle of the maxim, actio personalis moritur cum persona, applies; and it does not survive either by or against the executor or.other representatives. (1 Chit. PL 68, 89; 3 Bl. Com. 302.)

There is another ground on which the judgment of the Court sustaining the demurrer must have been affirmed. There is no averment that the defendant was a “ merchant or trader,” and it is only against such that the statute denounces the penalty attached to this offence. The judgment is affirmed.

Judgment affirmed.