Longino v. Ward

Opinion by

Winkler, J.

§ 521. Amendment; neiv cause of action; limitation. An amendment which merely supplies omissions, or corrects mistakes in an original proceeding, sets up no new cause of action, and the statute of limitation is not in the way of such an amendment. [Smith v. Kinney, 33 Tex. 285.] It is the office of an amendment to correct a misdescription of the cause of action as well in respect to dates as in any other respect, and a correction as to date relates back to the time when the cause of action was declared on, and the statute of limitation does not ran in the interim. [Turner v. Brown, 7 Tex. 491.] Where, by mistake, a pleader states a cause of action so that it appears to be barred by the statute of limitation, he may unquestionably amend his pleading by so correcting his averments as to show that in point of fact his cause of action was not barred. He is not concluded by the averments in his original pleading. [Coats v. Elliott, 23 Tex. 612; Epperson v. Young, 19 Tex. 475; Young v. Epperson, 14 Tex. 618; Smith v. McGaughey, 13 Tex. 467.] If it appear by the original pleading that there is a valid cause of action, however defectively it may be presented, the running of the statute of limitation is interrupted and stopped thereby. [Scoby v. Sweat, 28 Tex. 729; Wells v. Fairbanks, 5 Tex. 583; Kinney v. Lee, 10 Tex. 155; Coles v. Portis, 18 Tex. 156; Bremond v. Johnson, post, p. 325.]

§ 522. Charge of the court; should be signed by judge, etc.; charges requested, and given or refused, should also be signed by judge, etc. The judge should sign officially the charge given to the jury. He should also, when he gives or refuses a charge requested, indicate, by writing upon the same, whether it was given or refused, and sign it officially; and all charges should be marked filed by the clerk, and should be copied into the transcript together with all indorsements thereon. When a charge is copied into the transcript, it should be made to appear whether it was given or refused.

§ 5 2 3. Evidence; rule as to production of the best. The rule is that the best evidence of which the case is susceptible must, in general, be produced. “ This rule does not demand the greatest amount of evidence which can possibly be given of any fact; but its design is to prevent the introduction of any which, from the nature of the case, supposes that better evidence is in the possession of the party. It is adopted for the prevention of fraud; for, when it is apparent that better evidence is withheld, it is fair to presume that the party had some sinister design or motive for not producing it, and that, if offered, his design would be frustrated. The rule thus becomes' essential to the pure administration of justice. In requiring the production of the best evidence applicable to each particular fact, it is meant that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had. The rule excludes only that evidence which itself indicates the existence of more original sources of information. Until it is shown that the production of the primary evidence is out of the party’s power, no other proof of the fact is in general admitted.” [1 Greenl. Ev. §§ 82-84.]

December 8, 1877.

Reversed and remanded.