Brooks v. Breeding (32 Tex. 752, 1870)

Lindsay, J.

By the amendment of the 6th section of the act of March 20th, 1848, prescribing the mode of fixing the liability of drawers and indorsers of bills of exchange and promissory notes, enacted on the 11th day of January, 1862, all holders of such hills and notes were placed upon the same-footing, as to legal remedies, whether such instruments originated in contracts between merchant and merchant, their factors or agents or not. The same method of fixing the liability of the parties to such instruments are alike open to all, and the act of the 11th of January, 1862, was, no doubt, intended-to relieve other holders than merchants from the difficulty of fixing such liability, in consequence of the general suspension of the collection of debts through the action of the courts. To construe Art. 223, Pas. Dig., as an inhibition to sue any but a single or the immediate assignor or endorser, renders it wholly incompatible with Art. 229, a statute of subsequent date. And if so, the rule of construction would be to give effect to the last expression of the legislative will. But it is apparent that Art. 223 was intended to operate only upon non-negotiable instruments, and that the word “ sections,” in the article, is a misprint for “ section,” referring directly to the preceding section in the same act for its proper interpretation; and thus rendering it consistent and harmonious with the act of the 20th of March, 1848, in Art. 229.

Upon the giving of the bond for costs required by the statute, when a party files his petition for the writ of error, it issues as a matter of right; and, upon the assignment of errors, this court is hound to notice them, whether they be matters of law or matters of fact. If no statement of facts is presented, the courtmust notice "the errors of law apparentnpon the record. In judgments by default, a party may take advantage of any error in law, by motion for a. new trial, in arrest of judgment, or by writ of error. The failure to take exception to the action of the District Oourt is no waiver of the right -. -tl>.