Phillips v. Fitzpatrick

Bates, Judge, delivered the opinion of the court. The instructions asked by the defendant were properly re [277] fused, because they were "based upon the supposed facts, concerning which no evidence was given at the trial of the cause. Their legal merit is not considered. As to the motion to strike out the amended statement and account filed in the cause, the bill of exception states that the motion was overruled, while in another part of the record it appears that the motion was sustained, and that the amended statement was ordered to bo stricken out, with exception of the account therein stated. It being, therefore, uncertain what was precisely the action of the lower court in that matter, we cannot review it. The motion to dismiss the cause was properly overruled. An account filed is a sufficient statement of a cause of action before a justice of the peace. The judgment against two of the three debtors is no bar to a suit against the third. The justice had jurisdiction for the amount claimed, a credit having been given for the excess. Judgment affirmed. Judges Bay and Dryden concur.