William Brewer, use, etc., vs. Edward West - Writ of Error from Red River County, 2 Tex. 376

Mr. Justice Lipscomb, after stating the facts of the case substantially as they are here stated, delivered the opinion of the court as follows: The answer not only contains a great deal of impertinent and irrelevant matter, but is further objectionable as not presenting any defense in law, admitting it to be all true, to the action. Unless the defendant was injured or likely to be injured by the fraud of which he complains, he could claim no defense from it, either in law or equity. He does not offer to return the slave after being three years in the exercise of ownership over him.

This he should have done to entitle him under any circumstances to relief. His prayer for relief is wholly incompatible with every notion of common justice. To ask that he should have the small proportion of the purchase money that he had paid refunded tp him and his note canceled,, without giving up the property, presents a proposition too iniquitous to be countenanced for a moment by the court. The-answer setting up no defense, presented no issue to the jury,, and ought therefore to have been treated as a nullity by the court, and stricken out if not demurred to.

The verdict on such an answer cannot avail the defendant and must be set aside, and the cause remanded with the instruction that the-answer be overruled, and the defendant to have leave to file a. new answer to the plaintiff’s action, if he wish so to do.