G. H. G. May v. P. Taylor, Adm'r, &c., 22 Tex. 348

Roberts, J. There are two grounds of error, well assigned, in this case, to wit, striking out the plea of payment, and rendering judgment on the mortgage. The plea of payment is general, without specification of time and place, with certainty, and would have been subject to a special exception, regularly filed. A motion to strike out would be more appropriate, when the plea may be treated as a nullity, or when it is wanting in some essential requisite, as an affidavit, when that is necessary to its validity. A defence, defectively set forth, should be excepted to specially.

It is presumed, that the court would not have stricken out this plea, had attention been called to it. The court instructed the jury to find for the plaintiff the amount of the note and interest, and their verdict was in exact conformity to the charge. The judgment was rendered, not only upon the note, but also upon the mortgage, concerning which there was no finding in the verdict. The province of the verdict, is, to declare the facts upon which the judgment is to be predicated.

Tbe existence of tbe mortgage, as well as tbe note, was put in issue, and tbe entire omission of a finding upon the mortgage, is fatal to tbe judgment, so far as it relates to tbe mortgage. (Patterson v. The United States, 2 Wheat. Rep. 221.) There are other questions in tbe case in relation to tbe pleading, making parties, &c.; but as tbe pleading may be reformed and amended, and other parties regularly brought in, they need not be referred to further. Judgment will be reversed, and tbe cause remanded. Reversed and remanded.