F. Mogelin v. W. Westhoff, 33 Tex. 788

Walker, J. The appellant in bis brief contends that the note sued on was not stamped when offered in evidence. The district judge says, in the bill of exceptions, that it was stamped, though the stamp had not been cancelled. It was the duty of the plaintiff in error to stamp the note when be made it, and cancel the stamp. He can be beard with little patience setting up his own wrong. It may be that he has committed a fraud upon the government by avoiding the revenue laws, but be has not entitled himself to have this judgment reversed. We find one case in his brief, but quite a different one in the record.

Mogelin and Friday were, defendants below to an action on a note ox band, which they admit, they made and delivered to the defendant in error, and that the same was due and unpaid at the commencement of the suit; that they were partners in trade at the commencement of the suit, hut had dissolved their partnership, and appellant sets up that by arrangement between themselves, Friday undertook and agreed to pay the note on which this suit was brought.

This averment might be very good in’ an action against Friday for breach of his contract; hut until the appellant has paid the debt, we hardly think it would avail him even in that action, as he has not yet been damaged. But it was certainly no defense to this action, and the court committed no error in disregarding the answer. It might with propriety have been stricken out on motion. • We see no error in the proceedings of the district court; and the judgment is therefore affirmed. Affirmed