McMillan v. Croft

• Decision Date: 31 December 1847
• Citation: 2 Tex. 397
• Parties: HIRAM MCMILLAN v. GEORGE C. CROFT
• Court: Texas Supreme Court

2 Tex. 397

HIRAM MCMILLAN

v.GEORGE C. CROFT¹

Supreme Court of Texas.

December Term, 1847.

Appeal from Lamar County.

Where the legal title to a note appears to be in the plaintiff, he is the proper person to maintain an action upon it, although another may be the equitable owner of the note. [ Post, 501; 1 Tex. 87;5 Tex. 171;6 Tex. 515;11 Tex. 142;15 Tex. 44;19 Tex. 172;28 Tex. 622.]

A party should not be permitted to propound interrogatories to the adverse party at a term subsequent to the one at which the answer was filed, and within a few days of the time at which the cause would be called for trial, unless it was essential to the justice of the cause, and the delay was satisfactorily accounted for.

Case stated in the opinion.

No appearance for the appellant.

Allen, for the appellee, submitted the cause with a suggestion of delay.

Mr. Justice WHEELER delivered the opinion of the court.

The appellee sued the appellant upon a note made by the latter, payable to the former. There are in the note no words of negotiability, and there is no indorsement upon it.

At the spring term, 1845, of the district court, the defendant answered; and at the fall term thereafter, repeated in substance the same answer; containing a general denial, and specially denying the interest of the plaintiff in the note sued on; averring that the plaintiff had availed himself of the bankrupt law of the United States, “whereby the note aforesaid, if any such existed, has become the property of a certain assignee in bankruptcy, whose name is unknown to this defendant, and whereby the plaintiff has no right to sue.”

To this answer he annexed interrogatories calling on the plaintiff to answer, 1st. Whether he had ever availed himself of the bankrupt law of the United States. 2d. Whether he had surrendered the note to any person. 3d. Whether by the law of the United States he was required to make such surrender; and 4th. Whether the note in question belonged to any person other than the plaintiff.

This special plea and the annexed interrogatories appear to have been filed but two days before the trial. At the instance of the plaintiff they were stricken out and the cause proceeded to trial. The defendant excepted to the ruling of the court in striking out the plea and interrogatories; and this exception brings up the only question presented by the record.

In Thompson v. Cartwright, a case in which I did not sit, decided at the present term, it was held that “the mere naked fact of the plaintiff not being the real owner of the note would not be matter of defense.” The case of Farr v. Gomez, 9 Wend. 653, is there cited, in which it was said that “if the holder of a note or bill is discharged under the insolvent act, no interest or right in the securities passes to his assignees; and the holder may continue an action at law previously commenced, for the recovery thereof, in his own name, or bring a new suit without reference to the assignees.”

The legal title to the note, in the case before us, appears to have been in...