Another v. Bailes

• Decision Date: 01 January 1852
• Citation: 9 Tex. 61
• Parties: WILLIAMS AND ANOTHER v. BAILES.
• Court: Texas Supreme Court

9 Tex. 61

WILLIAMS AND ANOTHER

v.BAILES.

Supreme Court of Texas.

1852.

As a general rule all exceptions touching the legal sufficiency, whether of form or of substance, of the pleadings should be taken before going to trial upon the issues of fact.

Where a plea impeaching the consideration of an instrument or note in writing is filed unsupported by affidavit, the plaintiff must except or move to strike out before going to trial, or it will be deemed that he waives the affidavit. (Note 13.)

A plea of non est factum, unsupported by affidavit, will not cast the burden of proof on the plaintiff, although under such defective plea if not objected to in time the defendant may adduce evidence in his own defense. (Note 14.)

Appeal from Williamson. Suit on a promise to pay under seal. Plea of failure of consideration not supported by affidavit. On the trial the defendants offered evidence in support of their plea, but the court excluded the evidence on the ground that the plea not having been supported by affidavit was no part of the pleadings in the cause. The defendants excepted.

Oldham & Marshall, for appellants. The affidavit in support of the answer as required by the statute, (Hart. Dig., art. 710,) is no part of the answer. It is but a prerequisite to the admission of the answer upon the files of the cause. If the plaintiff intends to object to the answer for want of the affidavit, he should do so before going into the trial by moving to strike the answer out of the record; but if he neglects to do so and goes to trial, it would seem that he thereby waives the objection, and cannot exclude evidence which may be offered in support of the answer.

Under the common-law practice, if a defendant file a plea not verified which the law requires should be sworn to, and the plaintiff does not object to it, but goes to trial, it will then be too late to object by moving to exclude evidence offered under the plea. (Hagar v. Mounts, 3 Blackf., 57; Id., 261.)E. R. Peck, for appellee. I. The note sued on is under seal. (2 McC. R., 380; 3 Mis. R., 79; 4 McC., 267; 3 Blackf. R., 161; 2 Id., 322; Bee, D. C. R. 140; Flemming v. Powell, 2 Tex. R., 225.)

II. The answer is special and goes to the impeachment and inquiry into the consideration of the note. It is not sworn to; therefore it is a nullity, and defendants were not entitled to prove matters therein set forth in answer to plaintiff's cause of action. (Hart. Dig., art. 710.)

III. The plaintiff in not excepting to the answer did not lose his right to object to the evidence sought to be given under it. (2 Tex. R., 594.)

Plaintiff was not compelled to demur. Our practice does not require a proceeding of that character. The statute in relation to pleadings in a suit go no further than petition and answer.

It is true at common law a party that did not except to a plea because it was not sworn to waived his right to resist evidence under that plea if otherwise good; but the reasons and policy of that rule does not apply to our practice, and therefore the rule ceases, because,

1st. It was only dilatory pleas, not pleas to the merits, that were required by common law to be sworn to. (4th Anne, c. 16, sec. 11; Gould Pl., 230.)

2d. The party was compelled to plead until an issue was formed on all the pleadings.

3d. If he answered a defective pleading in forma, he could not afterwards demur or object to evidence under that plea, because by pleading he had admitted its correctness and waived his right to do so.

HEMPHILL, CH. J.

The only question in this case is as to the alleged error in excluding the evidence offered in support of the plea of the failure of consideration. The objection to its admissibility was that the plea was unaccompanied by the affidavit required by the statute.

The provision of the act which is applicable here is expressed as follows, viz, “No plea impeaching the consideration of any instrument or note in writing under seal shall be admitted, unless supported by the affidavit of the defendant or some person for him, stating that the facts set forth in said plea are true,” &c.

The appellants contend that if the plaintiff intended to object to the plea for the want of an affidavit, he should have done so before going into the trial; and that having neglected to do so he has waived the objection and cannot exclude the evidence in support of the plea. The question is not without difficulty. The oath is declared to be a positive, legal requisite of the plea, and is, therefore, not to be lightly disregarded.

If without the affidavit the plea be essentially a nullity, it is no plea and may be stricken out at any time. But this requisite, imposed by statute upon the plea, is not for the benefit of the defendant but for that of the plaintiff. Were it not for the restriction of the statute, a plea impeaching the consideration of a sealed instrument...