Clopton v. Pridgen
| Decision Date | 01 January 1852 |
| Citation | 8 Tex. 308 |
| Parties | CLOPTON v. PRIDGEN. |
| Court | Texas Supreme Court |
A plea which impeaches the consideration, either in whole or in part, of a note in writing under seal is required by the statute (Hart. Dig., art. 710) to be supported by affidavit, and a note in the ordinary form, concluding ““witness my hand and seal,” with the word “seal” written inside of an ink scroll, is “a note in writing under seal,” within the terms of the statute. (Note 64.)
Appeal from Harrison. This was a suit by the appellee against the appellant on two notes under seal, each of the following tenor:
“$1,120. On the first day of March next I promise to pay R. S. Pridgen eleven hundred and twenty dollars, for value received, as witness my hand and seal this 8th day of October, 1849.
+--------------------------------+
¦(Signed)¦R. J. CLOPTON.” [Seal.]¦
+--------------------------------+
The defendant pleaded, in substance, that the notes sued on were given for the purchase-money for a tract of land described in the bond of the plaintiff to make to the defendant a title to the land, which was made a part of the answer; that the plaintiff represented to the defendant that the tract contained six hundred and forty acres, whereas it contained but six hundred acres; that the plaintiff, by his said bond, covenanted to make to the defendant a warranty title to the land on payment of the notes, but that he was unable to make title, for that since the making of the bond and notes suit has been instituted against the plaintiff by one Christie, in the United States District Court, in which suit the defendant was advised the said Christie would recover of the plaintiff the land in question; that his remedy upon the covenants contained in the bond of the plaintiff would be ineffectual by reason of the inability of the plaintiff to respond in damages, he being insolvent; and he prayed that the plaintiff might be therefore enjoined from proceeding to enforce payment of the notes until the right of the plaintiff shall have been adjudicated and his title established.
At the Spring Term, 1851, the case was continued on affidavit of the defendant, to obtain certain evidence of record in the United States District Court at Galveston, averring that he had applied to the clerk of said court for the evidence, with a tender of the proper fees, in time to have had the evidence at that term of the court. At the Fall Term thereafter the defendant again applied for a continuance, averring that a transcript of the record of a suit in the United States District Court at Galveston, between one Christie and the plaintiff, was material to his defense, repeating substantially the same diligence to obtain the evidence as before, and that the clerk of the court at Galveston had promised to forward the transcript, but that it had not arrived, and further stating what he expected to prove by the desired evidence. The court refused a continuance. The plaintiff moved to strike out the defendant's plea impeaching the consideration of the notes, because not supported by affidavit, which motion the court sustained. There was judgment for the plaintiff, and the defendant appealed, and assigned as error the...
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Conner v. Autrey
...that the plea impeaching the consideration must have been supported by affidavit, is not an open question.” Hart. Dig. art. 710; Clopton v. Pridgen, 8 Tex. 308;English v. Helms, 4 Id. 228. But it is insisted for the appellees, that the note was not declared on, or described in the petition,......
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...by repeated decisions, settled the question that the statute is imperative and must be obeyed. See Lewin v. Houston, 8 Tex. 97;Clopton v. Pridgen, 8 Tex. 308;Short v. Price, 17 Tex. 403. We are therefore of opinion that the court below did not err in overruling defendant's demurrer to the p......