Conner v. Autrey , 18 Tex. 427 ( 1857 )

Wheeler, J.

That the note sued on was a “ note in writing, under the seal of the party charged therewith ;” and 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. R. 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, as a sealed note, and that, for that reason, the Court did not err in overruling the exceptions to the plea. The Statute declares that, in any suit founded on any instrument or note in writing, under the seal of the party charged therewith,” the defendant may, by plea, impeach the consideration, &c.; “ but no plea impeaching the consideration of any instrument or note in writing, under seal, shall be admitted, unless supported” by affidavit, &c. (Hart. Dig. Art. 710.) Although it is not averred in the petition that the note was under seal, yet the signature and seal are set out in the petition, so that it appears by the petition that the suit was founded on a note in writing under seal. The case, therefore, upon the face of the petition, comes as clearly within the very letter of the Statute, as if it had been described as a sealed note ; or as if the fact of sealing had been expressly averred. And the Statute is peremptory, that the plea impeaching the consideration shall not be admitted, un_ less supported by affidavit. The Court therefore erred in overruling the exceptions to the plea.

But it is said this was an immaterial error ; for that it appeared in evidence that the consideration of the note was illegal, or immoral; that the judgment is therefore right upon the merits, and the result must be the same upon another trial. It may be true, nnd we are not disposed to question, that the verdict and judgment were right upon the evidence. The house in which the playing took place does appear to have been, at the time, such a place of resort for gaming, as to bring the playing there within the prohibition of the law, and consequently within the description of unlawful gaming. (Wheelock v. The State, 15 Tex. R.) If not, still there may be good reason to distinguish the gaming, out of which the consideration of the note appears to have arisen, from a wager upon a horse race, and to characterize the contract as upon a consideration which is immoral. It may therefore appear that the verdict was right upon the evidence, yet if the Court had not erroneously sustained the plea impeaching the consideration, the evidence must have been excluded ; and, prima facie, the plaintiff would have been entitled to recover upon the note. It was the right of the plaintiff to have the evidence excluded, unless the plea had been supported by aEdavit; and that right cannot be denied him.

The result upon another trial may not be the same, unless the defendants shall see proper to amend, by supporting their plea impeaching the consideration of the note by aEdavit, as the statute requires. The effect of the ruling upon the exceptions to the plea was to deprive the plaintiff of a clear legal right affecting the merits of the case. That cannot be deemed an immaterial error. The judgment must therefore be reversed, and the cause remanded for further proceedings.

Reversed and remanded.