Herndon v. Ennis , 18 Tex. 410 ( 1857 )

Wheeler, J.

The defendant sustained no injury by the ruling of the Court, sustaining exceptions to so much of the answer as specially denied the authority under which the note purported to be made. The special traverse put in issue nothing which was not put in issue by the general denial. The latter included the former : for, under the general denial, the plaintiffs were required to prove every fact essential to their right to a recovery upon the notes. The special denial did not increase the burden of proof, or entitle the defendant to insist upon the proof of any fact which -he was not entitled to insist upon under the general denial. Having sustained no injury by the ruling, though it had been erroneous, it would not authorise a reversal of the judgment.

The material question is, whether it was necessary for the plaintiffs, under the general denial, to prove the authority to make the assignment. We are of opinion that it was not. The Statute provides that, where suit is brought by the assignee, the assignment shall be regarded as fully proved, unless the defendant shall deny in his plea that it is genuine, and file an affidavit, &c. (Hart. Dig. Art. 2524.) Where, as in the present case, the assignment is made by an agent, full proof of the assignment must include, as well proof of the authority of the agent, as of the fact of the assignment. The Statute is very comprehensive in its terms, and sufficiently so, we think, to include every fact which it would have devolved on the plaintiff to prove in order to establish his right as assignee, in the absence of the Statute. We are of opinion therefore that there is no error in the judgment and it is affirmed.

Judgment affirmed.