McAlpin v. Finch , 18 Tex. 831 ( 1857 )

Wheeler, J.

We do not think it absolutely essential that the affidavit to a petition for certiorari should be made by the party in person. It may be deemed the affidavit of the party within the intention of the law, for the purpose of obtaining the writ, if made by one representing him as his agent or attorney. The practice has been to construe this proceeding liberally, in furtherance of the remedy ; and to require no more than a substantial compliance with the law.

We do not think the objection to the bond tenable. Prima facie it is the deed of the party.

The material question in the case is, whether, upon proof of the failure of consideration, the plaintiff was under the necessity of accounting for his possession of the note, or proving that he gave value for it. This question was determined upon a review of the authorities, and we think satisfactorily, in the case of Knight v. Pugh. (4 Watts & Serg. 445.) It was held that in a suit by the indorsee against the maker, (upon a note indorsed before maturity, and without notice of any defence) the plaintiff cannot be called on to prove consideration until the defendant has shown it was obtained by fraud or undue means. The Court drew this distinction : “ In cases other than “ those of negotiable notes obtained or put in circulation by “ fraud or undue means, the maker, by its negotiable character, “ agrees that the payee shall put it in circulation. He has no “right, therefore, to complain of his own act; and a holder “■ placing confidence in such paper ought not to be compelled to “ prove consideration * * * It is otherwise where there is “ fraud, because there the maker gives no such authority.” So far as regards the want of consideration, the Court said, the latest authorities go to exclude it from the -class of cases in which the defendant may call on the plaintiff to show the consideration. (Id. 447, and cases cited.)

If the plaintiff did not give value for the note, that, if shown, will let in his defence of a want or failure of consideration, or any other matter of defence he would have had against the note in the bauds of the payee. This is the general principle, and it is affirmed by the Statute. (Hart. Dig. Art. 2521.) But we do not understand the Statute as affecting, or as intended to affect the question of the burden of proof. That is left to rest upon the rules of the law of evidence, as before. The general rule in ordinary cases is, that the holder is presumed to be prima fade a holder for value. (Story on Prom. Notes, Sec. 196; Story on Bills, Sec. 193, 415; 14 Tex. R. 354.)

In this case there does not appear to have been a total failure of consideration ; and we think the proof touching the consideration not sufficient to throw upon the plaintiff the burden of proving that he gave value for the note.

The judgment is affirmed.

Judgment affirmed.