Wimbish v. Holt , 26 Tex. 673 ( 1863 )

Moobe, J.

The exceptions of the defendants below .to the plaintiff’s petition were properly overruled; and their answer was, on the plaintiff’s motion, correctly stricken out. It did not present any matter of defence to the plaintiff’s action in a manner that the court could take cognizance of it. The notes sued upon were payable to the plaintiff below. Although the beneficial interest and equitable title to them was in other parties, the legal title to them was in him. And it cannot be questioned, that a suit might be prosecuted by the parties beneficially interested in them, in his name. If it was not averred in the petition that the-suit was brought for the use of those entitled to the proceeds of them, it is no cause of complaint by the defendants. If facts existed, which, notwithstanding Holt’s possession of and legal title to the notes, deprived him of the right to maintain the suit, they were not stated. The case as presented by the answer is not distinguishable in principle from the i cases heretofore decided by the court, in which it has been held that the party to whom a note is payable,' or who has the legal title and possession of it, may sue in his own name, although the equitable title is in another. (Thompson v. Cartright, 1 Tex., 87; McMillen v. Croft, 2 Id., 397; Knight v. Holloman, 6 Id., 153; Butler v. Robertson, 11 Id., 142.)

The answer was also defective as a plea to impeach the consideration of the notes sued on, because it was not sworn to. The Act of February 2d, 1858, dispensing with the necessity of using scrolls or private seals in executing private contracts, bonds or conveyances, did not relieve the defendants from the obligation of verifying their answer by affidavit. The object and purpose of the Act in question was to abolish the common law rule by which an instrument, if under seal, imported a consideration, while it would. not do so if it were not. We cannot say that it was the intention of the legislature, in the passage of this Act, to change the law regulating proceedings in the District Court. Promissory notes import a consideration, whether under seal or not. And although it is not very readily seen why in the one case an answer setting up a failure of consideration must be sworn to, while it need not be in the other, yet such is the rule that has been prescribed. If we were disposed to hold that this Act had, by implication, changed the rule for pleading a failure of consideration, it would be impossible to say whether it was intended that in future all pleas of that character should be under oath, or that none need be. Under these circumstances, we think that we are not called upon or authorized to disregard a statute which the legislature have not seen fit to repeal, although it may be regarded as prescribing a technical and useless rule.

The judgment is affirmed.

Judgment affirmed.