Moore v. Anderson ex rel. Willis

Mr. Justice Clayton

delivered the opinion of the Court.

There is but a single point in this record. The defendant filed a plea; under oath, that Augustine Willis, for whose use the suit was brought, had no right or title to, or interest in the note, on which the suit was founded. The note, itself was. alleged to have been lost. Issue was joined upon the plea. The plaintiff moved the Court to strike out the affidavit to the plea ; this the Court refused to do, but ruled that the burden of proof was not affected by the affidavit, but remained on the defendant. To this decision the defendant, by his counsel, excepted.

The affidavit was made in obedience to the statute, which declares that all pleas to the action shall be deemed to admit the parties, and the character of the parties suing, unless the description of character be denied by plea, attested by oath. The effect of the plea, when thus attested, is to render it necessary for the plaintiff to show that he has the right to sustain the character which he has assumed. Under the issue, in this case, it was necessary for the plaintiff to prove that he had an interest in the note, before he was entitled to recover. He was placed in the condition in which he would have stood if the statute had never been passed ; he had to prove his case, as he had stated.it. 1 S. & M. 536. The ruling of the Court having been different, the judgment must be reversed.

No remarks need be made by us as to the character of evidence necessary to be produced ; it was incumbent upon the plaintiff, by testimony of some kind, to show that the note belonged to him.

Judgment reversed.