11 Tex. 649 | Tex. | 1854
There is no statement of facts nor copies of the notes, sued upon, embraced in the record, and it is contended by the counsel for the appellee, that the charges given and refused, stand as abstract propositions, the applicability of which to the facts adduced in evidence, it is impossible to determine, and, consequently, whether the legal rights 0/ the plaintiff were really prejudiced by the charge refused or by that which was given.
The first question which arises, is whether any evidence was required to establish the facts averred in the petition.
The statute, Sec. 86, p. 886, declares “ that when any pe- “ tition, answer, or other pleading shall be founded, in whole “ or in part, on any instrument or note in writing, charged to “ have been executed by the other party, or by his authority, “ and not alleged therein to be lost or destroyed, such instru- “ ment or note in writing shall be received in evidence, with- “ out the necessity of proving its execution, unless the party, “ by whom, or by whose authority, such instrument or note in “ writing is charged to have been executed, shall file his affi- “ davit in writing, denying the execution thereof&c.
This provision dispenses with the necessity of proving the execution of the notes, but not offering them in evidence. The defendant had pleaded that he was not indebted, and had denied the allegations of the petition. What may be the full legal effect of such defences under our system of procedure, it is not material to inquire. One thing is clear, they do not waive the necessity of producing such proof as is necessary, under the law, to support the action. To main
It may be said that the charges afford internal evidence of the production of the notes at the trial. If, from the charges, it were legitimate to infer that certain facts were in evidence, the presumption, on the contrary, would be against the plaintiff, and the inference would be, that no such notes, as he had described in his petition, were before the jury. He asks the Court to instruct the jury as to the effect of the statute of limitations on three notes, it is true; but only one of which can, by possibility, belong to the notes sued upon—the other two becoming due at dates different from those of the notes described in the petition. He asks instructions in relation to three notes, one due the 1st June, 1838, the second the 5th December, 1838, and the third the first June, 1839. Whereas the notes sued upon are in effect described to be due on the 8th June and 8th December, 1838, and 8th of June, 1839.
The first and third notes of the instruction and the first and
But it is unnecessary to dwell upon the presumption as to whether the notes were or were not offered in evidence. The plaintiff had in his power to show conclusively the facts of the case. If the identical notes, sued upon, had been offered in evidence, he had the power to show that such was the fact, and, consequently, to show that the proof would have author
We are of opinion that on the record as presented in this appeal, there is no error in the judgment, and that the same be affirmed.
Judgment affirmed.