Muckleroy v. Bethany

27 Tex. 551 | Tex. | 1864

Moore, J.

The plaintiff in error, Muckleroy, who was the defendant in the court below, pleaded a special non est factum, in this, that the note executed by him was not under seal, while opposite to the names of the payers in the note sued on in this case there were scrawls, in one of which the word seal is written. The court held in this case, when before it by a former writ of error, that this plea presented a valid defence. (23 Tex., 163.) The only matter for our determination now is, upon whom was the-burden of ppoof imposed by this special plea ?' Or, if it was upon the plaintiff below, did the proof of’ the genuineness of the signature of the plaintiff in error authorize the reading the note as evidence to the jury, and throw upon him the burden of showing its alleged alterations ? In the case of Pullen v. Hutchinson, (12 Shep., 254,) it is said: “A written instrument, not attested by a subscribing witness, is sufficiently proved to authorize its introduction by competent proof that the signature, of the person whose name is undersigned is genuine. The party producing it is not required to proceed further upon a mere suggestion of a false-date, when there are no indications of falsity found upon the paper, and proto that it was actually made on the day of the date. After proof that the signature is genuine, the law presumes that the instrument in all its parts is genuine also, when there are no indications to be found upon it to rebut such presumption.”

In this case the signature of Muckleroy was sufficiently proved, and as the note seems not to have borne any apparent marks of alteration, it was properly admitted in evidence with the presumption that “all its parts are genuine.”

As a special plea of non est factum of this character admits the genuineness of the signature, it would seem, indeed, that proof of this would be unnecessary, and consequently the onus of attacking the instrument is in the first instance upon the defendant who files the plea. This seems to be the rule recognized by this court. In the case of Wells v. Moore (15 Tex., 521,) there was a special plea of non est factum, alleging an alteration of the bond upon which the suit was brought, and the court say that tlieburden of proving the alteration in the bond rested upon the party pleading it.

There is no error in the judgment, and it is, therefore, affirmed-

Judgment affirmed-