Rider v. Duval

28 Tex. 622 | Tex. | 1866

Moore, C. J.

—It has been repeatedly decided by this court that the holder of a promissory note, payable to bearer, unless there be evidence to impeach his right, has the legal title to the note, and may maintain an action on it in his own name, though the equitable ownership be in another. (Thompson v. Cartwright, 1 Tex., 87; McMillan v. Croff, 2 Id., 397; Greneaux v. Wheeler, 6 Id., 515; Butler v. Robertson, 11 Id., 142; Claiborne v. Yoeman, 15 Id., 44; Smith v. Ross, 19 Id., 172.)

It is equally clear that the language of the petition upon which the District Court held this suit to have brought by the plaintiff in his representative character should have been regarded as merely descriptio personce, in no way militating against the plaintiff’s right to a judgment in his own name on the cause of action presented in the petition. (Gayle v. Runnels, 1 Tex., 184; Lipscomb & Gillespie v. Ward & Maynard, 2 Id., 277; Groce v. Herndon, 2 Id., 412; Butler v. Robertson, 11 Id., 142; Claiborne v. Yoeman, 15 Id., 44.)

But if this suit should be treated as an action by the plaintiff in his representative character as an administrator, the judgment of the District .Court is nevertheless erroneous. The plaintiff’s right to sue as administrator was not controverted in the defendant’s answer, which must have been done if he sought to deny it or put it in issue. For, as is said by the Supreme Court of the United States in the case of Yeaton v. Lynn, (5 Pet., 223,) “The rule is general, that a plea in bar admits the ability of the plaintiff to sue.” (2 Martin, 274;’ 10 Id., 456; 6 Ala., 399.)

The judgment is reversed, and the cause

Remanded.

[The following case was decided at the February term, 1801, (8th March, 1861,) at the session at Galveston, and it ought to have appeared in the 25th Texas Supplement, or else in the 26th Texas Reports. But the record was not furnished to the Reporter. Its principles were epitomized in Paschal’s Dig., Notes 629 and 722, from which Judge Smith doubtless quoted the case in the following case of The State v. Powell. Seeing the citation, and thus discovering that the case had not been published, the Reporter applied to Mr. George W, Honey, the polite and obliging clerk at Galveston, for the record and opinion. He received the copy of the opinion, but Mr. Honey was unable to furnish the Reporter the record, therefore the character of the oath taken by Juaraqui cannot be described.]