Fowler v. Willis

4 Tex. 24

• Court: Texas Supreme Court
• Decided: December 15, 1849
• Status: Published

Opinion

Lipscomb, J.

The judgment of the court in sustaining the exception constitutes the ground of the supposed error on which the plaintiffs in error seek a reversal of judgment in this ease.

In the case of Thompson and Cartwright, (1 Tex. R., 87,) we have laid down the doctrine that “ the person who appears to be the legal holder of a promis- “ sory note may maintain an action upon it in his own name. There is no “ doubt a case might appear in which the maker ought to be allowed to prove “the fact of ownership for the purpose of letting in any defense arising between “ himself and the person having the beneficial interest in the note ; and under “ our system of jurisprudence defenses of that character could be made “ available in an action like the one under consideration; not, however, by a “ plea in abatement, but by setting up such matters of defense specially in the “ answer.’1'' If our system recognized any distinction between law and equity in adjudicating on right and remedies, to make such defense would in most cases drive the defendant out of rhe court of law to seek his remedy in a conrt of chancery; but with.ns the object is much more speedily and conveniently attained by a special plea or answer describing particularly"the defense. Subject the answer in this case to the rule laid down by this court, and just referred to, the question is relieved from all difficulty. It does not disclose what the defense is, arising between the makers and payee, that would amount to a full and complete defense. It is alleged that it was conveyed to prevent a defense (hat would have prevented a recovery. But what is that defense? Was it payment, set-off, fraud, or a failure of consideration ? If any one of them, it should have been particularly described, so that tho plaiutiff could have met such defense and showed that it did not really exist. We have so often ruled what was required in an answer setting' up special matter of defense that it must now be well understood- by the profession without further discussion. (See Mims v. Mitchell, 1 Tex. R., 443; Coles v. Kelsey, 2 Id., 541; Hall & Jones v. Jackson, 3 Id., 305; and Towner v. Sayre, ante, 28.) The authorities relied on by the plaintiff in error only show that such defense can be made •which we admit, but it must be set up as we have heretofore ruled.

Judgment affirmed.