Moore v. Anderson ex rel. Willis 3 S. & M. 321, 11 Miss. 321

NOVEMBER TERM, 1844.

Lucien B. Moore v. Henry Anderson, et al. use of Augustine Willis.

H. A. sued for the use of A. W. on a lost note; the defendant pleaded under oath that A. W. had no right, title, or interest in or to the note on which the suit was founded, and issue was taken on the plea; held, that under the issue the plaintiff was bound to prove that he had an interest in the note before he was entitled to recover.

When the defendant pleads under oath that the plaintiff has no right, title, or interest in or to the note sued on, it is necessary for the plaintiff to prove his interest before he can recover.

This was an action of debt, brought by Henry Anderson, et al., for the use of Augustine Willis, against Lucien B. Moore, in the Circuit Court of Monroe county. The declaration alleged the bill single, on which the suit was founded, to be lost. The defendant filed three pleas. 1st. A plea under oath that, at the time of the commencement of the suit, Augustine Willis, the real plaintiff, had no right, title, or interest in or to the writing obligatory sued' on ; 2d. Payment; and, 3d. The statute of limitations. To the first and second pleas the plaintiffs replied, and issue was taken in short, by consent. To third plea the plaintiffs demurred, and their demurrer was sustained by the Court. At the trial, the plaintiffs moved the Court to strike out the affidavit of the defendant to his first plea. The Court overruled the motion to strike out the affidavit, but decided that the burden of proof was on the defendant, and that the affidavit did not impose on the plaintiffs the necessity of proving that Willis had an interest in the writing obligatory sued on, at the commencement of the suit. The defendant excepted, and prayed an appeal to this Court.

Stephen Cocke, for appellant.

We contend, 1st. That when suit is brought in the name of a nominal plaintiff, for the use of another, the usee ought to have *322some property, title, right, or interest in the thing to be recovered. In this case, the defendant’s plea directly negatives any such thing. 2d. It is true, that, if the plaintiff had produced the note on the trial, the possession of the note would have been prima facie evidence pf property and interest in the recovery sought. 3d. But it is submitted whether, the note being lost, the defendant’s denial on oath that the plaintiff had any property, title, right, or interest in the note, did not impose upon the plaintiff the necessity of some prima facie showing, at least, that he was entitled to or interested in the note. 4th. Under the plea pleaded, the opinion of the Court, that the burden, of proof remained with the defendant, is something strange. If we understand it, it amounts to a,decision that the defendant was bound to prove a negative ; that is, that the real plaintiff had not any interest in the note. The affirmative of the proposition was with the plaintiff, and it was necessary for him to have made out aprima facie case, at the least. It was certainly erroneous for the Court to instruct the jury that it was required of the defendant to prove that the plaintiff had no interest. We think the plaintiff should have made some proof that he had an interest. _ '

It would be, in our opinion, altogether unprofitable to attempt to cite authorities to sustain so self-evident'a proposition. We therefore insist, that, on this ground, the judgment should be reversed.

There is another ground, on which we are satisfied this Court must reverse the judgment. It is this. To the defendant’s third plea, there was a demurrer.. The demurrer was sustained. On' sustaining the demurrer, there should have been a respondeat ouster as to that plea; but this the Court failed and refused to allow. To this point we might cite numerous authorities, both English and American ; but our statute on thq subject, and the uniforrh decisions of our own Courts, are ample. See How. & Hutch. Digest, p. 615, sec. 8 ; Walker’s Rep. 230 ; ib. 325 ; 2 How. 681 ; 3 How. 415 ; 5 How. 387 ; 6 How. 500.

J. M. Acker, for appellees.

In the case presented by the record, Henry Anderson, et al., for the use of Augustirie Willis, brought an action in the Circuit *323Court of Monroe,, county, founded on a bill single, executed by the defendant below to Henry Anderson, et al., as trustees of the town of Aberdeen. Plaintiffs allege the loss of the note. The defendant pleaded, three several pleas. 1st. That Augustine Willis, for whose use the suit was brought, had no interest in the note sued on ; 2d. That he had paid said note sued upon; and, 3d. That plaintiffs had been barred of right of recovery by statute of limitations.

To the first plea there was an affidavit appended by the defendant, which the plaintiff moved to strike out. The Court overruled the motion, but decided that the proof was not thereby affected. To thjs decision the defendant below excepted, alleging that the affidavit of the defendant threw the burden of proof on the plaintiffs in’the Court below. Defendant below does not pretend-that the note sued upon had not been in the possession of Augustine, Willis, nor had not been his property, but insists that, at the time of the commencement of the suit, he had no interest in it. If it is conceded that Willis had at any time the possession of, or an interest in, the said note, before the same was lost, then the defendant below should have alleged and proved a transfer of that possession or interest. What character of proof ought the defendant to have introduced to sustain his pleas ? Not, certainly, his own oath, in the way of affidavit. A party to a suit cannot make himself a witness in his own case, in the manner the defendant below sought to make himself a witness. Why not permit him to depose the same facts from the stand, as well as to bring it forward in the shape of an affidavit ? The statute of Mississippi provides in what manner a party may become a witness at law in his own case. When both parties, to a suit reside in the State of Mississippi, then, upon petition setting forth the facts sought to be discovered, verified by affidavit, the Court may compel a 'discovery. How. & Hutch. 606, sec. 30. In case of a bill of discovery, both parties stand upon an equal footing. If the Court below had thrown the burden of proof upon the plaintiff below by virtue of the affidavit, then one party would have been a witness and the other excluded.- Such a procedure is unparalleled in a court of justice. Possession of a note is prima facie evidence of property. *324The pleadings show that Willi? had had possession of the note. Having had possession, a future loss would not affect his right in a court of justice. The defendant below should have alleged a transfer, and proven such transfer on the trial. Neither did the decision of the Court below impose upon the defendant the necessity of proving a negative. The defendant made an affirmative proposition. He must sustain his own allegations by competent testimony. It was not competent for him to do so in the manner sought, and therefore the Court did not err.

The record does not show upon what ground the demurrer to the third plea was sustained. In this particular, the record is imperfect. This Court will not notice, from the record, the demurrer or the judgment thereon. The records do not show what the judgment of the Court was upon overruling the demurrer. In the absence of such showing, it is presumable that it was respondeat ouster. It was not necessarily so. By the Common Law, upon sustaining a demurrer to a plea of defendant, plaintiff took judgment. The statute of Mississippi requires the defendant to plead a meritorious plea, upon sustaining a demurrer, to his plea. The statute requiring the judgment of the Court to be respondeat ouster, is virtually repealed by another statute, which allows the defendant to plead as many pleas as he may think necessary and proper. If a demurrer is sustained to one plea, he may have already filed others upon which to go to trial. If, in this case, the defendant was not willing to go to trial upon the first and second pleas, by him pleaded, he could have answered over ; and, upon application, if the Court had refused him such privilege, it would have been certainly error; but his having other pleas, and going into trial upon them, he was in the same position as he would have been under the judgment of respondeat ouster, before the passage of the act allowing him to plead as many pleas as he wished.