Erskine v. Wilson

Wheeler, J.*

The plaintiff claims title to the note by virtue of an assignment from the sole heir and legal representative of the payee. His right to recover depends upon the truth of his allegations, which were put in issue by the general denial. Had the heir brought suit upon the note, claiming thus by a derivative title, as heir, he must have proved the death of the ancestor, the payee, and that he was the heir, to entitle him to recover in that right. The same burden of proof rests upon the plaintiff, as his assignee. Moreover, the note having been lost, the defendant was not required to deny its execution under oath, in order to put the plaintiff on proof of its execution. (Hart. Dig. Art. 741.) The case of a lost note is not within the provision of the statutes dispensing with proof of the execution and assignment of the note unless denied under oath. It devolved on the plaintiff to prove both the making of the note and its assignment. The plaintiff failed to make the requisite proof.

*81 It is well settled by the decisions of this Court, that the new promise is to be deemed the cause of action. The amendment setting up the new promise was an answer to the plea theretofore filed of the statute of limitations. But the new promise, or cause of action, was itself also barred before the filing of the amendment. The amendment, introducing a new cause of action, is to be viewed in the light of a new suit, or as the bringing of the suit as respects the cause of action therein set forth, (Williams v. Randon, 10 Tex. R. 74,) and if the defendant would have relied on the statute as a bar, he should have pleaded it in bar of the new suit or cause of action introduced by the amendment. Not having done so, it cannot avail him in this Court. But for the failure of proof of the making of the note, and title in the plaintiff, the judgment must be reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Wheeler was detained at home by illness until about this period of the Term.—Reps.