Lewis v. Lowery

Citations

• 31 Tex. 663

Syllabus

<p>The 86th section of the act to regulate proceedings in the district court provides, that “ When any petition, answer, or other pleading shall be founded, in whole or in part, on any instrument or note in writing, charged to have been executed by the other party, or by his authority, and not alleged therein to be lost or destroyed, such instrument or note in writing shall be received as evidence, without the necessity of proving its execution, unless the party, by whom or by whose authority such instrument or note in writing is charged to have been executed, shall file his affidavit in writing, denying the execution thereof.” (Paschal’s Dig., Art. 1443, Note 549.) When the instrument (a wagoner’s receipt) was signed by a single name, and the petition sets it out, and avers that it was executed as the partnership act of said L. and one T., if T. would deny it, he must do so under oath.</p> <p>The statute is as extensive as it is possible to imagine. It does not include promissory notes, or bills of exchange, or notes for the payment of money, or property only, but “any instrument.”</p> <p>It is not necessary that the suit should be based entirely upon the instrument, but it is sufficient if the instrument form a part of the testimony to make out the plaintiff’s case.</p>