
    Field, use, &c., v. Gantier and others.
    The net of June 28th, 1815, (Hurt. Dig,p. 502) had reference to suits on foreign judgments and did not apply to a suit brought by a foreign corporation not on a foreign judgment.
    Where an inrorveuor allowed that tho notes sued on had boon by him placed in (iio hands of an ageui for collection; lhat tho agent and another, intending to defraud the intervenor, delivered them to tho plaintiff, who, knowing them to belong to tho intervenor, brought tho suit upon them against the makers; and that the notos were tho property of the intervenor, and w *re never indorsed or transferred by him to any one: Held, That tho intervenor had a right to intervene and elaim the benefit of the original suit to thooxelusion of tho bar of the statute ofl’mitations. and that tho nominal plaintiffs in that suit could not defeat his right after the filing of tho pedí lion and notice to thorn by dismissing the suit. All the par ties to tho transaction were made parties to the petition of intervention.
    Appeal from Brazoria. Tho appellant brought suit against the appellors by liling his petición in tho District Court of Brazoria county on the 21st day of April, 18-18. The petition alleged that the Gantiers were indebted to the plaint,ill' on two promissory notes made by them, payable to the plaintiff, “ cashier of the Southern Life Insurance aud Trust Company,” due on the first days of February and March, 1810; that the defendant Corley, as an attorney at law, obtained the notes from the plaintiff' for collection in 1843, and undertook and promised to collect them of the makers; that ho and the defendant Milton, intending (o defraud the plaintiff, delivered them to the defendant McLeod, who, knowing them to belong to the plaintiff, brought suit upon them against the makers in his own name, to the use of the defendant Millón, in the District Court of Brazoria county, where the suits are still pending; that the notes are the properly of the plaintiff', and that he has never indorsed or transferred them to the said McLeod or Milton, or to any other person ; and flic plaintiff' prays to be permitted to intervene and to prosecute the suits so commenced to iinal judgment for his own benefit.
    On the 4th day of October, 1848, the plaintiff filed an amended petition, alleging that McLeod and Milton, pretending to have compromised with the Gantiers the suits by them instituted against tiie latter, and with full knowledge of the rights of the plaintiff, had dismissed the suits; and praying that tiie pretended compromise be annulled, that the suits be reinstated, and that lie have judgement, <fcc.
    The defendants pleaded in abatement that the party plaintiff was a foreign banking and money corporation, and that neither the act of incorporation nor a copy'thereof, authenticated as required by law, was filed with the petition, &c., nor were the costs likely to accrue in said suit with the tax fee therein paid as directed bylaw.
    The plaintiff excepted to the legal sufficiency of the plea. When the ease was called for trial the court overruled the plaintiff’s exceptions to the plea and dismissed the case, and the plaintiff appealed.
    
      J. B. Jones, for appellants.
    
      Harris and Pease, for appellees.
    I. The plea of the defendant was filed under tiie provisions of tiie 5th section of an act of the Congress of the Republic of Texas, passed 28th June, 1845. (Acts of 2d session of 9th Congress, pages 21, 22, and Hart. Dig., art. 1G29.)
    By a comparison of the act as published in Hartley’s Digest with the act published in the pamphlet edition of the laws it will be seen that it is not printed the same way in both. In tiie pamphlet edition of tiie laws printed by authority of the Secretary of State the section roads, “That in all suits or judgments by foreign banking or money corporations,” &c. In Hartley the section reads, “'That in ail suits on judgments by foreign banking or money corporations,” &e.
    Where the reading of tiie Digest differs from tiie edition of the laws as published by authority of law by the Secretary of State, whose duty it was to superintend their publication, wo presume there can lie no doubt which reading is to prevail. Tiie Digest lias never been adopted as the law of this State, and has never received any approval of the law-making power. (See Acts of 4th Congress, pages 0 and 7, in relation to the mode of promulgating the laws.)
    In (lie case of Reynolds v. Skelton (2 Tex. R., 518) the judge who delivered the opinion made uo question but that tiie, section applied to all suits by foreign banking or money corporations; but the judge said the act did not apply to that case because 1 he suit was neither brought by the bank nor by the assignee of the, bank. Ño intimation was given that the, said 5thsection was to be confined to suits on judgments by foreign banking or money corporations, as it would be if the reading in Hanley’s Digest is to prevail over that of tiie laws as pnbii-hed and promulgated by authority.
    II. Should the court here consider that this cause was improperly dismissed, and that the plaiiitiff’s exceptions to the defendant’s plea in abatement should have been sustained, then we respectfully suggest to the court that this cause must be dismissed for the following reasons:
    The petition alleges that tlie notes sued on were due, one on the 1st February. 1840, and tlie other 1st March, 1840; no new acknowledgment is averred to avoid the effect of the statute of limitations.
    General demurrers were filed by all the defendants but Corley, who was merely a formal party.
    This suit was commenced 21st April, 184S, more than eight years after the maturity of the notes.
   Wheeler. J.

The plea in abatement was framed with a view to the provisions of tlie act of the 28th of June, ISIS, (Hart. Dig., pp. 552,503.) The statute had reference to suits on foreign judgments. This is not a suit upon a judgment and does not come within the provisions of the statute. The matters pleaded in abatement were irrelevant and insufficient, and the court erred in overruling tiie exceptions to the plea.

The matter pleaded as to the not filing of the act of incorporation was more properly matter of demurrer or exception to the petitiou than of a plea in abatement. But, considered as an exception to the petition, it was not well taken.

But it is insisted that tlie cause of action was barred before the institution of this suit, and that the case was, therefore, rightly dismissed. It does not so appear from the petition.

Of tlie right of tlie plaintiff' to intervene, claim the benefit of the original suit, and prosecute it to judgment, if, as he alleges, he is the owner of the notes and lias never assigned or transferred them to another, there can be no question. And it is very chair that the nominal plaintiffs in that suit could not defeat his riglit, after the filing of the petitiou and notice to them, by dismissing the suit.

If it should turn out that the cause of action upon the notes was Barred before the institution of tlie original suit, there will be an end of the case, in so far at least as a recovery is sought upon the notes. But it does not so appear upon tlie xietition, nor is there any suggestion to that effect in tlie record.

There are other matters presented by the record which it is not deemed necessary to the present disposition of tlie case to notice.

We are of opinion that tlie court erred in sustaining the exceptions to the plea and thereupon dismissing the ease. The judgmeut is therefore reversed, and the cause remanded for further proceedings.

Judgment reversed.  