
    James B. C. Thornton, Executor of Helen M. Foote, deceased, vs. Leroy W. Alliston.
    Under the statutes of this state, when a party to a promissory note is sued, in order to put the plaintiff under the necessity of proving the execution of the note, he must deny the execution of it under oath, either in a special plea, the truth of which is sworn to, or by the plea of non-assumpsit, with an affidavit accompanying it, setting forth the non-execution of the note by the party sued, according to the facts ; the plea of non-assumpsit, accompanied with a mere affidavit of its truth, will not be sufficient to compel the plaintiff to prove the execution of the note.
    And when an executor of a deceased maker of a note is sued, he must either, by the plea sworn to, deny the execution of the note by his testator; or do so by the plea of non-assumpsit by his testator, with an affidavit annexed of the non-execution by the testator, before he can call upon the plaintiff to prove the execution of the note.
    The general law, which permits executors to give any special matter in evidence under the general issue, does not apply to cases where the executor seeks to deny the execution of a note of the testator on which he is sued ; that law does not dispense with the necessity of the affidavit of such non execution.
    
      Mr. Justice Clayton dissented, and held that the plea of non-assumpsit, with an affidavit of its truth', was a sufficient denial of the instrument to put the plaintiff on the proof of it; but if the defendant, who has filed such a plea and affidavit, permits the note to be read without objection, he thereby waives the necessity of proof.
    In error from the circuit court of Rankin county; Hon. Thomas A. Willis, judge.
    - Leroy W. Alliston sued Helen M. Foote upon a promissory note, signed “ H. M. Foote, by her agent W. S. Foote,” and payable to Alliston. The process was sued on the defendant, and at the return term her death suggested, and scire facias against James B. C. Thornton, her executor, awarded. The executor plead, “That the said Helen M. Foote, deceased, in her lifetime, did not undertake or promise in manner and form as the said plaintiff hath complained,” &c., with the affidavit annexed to it, that the plea was true in substance and fact to the best of his knowledge and belief.
    On the trial the plaintiff read the note sued on, without objection, and rested his case.
    The defendant offered no proof, but moved the court to instruct the jury, “that in the state of the pleadings in this case, the mere production of the note is not sufficient to authorize the plaintiff to recover, and that in the absence 'of all other testimony, they must find for the defendant, which the court refused to do. The defendant excepted, and the jury found for the plaintiff, and the defendant prosecuted this writ of error.
    
      Clifton, for the plaintiff in error.
    The law is correctly propounded in the instructions asked, for two reasons:
    1. By our law, the plea throws upon the plaintiff the burden of proving the execution of the note, by an authorized, agent,. which proof, the mere production of the note could not administer. 4 How. 263. And it was sufficient to object to its sufficiency, at any time before the jury retired. 6 S. & M. 367.
    2. A party has a right to determine the order in which he will introduce his evidence, and the failure of the other party to object to the introduction of testimony offered, because other material evidence has not been previously given, affords no reason for dispensing with the subsequent introduction of such material testimony. 4 S. & M. 207, 312.
    
      Wm. S. Bodley and Geo. T. Swann, for defendant in error.
    The defendant in error contends,
    1. That the plea and affidavit did not put him to the proof of the execution of the note. The 3d section of the act of Jan. 13, 1824, provides that the execution of a note cannot be denied by a person not the maker of the note, but by plea supported by affidavit, that he believes it was not executed by the person by whom it is alleged to have been executed. Neither the plea nor the affidavit in this case complies with the statute.
    The note as introduced was properly received. Sumpter v. Geron, 4 How. 267; Vicksburg Water Works and Banking Co. v. Washington, 1 S. & M. 540.
    2. The note was received as evidence without objection, and even if when offered it was subject to objection, cannot after-wards be objected to. Phillips v. Lane, 4 How. 127; Carter v. Taylor, 6 S. & M. 372.
    3. The instruction asked does not bring in question the competency of the evidence; but insists only, that being in evidence, it did not authorize a recovery. Clearly the note proved the debt sufficiently, and sustains the verdict and judgment. See 2 Stark. Ev. 475.
    4. The bill of exceptions does not set forth that the exception was taken at the time, and before the jury retired, and therefore cannot be considered an error. Patterson & Tyler v. Phillips, 1 How. 572. See Muirhead v. Muirhead, 8 S. & M. 211.
    On the whole, it appears that the only point of time at which the objection now raised could have been made, was before the note was read in evidence, and that even then it could not have been sustained for want of the affidavit required by the statute. Hutchinson’s Code, 851; Stat. 1824, sec. 3; Revised Code, 594, § 25; Stat. H. & H. 20. Sumpter v. Geron, 4 How. 263, decides that non-assumpsit with affidavit, “ that he did not execute the note,” &c., imposes on plaintiff the necessity of proving its execution. See 2 Stark Ev. 475. Vicksburg Water Works and Banking Co. v. Washington, IS. & M. 540, was non-assumpsit, and special affidavit, nul tiel corporation, which was held good on demurrer to plea.
   Mr. Justice Thacher

delivered the opinion of the court.

This action of assumpsit is founded upon a promissory note made by “H. M. Foote, by Wm. S. Foote, her agent.” After service of the writ issued in'the cause, the defendant, Helen M. Foote, deceased; but the action having been revived in the name of James B. C. Thornton, her executor, he pleaded the plea of non-assumpsit, and appended thereto his affidavit, that the “plea was true in substance and in fact, to the best of his knowledge and belief.” Upon the trial, the note aforesaid was offered and received in evidence without objection, and constituted all the evidence; and the executor then called upon the court to rule, “that in the state of the pleadings in the case, the mere production of the note is not sufficient to authorize the plaintiff to recover, and that in the absence of all other testimony they must find for the defendant.” This charge the court refused, and there was a verdict and judgment for the plaintiff in the circuit court.

The prominent point now raised is, whether the circuit court should have received the said promissory note in evidence in the state of the pleadings, or whether the instruction asked for by the executor should not have been given to the jury.

Jn 1824, H. H. 594, s. 25, it was enacted that it should not be lawful for a defendant to deny the execution of any writing, whether under seal or not, which had been made the foundation of any suit, unless by plea supported by affidavit of the truth thereof, filed when the plea is filed, without which plea and affidavit the court should receive such writing as evidence of the debt, promise, &c., for which it was given. By the same act, (Ibid.) it was further provided, that “whenever any person or persons, other than the person or persons purporting to have executed any such writing, shall be defendant or defendants, the court before whom such suit is depending, shall receive such writing as evidence as aforesaid unless the defendant or defendants shall make oath that he, she, or they, 'Verily believe that the said writing was not executed by the person or persons by whom it is alleged to have been executed.” In 1836, H. H. 595, s. 32, it was further enacted that all pleas to an action shall be deemed and adjudged as admitting the parties and the character of the parties suing, and that a plaintiff shall not be required to prpve any written signature, identity of persons, description of character, &c., unless the signature, person, description of character, &c., be denied by plea, and its truth attested by oath.

These statutes have changed the common law rule as to the amount of evidence required from'a plaintiff to sustain his action upon a promissory note. The execution of a note by a party need not be proved by the plaintiff, unless the same be denied by a plea denying the execution or the signature, supported by an affidavit; or, in the case of a defendant not a party to the note, by an affidavit that the note was not executed by the person by whom it is so alleged to have been executed. In order to comply with the statutes, it is incumbent upon a defendant in such a case to file a special plea, sustained by an affidavit of its truth. In Sumpter v. Geron, 4 How. 263, there was a plea of non-assumpsit, but accompanied by the defendant’s affidavit that he did not execute the note sued on, nor authorize any other person to do the same. In that case the sufficiency of the plea and affidavit to meet the statute was not contested. The point really determined by the court was the extent to which the statute of 1824 went, whether to the signature only of a note, or generally to the making and execution of the whole note. In the case of Fairchild et al. v. The Grand Gulf Bank, 5 How. 597, the defendant, Richey, pleaded non-assumpsit, but also a special plea, setting out that the notes sued on were not his, &c., with an affidavit of their truth. In the case of the Vicksburg Waterworks and Banking Company v. Washington et al., 1 S. & M. 536, the defendant filed a plea of non-assumpsit, to which an affidavit was annexed, denying that the plaintiff was a corporation having power to sue. This was held to meet the substantial requisitions of the statute, and to be sufficient to compel the plaintiff to prove “the description of his character as set out in the declaration.” Such was also the case in Lake et al. v. Munford, 4 S. & M. 312. In Hemphill v. The Bank of Alabama, 6 S. & M. 44, it was held that a defendant cannot, under the plea of non-assumpsit merely, defend that the note on which he has been sued has been changed from the note, the execution of which he authorized, but that such defence is admissible only when the pleadings are under oath. A similar principle was determined in Anderson v. Tarpley, Ib. 507; 7 S. M. 101.

From the foregoing cases, it will be seen that either the plea or the affidavit must expressly deny the signature, execution of the note, &cu to put the plaintiff on such proof as he would have stood upon prior to the passage of the statutes. Moore v. Anderson et al., 3 S. & M. 321. It is apparent that the intention of the statutes, especially that of 1836, was to require from the defendant a specification of the nature of the proof required from the plaintiff, whether as to the execution of the writing, its signature, or the person or description of character to be denied upon the trial. At all events, that clause of the statute of 1824 which relates to persons defendant, not parties to the writing sued upon, would have required an affidavit from this executor, that the note was not executed by his testator, in order to have required proof from the plaintiff, before it was received in evidence upon the trial; nor would this requisition be' dispensed with by the law permitting executors, &c., to give,any special matters in evidence under the general issue. H. & H. 410, sec. 82.

Hence we think the circuit court did not err in refusing the instructions asked by the executor, and we affirm the judgment.

Mr. Justice Clayton deemed the plea and affidavit to be a sufficient denial of the instrument to put the party upon proof. But the party, by permitting the note to be read to the jury without objection, waived the necessity of proof, according to the case of Carter v. Taylor, 6 S. & M. 367. I therefore concur in the result.  