
    Martel v. Hernsheim.
    (Note 36.)
    ■It has repeatedly been decided that when the plaintiff appears to be the legal owner of the note sued on, the mere fact that he is not the real owner, and that the beneficial interest is in another, is no defense to the action. (Note 37.)
    “Where the defendant propounds interrogatories to the plaintiff, but files no corresponding plea in support of which the answers might be read, it is not error to exclude them from the consideration of the jury.
    In stating the facts in an affidavit for a continuance which the applicant expects to prove by testimony which he desires time to obtain, it is not sufficient to state in sweeping terms that the witness will prove the amount sued for to have been paid, without stating when or where or how paid, and without stating any fact or circumstance going to identify the transaction, and especially when there is no special plea alleging those facts.
    Appeal from Fayette. This suit was brought by the appellee oil a promissory note made by the appellant for the payment to the order of one G. Martel of twenty-four hundred and fifty dollars, and by said G. Martel indorsed to the plaintiff. The suit was brought to the Fall Term, 1847, and was at that ■term continued by operation of law. At the Spring Term, 1848, it was continued, on the affidavit of the defendant, for tlie alleged want of testimony material to his defense. And at the Fall Term, 1848, id was again continued, •on affidavit of tlie defendant, for the same cause. At the Spring Term, 1S49, and on the 8th day of March, the defendant, by leave of the court, filed a general denial as a substitute for the auswer previously filed by him, which had been lost from the file of the papers in the cause. On the 16th day of March of the same term the defendant again applied for a continuance upon an affidavit stating in substance that lie could not go safely to trial for tlie want of testimony material to his defense; that he liad propounded interrogatories to ■the plaintiff and sent them to his residence in New Orleans, with a commission to take his answer, directed to Judge of that place, but that •said McHenry refused to act upon said commission ; that he liad also had interrogatories propounded to two other witnesses, but had not been able to procure their answers to the same; that lie had used every means in ills power to procure testimony for his defense, but had been unable to do so; that he liad a just defense to the action; that lie expected to prove by the intei-rogatories propounded by him to the plaintiff and witnesses that the plaintiff had iio interest in tlie suit, and that the note sued on liad been paid, and that the application for a continuance was not made for delay. He submitted at the same time other papers corroborating bis statements respecting the refusal of Judge Mc-Henry to act under the commission directed to him, and the temporary absence '"of the plaintiff in Mexico. The court refused this application for a continuance upon the ground that tlie evidence to obtain which it had been asked would not be admissible under tlie pleadings. Tlie defendant thereupon, by leave of tlie ■court, amended liis answer, pleading, 1st, in abatement, that the plaintiff had no interest iu the suit, but that his name ivas used for the purpose of practicing a fraud upon the defendant; 2d, that tlie note sued on bad been paid. He further amended his answer, alleging that the plaintiff lias no interest in the note sued on, and that the same belongs to one Gustavus Martel, the payee; that the note came to the possession of one Sommers without the knowledge ■or consent of the said Gustavos; that tlie said Gustavus is indebted to tlie plaintiff in tlie sum of three thousand dollars, and that it was understood between them, tlie said defendant and Gustavus, that the note was to be discharged out ■of said indebtedness, and that tlie note is being so used as to defeat tlie defond-.ant’s just equities and set-offs. After this amendment the defendant renewed his application for a continuance upon the same affidavit aud evidence as before, ibut tlie court refused the application.
    Tlie plaintiff then excepted to the sufficiency of the defendant’s plea in abatement respecting his interest and ownership in tlie note, and tlie court sustained the exception. Upon the trial the defendant proposed to read as-confessed. for the want of the answers of the plaintiff, certain interrogatories in substance as follows: 1st. Have you any interest in the note sued on, or in this suit, and was the suit brought with your knowledge or consent? 2d. Do you know anything about said suit? 3d. State what you know concerning the note sued on. To the reading of these interrogatories the plaintiff objected, and the court sustained the objection and refused to permit'them to be readto> the jury. There was a verdict and judgment thereonfor the plaintiff, and the defendant appealed.
    
      Munger and Hamilton, for appellant.
    I. Although a portion of the defendant’s first amended answer is in the form of a plea in abatement, and alleged matter upon which it was prayed the suit might abate, still it was not proper to strike it out or exclude it for every purpose because it was not good as a plea in abatement, if it contained anything which, in connection with other portions of his answer, was pertinent and relevant to the subject-matter of the suit. The answer of the defendant was an entirely, including the amendments. There was, in the amendment filed,, statements which constituted substantially a plea of payment as well as the-matter which was relied on to abate the suit. The whole formed but one amendment. and notwithstanding the mistake of the defendant in supposing that it would avail him as a plea in abatement, still it is contended that it contained' matter which it was proper to plead, and which, for aught the court knew, was necessary as a part of defendant’s defense.
    II. Under onr practice, allowing amendments to be made at anytime before-the parties announce themselves ready for trial, the court cannot undertake to say, upon an application for a continuance, how far the testimony desired' by the party applying might be admissible under the pleadings, (if proper in itself and relevant to the subject-matter of the suit,) for the reason that it would be, in effect, anticipating all amendments that might be afterwards made, or rather to decide that no amendment would be made under wliicln the testimony would be admissible. (Carneal v. Wilson, 3 Litt. R., 80.)
    III. It was not for the court tó determine whether or not anything would have been proved by taking for confessed such answers as could have been-made in favor of defendant by the plaintiff upon the interrogatories propounded to him. This was for the jury to determine, and although the interrogatories were not so put as to admit of the clearest and most satisfactory answers, yet if it were possible to have gleaned anything from them which would have aided the defense in connection with other testimony, the defendant had a right to it. The statute is peremptory in its terms. (Acts of 1846, p. 385, sec. 81.) The questions put were at least relevant to the suit, anti the defendant’s right to the answers thereto (to be taken most strongly against the plaintiff) is as' unquestionable as though they would have constituted a complete defense. (Cunningham v. Steele, 1 Litt. II., 58; Bar. & Har. Dig., 3 vol., 243.)
    
      James Webb, for appellee.
    I. The first assignment of error is not well taken. The exception to (.lie plea in abatement was correctly sustained, 1st, because, being filed eighteen months afler the cause was at issue upon a plea to the merits, it was not “ in. due order of pleading;” (Laws of 1S46, p. 371, sec. 29;) and, 2d, because it presented no cause of abatement, even had it been filed in time. (1 Tex. E.,. 87.)
    II. The court overruled the first motion (of that term) for a continuance on the ground that there was no allegation in the answer which would admit the proof that the defendant alleged iie had tried to procure. The defendant did' not except to this decision, but asked leave to amend his pleadings, which was granted, and on the lGth of the same month he amended by filing his plea in abatement, alluded to in the first assignment, and his plea of payment, (b Tex. B., 434, 443.) At the time at which the affidavit, marked No. 1,-for a continuance was filed, there was no answer hut a general denial, and! consequently there was nothing to which the testimony could apply. TVhere a party relies upon new matter in avoidance, he must plead it specially. (1 Tex. B., 443; 2 Tex. B., 460.)
    III. The overruling of the second motion for a continuance was the exercise of' a sound legal discretion. The court had a right to refuse a continuance when asked for the purpose of obtaining testimony to support an answer that was not filed until after the cause was called for trial, after it had been at is've eighteen months, after it had been three times continued and twice upon the-affidavit of the defendant, and after a continuance had been refused upon the same affidavit, no sufficient reason being assigned why the same matter was-not pleaded earlier; (2 Tex. B., 601; 2 Litt. B., 231; 3 Litt. B., 450; Hipp v. Hnchett, 4 Tex. B., 20;) 2d, because the affidavit did not show sufficient diligence. Nothing is presumed in favor of applications for continuances. (3‘ Mon. B., 293;) and, 3d, because the amended answers, taken together, presented no defense to the action. The second amendment explains the allegation of payment in the first, and shows that no payment was made. If the matter set up in the second amendment could have been presented in any shape as a defense to this action it could only have been as a set-off or in reconvention; and to make it available as either, the character and nature of the indebtedness-from F. Martel to the defendant must have been distinctly alleged and set out in the answer. (2 Tex. B., 166, 618; 5 Mon. B., 84; 3 Bibb B., 14.)
    There was no error in excluding the interrogatories to the plaintiff: 1st,, because the interrogatories were not duly fill'd or served; 2(1, because the questions propounded to plaintiff has no reference to matters then at issue between the parties, (Acts of 1S46. p. 384, see. 80;) and, 3d, because, had the interrogatories been taken for confessed, they could have proved nothing in bar' of plaintiff’s right to recover.
   Wheeler. J.

For the appellant it is insisted that the court erred—

1st, In sustaining the plaintiff’s exceptions to the defendant's plea in abatement;

2d, In refusing the several applications for a continuance; and,

3d, In refusing to admit in evidence the interrogatories propounded by the-defeudant. to the plaintiff.

The first and third objections here presented maybe considered together. This court has repeatedly decided that where the plaintiff appears to be the-legal owner of the note on which suit is brought, the mere fact that he is not the real owner, and that the beneficial interest is in another, is no defense to-the action. (Thompson v. Cartwright, 1 Tex. R., 87; McMillan v. Croft, 2 Id., 397; Andrew's v. Hoxie, ante.) The plea, therefore, which went only to-the question of the plaintiff’s ownership in the note and interest in the suit presented an immaterial issue, and was rightly held insufficient. And the interrogatories in its support, as they did not conduce to prove any material, fact, were rightly excluded.

There was no error in refusing a continuance.

This was a third application by the same party, and the affidavit conformed, to no rule of law or practice known to this court prescribed for the government of the District Court in granting or refusing continuances. The application was addressed to the sound discretion of that court, and in its exercise the-court has violated no rule or principle of law. The law required that the party applying for a continuance for the purpose of enabling him to obtain testimony should state the facts which he proposed to prove by the absent testimony. The affidavit in this case did not contain a compliance with the spirit and object of the law in this respect. A general sweeping assertion that, the note sued on had been paid, without stating when or where or how paid, and without stating any one fact or circumstance going to identify the transaction, and especially when there was no special plea alleging such. '£acts is not a compliance with the rule which requires the party to state the facts which he expects to prove by the absent testimony.

Note 36. — Same ease, 9 T., 294

Note 37. — Andrews v. Hoxie, ante, 171.

We are of the opinion that there is no error in the judgment and that it be affirmed.

Judgment affirmed.  