
    Williams and another v. Bailes.
    As a general rule all exceptions touching tho legal sufficiency, whether of form or of sub-stancie, of the pleadings should ho taken before going to trial upon the issues of facet,
    whore a plea impeaching tho consideration of an instrument or note in writing is filed unsupported by affidavit, the plaintiff must except or move to strike out before going to trial, or it will bo deemed that lie waives tho affidavit. (Note 13.)
    A plea of non at factum, unsupported by affidavit, will not east tho burden of proof on the plaintiif. although under such defective plea if not objected to in time tho defendant may adduce evidence in his own defense. (Note 14.)
    Appeal from Williamson. Suit on a promise to pay under seal. Plea of failure of consideration not supported by affidavit. On the trial the defendants offered evidence in support of their plea, but the court excluded the evidence on the ground that the plea not having been supported by affidavit was no part of 'the pleadings in the cause. The defendants excepted.
    
      Oldham 8? Marshall, for appellants.
    The affidavit in support of the answer as required by the statute, (Ilart. Dig., art. 710.) is no part of the answer. It is but a prerequisite to the admission of the answer upon the files of the cause. If tho plaintiff intends to object to the answer for want of the affidavit, he should do so before going into tho trial by moving to strike the answer out of tho record; bnt if lie neglects to do so and goes to trial, it would seem that lie thereby waives the objection, and cannot exclude evidence which may be offered in support of the answer.
    Under the common-law practice, if a defendant file a plea not verified which the law requires should be sworn to, and the plaintiff does not object to it, but goes to trial, it will then be too late to object by moving to exclude evidence offered under the plea. (Hagar v. Mounts, 3 Blackf., 57; Id., 261.)
    
      E. B. Fecit, for appellee.
    I. The note sued on is under seal. (2 McC. It., 380; 3 Mis. B., 79; 4 McO., 207 ; 3 Blackf. It., 161; 2 Id., 322; Bee, D. 0. B. Ill); Flemming in Powell, 2 Tex. B., 225.)
    II. The ausweris special and goes to the impeachment and inquiry into the consideration of the note. It is iiot sworn to; therefore it is a nullity, and defendants were not entitled to prove matters therein, set forth in answer to plaintiff’s cause of action. (Hart. Dig., art. 710.)
    III. Tho plaintiff in not excepting to the answer did not lose his right to object to the evidence sought to be given uuder it. (2 Tex. B., 594.)
    Plaintiff was not compelled to demur. Our practice does not require a proceeding of that character. The statute in relation to pleadings in a suit go no further than petition and answer.
    It is true at common law a party that did not except to a plea because it was not sworn to waived bis right to resist evidnuco under that plea if otherwise good ; bnt the reasons and policy of that role does not apply to our practice, and therefore the rule ceases, because,
    1st. It was only dilatory pleas, not pleas to the merits, that were required by common law to be sworn to. (4th Anno, c. 1G, sec. 11; Gould PI., 230.)
    2d. The party was compelled to plead until an issue was formed on all the pleadings.
    3d. If he answered a defective pleading in forma, he could not afterwards demur or object to evidence under that plea, because by pleading he had admitted its correctness and waived liis right to do so.
    
      NotIí 18. — Powers v. Caldwell, 25 T., 352. It would seem that the objection cannot be made ■When a new trial has been granted. (Uankert v. Clow, 10 T., 9.) When the defendent plead payment and. sel onfc a receipt in his answer, it is admissible in evidence without proof of its execution, unless denied under oath. (May & Company -y. Pollard, 2S T., 677.)
   IIempiiill, Ci-r. J.

The only question in this case is as to the alleged error in excluding the evidence offered in mpport of tiie plea of the failure of consideration. Tiie objection to its admissibility was that tiie plea was unac-■eoinpanied by the affidavit required by tiie statute.

Tiie provision of the act which is applicable here is expressed as follows, viz, “Bo plea impeaching tiie consideration of any instrument or note in “writing under seal shall be admitted, unless supported by the affidavit of the “defendant or some person for him, stating that the facts set forth in said plea are true,” &c.

The appellants contend that if tiie plaintiff intended to object to the plea for the want of an affidavit, lie should have done so before going into the trial ; and that having neglected to do so he has waived the objection and cannot exclude the evidence in support of tiie plea. The question is not without difli-■culty. The oath is declared to be a positive, legal requisite of the plea, and is, therefore, not to be lightly disregarded.

If without the affidavit the plea be essentially a nullity, it is no plea and may bo stricken out at any time. But ibis requisite, imposed by statute upon the plea, is not for the benefit of i lie defendant but for that of the plaintiff. Were it not for tiie restriction of tiie statute, a plea impeaching the consideration of a sealed instrument would not require tiie support of an oath. This is an advantage to tiie plaintiff. lie can, no doubt, waive it expressly; and if lie do so by implication lie must be bound by his own acts. As a general rule all exceptions touching the legal sufficiency, whether of form or of substance, of the. pleading of the' parties' should be taken before they go to trial upon tiie issues of fact. If an objection were subsequently allowed it might operate as a surprise and greatly to the injury of a party, especially as lie is then precluded from curing tiie defect by amendment.

Had tiie objection in this instance been taken before the trial, the defendants might, had tiie court permitted and no delay been occasioned, have amended their plea by their oaths; hut from the chance of this benefit they are now excluded, and their defense, however meritorious it may be, cannot avail them.

Tiie refusal of tiie evidence under the circumstances operates oppressively upon the defendants, and is in conflict with the rules of practice established in analogous cases. In Richmond v. Tallmadge, (16 Johns. R., 307,) it was held that where a sheriff, in an action for an escape, pleads or gives notice of a voluntary return of the prisoner before suit brought without verifying bis plea or notice by affidavit as required bjr tiie statute, tiie plaintiff might treat tiie plea as unility and proceed to judgment, or move tiie court to set it aside, as is tiie case with dilatory picas; butif lie accept the plea and go to trial lie waives (lie irregularity. If lie treat tiie plea as good in point of form tiie court will not press the defect upon him. The case amounts to this, that as it was •competent for the plaintiffs to waive tiie affidavit and treat the plea as valid without it, they should lie held by their nets to have done so in that ease; autl we are of opinion that tiie exception in this case having not been taken before trial, and the plea having been treated as valid, the objection afterwards came too late and should have been overruled.

The language of the statute in requiring this plea to be supported by affidavit is almost identical with lho words usecl in relation to the verification of the plea of non est factum and oí pleas in abatement. But the rule above stated as to the waiver of the affidavit -is- inapplicable to the plea of non est factum. The defendant could not be permitted to throw upon the plaintiff by a plea wanting this statutory requisite tiie burthen of proving the execution of tiie instrument or the cause of action; although under such defective plea, if not ■objected to intime, lie might adduce evidence to support his own defense. Judgment ordered to be reversed and cause remanded for a new trial.

Reversed and remanded.

is ote 11. — A plea which denies the execution of the note sued on, or the partnerships of the defendants who are charged tohavo executed tin' same in their partnership name, is a nullity if it be n<«t sworn to, and it is not necessary to except to it. (Drew-u. Harrison, 12 T., 279; Kelly v. Kellv, 12 T., 432; Persons v. Frost & Co., 25 T. Supp., 1.50; see Fowler v. Davenport, 21 T., 026, and Sessums v. Iíenry, 3S T,, 37.)  