I. It is assigned for error that the court, on the conceded fact that plaintiffs were not the real owners for value of the assigned accounts, should have directed a verdict for defendant on those counts of the petition. Tlie contention of appellant is, that the practice act requires actions to be brought in the name of the real parties in interest. Rev. Stat., sec. 3462. It will be seen, however, that this very section makes an exception in favor of the right of action as in the succeeding section named. This section (sec. 2163) authorizes an executor, administrator, and a trustee of an express trust, to sue in his own name, without joining with him the pierson for whose benefit the suit is prosecuted. It has been the recognized practice in this state to bring suits just as was done in this case. - Appellant claims that such an assignee is not the trustee of an express trust, and cites in support the case of Robins v. Deverill (20 Wis. 142). In that case the claim was assigned by a debtor of copartners to one member of the firm, without any agreement or understanding expressed as to how he should hold the claim. Dixon, C. J., was of opinion that, as the statute authorized the action to be maintained only in the name of the trustee of an express trust, it did not authorize the action where the trust arises merely by implication. But he expressly concedes that such trustee of an express trust may be created by parol agreement between the parties, and that such trustee may sue without joining the beneficiaries. In , the case at bar it expressly appeared that the accounts were assigned to plaintiffs with the agreement that they were to hold solely for the purpose of this action. The majority of the court, in the case, supra, did not concur with C.-Ji Dixon in saying that the statute did not apply to the facts of that case.
II. It is next contended by appellant that the court erred, first, in not permitting him to introduce the proffered evidence to disprove the alleged partnership ; and, *537second, in refusing to allow him to file the amended answer.
Section 3653, Revised Statutes, was- amended in 1883 (Laws Mo., 1883, p. 121) by adding the following: “ And where plaintiff or defendant sues or is sued as a corporation, and where plaintiffs or defendants sue or are sued as a partnership, and the names of the several partners are set forth in the petition or answer, it shall not be necessary to prove the fact of such incorporation or partnership, unless the opposite party put such fact in issue by affidavit filed with the pleadings in the cause.” The position of appellant is, that the only effect of this amendment is to relieve the plaintiff in the first instance from the burden of proving the existence of the corporation or partnership ; in other words, the failure to make the required affidavit makes out a primafacie case for the plaintiff, which defendant may then, under the general issue, proceed to rebut. This is not defensible, as such a construction would both subvert thb language of the statute and defeat the remedy sought to be furnished by the legislature. Statutes must be construed with reference to the subject-matter, the object which prompted the enactment, and the mischief they were intended to remedy. Neenan v. Smith, 50 Mo. 525; Spitler v. Young, 63 Mo. 42; State v. Diveling, 66 Mo. 375. And it is the foremost doty of the courts to declare the law in accordance with the meaning of the lawmaker. State v. Bogardus, 4 Mo. App. 215. This for the important reason, to avoid judicial legislation.
What was the prompting motive to this amendment of 1883 ? What was the mischief sought to be remedied ? Suits against corporations and partnerships are most frequent. They constitute a large per cent, of our litigation. As proof of the existence of a corporation or co-partnership, often non-residents of the state, was ¡attended with inconvenience and expense, and such .necessity and expense were often imposed by these parties merely tendering the issue for vexation and delay, the legislature designed by the amendment to relieve the *538party alleging the existence of such corporation or partnership from making such mere formal proof, which under the old system belonged to dilatory pleas, unless the opposite party, by affidavit, made with his answer, put such fact in issue. The language of the statute is plain and unambiguous. It does not need the aid of any extraneous reference to understand it. It does not admit of any possible inconsistency with anything preceding it.. It declares in unmistakable terms, that ‘ ‘ unless the opposite party put such fact in issue by affidavit, filed with the pleading in the cause, it shall not be necessary to prove the fact.”
It Is a fundamental rule of pleading that no fact not in issue need be proved ; and a party can never, at any stage of the trial, be required to offer proof of a fact not in issue.
The statute not only relieves the plaintiffs in this case from the necessity of making such proof “unless the opposite party put such fact in issue,” but it prescribes the only manner of tendering such issue, and that is, “by affidavit filed with the pleadings in the cause.” In no other manner and under no other conditions can such an Issue be brought into the cause, for thus saith the statute, and we have no power, without usurping legislative functions, to say it can come in otherwise. Prior to this amendment, the statute (sec. 2316) authorized a party to make proof of the existence of a partnership by jiresenting an affidavit thereof. But it expressly declared that such affidavit should be only prima-facie evidence of the fact. It could, therefore, be rebutted by the opposite party, whereas the amendment, in question, declares that, unless the party desiring to take issue as to the existence of the alleged partnership shall put this fact in issue, and in a given manner, it shall not be necessary t© prove it. The design of the statute was to make the party first purge himself of the imputation of a mere dilatory plea. And unless the party thus puts the fact in issue, how can he be allowed to introduce any proof thereon ? Under the *539appellant’s theory every time a party sues a corporation or partners, he would be compelled, . as a matter of precaution, to take depositions outside of the state, when the corporation or partners were non-residents, or bring-his witnesses to court and hold them until the trial. For if it be a mere shifting’ of the burden of proof, he should anticipate that the moment he got through with his prima-facie case, predicated upon the absence of the required affidavit, the other party would come in to rebut it. But the statute says, unless such fact be put in issue it shall not be necessary to prove it, and this issue can only be tendered by proper affidavit filed with the answer. Any other view would amend and rob the statute of its force.
The St. Louis Court of Appeals, in Pierce v. Town of Luteville (25 Mo. App. 317), held that the denial of the corporate existence must, under the statute in question, be made under oath. By the same statute and authority must it follow that the denial of the existence of the partnership must be under oath. And if not so tendered, the statute declares the fact is not in issue.
III. The refusal of the court to permit the making of this issue at the trial was among those matters which belong largely to the discretion of the trial court.- Section 3596, of the practice act, provides, inter alia, that it shall be the duty of the courts to so construe the provisions, of law respecting pleadings, and to so adapt the practice-thereunder, as to discourage, as far as possible, negligence and deceit, and to prevent delay, to secure parties, against being misled, and to place the party not in fault as nearly as possible in the same condition he would be in if no mistake had been made. The law presumes that defendant’s counsel was learned in the law, and that he knew the law. It can never be a ground of relief, on the-plea of surprise, that the party’s attorney did not know the law. Here the plaintiffs had gone to trial to recover a debt, having a right to believe that they would not be required to meet any evidence from the defendant as to-the existence of the imputed partnership. They, there*540fore, presumably had prepared no evidence, summoned no witnesses, to such contention. To stop the cause, in res media, to make up the issue of partnership or no partnership, would likely either operate as a continuance or a discontinuance of the trial or suit. We cannot say that the discretion of the trial court was abused in this case; and it is rarely that the appellate courts interfere with the discretion exercised by the trial judges, who occupy a better ground for judging of the good faith of the delinquent party, and the probable effect of admitting such amendments.
It follows that the judgment of the circuit court is affirmed.
Ellison, J., concurs in the result; Hall, J., dissents as to the second paragraph of the opinion.