Beal & Bennett v. Snedicor

8 Port. 523 | Ala. | 1839

COLLIER, C. J.

— From the terms in which the connection between the plaintiffs is stated upon the record, it is clearly inferrable, that it had ceased to exist before the commencement of the action. They could not, with propriety, upon any other hypothesis, have been described as 11 late merchants, partners? &c. The case of Duncan vs. Tombeckbee Bank, (4 Porter’s R. 185,) is directly in point, to show that such is a just interpretation of the terms.

The partnership, then, being at an end, the service of process on one of the plaintiffs, would not have operated as a service on both, within the meaning of our statute—(Aik. Dig. s. 57, p. 268; Duncan vs. Tombeckbee Bank, 4 Porter’s R. 184.) It was even doubted, at one time, whether, during the existence of a copartnership, it was competent for one partner, without the concurrence of the others, to enter an appearance for the firm ; unless all its members were served with process —(Hills vs. Ross, 3 Dall. R. 331, dicta of Chase and Iredell, justices; Taylor vs. Coryell & Co. Gow. on Partnership, appendix, 483.) But it never has been supposed, so far as our research extend:;, Cud e partner possessed this power after the dissolution of the partnership, as it respects antecedent contracts. The lav.' is clear, that the authority which exists (kv/usy the continuance of a partnership, from one partner to hind his co-partner, ceases on its dis-solution. indeed it would he a hardship to put a retired partner in the pc c:* cf i'T, late eo-phriuer, by authori-sing the Inttor to pledge his crccVt directly, or to make him a party defend an t to suits without his consent. Such on authority would he well calculated to discourage ail enter;ir;''.:-, depending for its successful prosecution, upon Üie association of capital.

We have, Usen, no hesitation in concluding, that the ■acknowledgment of, service of the writ by Beal, could not have the effect to bring Bennett into court; but the entry of the jm/’finvnt shews, :;i Idlidn:i verbis, that both the plaintiffs in error appeared, though but one pleaded ; so that it is immaterial what ¡nay be the truth in this respect, the record is conclusive on the point, so far as the action of tins ¡.ev.i l T concerned. The plaintiffs being concluded by ibeT appearance, there was no necessity for the introduction of evidence by the defendant, to show in what manner process was served; and though it was irregularly served, as to Bennett, the form of the judgment, as already shown, precludes him from taking advantage of the irregularity.

In respect to iho ¡dear!, it will be observed, that the demurrer, whether intentional or not, objected to both, as insufficient in point of law, and was sustained to both. ' The first plea is non-as.n;unpci¿, in usual form. True, tide plea is pleaded by Beal alone, and denies that he undertook and assumed in manncivaad form, as the plaintiff in his declaration alleged. Tin; declaration'charges him, as co-partner of Bennett, with having made the promissory note, and the note itself is prima facie evidence of his assumption, and throws on him the necessity of making good his defence by proof. To this plea, then, there is not the slightest objection: and we can only account for its having been demurred to, and the demurrer sustained, by its not being noticed, cither by the counsel for the defendant, or the court. The second plea, we think, cannot be maintained. The act of eighteen hundred and nineteen, to regulate tire proceedings in the courts of law and equity in this Otate,” enacts, “ when any suit shall be instituted by airy person or persons, as assignee or assignees of any bond or other writing, it shall not be necessary for the plaintiff or plaintiffs to prove the assignment or assignments, unless the defendant or defendants shall annex to a plea, denying such assignment-or assgnments, an affidavit, stating that such defendant or defendants verily believe that some one or more of such assignments were forged, or make oath to the same effect in open court, at the time of filing such plea”—(Aik. Dig. s. 144, p. 283.) The -direct tendency of the plea is, to controvert the endorsement of the note to the defendant in error, and in fact denies the allegation in the declaration, in which title is deduced from Messrs. Brewster, Solomon & Co. The term endorsement ex vi termini, when used in regard to commercial paper, implies a transfer, by writing thereon the name of the payee, or other subsequent party, in whom the legal interest is vested; and when it is said that the contents of a note or bill are ordered and appointed to be paid to a particular individual, we are to understand that there is an express direction of the payment, or an assignment of title to him by the person endorsing—(Clawson vs. Gaston, 2 South. R. 321; Tyler vs. Binney, 7 Mass. R. 479; Lovell vs. Evertson, 11 Johns. Rep. 52; Norris vs. Badger, 6 Cowen’s R. 449; Dugan vs. U. S. 3 Wheat. R. 173, 183.)

The second plea, as it puts in issue the fact of the assignment, should have been verified by affidavit, or have been sworn to in open court; neither of which modes of verification seem to have been observed; and it is bad in substance.

We will not enquire how far the matter of the plea presents an available defence, inasmuch as the point was not argued; nor will we consider whether it is bad, as stating facts, which, if a legal bar, are admissible under the general issue. These questions, we leave for future adjudication. For sustaining the demurrer to the first plea, the judgment is reversed, and the case remanded.