| Ill. | Dec 15, 1855
This action was upon a promissory note signed “ Pankey & Davis.” The defendants pleaded severally: Pan-key non-assumpsit and payment, and Davis non-assumpsit, which is verified by his affidavit. On the trial, the Circuit Court held, that this was not sufficient to put in issue the making of the note by him, or the existence of the firm of Pankey & Davis, by which the note purported to have been executed. In this the court erred. The eighth section of chapter forty, Rev. Stat., upon which this decision was made, has been twice construed by this court, on this very point. Stevenson v. Farnsworth, 2 Gil-man 715, and Warren v. Chambers, 12 Ill. 124" date_filed="1850-12-15" court="Ill." case_name="Warren v. Chambers">12 Ill. 124. It was there held that the affidavit of one of the defendants denying the existence of the partnership or the execution of the instrument sued on, was sufficient to entitle the party making the affidavit to make the defence; as to him, the case stands upon proof, the same as it would had the statute not been passed. Full proof, however, is only made necessary by the affidavit as to him. The implied admission created by the statute, still exists as to the .other defendant, who is not entitled to any benefit from the oath of his co-defendant, except the incidental benefit which would result from the plaintiff failing to maintain the issue as to one of the joint defendants. The statute says, that when two or more are sued as partners or joint obligors, the plaintiff need not prove the joint liability or partnership, “ unless such proof shall be rendered necessary by pleading in abatement, or the filing of pleas denying the execution of such writing, verified by affidavit, as required by law.” Here the defendants were sued both as partners and as joint obligors, in the sense in which these words are used in the statute, and either of the defendants had the option to choose which mode he pleased, to deny the joint liability. Davies adopted the latter mode provided in the statute, and he was entitled to make his defence under the sworn plea. The judgment is reversed and the cause remanded.
Judgment reversed.