33 Ala. 659 | Ala. | 1859
The two confessed judgments given in evidence were, in -a court of law, when collaterally assailed, valid and binding upon the defendant. It is true, one partner cannot, by virtue, of any authority incident to the partnership relation, bind his co-partners by a confession of judgment.—Collier on Part. § 469, note 6; Doe v. Tupper, 4 S. & M. 261; Crane v. French, 1 Wend. 311; McBride v. Hagan, 1 Wend. 326; Harper v. Fox, 7 Watts & S. 142; Bitzer v. Skunk, 1 Watts & S. 340; Witherell, v. Holmes, 20 Wendell, 609; Gerard v. Basse, 1 Dall. 119; Grier v. Hood, 25 Penn. St. R. (1 Casey,) 430; Motteux v. St. Aubin, 2 Blacks. 1133; Green & McSher v. Beals, 2 Caines’ R. 254; Otis, Mills & Co. v. Dickson, 6 Rich. Law, 487. But one partner may be clothed by his co-partners with a special authority, by-virtue-of which he may confess a judgment against them. • '
In determining the jurisdiction of the collaterally assailed judgments of the circuit court, through an interpretation of their language, we must rather incline in favor of, than against the validity of >the judgments. King v. Kent, 29 Ala. 542; 2 Smith’s Leading Cases, (5th Am. ed.) 842. The language of the judgments, though somewhat ambiguous, examined under the guidance of the principle just announced, is found to assert, that the partner who actually made the confessions ©f judgment had a competent authority from his co-partners. The record says, that the three defendants, partners, &c., “ came into open court, by Moses Hubbard, one of the firm, and acknowledged themselves to owe and be indebted,” &c. The partners could not come into court,
The case of Brown v. Little, 9 Alabama, does not militate against the conclusion attained by us-. That case not only differs from this in its facts, and in- its recitals; but the proceeding was on error, for the reversal of the judgment.
The first, and second, and third pleas, demurrers to which were sustained, were bad, because they omitted to aver Hubbard’s want of authority to confess judgment for his co-partners. All that those pleas contain may be true, and notwithstanding the court may have had jurisdiction of the defendant’s person. Under this decision, these pleas would be bad, even though they averred Hubbard’s want of authority; for it is not allowable, in this case, to dispute the verity of the record.
The authorities above cited, in reference to the sufficiency of the 5th plea, show that the replication is good, so far as the release is concerned. The plaintiffs’ first replication to the 3d and 4th pleas, averring the authority of Hubbard to confess the judgments against the defendant, was certainly sufficient. Whether the second replication was good, it is unnecessary to inquire; because, under this opinion, the question of ratification will not be likely to arise. For the same reason, it is unnecessary for us to examine the question of the competency of the witness, or the admissibility of the parol evidence.
The judgment of the court below is reversed, and the cause remanded.