Jones v. Rives

3 Ala. 11 | Ala. | 1841

GOLDTHWAITE, J.

1. It is very probable that the Circuit Court excluded the note from the jury, under the impression that the plaintiff was required, under the issues submitted, to shew the precise nature of the consideration for which the note was given.- We apprehend it to be perfectly clear, that a defendant cannot, by any mode of pleading, compel the plaintiff to such a course. Certainly a promissory note imports a consideration as muchas a sealed instrument; and where its consideration is denied, it rests with the defendant to shew affirmatively that it has none.

It is not perceived that the case of a note executed by partners, can be governed by any other rules than those which apply to one executed by an individual. In neither case does the ex-purgatory oath required by the statute to be taken by the defendant, impose on the plaintiff the necessity of proving his case in a more ample manner than the common law required. Indeed, the expurgatory oath has no other effect than to revive the common law so far as the particular case is concerned. Aikin’s Digest, 283, § 127.

By the common law, one partner has the authority to bind his co-partner in relation to matters of the co-partnership. — ■ Each partner is the general agent oí the other, and any act or admission made by one during the continuance of the partnership, will bind the other; or at least, such is the prima facie effect of the act or admission. Gow on Partnership, 235; Odiorne v. Maxey, 15 Mass. 44.

2. It is on this principle, undoubtedly, that it has so frequent-. Jy been held, that a note or bill executed by one of a firm,, A prima facie, sufficient to charge any other member of it. A bill or note is nothing more than a written admission of a debt,. ;md when signed by one of a firm, it will bind all the members, unless it is shewn to have been given for a consideration not binding on those who seek to be discharged. Ridley v. Taylor, 13 East. 175; Doty v. Bates, 11 John. 544; Chitty v. Bills, 45 Gow on Part. 61; 2 Starkie’s Ev. 228; Vallett v. Parker, 6 Wend. 615; Swan v. Steele, 7 East, 210. In this case the parties have proceeded without any special replication; we must therefore, consider the replication as denying generally, the truth of the matter alleged in the plea, of which a very material portion is new and affirmative facts. The plaintiff alleges the execution by the defendant of the note sued on; this is denied by all the pleas, and thus in effect, they are pleas of the general issue merely. If, however, the new niatter set out, changes their character into that of special pleas, then the affirmative facts must be established by the defendant.

The judgment of the Circuit Court is reversed, and the case remanded.