13 Mo. 4 | Mo. | 1850
John Long and James H. Long were formerly merchants and partners, under the name and style of J. & J. Long. Sometime after the dissolution of the partnership, the note in suit was executed by J. H. Long, who signed the former partnership name. The cause having been discontinued as to J. H. Long, John Long filed, amongst others, a special plea, under oath, denying the execution of the note. On the trial, evidence was given to the effect that the note sued on was given in renewal of former partnership notes for money loaned, and that it was signed with the authority and consent of John Long.
The defendant having executed to J. H. Long a release from all claims on account of the note or the suit, offered him as a witness to prove that the note was executed for the individual debt of the latter, and that the partnership name was signed to it through mistake, and without authority from the defendant. The court rejected James H. Long as incompetent, and the defendant excepted. Other evidence was then given tending to show some of the same-, facts, but neither the evidence nor the instructions need be further considered in the view which is otherwise suggested and enforced by the record.
"We have no doubt but that James H. Long was a competent witness under the circumstances, and for the purpose for which he was called. We have been referred, however, to several previous decisions of this court, upon the reasoning of which, reliance has been placed to establish the practice that no • ground of error shall be considered here which has not been assigned and relied upon in the motion for a new trial below; and in addition to the cases-» thus cited, we have ourselves found a still earlier and more apposite one (L Mo. R. 718), which' may be regarded as having fixed and established the. practice in all cases where it is insisted upon, as in the one under consideration.(
Eor the reason, then, that the error assigned and relied upon in this case was not brought to the notice or consideration of the judge below, as a reason, why he should grant a new trial, it cannot be considered here, and the judgment of the Circuit Court must consequently stand affirmed.
(a) Chamberlain v. Smith, 1 Mo. R. 718, and note b; Boyce v. Burt, 34 Mo. R. 74. For error apparent on the fiice of the record this Court will reverse — State v. Matson, 38 Mo. R. 489; Ancel v. City of Cape Girardeau, April term, 1871.