9 Gratt. 615 | Va. | 1853
The first count of the declaration in this case alleges in substance that William Phaup, Peter B. Stratton, Theodorick C. Grannaway, John Saunders, and Nathaniel Lancaster now deceased, late partners trading under the firm of Lancaster, Stratton & Co., in the lifetime of Lancaster, by their note in writing, with their partnership style of Lancaster, Stratton & Co., by them thereto subscribed, bound themselves to pay the plaintiff the sum of 173 dollars 30 cents for value received. The second count in substance alleges that the surviving partners above named, by their note in writing with the name of
The statute of February 5th, 1828, Sup. Rev. Code, p. 265, chap. 206, enacts, .among other things, that in a suit brought upon a promissory note in which the declaration shall allege or charge that the defendant made the same and subscribed his name thereto, every such note, with the name or signature thereto subscribed, upon being offered in evidence, shall be deemed and taken to be genuine, and the name or
In neither of the cases of Shepherd, Hunter & Co. v. Frys, 3 Gratt. 442, or Kelly v. Paul, 3 Gratt. 191, did the declaration allege that the paper sued on was subscribed by the defendants. These eases were properly decided without reference to the statute, the terms of which did not extend to the cases.
I am of opinion to affirm the judgment.
The true construction of the act of February 5th, 1828, Supp. Rev. Code, p. 265, has been twice the subject of consideration in this court. It was held, in Kelly v. Paul, 3 Gratt. 191, that the act dispensing with proof of handwriting in certain cases only applies where the declaration alleges that the defendant, or the person stated to have made the
Since those decisions there has been a general revision of the laws. By the Code, chap. 171, § 38, p. 651, the construction given to the act of February 5th, 1828, has, I think, been recognized and adopted. It declares that where the declaration avers “ that any person made, endorsed, assigned or accepted any writing, no proof of the handwriting shall be required, unless the fact be denied by an affidavit which puts it in issue. This provision of the Code omits the clause in the act of 1828 which declares that every such note, &c. should be deemed and taken as genuine, the only provision upon which, as it seems to me, any doubt can arise. The deliberate opinion of this court upon a mere question of practice, although not directly arising in the case under consideration, when thus sanctioned by the legislature, ought not, I think, to be called in question.
Upon the act itself I am satisfied that the construction given in the case of Shepherd, Hunter & Co. v.
The title is an act dispensing with proof of handwriting in certain cases : And the effect of the statute is to dispense with the proof of handwriting, and nothing more. The clause “ that the writing shall be deemed and taken as genuine,” must be construed with reference to the leading intent of the act, and with the preceding and succeeding clauses. When offered in evidence, the writing is to be deemed and taken as genuine, and the name to have been subscribed by the person charged therewith, without any proof of the handwriting: Thus showing that the whole scope of the act was to establish a new rule of evidence; and, as was said in the case referred to, to relieve the plaintiff, not absolutely, but conditionally, from the proof on the trial of the handwriting. So far as the genuineness of the instrument depends on the faet of the signing, the absence of the affidavit is to that extent an admission of the genuineness. But the handwriting being conceded, there may be other objections to the validity of the instrument. Where one of several partners signs a note purporting to be a note of the firm, the fact of its being so signed may appear on the face of the instrument, or be averred in the declaration. The handwriting is genuine, but the authority to sign is another question. That may depend on the proof of the partnership or the evidence of its dissolution. So where a note has been really signed by the party charged therewith, he cannot, according to the statute, make an affidavit that the name was not so made or signed, or that the name or signature was not subscribed by the party charged
In this case, as in the case of Shepherd &c. v. Frys, there was no question as to the handwriting; it was signed in the firm’s name. The case turned upon the authority of any one to bind the other surviving partners under the circumstances disclosed : And for the reasons given, and those contained in the opinion referred to, I think that the parties were not precluded from going into that question, notwithstanding the omission to file the affidavit required by the act of February 5th, 1828. I have not thought it necessary to express any opinion as to the correctness of the decision of the court refusing the instruction asked for by the defendants as set forth in the bill of exceptions
Moncure and Lee, Js. concurred in the opinion of Samuels, J.
Daniel, J. concurred with Allen, J.
Judgment affirmed.