Gibson v. Weir

24 Ky. 446

• Court: Court of Appeals of Kentucky
• Decided: June 10, 1829
• Status: Published

Opinion

Judge Robertson

delivered the opinion of the Court.

■ Gibson'& Co. brought a petition and summons against Wm, Anderson and James Weir, on a note signed “Wm. Anderson & Co.” Weir-plead non est factum; and by leave of the .court, at á subsequent term, filed a plea, averring that the plaintiff had released Anderson from further liability on account of the note; whereby be (Weir) was discharged by operation of law. The plaintiffs demurred to this latter plea. No release is shown in the record, except one copied in the‘deposition of Anderson himself, which is filed. Anderson did not plead; but the court overruled the demurrer to the 2d' plea, and thereupon, gave judgment for the defendants.

There is nothing in the record, which can sustain, this judgment. The plea of release is insufficient.' It does not show that the release was under seal, or otherwise effective. And the copy recited in the deposition, (if it could be received,) is without seal.

The demurrer .ought, therefore, to have been sustained.

As there was an issue on the plea of non est factum, it was error to render judgment against the plaintiffs without a trial of that issue, by a jury, unless the release had been shown to be such as to bar the action. Nor was it regular to render judgment without either an abatement as to Anderson, or some other legal notice of him on the record.

The judgment is, therefore, reversed, and the cause remanded for proceedings consistent with this opinion,