Holman v. Carhart, Bros.

25 Ga. 608

• Court: Supreme Court of Georgia
• Decided: June 15, 1858
• Status: Published

Opinion

By the Court.

Benning J.

delivering the opinion.

The plea of David Holman was, that he did not “ sign” the note, or authorize any one to sign it for him, and that he was not a partner in the firm of Shropshire & Holman at the time when the d'. bt was contracted and the note given.

[1.] Surely this is not a mere plea in abatement. It must fee a plea in bar. The word “ sign” is used in place of the more usual and more comprehensive word, make; but that, if a defect, is amendable; at all events, is not a thing to niake the plea, a plea in abatement. It is a plea intended " to deny” the "note” sued on. A plea denying the note sued on, is a plea in bar.

[3.] In Collier vs. Cross, this Court held, (Judge Lumpkin not presiding,) that a somewhat similar plea was not good; ^ut did not hold that it was a plea in abatement. And that decision I now think wrong, unless there were some facts not reported, to support it, I must think, however, that there were some such facts, although, I cannot remember any. I must think, that the plea lacked being sworn to, or that there was some other special ground of objection to it. See Straus vs. Barry & Co., decided at this Term.

If the plea in the present case was a plea in bar, it is. clear, that the motion for a continuance ought to have been granted ; and it is equally clear, that if the plea was defective, it was amendable, and ought not to have been struck out, provided an offer to amend it was made.

Judgment reversed and a new trial ordered.