Thomas v. Clark

23 F. Cas. 936, 2 McLean 194

• Court: U.S. Circuit Court for the District of Michigan
• Decided: October 15, 1840
• Status: Published

Opinion

OPINION OF THE COURT.

This action

is brought against the defendants, who are partners, as indorsers of a bill of exchange to the plaintiff. A rule of court requires a plea' of the general issue, denying the execution of an instrument, or of an indorsement on which the action is brought, to be sworn to. The general issue in this case being filed, without oath, a question is made, whether the ground of the action is admitted. The defendants’ counsel contends, that the signatures of Clark and Cole, as they appear to be indorsed on the note, only are admitted, and not the partnership, and that it is necessary for the defendants to prove the partnership. The rule was designed to prevent delays by filing issues, which are not true in fact. A plea of the general issue, under the rule, may be good for some purposes, but it admits the instrument on which the action is brought. In this case, the in-dorsement by the defendants is admitted. Smith v. McManus, 7 Yerg. 477. But to what extent does this admission go? Most clearly, the admission is, that the defendants indorsed the note, as they are alleged to have done in the declaration. In the declaration, they are stated to be partners, and, as such, indorsed the note in the partnership name. This construction of the rule imposes no hardship on the defendants. If the note were not indorsed by them, as partners, they might have sworn to the plea, which would have thrown on the plaintiff the necessity of proving their signatures, as alleged in the declaration. Judgment.