Ege v. Kyle

The opinion of the Court was delivered by Sergeant, J. When a suit is brought by several plaintiffs as partners, on a negotiable note indorsed in blank, they are not bound to give evidence of the partnership, because possession constitutes title, and confers a right of action on such as may agree to sue. 3 Campb. 239 ; 1 Stark. 446 ; Chitt. on Bills 394. But when the note is payable or indorsed specially to a firm, the contract is with them only, and it has often been ruled, that in an action by such payees or indorsees, strict evidence must be given that the firm consists of . the persons who sue as plaintiffs on the'note. Ibid. The indorsement in this case was special, to Dinsmore and Kyle. The plaintiff sues in his individual right, averring in his statement that the note was indorsed to him, trading in the name of Dinsmore and.Kyle. This averment forms a material part of his title. It is the only right to sue which he sets forth, and if not true, the acdon is not maintainable in his name. Non assumpsit puts in issue every pan of the plaintiff’s title. It. is otherwise on non est factum, which, though called the general issue, is in the nature of a restricted plea; it denies the validity of the deed declared on, but admits every thing else. On this ground, the case of Porter v. Cresson, 10 Serg. & Rawle 257, was determined. Here the issue was non assumpsit; and on this issue the plaintiff was bound to give evidence of the averment that he represented Dinsmore and Kyle. The court below, therefore, erred in charging the jury that this objection was not sustainable. The other errors are not supported. Judgment reversed, and venire de novo awarded.