Whiting v. Fuller

Breese, J. The affidavit in this case was a part of the plea, and the plea is a part of the record and requires no bill of exceptions to bring it before this court. If a plea be stricken from the file, it still remains a part of the record for the purpose of presenting the question ■ of the propriety of the action of the court in striking it from the file. The plea was the general issue, filed by both defendants, who were sued as partners. The affidavit of merits is by one only of the defendants, and the court below, holding it was not sufficient, struck the plea from the file and rendered judgment for the plaintiffs. The question presented is, was the affidavit sufficient ? In conformity with the decision in the case of Hurd v. Burr et al. and Davis v. Chickering, ante, p. 29, we must hold the affidavit was sufficient. Persons sued jointly or as partners, may plead jointly or separately as their defenses may warrant. A defense which one may have, may not attach to his co-defendant, and each defendant must make the affidavit of merits for himself. One of them may have no defense. Here the general issue was filed. A defense personal to one of the defendants could not be allowed under that plea, and any other defense under that issue, which was good for one of the defendants, would be equally availing for both defendants, hence there was no necessity that both defendants should have joined in the affidavit. Under the general issue, one defendant might show that the notes on which suit was brought, were given by his partner to pay his own individual debt and so known to the plaintiffs, and therefore not binding on him. This he could not plead specially. Under the general issue, the affidavit was sufficient. The judgment of the court below is reversed and the cause remanded, with instructions to restore the plea to the file. Judgment reversed.