Kennedy v. Hall

Mr. Chief Justice Breese delivered the opinion of the Court: This was an action of assumpsit, in the Washington circuit court, on a promissory note. The declaration counted on a note made by Walker, Kennedy & Co., to Donaldson & Hall. James H. Kennedy, one of the defendants, put in a plea of non-assumpsit, verified by his affidavit, which put in issue the fact of partnership with the other defendants. Tlie court instructed the jury that the onus was upon the defendant Kennedy to prove he was not a partner, and under no liability as joint maker of the note. This was clearly wrong. By section 35 of the Practice Act, it is provided, in actions upon contracts expressed or implied, against two or more defendants as partners or joint obligors or payors, whether so alleged or not, proof of the joint liability or partnership of the defendants, or their Christian or surnames, shall not, in the first instance, be required to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by pleading in abatement, or unless the defendant shall file a plea in bar denying the partnership or joint liability, or the execution of the instrument sued upon, verified by affidavit. Sess. Laws' of 1872, p. 344. This plea appellant interposed, consequently the onus was upon the plaintiff to make out his case. He held the affirmative. The court therefore erred in instructing the jury otherwise. For this error, the judgment is reversed and the cause remanded. Judgment reversed.