Bennett v. Allison

Mathews, /. delivered the opinion of the court. This suit is founded on a promissory note, which purports to have been made by the defendant j~intIy with a person of the name of Roe. The answer to the petition is a general deniaL It does not appear that the defendant was called upon to acknowledge or deny his signature, according to the 323d article of the Code of Practice; nor is there any specific allegation that the note was signed by him, in pursuance of article 324. The plaintiff proceeded to prove the signaLure, under the general denial; and theh claimed a right to enforce the disabilities imposed on defendants who have expressly denied their signatures, by articles 325 and 326; alleging that, according to these articles, the defendant was barred from every other species of defence. The defence offered was, the want of solidarity in the obligation of Allison & Roe, supported by proof that their partnership was particular, and not commercial. A jury, to whom the cause was submitted, found a verdict for one-half of the sum specified in the note, under a charge from the court; and from a judgment rendered in pursuance of this finding, the plaintiffs appealed. A construction has already been given to the articles o~ the Code of Practice' invoked in the present case, by which it appears that a defendant ought not to be precluded from other defences, unless by the petition and answer he be brought precisely unde~r the disabilities imposed by a strict [421] pursuit of the law, which did not occur in the present case. —See 8 N. S.p. 297. In a suit upon a note the plaintiff is not hound to prove the defendant’s signature unless it be expressly denied ; but if neither the allegations in the petition nor inter-ogations annexed thereto require such denial or admission, then every means of de-fence is open to the defendant under a plea of the general issue. Solidarity in obligations must be express, except in the case oi commercial partners. Where one of ■ the joint obligors of a note given by a particular partnership fails, and places the payee, as a creditor on his hilan for the whole amount, he is nevertheless bound but for one half The defendant not having expressly denied his signature or execution of the note, the plaintiff was not bound to prove these facts. If it be granted that the petition is made in such terms as to require of him an express and specific admission or denial; — if neither the allegations in the petition, nor interrogations annexed thereto, required such denial or admission; then every means of defence remained open to the defendant, under a plea of the general issue. It is a matter so well known, that according to our law solidarity in obligations must be express, that we deem it useless to cite any authorities to this effect. The only case recollected in which it takes place without express stipulation, is that of commercial partners. But admitting the truth and correctness of these doctrines, it is contended for the plaintiffs, that Allison assumed to pay them the whole amount promised in the joint note of him and Hoe, by placing them on his schedule as creditors to that effect, in his application for a respite, sanctioned by his oath. The oath annexed to the schedule declares that it contains a true and exact account of his property, as well as of his creditors. By placing himself as debtor to the plaintiffs for the entire sum expressed in the joint note of him and Roe, he could not preclude them from pursuing Roe for the one-half, which he was legally bound to pay; nor could this circumstance have prevented the mass of his creditors from contesting Allison’s liability for more than half that sum. We are of opinion that the bare circumstance of placing the debt in this manner on the bilan of the debtor, produced no alteration in his legal obligations arising from the joint note of him and Roe. It is therefore ordered, adjudged, and decreed, that the judgment of the Dictrict Court be affirmed with costs.