Smith v. Hunt
Supreme Court of Alabama
Hunt, as surviving partner, instituted an action of assumpsit in Autauga Circuit Court, against Smith, and in his declaration alleged that George Wilkinson and himself were copartners under the firm of George Wilkinson & Co.; that the defendant had made a note payable to them in the following words: “$279 9-100. One day after date I promise to pay George Wilkinson & Co. or bearer, two hundred seventy-nine 9-100 dollars for value recived, 15th January, 1824. DAVIS SMITH,” and…
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Hunt, as surviving partner, instituted an action of assumpsit in Autauga Circuit Court, against Smith, and in his declaration alleged that George Wilkinson and himself were copartners under the firm of George Wilkinson & Co.; that the defendant had made a note payable to them in the following words: “$279 9-100. One day after date I promise to pay George Wilkinson & Co. or bearer, two hundred seventy-nine 9-100 dollars for value recived, 15th January, 1824. DAVIS SMITH,” and further alleged, that said Wilkinson had since died, and that he was surviving partner, &c. The defendant pleaded the…
1Opinion of the Court
By JUDGE PERRY.
It is contended that the plaintiff was bound to prove that he was one of the firm of George Wilkinson & Co. and also the death of his copartner. The position assumed by the counsel for the plaintiff in error cannot be applied to the plaintiff below, inasmuch as it would have formed a good defence for the defendant; and if he wished to avail himself of it, it was incumbent on hjm to shew that there’were other parties *224to the contract who were not joined as plaintiffs in the-action. This he could have done if the objection appeared upon the face of the pleadings, by demurrer, by…
2Cited by1 opinion
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