Under our statute, in an action on a note, the production of the note is full evidence of its execution, and the consideration, unless questioned by the plea of nil debet, non assumpsit, non est factum, or the like, supported by affidavit.
And, in a suit against a firm, on a note executed by the partnership name, it is not necessary, under our statute, upon the plea of nil debet, not sworn to, to prove the partnership.
This was an action of debt, tried in Pulaski Circuit Court, in November, A. D. 1841, before the Hon. John J. Clendenin, one of the Circuit Judges. Pitcher, Weaver & Co., sued Samuel G. Trowbridge & Richard T. Jennings, as partners, on a note executed by their firm name. The defendants pleaded nil debet, without swearing to the plea. Upon the issue, no other evidence being produced than the note, the plaintiff had judgment. The defendants moved for a new trial, and their motion being overruled, they sued their writ of error.
Hempstead & Johnson, for the plaintiffs,
insisted that it was necessary, under the issue, to prove the partnership of Trowbridge & Jennings; and cited Rev. Si., sec. 102, p. 633. 2 Saund. on PI. & Ev. 710. Tuttle vs. Cooper, 5 Pick. 414. Collyer on Part. 449. Rochester vs. Trotter, 1 Marsh. 54. Mason vs. Rumsey, 1 Camp. 384.
Trapnall & Cocke, contra,
cited Rev. St., title Abatement, sec. 5.
By the Court,
Dickinson, J.
Under our statute, the production of the note is evidence of its execution, and the consideration for which it was given, and is full proof of these facts, unless questioned by pleas of nil debet, non est factum, non assumpsit, and the like, supported by affidavit. In this case, the • plea is unsupported by affidavit; consequently, the production of the note itself proves the indebtedness of the defendants, in the manner charged in the declaration.
Judgment affirmed.