The Arkansas banner., 1844-02-27
SUPREME COURT OF ARKANSAS,


 l@e decisions of the Supreme Court, at hle Januars
 Term, tciA De reported for the Banner, by
 J. E. KNIGHT, Attorney at Laso.
 AFFORD USE OF, Y. THOMPSON ct al
 Fms suit was instituted before Justice ot the Peace. The summons issued against D. Thompson, William Gilchrist, and Thomas Thorn, describing them as partners, < and re- qulrlng them to answer on an action on a note signed D. Thompson, & Co.o Judgment was rendered against them, from which they appealed to the Circuit Court, in which. upon tral de @oro the note was rejected, and judgment given for the appellants. On a writ of error to the Supreme Court, at the I July Term, l842,
 By DIeKENsoN,J. "The defendants in error were sued as partners of <'D. Thomp- son X Co.," and the note was the only tes- tlmoy offered to establish their liability as such" Its reception as evidance of that fact was objected to If the note had contained the names of the partners sned, it would have raised the presumption of eo-partnership until questioned by a proper plea supported by competent proof, But the mere produc- ton of note in which the names are omit ed certainly cannot establish partnership, or prove that any particular person composed the firm, A o-partnership is capable of be- ing aifirmatively proved, and the party seek ing to charge in that manner must, if it is questioned, be holden to the proof. This case is distinguishable from the one where judgment is properly entered by default; fol the defendants not appearing, but making de- fault, are presumed to have been rightly sued
 Judgment affirmed, with costs.
 Now--ON PET. FOR RECONSIDERATION. By SEBASTIAN, J, We have reviewed the ground attentively upon which the opinion of the Court in this case proceeded and af- ter the most mature deliberation, which we have been enabled to give it, arrive at the same conclusion. The opinion of the Court heretofore delivered has been, by the petition for rehearing, questioned alone upon the force and proper construction of section 102 page 633, of the Rec. Code, and sections 17 and 104, under the chapter ssJustices of the Peace." Of the first section 1t may be said correctly, that it does not apply to proceed ings instituted before Justice of the Peace, which are elsewhere provided for and regu- lated, but extends alone to suits instituted in the Circuit Court Whatever might be the proper interpretation of that section, we think it clear, from view of the two latter sections taken together, that the bare filing of the note in this case and summoning the defendants to appear, do not impose upon the defend- ants, in each case, the necessity of denying the execution of the partnership under oath. This is only required where the instrument sued on purports' to have been executed by the defendant. See Rev. Stat.., page 505, sec. 104. The instrument so sued on sspur- porting to have been executed by the oppo- site party,n proves it's own execution, unless that fact is denied under oath. From this last section, and section IF, page 494, Rep. Stat., it is clear that the person purportingn to have executed the instrument must be in- dicated by the note itself, and not from the pleadings or proceedings in the cause; other wise he cannot be regarded as being " charged to have executed the same," so as to render it necessary to deny the execution under oath. Motion refused.