'CA JULY TERM, 1856. FOWLER V. BENDER. 262k] FOWLER said defendant then and there made -v. and delivered, and made payable to BENDER. the said David Bender and one James A. Henry, who were then and there The declarAtion alleged that the note sued on was . doing business together as merchants made payable to D. Bender:" the note filed on oyer was made payable to "D. Bender & Co." (with and partners, under the name, style lines across the "et Co."): the defendant's plea, not and firm of "D. Bender & Co." and sworn to, alleged that the note was not made pay-made payable to them by the said able to "D. Bender" as alleged In the declaration; name, style and description of "D. but to D. Bender and one James A. Henry,partners, etc., by the name of "D. Bender & Co.": Held, that Bender & Co.," and not to the said D. the plea was, in legal effect, a special plea of non est Bender alone, as is in said declaration factum; that under the statute, the plea should have alleged: nor did the said plaintiff then been verified by affidavit: that for want of an affi-any there, nor has he, at any time davit it was properly stricken from the files. since, had, nor has he now, the sole le-Appeal from Pulaski Circuit Court. gal interest in and to the said writing ON. JOHN J. CLENDENIN, Cir-obligatory: but the said James A. H cuit Judge. Henry, as such partner, was then and there, and has ever since been, and still This cause was argued by Mr. Fow-is, a joint legal owner of the said writ-ler, the appellant, and Mr. Bertrand, ing obligatory with the said plaintiff, 'for the appellee. and this the said defendant is ready to HANLY, J. Appellee brought debt verify, etc." This plea was not "sup-against the appellant, in the Pulaski ported by the affidavit of the party circuit court, counting on a writing ob-pleading" it, nor otherwise "verified ligatory. The writing sued on is de-by the affidavit" of any other person. scribed as having beeu made by the For this reason, the appellee moved to appellant to the appellee, by his style strike it from the files, in the cause, and and name of "D. Bender." Oyer was the motion to strike out was sustained, prayed, and granted by filing the writ-and appellant excepted. No farther ing declared on, which corresponds in step was taken by the appellant in the every particular with its description in court below to defend the action. the declaration, except that immedi-Judgment by nil dicit was rendered ately after the name of the payee "D. for the amount of the writing sued on, Bender," the words "& Co." seem to with damages and costs. From this have, at one time, existed, but which judgment an appeal was taken, and appear to have been canceled by means the appellant here insists that the of lines drawn across them. court below erred in striking out his Appellant filed a plea in the words plea. This is the only question that following, to-wit: "that he, the said de-we are called upon to determine. fendant, did not, in manner and form, With the view of solving the ques-as in said declaration se ' t forth, tion presented for our consideration, make the said writing obligatory we will proceed to determine the legal then and there, and or that date, effect of the plea stricken out. sealed with his seal, and thereby pro-The appellant absolutely avers, in 263*]*rnise one day after date thereof the first part of his plea, that be did to pay to the said plaintiff or order, as not make the instrument set out in the in said declaration alleged, the said declaration. His language is, "that bUill of — dollars, etc., etc. ; but that he, the said defendant, did not in man-the said writing obligatory, in the said ner and form as in said declaration set ideclaration mentioned, was by him the forth, make the said writing obligatory 33 Rep.
FOWLER V. BENDER. Vol,. 18 then and there of that date," etc., etc. of the plea would have been the same: If the plea had concluded here, there it would in legal effect be a plea of could have been no doubt as to its legal special non est factum. Viewing this effect 1 . It would have been conceded, plea in all its parts, and considering it, 2644 at once, to be a *plea of general as we have done, in all its bearings, We non est factum. But the pleader seems are forced to regard it, in effect, as a to have been unwilling that this gen- special plea of non est factum, and as eral denial of the execution of the writ- such, under our statute, and the tenor ing obligatory declared on, should go of a series of adjudications on the sub-upon the records, and that too even ject, should have been verified by the without oath or affirmation of its verity affidavit of the party pleading. See and truth. He, therefore, in a subse-Dig., eh. 126, sec. 103. Also, Alexander quent part of the plea qualifies in lan-v. Foster,16 Ark. R. 660, and cases guage, and seemingly attempts to cited. qualify the legal effect of that portion We will now proceed to inquire of his plea which we have quoted, by into the mode by which a saying "that the said writing obliga- *party may avail himself of the [4'1'165 tory was by him then and there made defect of a want of affidavit to a plea and delivered, and made payable to the of general or special non est factum; said David Bender, and one James A. This subject has frequently been before Henry, who were then and there doing this-court and it has uniformly been business together under the name and held that the proper mode of taking ad-style of D. Bender & Co., and made vantage of such a 'defect is by motion payable to them by the sttid name of to strike the plea from the files. See "D. Bender & Co." and not to the said Wilson & Turner v. S hannon & wife, David Bender alone," etc., etc, Does 6 Ark. 198; Hardwick v. Campbell, 7 this latter portion of the plea change Ark. 118; Mayor & Ald. v. State Bank, or alter the legal effect of that which 8 Ark. 227; Slate Bank v. Wood, Id. precedes it? We think most clearly 506; Williams v. Williams, 13 Ark. R. not. The plea continues a virtual non 421; Allis v. Bender, 14 Ark. R. 625; est factum of the instrument. If the Alexander v. Foster, ubi sup. instrument was not made by the ap- The plea in question being in legal pellant payable to the appellee, but effect and in fact a special non est fac-was, in truth, made by him payable to turn, and the law requiring such pleas appellee and another person, the aver- to be verified by the affidavit of the ment of this would be an averment of party :pleading them, and the reeord an affirmative fact, pregnant with a showing, as it does in the ease before denial that he made the instrument us, that the plea under consideration shown him on oyer. The plea does not was not so verified, we are irresistibly charge that the instrument, after it forced to the conclusion that the court was made, as it avers, to "D. Bender & below did not err, on the motion of the Co." and came to the hands of the ap- appellee to strike from the files the pellee, was altered or changed in the plea in question. slightest respect. If it had done this, The judgment of the Pulaski circuit and even charged the erasure of the court is therefore affirmed. words "& Co." to have been made by Absent, Hon. C. C. Scott. appellee, or some other person by his procurement, after the execution of the writing, so as to change the legal effect of the instrument, still, the character
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.