The fifth section of the act of 19th January, 1839, relieves plaintiffs from the necessity of proving that they constitute the firm as alledged in the declaration unless this matter is directly put in issue by plea in abatement. There being no such plea in this case,.the refusal of the Circuit Court to give the charge requested was correct.

The case of Bell v. Rhea, Conner & Co. [1 Ala. Rep. N. S. 83,] is not a decision upon this statute, for the pleadings in that suit were previous to its enactment, and therefore controlled by the law as it formerly stood. The report of the case omits the date of the writ and this omission has probably induced the mistake of the plaintiff’s counsel.

Let the judgment be affirmed.