Wales v. Chamblin

delivered the opinion of the court.

This was an action on two promissory notes, payable to O. Wales & Sons, executed by the defendant. The plaintiffs were Oren Wales, Dexter Wales and Oliver H. Wales. The notes, it seems, were annexed to the petition, which stated that the plaintiffs are partners, under the name and style of O. Wales & Sons. The defendant, for answer, admitted that he executed the notes annexed to the petition of the plaintiffs, payable *501to the firm of O. Wales & Sons, but be did not know the names of the persons composing said firm, nor has he any knowledge thereof sufficient to form a belief, and required proof of all the averments and allegations in the petition, except such as were admitted. This answer was stricken out by the court below, and judgment was given for the plaintiffs as for want of an answer.

1. Tbe fact, whether the plaintiffs constituted the firm of O. Wales & Sons, was a material one, as on the truth of its existence depended their right to maintain this suit. Under the first clause of the seventh section of the sixth article of the present practice act, the existence of this fact was properly put in issue, and the plaintiffs should have proved it. The issue being properly made, and the fact involved in it a material one, the court, on motion, had no right to indulge in any speculations, whether it was true or false ; that was beside its province ; its sole duty was to submit the issue to a jury for trial. Judge Ryland concurring, the judgment is reversed, and the cause remanded;