
    Patten, Hutton & Co. vs. Stephen P. Whitehead. Franklin & Brantley vs. the same.
    
      Partnership — Evidence.
    In an. action of assumpsit by a firm, if the general issue be pleaded, the plaintiffs must prove who compose the firm.
    BEFORE MUNRO, J., AT BEAUFORT, JUNE, EXTRA TERM, 1860.
    These were actions of assumpsit upon promissory notes drawn payable to the respective firms by whom the actions were brought.
    ' ' The plaintiffs failed to prove who were the partners, and the defendant moved in each case for a nonsuit, which his Honor overruled. Verdicts were rendered for the plaintiffs, and the defendant appealed.
    
      Bell, for appellant,
    cited Col. on Part. 405; 2 Stark, on Ev. 584.
    
      Fielding, contra,
    cited Newman vs. Murphy, 1 Hill, 153; Harp. 49; 1 Bail. 447; Oheves, 216.
   The opinion of the Court was delivered by

O’Neall, C. J.

The plaintiffs, according to an uniform practice in the Law Court, ought to have been required to prove who were the persons composing the partnership. It was one of the allegations required to be proved without being objected to in the pleading. In these cases, however, as a matter of surprise, and the practice not being generally well understood, and verdicts being found for the plaintiffs, it is thought best to permit the parties to supply the proof.

The motions for new trials are therefore granted.

Wardlaw, J., concurred.

New trials granted.  