
    Wilson Haight and Mary F. Phelps v. Edward Arnold and John W. Ackley.
    
      Affidavit of non-execution.
    
    In an action brought before a justice against two persons as partners charging them as makers of a promissory note process was served on only one of the defendants and he filed an affidavit of non-execution reciting that he did not sign the note nor authorize any person-to sign it for him. Held, sufficient.
    An affidavit of the non-execution of an instrument sued upon should not be construed technically, but should be held sufficient if evidently intended in good faith to meet the plaintiff’s case.
    Error to Tan Burén.
    Submitted June 7.
    Decided June 14.
    Assumpsit. Plaintiffs bring error.
    Affirmed.
    
      Jerome Oolemoun for appellants.
    A note on which, suit is brought may be given in evidence unless its execution is denied on oath at the time of pleading: Burson v. Huntington 21 Mich. 427; this applies also to partnership paper: Pegg v. Bidleman 5 Mich. 26 ; and plaintiff need not aver partnership: Danaher v. Hitchcock 34 Mich. 516; the affidavit in this case was insufficient: Mills v. Bunce 29 Mich. 364.
    
      William H. Tucker for appellee.
   Cooley, J.

Defendants were sued in justice’s court as-makers of a promissory note. The note was signed “ Arnold & Ackley,” and defendants were declared against as partners. Arnold alone was served with process. To cast upon the plaintiffs the burden of proving the note, Arnold made and filed with the justice an affidavit in which, referring to the note which was on file, he affirmed that “ he did not sign the same, neither did he authorize any person to sign it for him.” The justice held that this was not a sufficient denial of the execution of tbe note by tbe alleged partnership, and entered up judgment upon it as upon admission. The circuit court reversed the judgment.

It lias seemed to me that this affidavit was evasive, and that Arnold in making it intended to make his denial of individual execution accomplish the purpose of a denial of partnership execution, which perhaps he could not truthfully make. But my brethren think the affidavit sufficient,, and it must be so held. They think that a denial of execution by himself or by any one authorized by him is at least an argumentative denial of execution by any partnership of' which he was a member; and that that was sufficient to put the plaintiffs to the proof of the instrument. We all agree that the affidavit should not be technically construed, but should be held sufficient if in good faith it seemed to be intended to meet the plaintiffs case. McCormick v. Bay City 23 Mich. 457.

The judgment will be affirmed with costs.

Graves, C. J. and Campbell, J. concurred.  