
    BELL v. CROSBY & Co.
    1. When partners sue on a note payable to the firm, proof of the partnership as alledged cannot be required unless it is denied by a plea in abatement.
    Weit of Error to the Circuit Court of Conecuh county.
    This is an action of assumpsit on a promissory note, payable to John Crosby &Co. and the suit was by John, Joseph C. and William Crosby, as co-partners, using the name of John Crosby & Co. Upon the trial of the case, on the general issue, no other evidence than the note was given, and the defendants insisted the partnership ought to be shown, and requested the Court so to instruct the jury. This was refused and excepted to. It is now assigned by the defendant as error.
    J. H. Eewin, for the plaintiff in error,
    cited Bell v. Rhea, Conner & Co. 1 Ala. Rep. N. S. 83.
    
      Lesslie, for the defendant,
    insisted that the case was controlled by the act of 1839, [Meek’s Sup. 113, §5,] and that the case cited by the plaintiff was a decision upon a declaration drawn before the passage of the act referred to.
   GOLDTHWAITE, J.

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.  