
    Crabtree vs May.
    Pet. & Sum. Case 90.
    Error to the Daviess Circuit.
    
      May 15.
    
      Pleas and pleading. Infancy. Partnership note:
    
    Plea of infancy, by one member of a firm, to an. action on a note in the name of the firm, is notavoidedby application that defendant had continued a partner of the firm for upwards of a year after his arrival of full age, and had not in that time nor for years afterwards indicated a disposition to dis-affirm any note executed in the name and in the business of the firm, without an averment that he had knowledge of the note declared on and was looked to fox payment.
    
      Harlan for plaintiff: Owsley for defendant.
   Judge Marshall

delivered, the Opinion of the Court.

It seems to this Court that the replication to the plea of infancy, pleaded by R. L. May, is insufficient to avoid said plea, and was properly so adjudged upon the demurrer. For if, as perhaps should be conceded, the fact, that an infant member of a firm continued to be a member for a year and more after he became of age, and did not, during that period or for a number of years afterwards until sued as a partner or co-obligor, indicate a disaffirmance of anote executed during his infancy, in the name of the firm and in the ordinary course of the business thereof, should b.e deemed a conclusive affirmance or confirmation of the note, in case he had knowledge of its existence and consideration; we are satisfied that such continuance in the firm and failure, for a series of years, to renounce a particular contract in the firm name, cannot be regarded as an affirmance thereof, unless he had knowledge of the particular contract, and that he was looked to as a party to it. The entire omission of this important fact in the replication, must therefore, be regarded as a fatal defect, which is not cured by the consideration that a jury might infer such knowledge from the facts stated. With regard to the other defendant, Wm. May, although the plaintiff was clearly entitled to a judgment against him, yet as the suit was abated upon his own motion, he cannot now reverse that abatement, although it may bo implied from the record, that his motion was founded upon the mistaken supposition that the sheriff’s return-authorized an abatement, when in fact it stated an execution of the capias upon both defendants in time for a .judgment at the first term.

Wherefore, the judgment is affirmed.  