EVANS v. GRAVES

Patterson, for the plaintiff, proved the making and delivery of the promissory note and rested his case. Gordon, for the defendant, said the defence would be that Dubois drew the note in the name of the firm of Dubois Graves without the knowledge of Graves, five months after the firm had been dissolved; and was proceeding to prove this by a witness. Patterson objected to the testimony as inadmissible. It was too late to deny the partnership, or to attempt to disprove its existence at the trial, as it purported to have been made by the firm of Dubois Graves, and if it was the purpose of the defendant to deny this fact, he was bound at or before entering his pleas, to file an affidavit denying the existence of the partnership at the time the note was made, as required by the statute, Rev. Code, 378, Sec. 6, which he had not done. Gordon: The objection was not well founded; for the provision of the statute referred to did not apply to the case, as the suit was now against Graves alone, since the other partner of the late firm was residing out of the State and had not been served with process. The action was, therefore, as it stood, substantially against Graves his client, as a sole defendant.