Garner v. Tiffany, Wyman & Co. , 1 Minor 167 ( 1823 )

Judge Crenshaw

delivered the opinion of the Court,

As to the first assignment, the declaration clearly states that the two plaintiffs, Tiffany and Wyman, were partners trading under the firm of Tiffany, Wyman and Co., and that the promissory Note was made and delivered to them so trading. The words, and Co., do not necessarily imply that there were other partners of this firm. If there were, the defendant should have plead this matter in abatement.

As to the rate of interest and amount of damages adjudged by the County Court — The declaration avers, that the Note was made at Fayetteville, in the County of Madison; and this averment is not denied. The Court could not judicially know that this place is not in this State, and from the Record was bound to conclude that the contract was made in Madison County, and that it carried interest according to the laws of this State. It would indeed be a novel course to infer against the averment in the declaration that the contract was. made out of this State. Had this been the fact, the defendant should have shewn it by pleading. This, as well as the rate of interest in any other State, was matter an pais to be proved before a Jury on a proper issue. In-this opinion we are unanimous. *

Lot the judgment be affirmed.