Crabtree v. May , 40 Ky. 289 ( 1841 )

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.