The plaintiff in error sued out in July, 1839, a writ of foreign attachment against the defendants in error. The cause of action, as described in the writ and declaration, was a promissory note for 425 dollars, purporting to be executed in February, 1839, by the defendants in the name of Seaman and Norton, payable to the order of Bailey, Keeler, and Remsen, and indorsed by the payees to the plaintiff. The writ was returned levied on certain real estate of Norton. At the October term, 1841, the defendants appeared to the suit. At the February term, 1842, Norton asked leave to plead in bar; the motion was objected to because special bail had not been filed, but the leave was granted. At the August term, 1843, Norton pleaded non assumpsit, the plea purporting to be sworn to before Robert H. Morris, mayor of the city of New York: the plaintiff moved to set aside the plea, but the motion was overruled. At the February term, 1844, the parties submitted the cause to the Court, and judgment was rendered for the defendants.
H. Cooper, for the appellant. W. W. Wick and L. Barbour, for the appellees.We think the defendant had a right to plead without putting in special bail. The act of 1842, abolishing imprisonment for debt, was in force when the motion to plead was made. That act expressly says that special bail shall not be required, &c., unless an affidavit be made, dec. Suits like the present must be considered within the act.
There was no ground for rejecting the plea. Supposing that it was not legally sworn to, as it is not shown that the mayor had authority to administer an oath, still the plea was admissible for some purposes without oath.
On the trial, the plaintiff proved that in 1836 the defendants were partners under the name of Seaman and Norton; that in that year they borrowed of the plaintiff 5,000 dollars; that in February, 1839, the amount due on the loan had been reduced to 425 dollars; and that for the latter sum the note sued on was given and indorsed. The plaintiff also gave the note in evidence. The defendants introduced several depositions tending to show that they had dissolved partnership in 1837, and gave some slight evidence of the plaintiff’s having had notice of the dissolution soon after it occurred, which notice had been advertised. The plaintiff proved, that the advertisement of dissolution stated that the business of the firm would be settled by Seaman, who was authorized to sign the name of the firm for the purpose. We are of opinion that upon the evidence as shown by the record, the plaintiff is entitled to another trial.
Per Curiam.The judgment is reversed with costs. Cause remanded, &c.