James Chambers v. Isaac J. Lathrop. Admitting that the rules adopted in 1839 are still in full force in Muscatine county, and that we can judicially take cognizance of that fact, still, those rules only declare that, where the defendant does not plead by the second day, the plaintiff may take a judgment by default at the next regular call of the roll of attorneys. If he does not avail himself of this privilege, the defendant may still plead. A plea is in time previous to the actual entering up of a default, unless there is some express rule of Court to the contrary. The transcript does not show such a rule here. The judgment of the Court below will, therefore, be set aside, and the case remanded to the District Court of Muscatine county. *102 *JAMES CHAMBERS v. ISAAC J. LATHROP. Error to Muscatine. A general demurrer to the whole declaration must be overruled whenever either of the counts therein is good (). There seems to be no necessity for the intervention of a jury where the plaintiff is entitled to a fixed amount, or one which may be ascertained by arithmetical computation. Lathrop brought an action of covenant against Chambers, and declared as follows: "For, that whereas, heretofore; to wit: On the 13th day of February, A. D. 1837, at the county aforesaid (Muscatine county), by a certain covenant then and there made, between the said plaintiff and (k) This is still the rule under the present system. Sample v. Griffith, 5 Iowa, 376; Darr v. Lilley, 11 Iowa, 4; Edmunds v. Cochran, 12 Iowa, 488; Jarvis v. Worick, 10 Iowa, 29; Coon v. Jones. ib. 131; Hayden v. Anderson, 17 Iowa, 158. James Chambers v. Isaac J. Lathrop. the said defendant, sealed with their seals, and to the Court here shown, the date whereof is the day and year aforesaid, by which the said defendant did covenant and promise to pay to the plaintiff the sum of seventy-five dollars. And the plaintiff, in fact, avers that the said defendant hath not paid the sum of money aforesaid. "And for that, whereas, the said plaintiff and the said defendant, on the 13th day of February, A. D. 1837, at the county aforesaid, made a certain article of agreement, or written obligation, under their hands and seals, according to the words following; to wit: Article of agreement made and entered into this 13th day of February, A. D. 1837, between James Chambers, of the town of Salem, and territory of Wisconsin, county of Muscatine, of the one part, and Isaac J. Lathrop of the same place, of the second part: I, the said James Chambers, doth agree to give to the said Lathrop the sum of seventy-five dollars, and to let him take the cord-word that he has cut, and to give him reasonable time to quit the claim that he now lives on, and that the said Lathrop is to give up the claim to the said Chambers, in peaceable terms; and we, for the true performance of this article, do bind ourselves in the penal sum of one hundred dollars, as witness our hands and seals this day above mentioned. "JAMES CHAMBERS, [SEAL]. "ISAAC J. LATHROP, [SEAL]. "Attest: JOHN VANATER.' "By which said covenant and agreement the said defendant *promised to pay the sum of seventy-five *103 dollars to the said plaintiff, according to the covenant and agreement aforesaid. And yet, the said plaintiff saith, that although he, the said plaintiff, hath performed his part of the said covenant and agreement, yet the said defendant hath neglected to perform his part of the same, and still neglects, and wholly refuses so to do, though of James Chambers v. Isaac J. Lathrop. ten requested, to the damage of the said plaintiff two hundred dollars, wherefore he sues, &c." To this declaration there was a general demurrer, which was overruled, and thereupon there was a judgment entered for the plaintiff for seventy-five dollars and costs. A writ of error was then brought and the following errors assigned. 1. The Court erred in overruling the general demurrer to the declaration. 2. In rendering judgment without the intervention of a jury of inquiry. 3. (The same in substance as the second.) HENRY W. STARR, for plaintiff in error. Lowe, for defendant in error. BY THE COURT, MASON, CHIEF JUSTICE.- The declaration in this case consisted of two counts, to which there was a general demurrer. This being overruled, judgment was rendered for the plaintiff, for seventy-five dollars and costs, without the intervention of a jury. It is assigned for error, in the first place, that the demurrer should have been sustained. If either count of the declaration was good, the demurrer was properly overruled. Although neither of the counts seem drawn up with much professional accuracy, and although the first is doubtless defective, the second appears sufficient in substance to sustain the judgment already rendered. The other error assigned is, that judgment was rendered on the demurrer, without impannelling a jury to assess the damages. There certainly seems no necessity for the intervention of a jury where the plaintiff is entitled to recover a fixed amount, or one which may be ascertained with arithmetical computation. This case seems to stand in such a predicament. The whole burden of the declara Henry Hardman v. Aaron Chamberlin. tion on which judgment was rendered is a claim of seventyfive dollars, to which, by the result of the proceedings, the plaintiff has become actually entitled. The judgment below will, therefore, be affirmed. *104 *HENRY HARDMAN v. AARON CHAMBERLIN. Error to Cedar. The statute which exempts the plaintiff from the necessity of proving the signature of a note, &c., unless denied under oath, does not extend to the endorsement. That must in all cases be proved (l). The facts of the case will appear from the opinion of the Court. LOWE & WHICHER, for plaintiff in error. HASTINGS, for defendant in error. BY THE COURT, MASON, CHIEF JUSTICE.- This action was brought on two promissory notes, executed by the plaintiff in error to one Ransford, and by him assigned to the defendant in error. On the trial, the counsel for the plaintiff below offered to read the assignment without proof of the signature of Ransford. This was objected to by the defendant's counsel, but the objection was overruled by the Court. We think the Court erred in permitting the assignment to be read without proof. The statute renders proof of the signature of a note unnecessary, unless denied under oath. This statute is an encroachment on the common law, and should not therefore be extended beyond the fair import The statute of 1862, now in force, applies to the endorsement, as well as to the signature to the note. Ch. 28, laws 9th general assembly. E. A. Johnson & Co. v. Jeremiah Smith. of its terms. Besides, the defendant must be presumed to know whether he has signed the note himself, and may therefore be reasonably required to make the affidavit denying the signature. But he cannot with so much justice be called on to deny the endorsement in the same manner, or else to admit its genuineness. The judgment below will, therefore, be set aside, and the cause remanded for a new trial. *105 *E. A. JOHNSON & Co. v. JEREMIAH SMITH. From Des Moines. Where a person becomes indebted to a partnership as a firm, they may sue him by their partnership name and style (m). The defendant bought goods of the plaintiffs, who were wholesale dealers under the name of E. A. Johnson & Co. Suit was brought by them in that name, to which the defendant pleaded non assumpsit. Under this plea the defendant at the trial, objected that suit could not be maintained by the plaintiffs without setting out their individual names. The amount of indebtedness was not disputed. By mutual consent this question was reserved in the Court below in order to be submitted to the Supreme Court with an understanding that the Supreme Court should render judgment for the plaintiff or defendant, as the question was decided in favor of the one or the other. GRIMES, for plaintiffs, contended that under the plea of non assumpsit, it was now too late to take advantage of (m) By § 2785 of the Revision, a partnership may sue and be sued by the firm name, and they may also sue and be sued by the individual names of the partners. |