Kane and Kane against Scofield

Kane and Kane against Scofield. If the endorsement of a firm be stated in a declaration on a bill, or note to be made to them, as persons “ using the name, style, and firm,” endorsed, and that they “ endorsed the said note, the proper handwriting 'of one of them, in their said copartnership name, style, and firm, being to such endorsement subscribed,” it is good on general demurrer. To prevent a demurrer’s being overruled as frivolous, there must appear a color for opposition; it is not enough for counsel to merely say he will oppose When a reason for not noticing for the first day of term appears on the face of the record, there need not be any excuse shown by affidavit. The declaration in this case stated the endorsement of a promissory note to a firm whose surnames only had been used, in the following manner : “ to certain persons using the name, style, and firm of Willoughby & Weston,” and it afterwards stated their endorsement to the plaintiffs rhus: “ And the said persons so using the name, style, and firm of Willoughby & Weston endorsed the said'note, the prmier handwriting of one of them, in their said copartner ship name, style, and firm, being to such endorsement subscribed.” To this the defendant put in a general demurrer: Hopkins, on a notice of motion for the 11th, moved to overrule it as frivolous, and claimed on that account a priority to other causes entered for argument. Caines, contra, insisted, that the right of bringing on a demurrer, in preference to other causes set down for argument, applied only to cases where no opposition was made. IF Cabe v. WKay, ante, 100, in August, last. That at all events the notioe was bad, being for the 11th instead of the first day of term. HqpJcms, in reply. The demurrer book was not made up till the first day; the caption is of this term. The time at which a question on demurrer shall be deemed to arise, shall be the day the joinder was received by the party den arring. 3d Rule, Jan. 1199. Cole. Ca. 14. [MAJORITY — Per Owriam.] Per Owriam. By the opposition of the case cited, is not intended the mere saying of counsel that they oppose; it must *be such as has at least a color or resemblance of reality. The notice could not be for the first day. It appears by the record that it was not till then that there was a joinder in demurrer. Judgment for the plaintiff. IS". B. — It was ruled in this case, that where the reason of not noticing for the first day of term appears on the face of the record, no affidavit in excuse need be made.