7 Wend. 158 | N.Y. Sup. Ct. | 1831
By the Court
The cashier of the bank, who must be considered the agent of the plaintiffs, states expressly, that the loan was negotiated by Bowen, one of the defendants ; that he procured the note, and that the money was placed to his credit in the bank, which was afterwards drawn out by him upon his own check; that he considered the note Bowen’s at the time of the negotiation and loan. This testimony, unexplained, and uncontradicted, was undoubtedly sufficient to repel th q prima facie inference that the firm of“ Aid-rich & Searle” were principals to the note, and imposed upon the plaintiffs the burden of proving affirmatively, either that Aldrich & Searlé were interested in the loan, or that Searle consented to become security for the same. The principles of law applicable to the facts in this case have been clearly defined by adjudged cases. Dole v. Halsey, 16 Johns. R. 34. Foot v. Sabin, 19 id. 154. Laverty v. Burr, 1 Wendell, 529.
The rule protecting partnership property or funds from appropriation to the payment of the separate debts of one of the partners, and prohibiting partnership security from being pledged to third persons, without the consent of all the partners, is just and salutary, and should be strictly enforced. Here the agent of the plaintiffs swears to the fact that the loan was for
A joint and subsisting indebtedness in all the defendants must be shewn, Robertson v. Smithy, 18 Johns. R. 459 ; and the plaintiffs having failed in shewing such indebtedness, I am of opinion that the jury erred, and that there ought to be a new trial, on payment of costs. The charge of the judge is unobjectionable.
New trial granted.
