6 Wend. 263 | Court for the Trial of Impeachments and Correction of Errors | 1830
The following opinion was delivered :
William Gould was holden for Stephen. Gould as his surety in two several bonds; and for the payment of the same debts the ancestor of D. Banks, jun.
If the promise on which a suit is brought is made jointly to two or more persons, they must all, if living, join in the action, or they will be nonsuited on the trial. Thus in Wright and others v. Post, 3 Conn. Rep. 142, where twenty persons, feeling interested in a public right of fishery, entered into an agreement with each other that if any of them were sued for
In this case Banks and Gould were not even joint sureties. W. Gould was one of the sureties, and liable for the payment of the debt, and Banks was equitably bound tó contribute on account of the land which descended to him from his father, the co-surety. Under these circumstances, although they happened to be partners at the time of payment, they could not, without some agreement or request from S. Gould, so shape their payment as to raise a joint promise by implication to both. If each had been liable as a surety on a distinct demand against the defendant, although the amounts
The amount which the plaintiff was entitled to recover, must depend upon the question whether, in the absence of all proof to the contrary, partners are presumed to be equally interested in the partnership funds. This was unquestionably the rule of the civil law. In Peacock v. Peacock, 16 Ves. 56, Lord Eldon says : 16 As no distinct share in the partnership property was ascertained by force of any express contract, between them, they must of necessity be equal partners, if partners in any thing.” And the learned commentator on American law has adopted this as the general conclusion of law, where there is. no evidence of any agreement to the contrary. 3 Kent's Com. 6. It is certainly the natural conclusion, in" the absence of any proof from which a contrary inference can be drawn, and in most cases it is a conclusion which will correspond with the fact. If these partners were interested in the joint funds in unequal proportions, the defendant would have found no difficulty in establishing that fact by calling Banks, the co-partner, who was a competent- witness, and who had no interest whatever in the event of this suit.
It being the unanimous opinion of the court that the judgment of the supreme court ought to be affirmed, it was accordingly affirmed.