9 Wend. 437 | N.Y. Sup. Ct. | 1832
By the Court,
The fact of collusion and fraud is fully denied by the affidavits on the part of the plaintiffs. The principal question arising in the case is, whether one partner has power to employ an attorney for all the co-partners not brought into court, and whether a judgment confessed by such attorney is regular ?
It is a general rule that each partner has authority to make contracts relating "to the partnership, and to dispose of the partnership property in the regular course of business; but it is well settled that one partner cannot bind his copartner by deed without authority by deed, or without his presence and assent at the time of execution; and the reason assigned iss that if he had that power, he might encumber the real estate of the copartner. 1 Wend. 326, and cases there cited. Nor can he confess a judgment by bond and warrant of attorney, 9 Johns. R. 285, 2 Caines, 254; and in pursuance of the same principle, it was decided in Wakeman v. French & Wilkins, 1 Wend. 311, that one partner cannot confess a voluntary judgment, which will be obligatory upon his copartner, without a suit regularly instituted against both, and both actually or by operation of law brought into court. Where a capias is issued against all the partners and served upon one, the plaintiff may by virtue of the statute proceed against all; but a voluntary judgment confessed out of court was held in that case valid only against the partner who confessed the judgment, and that it was an extinguishment of the partnership debt. That case is in some of its features like the present; a capias was issued in that case returnable out of term, and service admitted by one partner. Here declarations were served on one partner, and service admitted by him to be good. In neither was there in fact a suit regularly commenced. Had
In the case of Wakeman v. French & Wilkins, the motion was made by a judgment creditor having a conflicting execution, and the question there was between judgment creditors. Here it is simply between the plaintiffs and the defendant, and therefore the same rule should be adopted as in Denton v. Noyes, leaving the defendant M’Creedie to his remedy against his assumed attorney, who having explained his con
That the plaintiffs have proceeded contrary to the order of the court of chancery, is not a reason for vacating the judgments ; they may be published by that court for their contumacy. Such orders have been regarded as matters of excuse. We never compel a party to proceed when restrained by chancery, nor make him pay costs; but no case has been cited to shew that wo have power to deprive him of any legal advantage he may gain by such proceeding. The court of chancery lias sufficient power to vindicate its authority.
Whereupon the court ordered that the defendant M'Cree-die have leave to plead the general issue, with notice of set off, or anspecial matter, if any there be, which could be pleaded.in bar, and could not be given in evidence under the general issue, within ten days; in the meantime, all further proceedings on the part of the plaintiffs to stay. Independent of such plea, the plaintiffs to be at liberty to proceed with their executions. The costs of the suits and of this motion to abide the further order of the court.