St. John & Witherell v. S. & L. W. Holmes

20 Wend. 609 | N.Y. Sup. Ct. | 1839

By the Court, Nelson, Ch. J.

In Green & Mosher v. W. & T. Beals, 2 Caines, 254, the judgment was entered up on a bond and warrant of attorney, signed, as in this case, by only one of the partners, without authority from the other. It was held good against the partner giving the warrant, but inoperative as to the other if he chose to avail himself of the defect; that the court would not interfere except on his application, as he might acquiesce in what his partner had done $ and that even if he did apply, the court would not set aside the judgment, but simply direct the execution not to be served on his person or property. See also 1 Wendell, 336. The case of Crane v. French, 1 Wendell, 311, in connexion with the 3d section of the act of 1833, Statutes, sess. of 1833, p. 395, shews that the judgment in this case is irregular, for the reason that the partner was not in court when the confession was given. This seems to be essential, whether the suit be commenced by writ or declaration, in order to have it operate under the joint debtor act. See also 10 Wendell, 630. But still, under the practice before alluded to, the partner aggrieved must move. Has he done so in this case ? The attorneys appear for both defendants in the motion, but it is founded upon the affidavit of the one who gave the warrant; he is setting up his own fraud by way of defeating the judgment. Should not the co-partner deny the authority and shew his dissent 1 His silence in Green & Mosher v. W. & T. Beals, was deemed an acquiescence in the use of his name. 1 Wendell, 336. In the absence of any proof of his dissent of the use of his name, it seems to me, according to the practice as settled, we are bound to hold the proceedings regular.

The distinction between this application to the equitable interference of the court, and the case of an action upon the instrument on plea of non est factum, where the issue would stand upon strict principles and the verdict must be for the defendants, is noticed in the cases above referred to.

Motion denied with costs.