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Halliday v. McDougall. expenses paid out and home. Should Mr. McDougall not be satisfied with his proportion of the profits arising out of the said concern, we shall allow him a salary of $1200 per annum;" to which agreement, Ansley affixed the name of his firm, viz. John D. Ansley & Co. In pursuance of thisagreement, McDougall came to this country. He arrived in New-Yord on the eight day of November, 1825. Previous to his arrival, Ansley, had put up a sign at a place of business in New-York, with the names upon it of Ansley, McDougull & Co., and it was generally reported previous. 10 the arrival of McDougall, that he had become a partner with Ansley. He frequented the place of business, over the door of which was the sign of Ansley, McDougall & Co. and transacted business as a member of that firm. On the fifth day of December, 1825, he sailed for Charleston, leaving up the sign of Ansley, McDougall & Co. In relation to Wightman being a member of the firm of Ansley, McDougall & Co., there was no evidence whatever, other than reputation. When the plaintiff rested, the defendant's counsel moved for a nonsuit, on the ground that there was no evidence that Wightman was a member of the firm of Ansley, McDougall of Co. The motion for a nonsuit was denied. When the proofs were closed, the defendant's counsel renewed the objection, and requested the judge to charge the jury that the plaintiff could not recover, unless they were satisfied that he had shown that Wightman was a partner in the firm of Ansley, McDougall &. Co., and that general reputation was not alone sufficient to establish such fact. On the subject of general reputation, all that was said in the charge to the jury was the following: "If the jury should not be satisfied that McDougall elected to become a partner, then they were to find upon the evidence whether he held himself out, or knowingly suffered himself to be held out by others, as a partner in such a manner as to induce the world to believe he was such a partner. If he did so, then he was bound as a partner by the acts of the firm to all persons, except such as might know that in fact he was not a partner. The jury, however, in considering the evidence on this head, must carefully lay out of view

Halliday v. McDougall. the acts or declarations of Ansley, or of any other person, before the arrival of McDougall in the country, and also the reputation on the subject of the partnership prevailing before that time.” The judge further charged the jury, that before the plaintiff could recover, they must be satisfied that all the defendants were partners in the firm of Ansley, McDougall & Co. The jury found for the plaintiff, on which verdict judgment was entered. The defendant having excepled to various decisions made in the progress of the trial and to the charge of the judge, sued out a writ of error removing the record into the supreme court, where the judgment of the court below was reversed. See the case more fully stated, and the opinion of the supreme court, delivered by Justice Cowen, 20 Wendell 81, et seq. The plaintiff thereupon removed the record into this court.

J. W. Gerard, for the plaintiff, insisted that McDougall being the only defendant brought in upon the capias sued out by the plaintiff, had no right to object to the want or competency of the proof adduced to show Wightman a partner, and therefore was not entitled to ask the judge to instruct the jury that general reputation was not sufficient to charge him. He contended that less evidence was required from plaintiffs to prove a partnership in defendants, than what was necessary to prove themselves partners, they always having it in their power to produce the articles of their copartnership. 3 Starkie's Ev. 1070. So he insisted that less evidence was necessary to prove a defendant not served with process, a member of a partnership, than must be shown to prove a defendant who was brought into court a member, because the latter being benefitted by having a co-defendant, upon whom he may call for contribution; and the former not being concluded by the judge ment from showing that he was not a partner either in a suit by the plaintiff upon the judgment, or by his co-defendant for contribution. Sangster v. Mazaredo, 1 Starkie, 161. 2 R. S. 377, 82. If, however, full proof was necessary, he then insisted that general reputation was prima facie evidence to go to a jury as proof of partnership ; that such

Halliday v. McDougall. was the general understanding of the profession and the practice of our courts. In support of this proposition he cited Gowan v. Jackson, 20 Johns. R. 176, and McPherson v. Rathbone, 11 Wendell, 98. See also 4 Cowen, 282. Besides, here were corroborating facts and circumstances to show that Wightman was a member of the firm in whose name the bills were drawn.

D. D. Field, for the defendant, insisted that there is not a case to be found, in which, in England, proof of general reputation was received to establish a partnership, and none of the elementary works there intimate that for such purpose such evidence can be resorted to. Cary on Partnership, 136. Collyer on Partnership, 449. Gow on Part, nership, 208, 233. In other states of this union, such evidence has been held insufficient. 2 Harris & Johns. 296. 5 Gill & Johns. 383. 11 Conn. R. 92, and 16 Pickering, 412. In this state, in the case of Whitney and Bancroft v. Sterling and others, 14 Johns. 215, the court in speaking of the proof required to charge a defendant as a partner say, " whether general reputation ought to be sufficient is questionable ; but sueh testimony is competent, and there are several circumstances in the case which go very much in corroboration of it. In Gowan v. Jackson, 20 Johns. R. 176, the witness who testified to the general reputation stated that he had done a good deal of business for the defendant, and had always understood that he was a member of the firm. In MePherson v. Rathbone, 11 Wendell, 96, Chief Justice Savage did say that it was undoubtedly competent to have proved the partnership of all the defendants by general reputation, but it was wholly unnecessary to the determination of that case that such a rule should have been laid down, as there the decision was founded upon the assumption that the articles of copartnership were sufficiently proved. In 7 Cowen, 234, the court held that it could not be shewn by general reputation, who were the directors of a corporation. The judge, therefore, on the trial of the cause, should have instructed the jury, as desired, that general reputation alone was ņot sufficient to prove Halliday v. McDougall. that Wightman was a member of the firm. It is the duty of a court to instruct a jury upon a point material to the issue when requested to do so. 3 Cranch, 298. 11 Wheaton, 74. 7 Peters, 607. 5 Cowen, 243. 8 Conn. R. 319. 6 Munro, 136. If the judge in this case had thought proper to qualify his instructions by saying that evidence of general reputation was competent, and that in connection with other facts and circumstances, it would authorize a verdict, he might have done so, but he could not wholly refrain from complying with the request. He was bound to speak. Had, however, such a charge been given, it would still have been insisted on the part of the defendant that it was erroneous, for general reputation is but hearsay evidence and therefore inadmissible.

After advisement the following opinions were delivered :

By the CHANCELLOR. I have no doubt of the correctness of the decision of the supreme court, that general reputation alone is not sufficient to establish a copartnership, so as to charge the supposed members of the firm with the payment of its debts; and if the decission of this case turned upon that question, I should have no difficulty in affirming the judgment of that court, by which the judgment of the superior court of the city of New York, in favor of the present plaintiff in error, was reversed. Proof of general reputation, which is sometimes received in such cases in connection with other evidence, certainly is no proof of the fact of the copartnership as against the reputed members of the firm who reside at a distance, and where the jury cannot fairly infer from the other circumstances in the case that those persons actually knew they were held out to the world as such copartners. And if the object in this case had been to render Wightman, who lived at Charleston, liable to the plaintiff for the debt contracted by the NewYork firm, this evidence of general reputation at New-York, of which he could not be presumed to know any thing, the judge who tried the cause, would unquestionably have told the jury to lay it entirely out of view in considering the question of his liability, in the same manner as he told them

Halliday v. McDougall. to lay out of view the reputation prevailing there before McDougall arrived, in determining the question whether he had made himself liable for the debts of the firm by suffering himself to be held out to the world as a partner.

Where an action is brought against several persons as joint debtors, all of whom appear and deny their joint indebtedness, the plaintiff is obliged to make out by legal evidence against each, not only that he is personally liable for the debt, but also that he is jointly liable with all his co-defendants ; but when part of the defendants admit their individual and joint liability, either by their pleadings or otherwise, or where they are outlawed or proceeded against as absentees by a return of the capias by the sheriff as to them not found, so that no personal judgment can be rendered in the suit against them or their individual property, the plaintiff is only obliged to produce evidence which will be sufficient as against those who appear and defend the suit, to establish their joint liability with their co-defendants. In such cases, therefore, the acts and admissions of the parties who thus appear and defend, are legal evidence as against themselves, not only of their own indebtedness but also of their joint-indebtedness with their co-defendants. Thus, in the case of Sangster v. Mazaredo and others, 1 Stark. R. 161, where a suit was brought against four persons as copartners and acceptors of several bills of exchange, and three of the defendants who resided in a foreign country had been proceeded against 10, ourlawry, and the fourth who had been personally served with process appeared and defended the suit, Lord Ellenborough held that the admissions of the defendant who had appeared, that he was a copartner with the three absentees, were sufficient to entitle the plaintiff to a verdict; and as our statute, authorizing a proceeding aganist joint debtors upon a service of process on a part of them only, is a mere substitute for the English proceeding to outlawry against the absentees, and the record of the judgment, will not be evidence of a joint liability in any subsequent suit against the defendants who have not been served with process, the decision in Sangster v. Mazaredo and others, is directly ap

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