Halliday v. McDougall. plicable to the case now under consideration. Indeed, the same point was substantially decided, under our statute, by the supreme court, in the case of Whitney v. Sterling and others, 14 Johns. R. 215, although the legal effect of a joint judgment upon the rights of the absentee had not then been settled. The court say, in that case: "Hunter and Sterling, the defendants who had appeared, cannot complain, because the testimony fully establishes their confessions that the firm of Hunter, Sterling & Co. was composed of the four defendants." I may also remark, that it is a matter of course, in a proceeding against joint debtors or copartners under the statute, where the instrument declared on is a promissory note or bill of exchange, to have the clerk assess the damages and enter a joint judgment against all the defendants, upon the implied admission of the one who has been served with process, of their joint indebtedness. The question, therefore, whether the evidence of general reputation alone was sufficient to charge Wightman as a copartner did not arise in the case; and the defendant's counsel had no right to call upon the court to charge the jury on that subject. As against McDougall, the defendant here brought into court, there was sufficient evidence to authorize the jury to find that he had made himself liable to the plaintiff as a copartner in both firms, independent of any evidence as to general reputation. His own witnesses who were examined in England, and who knew the agreement under which he came out, prove that Ansley represented himself and Wightman as composing the firm of John D. Ansley & Co.; and it was with them, and them alone, that he was to go into copartnership, if with any body, as the written agreement shows; and immediately upon his arrival at New-York, where the other branch of the house was to be established, he found his name over the door as one of the members of the firm. He suffered himself to be introduced as a partner, and remained there until the concern exploded, without taking any steps to have his name removed from the sign over the door, or to inform those who were dealing with the house that he was not a copartner. Under such circumstances, although as between him and Ansley and Wight Halliday v. McDougall. man, he had a right to elect at the end of the year whether he would take a salary or a share of the profits of the partnership, he was clearly a partner as to the rest of the world. who knew nothing of this private arrangement between the individuals who were held out to the public as copartners by these introductions and by the sign over the door. As the drawers and acceptors of the bills in this case were the same persons, or at least, as there is not a shadow of doubt that Ansley was a member of both firms, the refusal of the firm in Charleston to pay the bills was notice of their dishonor to him, and, fr course, to the New-York firm. Gowan v. Jackson, 20 Johns. R. 176. Johnson on Bills, 23. It is therefore unnecessary to inquire whether the statement in the protest of the deceased notary was of itself sufficient evidence of notice of the dishonor of the bills. And it now appears to be settled, nothwithstanding the dictum of Mr. Justice Van Ness in Miller v. Hackley, 5 Johns. R. 375, that a bill of exchange drawn in one state of the union and payable in another, is a foreign bill, within the meaning of the rule which makes the notarial protest prima facie evidence of the presentment and dishonor of such bills. Buckner v. Finley, -2 Peters' R. 586, and other cases cited in opinion of Justice Cowen. See also Johnson on Bills, 31, and Muir on Bills, 52, as to bills drawn between England and Scotland and Ireland. I have therefore arrived at the conclusion, that no error in law occurred upon the trial of this cause to the prejudice of the defendant McDougall; and that the questions of fact were properly submitted to the jury for their determination thereon. For these reasons, although I concur in opinion with Mr. Justice Cowen in reference to the abstract question of law upon which his decision was based, I think the judgment of the supreme court should be reversed, so that the plaintiff may be restored to his judgment in the superior court of the city of New-York. By Senator EDWARDS. The material points in this case appear to be, whether the judge of the superior court of the city of New-York was bound to charge the jury that gene Halladay v. McDougall. ral reputation was not alone sufficient to establish the co-partnership; and whether he charged correctly. At the close of the testimony, the defendant's counsel, among other things, requested the court to charge the jury that the plaintiff could not recover, unless he shewed that the defendant Wightman was a partner in the firm of Ansley, McDougall & Co., and that general reputation was not alone sufficient to establish the fact. The court are undoubtedly bound to give an opinion, if required, upon any point of law necessarily connected with the issue, whether it originates from the pleadings or the testimony produced on the trial. Douglass v. McAllister, 3 Cranch, 300. Scott v. Lunt, 7 Peters, 607. But the court can never be required to declare the law upon a hypothetical question foreign from the cause, 11 Wheaton, 75, or upon an abstract point of law, unless it be so stated as to show its connection with the cause. Hamilton v. Russell, 1 Cranch, 310. In all such cases, as I understand the law, the court may refuse to give an opinion, and if the party proposing the question is dissatisfied, he may except to such refusal, which exception. will avail him, if he shows that the question was warranted by the testimony, and that the opinion he asked ought to have been given. Had there been in this case no other testimony than that of general reputation, and had the counsel called upon the court to charge that this testimony was not alone sufficient, I think the court would have been bound so to charge; for I readily admit, that in my view, proof of general reputation that a copartnership exists, is not sufficient to prove the fact whether such testimony is admitted with or without objection, and so I believe it has been held in most if not all of the cases where this has been the only testimony offered; but in most of this class of cases, the testimony has been objected to in limine, as in 2 Har. & Johns. 400, in the court of appeals of Maryland; in Goddard v. Pratt, 16 Pick. 433, and in Brown and others v. Crandall and others, 11 Conn. R. 93. But in the case under review, no objection was made to the introduction of the testimony as to general reputation; but the judge, after the testimoVOL. XXII. 35 Halliday v. McDougall. ny was closed, was called upon to charge that general reputation alone was not sufficient to establish the fact of copartnership, when this too was not the only testimony in the case on which the plaintiff relied to show that fact. It is not for McDougall to say there was no such firm as John D. Ansley & Co., for the proposition was made to him in the name and behalf of this firm to enter into the copartnership, and this proposition formed the inducement for him to come to this country; and the question is, does it depend upon general reputation alone that he was a partner with this firm, or did he suffer himself to be held out to the world as such partner. A sign was put up in the fall of 1825, over the door of their counting house in Pearl-street, NewYork, in a conspicuous place, representing their firm to be Ansley M'Dougall & Co., which remained until winter. This sign was up when M'Dougall arrived, the 8th of November, and had been for about three weeks previous. M'Dougall went on board the ship for Charleston the 3d of December, but did not sail until the 5th; Ansley left a week or fortnight after, but the sign was not taken down until after they left New-York. Thus the sign must have been up between three and four weeks, while M'Dougall was passing in and out of the store, and yet he took no steps to remove it, and even left it thus to represent the firm when he left New-York. During this time the checks in question were drawn in the name of the firm, as it appeared on the sign, and discounted. Again: one of the witnesses, states that he was introduced to M'Dougall by Ansley in the store, as his partner, and relates a conversation he had with Ansley aad M'Dougall relative to the goods in the store. These and other facts and circumstances, which might be enumerated, presented by the case, were proper subjects for the consideration of the jury, and although the proof of general reputation would not, of itself, be sufficient testimony to establish a copartnership, yet, in my judg ment, it is competent testimony, and may be taken into consideration by the jury, in connection with the other facts in the case, when a plaintiff is endeavoring to make out a copartnership among defendants. This doctine has been re Halliday v. McDougall. cognized by the supreme court of this state. In the case of Whitney v. Sterling, 14 Johns. R. 216, the court say: "The only question in the case is, whether the testimony is sufficient to charge Jacob Brown as a partner with the other defendants. There was no objection as to the testimony of general reputation. It must therefore be considered as evidence in the case, and as forming a part of the testimony upon which the jury was to determine the fact of partnership; nor could any objection have been made to such evidence. Whether general repulation ought to be suffi cient, may be questionable, but such testimony is competent, and there are circumstances in the case which go very much in corroboration of it." Precisely so here. I consider the testimony competent, and there are in this case several facts and circumstances which go in corroboration, all constituting proper subjects for the consideration of the jury. In some cases the supreme court of this state has carried this doctrine much further. In the case of Gowan v. Jackson, 20 Johns. R. 178, Mills, the witness, testified that he had done a good deal of business for the defendant, and had sold goods to a large amount by his orders. He had always understood there were two brothers connected in business-the defendant and Daniel Jackson, and that the firm in London was Jackson & Brothers, and that the firm here was either Joseph Jackson or Joseph Jackson & Co., which he did not recollect; aud that he understood from common report that the defendant was a partner of the firm of Jackson & Brothers, in London, and that had so understood in the course of business, and in the settlement of accounts made by him with the defendant. The testimony the court deemed sufficient prima facie to show a copartnership, and as casting the burden of proof upon the defendant to show the commencement of the partnership, if it began at a time subsequent to drawing the bill. How much Mr. Justice Spencer (who delivered the opinion of the court,) relied upon the proof of general reputation, as prima facie sufficient, does not appear from the case, as he speaks of the testimony collectively-but as this was the |