of business, and attached on the partners, they are answerable NEW-YORK, to the whole extent of their fortunes. It has been objected, that moneys lent to pay the customhouse bonds are not chargeable upon the partnership, inasmuch as one of the plaintiffs was a surety, in those bonds, for Eakin only. The case of Tom v. Goodrich and others (2 Johns. Rep. 213.) has been cited and relied on, in support of this objection. That case would have applied with decisive effect, had the custom-house bonds been paid by the plaintiffs; but they do not make the bonds the ground of their demands. They were paid by Eakin, with money lent and advanced by the plaintiffs. This money was applied by Eakin, one of the partners, to pay a partnership charge. Had the money been advanced for the same purpose, by any other person, no doubt could have existed, as to the liability of the defendants; and the plaintiffs did not advance the money to relieve themselves from the bonds, *or because they had become chargeable; but it was money lent in the course of business. The objection is untenable. It has been strongly insisted, that the plaintiffs did not produce sufficient evidence to prove the items of their account. On the 15th of September, 1808, Eakin, by his certificate, endorsed on an account current, made out by the plaintiffs, and charged against him alone, admitted a balance to be due the plaintiffs, for 5,802 dollars, 54 cents; which he further certifies to have been contracted since his connection with Sherburne. This balance was admitted, after the dissolution of the partnership, which took place on the 18th of August, 1808; for, on that day, Eakin received Sherburne's letter, dissolving the connection. According to the decision of this Court, in Hackley v. Patrick and another, (3 Johns. Rep. 536.) one partner cannot, after a dissolution, bind his copartner by acknowledging an account, any more than he can give a promissory note to bind him. It seems that the Court of Common Pleas, in England, have held otherwise; (1 Taunt. 104.) but I believe there is more safety in the rule of this Court than in a contrary one. It appears to me, that the proof of the account is fully made out. The waste-book, in the hand-writing of Eakin, was proved, and given in evidence. This I take to be an original book of entries, made at the time the transactions took place; and this book contained credits for all the plaintiff's account. The existence of the partnership being established, it follows, that an admission of the account, by one of the partners, during the continuance of the partnership, is competent proof. Besides, the case states, that the plaintiff's account against Eakin was proved, and read in evidence. Now, this account is precisely the account against both defendants; and if proved, the proof avails against both. Again; the defendant Sherburne, to gain a deduction from the plaintiff's account, produced the account himself; and by doing so, he made it evidence He might, indeed, contradict, Oct. 1818. WALDEN v. SHERBURNE. [* 424] NEW-YORK, or disprove it; but not doing so, it was evidence in the cause, to the jury. (5 Taunt. 245.) Oct. 1818. MYERS V. MORSE. [* 425 ] The only remaining question is as to the interest. We have uniformly decided, that after an account has been liquidated, *it carries interest, and that an account is to be considered liquidated after it has been rendered, if objections are not made to it. In the present case, the account was rendered to one of the defendants on the 15th of September, 1808, and not objected to: indeed, it was admitted. From that period the plaintiffs are entitled to interest. Judgment for the plaintiffs, accordingly. In an action of assumpsit, MYERS AND BELLINGER against MORSE. THIS was an action of assumpsit. The declaration conwhere the dec tained two counts: ment to answer fault or miscar fendant ute Where the laration sets 1. For money paid, laid out and expended by the plaintiffs, forth an agree- to the use of the defendant. 2. That on the 19th of May, for the debt, de- 1815, the plaintiffs were liable as the endorsers of a certain riage of a third promissory note drawn by Horace Morse, and made payable person, the de- to the plaintiffs, at the bank of Utica, and by the plaintiffs enplead the statmay dorsed to the bank; that the plaintiffs were holders, as endorof frauds sees, of a certain other promissory note, drawn by Horace Morse, specially in bar and made payable to the defendant at the bank of Utica, which plaintit prom- note the defendant had, before the day above mentioned, enquire from the dorsed to the plaintiffs; and that the plaintiffs, at the special defendant the request of the defendant, promised the defendant that they would certain note, in not require from him the payment of the money mentioned in the consideration of said note; and the defendant, in consideration thereof, on the [* 426] same day, promised the plaintiffs to indemnify them from one which the de- third of all loss which they might sustain in consequence of their ises to indemnify having endorsed any note or notes for H. M., in the Utica bank. the plaintiff from one third of all The plaintiffs averred that they have not required payment of the loss in conse- said note, but have cancelled the same, and that they have sus ises not to re payment of a fendant prom quence of his endorsement of certain notes for a third person, this is not a case within the statute of frauds, here being a new and original consideration moving between the contracting parties. A declaration in assumpsit stated a promise from the plaintiffs to the defendant not to require the pay ment of a certain note, endorsed by the defendant to the plaintiffs, in consideration whereof the defendant promised the plaintiffs to indemnify them from one third of all loss which they might sustain in consequence of their endorsement of certain notes for a third person; that the plaintiffs had never required payment of the note, and that they had sustained a loss to a certain amount: Held, that the declaration was bad, in not stating that the third person was insolvent, otherwise there was no consideration for the defendant's promise, either of benefit to himself, or of loss to the plaintiffs: besides, the insolvency of the maker of the notes must be averred, because the promise of the defendant must be construed to mean that he would pay one third part of the loss, provided it could not be recovered of the maker of the notes, and not merely that the defendant should be liable, in the first instance, for one third of the loss. (a) (a) Vide Gallager v. Brunel, 6 Cow. Rep. 346. Farley v. Cleveland, 4 Cow. Rep. 432. S. C. 9 Cowen, 639. Oct. 1818. MYERS tained a loss to the amount of 600 dollars, in consequence of NEW-YORK, having endorsed the said notes for the said H. M., of which the defendant had notice, and that, by reason of the premises, he became liable to pay to the plaintiffs 200 dollars, being the third part of the said loss, when requested; and that the defendant, being so liable, promised, &c., and although often requested, hath not paid, &c. The defendant pleaded, 1. Non assumpsit. 2. To the second count, that the plaintiffs ought not to have and maintain their action, because, by the statute of frauds, it is enacted, that no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of any other person, unless such agreement, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized; that the plaintiffs have brought their action for the default of H. M., and for no other purpose whatever, and that there is no agreement in writing, touching the promise of the defendant, or memorandum or note thereof, &c. To the second plea there was a general demurrer, and the defendant joined in demurrer. The cause was submitted, on the points stated to the Court, without argument. SPENCER, J., delivered the opinion of the Court. The first objection taken to the plea is, that it amounts to the general issue, and is therefore bad. It may well be doubted whether the plaintiffs can avail themselves of this objection under a general demurrer. (1 Chitty's Pl. 498, and the cases there cited.) But upon principle, the plea is well pleaded if the promise laid in the second count is not a valid promise, unless it be in writing. The rule is this; in an action of assumpsit, matter which shows that no such contract was made, cannot be pleaded; but matter which admits the contract as laid, but shows that it was not binding in point of *law, may be pleaded, because, it being matter of law, it is proper to show it to the Court. (1 Chitty's Pl. 497. 499. Bacon's Abr. Plead. G. 3 Gilb. C. P. 62. 66.) This opens to the inquiry, whether the promise set forth in the second count is within the statute of frauds and perjuries or not. I think this a case not affected by that statute, for, according to the principle laid down in the case of Leonard v. Vredenburgh, (8 Johns. Rep. 39.) where the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly-contracting parties, it is not a case within the statute. In the case of Skelton v. Brewster, (8 Johns. Rep. 376.) the same principle was again adopted by the Court. The plea, then, is undoubtedly bad; but though bad, it authorizes the defendant to go back and examine the declaration, to see if it be good. V. MORSE. [* 427 ] NEW-YORK, FARRINGTON V. SINCLAIR. [* 428] Although the defendant's promise is not a collateral, but an original one, there must be a consideration for that promise; this is stated to be the defendant's liability, as an endorser on a promissory note, given by Horace Morse, payable to the defendant, and endorsed by him, which note came to the plaintiffs by endorsement; and on their promising the defendant not to require of him the payment of that note, the defendant, in consideration of the premises, promised to indemnify the plaintiffs from one third part of all the losses, in consequence of endorsing, or having endorsed, all notes of Horace Morse; and the gravamen of their case is, that they paid 600 dollars, in consequence of endorsing Morse's notes. The defendant was only contingently liable to pay the note he had endorsed for Morse, that is, on the failure of the maker to do so. It ought to have been stated that Morse was insolvent, and unable to pay that note, or else there is no consideration for the defendant's promise, either of benefit to him, or loss to the plaintiffs. The allegation that the plaintiffs have sustained a loss by endorsing Morse's notes, is liable to the same objection. The promise, if valid and binding, must be construed to mean, to pay to the plaintiffs one third of such sum as they should lose by endorsing Morse's notes; *that is, one third of what they should be obliged to pay, and which could not be recovered of Morse, owing to insolvency, not one third of what they should pay, and which might be recovered of him. There is no allegation that Morse was unable to refund to the plaintiff's any money which they may have paid as endorsers of his paper. I consider these objections as insurmountable, and that, therefore, the defendant must have judgment, with leave to the plaintiffs to amend, on payment of costs. Judgment for the defendant. Where a cred itor levies, un der an execu FARRINGTON AND SMITH against SINCLAIR. IN ERROR, on certiorari to a justice's Court. The defendant in error brought an action of trover, in the tion, upon the Court below, against the plaintiffs in error, for taking a quantity debtor, consist of fire-wood, which had been levied on by the plaintiff below, property of his ing of a pon derous article not easily removable, and allows it to continue in his possession, this is not, per se, evidence that the execution and levy were fraudulent, so as to render the property liable to be levied on, under a junior execution against the same debtor; but if the creditor permit the debtor to consume the property, being fire-wood, this is a ground for suspicion of fraud; and to prove the fraud, the creditor in the junior execution may produce evidence of a permission given to the debtor to use other property levied upon at the same time. (a) If the officer who made the first levy, brings an action of trover against the parties who were engaged in the second levy, they may show circumstances of fraud to defeat the action, equally as if it had been brought by the creditor himself. (a) Farrington v. Caswell, infra, 430. Oct. 1818. V. SINCLAIR. who was a constable, by virtue of an execution in favor of one NEW-YORK, Caswell, against one Peter Payne, and which was afterwards levied on by the defendant Smith, a constable, under a junior FARRINGTON execution, in favor of the defendant Farrington, against Payne. At the trial, it was proved that the plaintiff having levied on a wood-pile, at Payne's door, Caswell, the judgment creditor, told Payne's family that they might continue to use the wood for fuel in Payne's tavern, for four fires. They continued to use the wood, for ten days, or a fortnight, when the defendant Smith levied, under Farrington's execution, upon such of it as remained, and carried it away. In order to show fraud in the prior execution and levy, the defendants below offered to prove that Caswell gave permission to the family of Payne *to make use of other property levied on at the same time with the wood; but the evidence was objected to, and excluded by the justice. A verdict was found for the plaintiff below, on which judgment was given. Per Curiam. The mere omission, for a few days, to remove the wood, it being a ponderous article, was not, per se, sufficient evidence of fraud; but the permission given by Caswell, the creditor, to consume it for four fires, in Payne's tavern, excited a just suspicion, that the proceeding was merely to cover the property; and, after such a foundation was laid, the justice ought to have admitted the other evidence offered by the defendants below. It is no answer to say, that this was an action by the constable who levied, and that the fraud, if any, must be imputed to Caswell. If the real design of Caswell was to protect the property of Payne against other creditors, he shall not succeed in that attempt, by employing the constable as an instrument of his fraud. Judgment reversed. [* 429 ] FARRINGTON AND SMITH against SINCLAIR. If the creditor IN this case, which was between the same parties, the facts in the prior exewere precisely the same as in the preceding case, except that cutionlevy upon provisions be the property levied upon was a barrel of pork, which Caswell longing to his consented should be left in Payne's possession, and used by his family, who consumed about one quarter of it, when it was levied upon by Smith, under an attachment at the suit of Farrington against Payne. mit them to redebtor, and permain with the debtor, and be consumed in his family, the execution and levy are, construc Per Curiam. This is a strong case of constructive, if not ac- tively, if not tual fraud, and the judgment must be reversed. Judgment reversed. actually, fraudulent, as against a subsequent attachment or execution. |