Majority
p. 92Peter Bogert and Samuel Mansfield against Cornelius Lingo, impleaded with James M‘Guire.
Headnote
If the drawee of a bill be in partnership with the drawer who with another person constitute a distinct house a promise by such drawee, after arrest, to pay the bill before refused to accept is no evidence that he is one of the house under the stile of which the bill is drawn, though the signature be in the name of the drawer’s partner "& Co.", therefore on such promise, an action cannot be maintained against such drawee, as drawer.ASSUMPSIT, against the defendants as the drawers of a bill exhhaiige, signed “ M-Glare Itf Co," addressed to “ Cornelius and indorsed “ William Robinson
AfGuire and Armstrong,
constituting the firm of M'Guire Cf Coj drew, the bill in question on Cornelius Lingo, who was oiie of the house of M'Guire and Lingo, but the two partnerships were, in fact, really distinct concerns, as appeared from the testimony of PerSotis knowing both houses, and deriving their information from the partners themselves, as well as their mode of doing business.r^*le billj being protested for hon-acceptance, a Writ was sued out against Lingo, who was taken, and while in custody, uPon being shewn the draft, promised, without having it read to him, that he would pay it, if the plaintiffs would let him go another voyage. There was Ho testimony of the hand writing of either drawers or indorsor, or that Lingo, made cue of the house 0f M'-Guire ⅛* Cor excepting; such its might be inferred from the r o ° . promise of Lingo. For the utter deficiency of all evidence on -c|lese points, the counsel for tlie defendants insisted at nisi Jiriusi on a nonsuit. Being overruled by the court, on the two first, jag(. wag ;eft |0 the jury who found for the plaintiffs,
The casé now tame before the coürt oír a motion for a new trial, on the samg grounds as thbsfe urged at the circuit.
Hawes for the defendant.
. To entitle the plaintiffs to recover, iiiey were bound to make out every position ; the handwritings of the drawers, and indorsor, and that Lingo Was a partner in the house of M'Guire W Co. The holder derives title through the indor-sor, and hiust therefore prove his signature. Chitty, 201. Bayley, 115. The law is the same, thtmgli the'bill be indorsed at the time bf acceptance. Smith v. Chester 1 D. & E. 654. The liability.Of
p. 93NEW-YORK, May, 1805.
Lingo as a drawer, was only ift consequence of his being a part-nerinthe house of M'Guire is? Co. that is, so far from being established, that it is negatived. The promise to pay is immaterial; it was made as drawee of the bill, and therefore cannot be of avail in an action against the drawer. Besides, a .promise when under arrest, is, as to that suit, a species of duress, and therefore void. Rouse v. Redwood, 1 Esp. Rep. 155.
Bogert and Hoffman, contra;
To prove the handwriting of the indorsor is unnecessary in an action against the acceptor, because acceptance operates as an acknowledgment of the signature, Hankey v. Wilson, Say. 223. The promise to pay, in the present case, had the same effect. The nisi prius decision in lispU masse, is opposed to this doctrine; The point there Was, that a promise to pay, made by a person ignorant of a fact by which he was discharged in law, would not, in favour of a person to whom such fact was known, create any responsibility. This reasoning does not apply to the case before the court. Whether Lingo constituted one of the house of M'Guire & Co. was matter for jury consideration. Drake & Pinckney v. Witaker[1] and ors. 1 N. Y. T. R. 184. The verdict has settled that he was.
The judge ought to have nonsuited the plaintiffs at the trial, the verdict must therefore be set aside with costs to abide the event of the suit. Thel’e was not evidence sufficient, that Lingo was one of the house of M'Guire & Co. who drew the bill, to let the cause go to the jury. It was a verdict clearly against the weight of evidence, and ruled wrong by the judge. The court, however, do not decide between the case in Sayer, and that in D. & E. nor whether it was, in the present instance necessary to prove the handwriting of the indorsor,- because it is not necessary to the judgment we now deliver.