Van Bramer v. Cooper — 2 Johns. 279

Majority

p. 279

Van Bramer and others, administrators of Van Bramer, against Cooper, who is impleaded with Van Bramer.

Headnote

In an action against two defendants, where one i$ taken and brought into court, and the other returned not taken, the defendant in cotirt cannot, under the general issue, give in evidence the infancy of his co-defendant. The plea of infancy is á personal privilege, of which the party alone can avail himself.

This was an action of assumpsit., against the defendant, Cooper, and one Thomas Van Bramer, for one thousand dollars Tent by the intestate, and for which Cooper and the other defendant gave an accountable receipt for the re-payment of the money in one year. The receipt mentioned that the one thousand dollars, with another sum of one thousand dollars furnished by Cooper, t was‘to be vested in stock in trade under the management of the defendants, as. grocers, under the firm of Cooper and Van Bramer. Cooper alone was arrested on the capias issued against the defendants, the sheriff having returned, as to Van Bramer, “ not found.” Cooper pleaded non assumpsit,. and gave notice of special matter to be offered in evidence. The cause was tried at the Dutohess Circuit, the 10th June, 3806, before Mr. Justice TompTcins. At the trial the plaintiffs.proved the receipt given by the defendant : the defendant offered to prove, 1. That Peter Van Bramer, the intestate, and Cooper, were partners in trade? •and lliat the money was applied to the use of the copartnership. 2. That the partnership had been since dissolved; and, 3. That Thomas Van Bramer, the defendant not taken, when he signed the receipt above-mentioned, was an infant.

This evidence was overruled by the judge, and the jury found a verdict for the plaintiffs.

The case was submitted to the court without argument.

deliveredthe opinion of the court.

The infancy of the defendant, Thomas Van Bramer, was a personal privilege of which he alone could avail himself. The fact of infancy not being pleaded, or taken advantage of by him, the co-debtor, cannot shield himself, on that ground, from the performance of his contract.

p. 280

The proof of a partnership between the intestate and Samuel Cooper, was wholly irrelevant, because the existence of such a partnership would not have precluded a recovery upon the contract produced, and proved at the trial; inasmuch, as such contract was a special, separate, and independent one, the performance of which may be enforced, notwithstanding the partnership. The rejection of this proof was proper on another ground, namely, that the only, effect of it would have been to vary and control the operation of a written contract, in no respect ambiguous. These observations apply as well to the offer to prove the existence of a partnership between the intestate and Cooper, as to the evidence tendered of the dissolution of such partnership. The plaintiffs are, therefore, entitled to retain the verdict.^[1]

Judgment for the plaintiffs.

(a.) (a.) ) Vide Hartrep et al. v. Thompson et al. 5 John. Rep. 160 . Infancy ¡s a personal privilege, and unless claimed by the party, cannot be urged , another, unless he is privy in estate. Beeler v. Bullit, 3 Marsh. 28 0 . Vide Oliver v. Homelet, 13 May. 237.