
    Joseph Andrews et al. vs. The President, Directors and Company of the Planters Bank of the State of Mississippi.
    Where one of two partners subscribes the partnership name to a note as sureties for a third person, without the authority or consent of the other partners, the latter are not bound; and it lies upon the plaintiff to prove the consent or authority of the other partners; such consent or authority may be presumed from sufficient circumstances.
    V. & A. were partners in trade; V. the active partner, A. in the habit of frequenting the store, but not managing the business. V. was in the habit of indorsing the firm name of V. & A., signing it as sureties for third persons, and notices of the coming due of such liabilities were often left at the store of V. & A.; but it was not proved that they were ever brought to the knowledge of A. except in one instance when he denied V.’s authority so to use the firm’s name. Held, that the facts were not sufficient to uphold a verdict against A. on a note signed by V. & A. as sureties.
    In error from the Yazoo circuit court; Hon. Morgan L. Fitch, judge.
    The President, Directors and Company of the Planters Bank sued Joseph Andrews and James H. Yance, partners under the firm of Yance & Andrews, on a note signed by Yance <fc Andrews as joint makers with others. The note was made by James Warren as principal, and by Yance & Andrews, R. M. Wynn, and J. H. Lawrence as sureties. Andrews plead non assumpsit, under oath. A trial was had, and a verdict found against him. He moved for a new trial, which motion was overruled, and a bill of exceptions taken. From which it appeared, that the note sued on was signed in the partnership name ofYance & Andrews, but that it was signed in the handwriting of Yance, who was the active partner; that Andrews was a planter and lived three or four miles from the town, where the business was conducted. J. Hughes, the cashier of the bank, stated that during the partnership Andrews was frequently in town; and when in town was generally at the store of Yance & Andrews. That Vance frequently signed notes as surety and indorser in bank, in the name of the firm; ‘that the bank heard no objections from Andrews until the firm became insolvent; but that they did not know whether Andrews knew of Vance’s signing the name of the firm as surety, before that time; that he then objected and said Vance had no authority to sign the name of the firm as surety. That notices to Vance & Andrews, as indorsers, were left at the store of Vance & Andrews, in town ; whether Andrews ever saw them or knew of them he could not say. The note sued on had the word “ security” opposite the name of Vance &o Andrews.
    This was all the evidence in the cause. No instructions were asked for by either party. On the refusal of the court to grant a new trial, the defendant brought the case to this court.
    
      George S. Yerger, for plaintiff in error.
    1. To my mind it is surprising the jury should have rendered a verdict against Andrews, on the foregoing testimony, and yet more surprising that the judge should have permitted the verdiet to stand. It is not merely a verdict against evidence, but it is literally a verdict without evidence. For there is not the slightest evidence to show that “Vance,” as partner, had authority to bind the firm as surety for third persons: and there is not a tittle of testimony to show that Andrews knew of his signing the name of the firm as surety. The evidence of Hughes is that Vance did so, and that notices were left at the store, but he also proves that Andrews was a planter, lived in the country, and he could not tell whether he knew of such signing or not; he says that Andrews, when shown the paper, denied at once the authority of Vance. In order to charge Andrews, it must be shown, by evidence, that he either expressly authorized it, or that he knew he did so, and assented to it. And the evidence of his knowledge and assent requires to be proved by clear and indisputable testimony.
    2. It is settled beyond dispute, by many cases, that one partner cannot bind the firm by becoming security for third persons, without the assent of the other. Footv. Sabin, 19 Johns. R., 154; Wilson v. Williams, 14 Wend. 146; Williams v. Wol-ridge, 3 Wend. 415; Bank of Rochester v. Beman, 7 Wend. 158.
    The case of Foot v. Sabin, 19 Johns. R. is precisely like this ; there the word security was written opposite the name of the firm, and thereby indicated to all persons it was signed as surety.
    3. The above cases also all decide that the holder of the note must prove the assent or agreement of the other partners affirmatively and clearly, in order to recover.
    4. It is admitted, that this assent may be proved either expressly or it may be implied from facts and circumstances-. But it is settled that the evidence must be strong and satisfactory ; slight and inconclusive circumstances, it is held, will not be sufficient.
    In fact, it would be a repeal of the rule. The evidence necessary to constitute such assent, is to be found in the case of Wilson v. Williams, 14 Wend. R. 146.
    ” W. R. Miles, for defendant in error.
    I suppose that the only error relied on by the plaintiff in error is the finding of the jury, and the refusal of the court to grant a new trial. It will be observed that no instructions were asked of, or volunteered by the court; and the cause went off on the circumstantial proof (as set out in the bill of exceptions) of the recognition, by Joseph Andrews, of Vance’s authority to sign the firm’s name to contracts of this character.
    The proof, though presumptive merely, was certainly strong enough to authorize the finding of the jury; for proof of which I refer the court to Graham on New Trials, from page 380 to 400; also 1 S. & M. 157.
    I would respectfully suggest to the court a consideration growing out of this case which I think entitled to attention. It is, that the opinion of the judge, before whom the issue is tried as to the 'preponderance of the evidence, is entitled to much weight. The position will be found stated in better language by Graham, p. 405.
    Will the force of the principle be regarded as diminished by the act of our legislature, which allows a review of the action of the circuit judge upon motions for new trials ? I think not. For it will be remembered, that in England the nisi prins judge does not give or refuse a new trial, but merely expresses his opinion of the evidence to the other judges, after the return of the record to the court in banc. Here, we know the circuit judge does more; and may it not have been the chief, if not the sole object of the legislature in passing the statute referred to, to afford to motions for new trials (when the parties wish it) the same high consideration here which they receive in England ; and without intending to diminish the respect which had always been attached to the opinions of the judge before whom the issue is tried? Unless I am greatly deceived, this is the true construction of our legislative innovation in regard to new trials.
   Mr. Justice Thacher

delivered the opinion of the court.

Writ of error to Yazoo county circuit court.

This was an action upon a promissory note, signed by “Vance & Andrews, sureties.” Andrews pleaded non as-sumpsit under oath. A verdict was found against Andrews, who, failing in a motion for a new trial, brought his case into this court. The evidence disclosed that the copartnership name of Vance & Andrews was signed to the promissory note by Vance; that Vance was in the habit of signing the copart-nership name as sureties and indorsers; that notices of the approaching maturity of such notes were left at the store of Vance & Andrews, where Andrews was in the frequent habit of visiting, although he was not the active partner of the firm; but there was no evidence of an actual knowledge by Andrews of the use of the name of the firm in this mode, and in the case of the note sued upon, he insisted that no such authority was confided to Vance.

Where one of two partners subscribes the copartnership name to a note as sureties for a third person, without the authority or consent of the other partner, the latter is not bound, and it lies upon the plaintiff to prove the consent or authority of the other partner. Foot v. Sabin, 19 Johns. 154, and cases there cited. Such consent or authority may be presumed from sufficient circumstances.

There is nothing in the bill of exceptions which embodies all the testimony that expressly proves that Andrews authorized the use of the copartnership name as surety or indorsement, but there is express testimony that when such a use of th name came to his knowledge, he denied that any such authority was reposed in Vance. The presumption arising from the circumstance that Vance had been in the habit of using the co-partnership name in such a mode, and that notices of the coming maturity of such obligations were left at the store of Vance & Andrews, which place Andrews visited every day, is sufficiently rebutted bythe circumstance that Andrews was not the active partner, and could not therefore be fairly presumed to have looked narrowly into the transactions of Vance. The evidence certainly did not warrant the finding of the jury.

Judgment reversed, and a new trial to be awarded in the case.  