
    
      DICK & ALS vs. MAXWELL, & ALS.
    
    Appeal from the court of the sixth district.
   Matthews Judge

delivered the opinion of the court. This suit is instituted against two ° of the acceptors of a bill of exchange by the holder thereof, unaer indorsement. Payment is claimed from the defendants as two of the partners of a commercial firm by which the bill is alledged to have been regularly accepted. Judgment by default, which was after-wards made final, was obtained against Wilson ; and Maxwell filed an answer, containing a general denial of the facts alleged in the plaintiffs’ petition. On this issue, as shewn by the record, three trials have taken place before three different juries, and verdicts rendered in every instance in favor of the plaintiffs; on the last of which, judgment was pronounced, from which the defendant Maxwell took the present appeal.

An incom-. Plet® |?“ve¿ot tr^ evidence,

According to the point filed in this court, on the part of the appellant; two principal grounds of defence appear to be assumed. The first relates to want of property shewn in the plaintiff as holder of the bill, and improper pursuit on his part in not suing all the partners by whom it is alleged to have been accepted. The second embraces the whole merits of the case, as it affects the interest of the defendant who has appealed. It is attempted to shew that the acceptance was made in fraud of his rights; by connivance between the payers of the bill and the acceptors who were drawers for their private benefit, to pay a debt of their own in w hich the firm of Hugh B. Maxwell, and Co. had an interest.

The state of the endorsements on the bill is relied on to shew that the present plaintiff and alleged bona fide holder, is not the legal proprietor. The first endorsement by the payees is in blank—a full endorsement is made to the order of Augustus Guibert, which appears to have been stricken out by the present holder This, according to the custom of merchants, he had a right to do. see Bailey, on the law of Bills of Exchange, & c. p. 68, and the cases therein referred to.

In ordinary commercial partnerships, every one of the partners is bound in solido for the debts of the partnership; and the debt is presumed to be contracted in the name of the partnership, when one of the partners signs in the name of the company, &,c. see old c. code, p 396, 98, art. 41. When several persons are bound in solido, or in other words, when an obligation is joint and several, the obligee may pursue all the obligors jointly, or any one of them seperately. The state of the pleadings in the case now under consideration, a contest between the plaintiff and one of the alleged acceptors of a bill of exchange, who is bound severally with his other partners to pay the amount for which it was drawn; unless diere be shewn some substantial objection to the validity of the obligation.

It is contended for the appellant that the acceptance of the bill in question created no obligation on his part, because his partners [admitting them to be such] used the name of H. B. Maxwell, and Co. to pay off their individual debt, and that the plaintiff being only a trustee for the payers of the bill, must be subjected to any defence which would be good against them; consequences seriously affecting the ap-pellee’s claim might result from this means of defence if it had been fairly put at issue by the pleadings of causes in any stage of its progress before the several juries. This was not done and we are therefore of opinion, that all the evidence offered in favor of the defendant to support this species of defence, was properly rejected by the court below. The case, if its character be determined by the petition and answer, is simply one between the endorser of a bill of exchange and an acceptor, and does not appear to have originated in circumstances which would authorize an enquiry into the con- . , . „ sideration ox the contract after the evidence of it has passed apparently in a fair course of trade, into the hands of a bona fide holder, such as the plaintiff alleges himself to be. The existence of a partnership between the appel- • lant and the person who accepted the bill in the name of the firm, seems to have been proven to the satisfaction of three juries. It is true that the defendant offered to rebut the testimony given in support of this fact, by the exhibition of a project of partnership as contained in certain articles reduced to writing, but never signed by the party in consequence of some of the intended partners failing to comply with certain stipulations made on their part; and also to prove that the co-partnership was never carried into effect. The evidence thus offered was rejected by the judge a quo; and a bill of exceptions taken to the opinion by which it was so rejected.

We think the judge did not err in refusing to admit the evidence offered. The stipulations in the instrument which when completed, were to have regulated the respective interests <of the partieá to the contract of partnership, r r ' ing incomplete and unsettled, could in no manner affect the rights of third persons who had contracted with the firm as existing defacto, neither could the private acts of the partners composing the company; unless these acts Were equivalent to a declaration of the non existence or dissolution of tfce partnership, and public notice given of these facts.

Pierce for the plaintiff, Watts Lobddl for the defendant.

Upon a strict examination of the whole case as brought before this court, we are unable to discover any error in the proceedings or judgment of the court below.

It is therefore ordered, &,c. that the judgment of the district court be affirmed with costs.  