
    Thomas Fielden et al., Plaintiffs and Appellants, v. Pierre Francois Lahens et al., Defendants and Respondents.
    1. The common law rule that in an action on a joint contract, against several persons, the plaintiff cannot recover against either, without establishing that the contract sued upon is the joint contract of all, still applies in actions which were commenced before the enactment of the Code of Procedure.
    2. The provision of section 274 of the Code of Procedure, altering this rule, does not affect actions commenced before the Code; and section 459 of the Code, as amended in 1851, which makes all its provisions apply to future ‘‘proceedings” in actions theretofore commenced, merely prescribes the forms to be observed, and does, not modify or repeal any rule of law affecting a defendant’s liability or a plaintiff’s right to recover.
    3. One who receives a note, indorsed in the name of a partnership, knowing at the time that the indorsement was not given for a partnership debt or in the partnership business, but was written by one member of the firm, in a matter not relating to the firm’s business, hut on the contrary for the accommodation of another person, cannot recover thereon against the other members of the firm.
    4 The Court will not.reverse a judgment because the Referees, before whom the cause was tried, excluded an offer of further evidence on the part of the plaintiffs, made after the plaintiffs had rested and a nonsuit had been directed, unless the offer of such evidence sho.wed at least the counsel’s belief that the evidence, if admitted, would aid the plaintiffs. ■
    
      5. A deposition is not to be excluded on the ground that the witness was incompetent, by reason of interest, at the time when it was taken, if his oral testimony would be competent bylaw at the time of the trial, notwithstanding the existence then of the same interest.
    (Before Bosworth, Ch. J., and Moncrief, Robertson, White and Monell, J. J.)
    Heard, May 17.;
    decided, June 28, 1862.
    This action was brought by Thomas Eielden, Daniel Campbell and William C. Pickersgill, survivors of Joshua Fielden, John Fielden and James Fielden, composing the firms of W. 0. Pickersgill & Go., of New York, and of Fielden Brothers & Co., of Liverpool, England, against Pierre Francois Lahens, Edward Ernest Lahens, and Louis Emile Lahens, survivors of Augustin Edouard Gaudard, composing the firm of J. Lahens and Company, of New York, and of Havre, France, seeking to charge them as indorsers of three promissory notes, all made by one Alexander Caselli, .of New York, to the order of J. Lahens & Co., and indorsed in their name, all dated May 25th, 1844. The amount of the three notes was nearly $49,000. The action was commenced before the enactment of the Code of Procedure; and after issue it was - referred for trial to Bobert Emmett, George 0. Goddard and William Betts, Esqs.
    It appeared on the trial that at the time of making the notes, Alexander Caselli, the maker, was a merchant in New York, engaged in purchasing and shipping cotton and other produce to Europe for sale on his account. He had obtained from Mr. Pickersgill, of the plaintiffs’ New York firm, large advances, afid, as security, had deposited with him a large amount of business paper and bonds. Caselli desiring .to obtain these, induced Mr. Pickersgill to return them to him, upon his promise to give him immediately other negotiable paper in lieu thereof, and, in pursuance of this promise, Caselli drew the notes in suit, and procured Louis Emile Lahens, (who was the only member of defendants’ firm resident in this country,) to indorse these notes in his firm name, and these notes, so indorsed,. Caselli delivered to Pickersgill in exchange for the business paper and other securities referred to. Lahens being examined as a witness at the trial, testified that Caselli applied to him to indorse the notes, saying- that he had received notices of sale of produce abroad, but not the regular accounts; that Mr. Pickersgill agreed to advance the amount appearing due if he, Caselli, would give security that Ms statement was correct, and that he wished to give these notes in exchange for other securities already given for this purpose, and “being convinced of Hr. Oaselli’s accuracy, and, out of friendship to him, he agreed to indorse said notes, with the express understanding that said notes should be delivered to Messrs. Piekersgill & Co. in behalf of Eielden,- Bros. & Co., of Liverpool, and remain in Piekersgill & Co.’s hands, for no other purpose than they should be security that the account or statement should be correct.
    Caselli, on remitting the notes to Mr. Piekersgill, stated in one of his letters : “In order to please you, I have left my desk and procured the signature of J. Lahens & Co. to the two notes herein inclosed.” In another he said: “I now beg to remit you my note, indorsed by Messrs. J. Lahens & Co., for balance of securities. I would have sent it to you yesterday, had not these gentlemen been too much engaged to attend to my own matters.”
    The Referees decided that Louis Emile Lahens alone could be held liable on the indorsement; but that the other members of the firm having been joined with him as defendants, the plaintiffs could not recover in this action against any of the defendants, and they directed a non-suit. The plaintiffs’ counsel then called Louis Emile Lahens as a witness to produce the articles of partnership between the defendants; and being required to state what he expected or intended to prove by the witness, the counsel stated : “We intend to prove what was the authority conferred on Louis Emile Lahens by his copartners, as a member of the firm of J. Lahens & Co., we ourselves not knowing what that authority was.”
    The Referees deemed the statement indefinite and insufficient, and excluded the evidence.
    In the course of the trial, the defendants’ counsel offered in evidence a deposition of Mr. Caselli, taken de bene esse, in ther year 1845, to the admission of which the plaintiffs’ ■counsel excepted on the ground that, by reason of his interest in the suit, he was incompetent as a witness when the deposition was taken.
    
      
      Jeremiah Larocque, for appellants.
    I. Conceding for the present, for the sake of the argument, that the plaintiffs could not recover against Pierre F. and Edouard E. Lahens, the deduction of the majority of the Beferees as a consequence, that the plaintiffs must fail against Louis E. Lahens, was manifestly erroneous under the authorities, the point being res acljudicata by the decisions of the General Term of this Court as well as of the Court of Appeals. (Code, § 136, subd. 3; § 169; § 274; § 459, subd. 2; Claflin v. Butterly, 5 Duer, 327; McKensie v. Farrell, 4 Bosworth, 192; Brumskill v. James, 1 Kernan, 294; Marquat v. Marquat, 2 Kernan, 336; Pruyn v. Black, 21 N. Y. R., 300.)
    II. Section 459 of the Code, both in letter and in spirit, brings this case, commenced before the Code was adopted, within its operation. (Code, § 459, subd. 2; Dunham v. Watkins, 2 Kernan, 556; Fellows v. Emperor, 13 Barb., 92; Davis v. Smith, 14 How. Pr., 187; Reynolds v. Davis, 5 Duer, 611; Fitch v. Livingston, 4 Sandf., 712.)
    III. The articles of copartnership of the defendants, and the evidence of L. E. Lahens offered in connection with them, were competent for the plaintiffs on the question of the authority, of Louis E. Lahens to bind his copartners by the indorsements in question, and were improperly excluded. They were excluded because the plaintiffs’ counsel could not state “ on his honor ” whether they would make for or against him. In other words, he could not tell whether the answer of a witness to a pertinent question would b$ favorable or unfavorable to his clients. The rule applied is believed to be a novel one in reference to the admission or exclusion of testimony.
    IV. The deposition of Alexander Caselli under the commission was improperly received by the Beferees, and the exception on that account was well taken. He was incompetent from interest when he was “ offered as a ivitness,” by being examined under the commission, (February 20, 1845,) and the case is therefore not helped by the Code. He was incompetent, because the defendants were his accommodation indorsers, and he, having notice of the suit by being examined as a witness, was liable to them for their costs and expenses, in addition to the amount of the recovery which might be had against them on the notes, and his interest, therefore, was not balanced. (Code, § 398; Hubbly v. Brown, 16 Johns., 70; Tilden v. Gardiner, 25 Wend., 663; Bowne v. Hyde, 6 Barb., 392; 1 Greenleaf’s Ev., 401; 2 Id., 218, and cases.)
    V. The defendants, Pierre E. and Edouard E. Lahens, are not absolved from liability under the indorsement of their firm name, by their copartner, Louis E. Lahens, on the ground that the indorsements were made for the accommodation of Oaselli, and for that reason beyond the scope of their partner to bind them. Upon the evidence, it is not to be presumed that Mr. Pickersgill had notice as to the circumstances attending the making and negotiation of the indorsements. .
    
      Charles O'Conor, for respondents.
    I. The defense of the absent brothers Lahens is based on the familiar rule that a partner has no more authority than a mere stranger to execute such bills, &c., in his own business, or for the accommodation of others, and in .such cases the instrument, as against the firm, “ is void in the hands of any party having knowledge of the consideration for which it is given.” ’(Farmers' Bank of Kent v. Butchers' and Drovers' Bank, 16 N. Y. R., 135, per Selden J.; N. Y. Fire Ins. Co. v. Bennett, 5 Conn. R., 580.)
    II. The form of the security taken by the ¿plaintiffs was full and express notice to the plaintiffs that the signature of Lahens & Co. was placed thereon by one member of the firm, by way of, and as a guaranty of the obligation to pay entered into by Oaselli. (Foot v. Sabin, 19 Johns., 156; Laverty v. Burr, 1 Wend., 529, in point; Stall v. Catskill Bank, 18 Wend., 478, per Walworth; Bank of Vergennes v. Cameron, 7 Barb., 150.)
    1. Indorsing as surety for another, is not a legitimate or regular branch of banking business. (Bank of Genesee v. Patckin Bank, 3 Kern., 316, 321.)
    2. The attempt to connect the firm of Lahens & Co. with the consideration moving between Caselli and Pickers-gill, by force of any inferences deducible from the fact that some of the business notes given up to Caselli by Pickersgill bear the indorsement of Lahens & Co., is not consistent with any legal view of the evidence, and is well refuted by Laverty v. Burr, (1 Wend., 529, above.)
    III. It was the duty of the Beferees to dismiss the complaint as to these defendants. (Carpenter v. Smith, 10 Barb., 664, and cases there cited; People v. Cook, 4 Seld., 74, 75.)
    IV. The plaintiffs’ several exceptions are not well taken.
    V. Whether the judgment was erroneous or not as to the defendant Louis Emile Lahens, it ought to be affirmed as to the defendants Pierre F. and Edouard Ernest Lahens. (Code, § 330; Montgomery Co. Bank v. Albany City Bank, 3 Seld., 459; Giraud v. Stagg, 4 E. D. Smith, 27; Ogden v. Gardner, 22 N. Y. R., 327.)
   By the Court—Bosworth, Ch. J.

I. An important question presented by this appeal is, whether in an action on contract, commenced before the enactment of the Code against several persons as partners, the plaintiff can recover against either, without establishing a cause of action against all. z

It was settled before the Code, that in such an action if the evidence disclosed that there were too many, or too few, plaintiffs, or too many defendants, a nonsuit was inevitable.

The codifiers, in their note to section 230, (now 274,) state the existence of this rule, and the consequences arising from the nonjoinder or misjoinder of parties, and that “ this section will prevent them hereafter.” (Codifier’s Report of February 29, 1848, p. 194.)

Having proposed this section for the purpose of accomplishing this object, (among others,) and the Legislature having enacted it in the form proposed, with this explanation of its design before them, that body must be presumed to have enacted it for the purpose of giving effect to this intent. The language of the section is appropriate to produce the change proposed to be effected by it.

These considerations are sufficient to show that it was never contemplated that § 169 [145] would be construed as sufficient to produce the same result; and that it was not enacted with a view to make such a result possible. The codifiers, after having drafted that section, and appended to it a note explanatory of its design, drew § 274, [230,] and by a note added to it state that the latter section was proposed as drawn, to obviate the unjust consequences imputed to the common law rule as to parties, to which that note refers.

Section 8 of the Code declares that part two of the Code (in which these sections are found) “ relates to civil actions commenced in the courts of this State after the 1st day of July, 1848, except when otherwise provided •therein.”

An act was passed cotemporaneously with the Code, (April 12, 1848,) entitled “ An act to facilitate the determination of existing suits in courts of this State.” (Laws of 1848, p. 566.) That act applied to existing suits sections 145 to 151 inclusive, (now 169 to 176 inclusive,) but did not apply section 230, (now 274.)

When this act, and the Code, were amended in 1849, the same condition of things was continued. (Laws of 1849, p. 705.) There can be no pretense that the law has been changed in this respect, unless it has been effected by § 459 of the Code, as amended in 1851. It must, therefore, be conceded, that up to 1851 the Code had not only not attempted to modify the common law rule as to parties in suits commenced prior to its enactment, but, on the contrary, it expressly provided that the very section which was enacted to abrogate it as to suits to be commenced subsequently, should not apply to existing suits.

There would seem to be good reason for not applying it to existing suits. The enactment of a law, pending a suit, which should deprive a defendant of a perfect defense to the action and of the costs consequent upon establishing it, and enable a plaintiff to recover damages, and not only absolve him from a liability to pay costs to all the defendants, but confer a right to recover costs from some of them, would be extraordinary legislation ; and it was evidently the design, that a plaintiff who had a suit pending at the time the Oode took effect, in which, by the settled rules of the common law, he could not recover, although it might be for the reason he had sued too many persons as defendants, should be controlled to the conclusion of the litigation by the rules regulating the right to recover at all, which were in force at the time when his suit was brought.

I do not find that chap. 380, of the Laws of 1848, as amended by chap. 439, of the Laws of 1849, has been repealed.

Section 459 of the Oode, as amended in 1851, should be construed in the light of this legislation, and in harmony with the policy and provisions of chap. 380, Laws of 1848, and chap. 439, Laws of 1849, unless by the obvious meaning of its terms, it repeals the last named act. That act is not, by any statute, in terms, repealed; and if repealed, it is by force of a construction to be given to § 459 of the Code.

That section, by enacting that “ the provisions of this act (the Oode) apply to future proceedings in actions or suits heretofore commenced and now pending * * where there is an issue of law or fact, or any other question of fact to be tried, to the trial and all subsequent proceedings,” merely prescribes the forms to be observed, and does not modify or repeal any rule of law affecting a defendant’s liability in the action, or a plaintiff’s right to recover in it.

In Rich v. Husson, (1 Duer, 617, 620, 621,) the meaning of the word “proceeding,” as used in this section, was a matter of consideration and comment, and it was construed as corresponding with “modal.” The Court say: “It means, in all cases, the performance of an act, and is wholly distinct from any consideration of an abstract right. A proceeding in a civil action is an act necessary to be done in order to attain a given end. It is a prescribed mode of action for carrying into effect a legal right.”

The first subdivision of section 439 requires “the pleadings and all subsequent proceedings,” where there has been no pleading, to be in the form prescribed for suits brought under the Oode; the second applies the forms of the Oode “to the trial and all subsequent proceedings;” and the third, its forms of proceedings, “to enforce, vacate, modify or reverse ” a judgment or order.

The object of this section, which by amendment received its present form nearly three years after the Oode took effect, was to prescribe in regard to all steps that might be taken subsequently in existing suits, that they should be in the form provided by the Oode. From that time forward, all proceedings then subsequent, whether in suits commenced before or after the Oode was passed, were to be the same in form, as if the suits were brought under the Code.

In this view of the law, the Beferee did not err, in holding that the plaintiffs could not recover against either defendant, as they had failed to prove a joint liability of all.

Ho case has been cited, which holds that in an action commenced prior to the Oode, against several, as joint contractors, the plaintiff can recover against some of them, without so far establishing a right to recover against all as consists in proof that the contract sued upon is the joint contract of all. In such a case, a plaintiff could recover, though one or more of the defendants might establish a defense merely personal, as infancy, or the like; but he was compelled to establish that it was, in fact, the joint contract of all, and failing to do this, he could not recover against either.

II. The plaintiffs, at the time they received the notes in question, received them from A. Oaselli, the maker, and knew that the indorsements were not given for a partnership debt, or in the partnership’s business, and that they were written by one of the Arm in á matter not relating to the Arm’s business, but, on the contrary, to accommodate the makers. (Laverty v. Burr, 1 Wend., 529; Stall v. Catskill Bank, 18 Wend., 478; Foot v. Sabin, 19 Johns., 156; Boyd v. Plum, 7 Wend., 309; Joyce v. Williams, 14 Wend., 141; Wilson v. Williams, 14 Wend., 158.)

If the Referees had found the fact which the appellants’ counsel insists they might have- found upon the evidence, viz.: that the business paper delivered by Pickersgill to Oaselli, on the 23d of May, was intrusted to the latter, under an agreement to the effect that Pickersgill was to receive in exchange for it other good business paper to the" amount of $27,500, and J. Lahens & Oo.’s two notes, with Caselli’s indorsements, for $27,500 more; even then, no liability as against any defendant other than Emiie Louis' Lahens, would have been established. The insurmountable difficulty would still remain, that the consent óf his partners to the transaction is not proved, and no evidence is furnished of any grant of authority to him to pledge the Arm’s name in matters not in any manner relating to its business.

All exceptions taken to the admission or exclusion of evidence directed to establish the fact that, as between Pickersgill and Oaselli, the consideration for the reception of the indorsements was such as, it is insisted on behalf of the appellants, the evidence tends to show it was, are unimportant ; the fact remains that the indorsements are not the indorsements of the Arm; that they have no connection with its business, and were made without the authority or consent of the members of the Arm other than of the one who wrote them, and all this Mr. Pickersgill knew when he took them.

HI. The exception to the exclusion of the defendants’ articles of copartnership is untenable. The articles were offered after the plaintiffs had rested and the Referees had announced their conclusion to nonsuit the plaintiffs. It was discretionary- with the Referees to admit further evidence, and it certainly was not error to exclude proffered evidence when the-plaintiffs’ counsel would not state his belief that it would tend to show any authority in Emile Louis Lahens to make the indorsements in question. As the case is made up, the Court cannot see or conjecture that, if admitted, it would have aided the plaintiffs, and therefore cannot see that they have been prejudiced by its rejection.

IV. The fact that the defendants are accomodation indorsers of A. Caselli, and that he is therefore interested in the event of the suit, did not affect his competency as a witness at the time his deposition was read in evidence. Had he been examined orally at the trial as to the same matters, he would have testified under precisely the very interest that existed when he was examined under the commission; and the fact that he testified under the bias which the existing interest may have created, did not affect the competency of his testimony when offered. (And see 3 Phil, on Ev., Cowen & Hull’s and Edwards’ Votes, 120.)

If the deposition of A. Caselli, taken under- the commission, be rejected and stricken from the case, there could not, even then, by any probability, be a recovery by the plaintiffs; there would be a total absence of evidence tending to show a joint liability of all the defendants.

The judgment should be affirmed.  