Page:United States Reports, Volume 1.djvu/131

120 

1784.

although Baʃʃee was liable to Soyer‘s action for a contribution, yet not having figned the warrant, he was not fubject to the execution of Gorard, the plaintiff. 2 ''Black. Com.'' 295. 3 ''Bac. Abr.'' 590. 2 ''Bac. Abr.'' 227.358.2. Vern. 293. 2. ''Ch. Caʃes.'' 228. They faid, that the execution of deeds was not to be regulated by, nor does the effect of them depend upon, a particular cuftom of Merchants ; but they are derived from a fuperior fource, to wit, the law of the land ; and they infifted that Baʃʃe not having joined in the warrant, the judgment, being joint, muft fall to the ground. 2 ''Black. Rep.'' 294. Shep. 69.

Ingerʃol, in fupport of the judgment :— It is regularly true, that, according to 3 ''Bac. Abr.'' 611. one merchant may bind his partner, by accepting a bill drawn on both. If, then, in fubftance, the act of one obliges the other, what difference arifes from the circumftances of the delivery not being formally executed ? That queftion was agitated in the cafe of M‘Kim vs. M‘Farlan : there Levinz indorfed a note of M‘Farlan‘s  to M‘Kim ; but being indebted to M‘Farlan, he thought it proper to give him previous notice of the tranfaction, and, accordingly, threw the note into his defk with that design. During his abfence, M‘Kim,who had given a valuable confideration for the note, perfuaded Mrs. Levinz  to give it up to him, and afterwards fued  M‘Farlan  upon it, who grounded his defence upon this, that the note was never delivered over.

Sergeant. Improper and falfe fuggestions were ufed to induce Mrs. Levinz  to deliver the note.

Ingerʃol. True:  but the point in difcuffion was the delivery ; and the jury found for the plaintiff.—Cowp 206. Any proof of intention to affent to a delivery is fufficient ; —no particular mode of action, no form of expeffion, are neceffary. The prefent queftion, however, is, whether the Court will confirm the judgment as to the partner who fealed the warrant, and vacate it as to the other. The adverfe Counfel have cited 2 ''Bac. Abr.'' 227.358. to fhew that the judgment, being an entire thing, muft be wholly fet afide, if at all. But this doctrine is fully refufed by 1 Cro. 322.2 ''Black. Rep.'' 1133. With refpect to the warrant's being executed while Soyer was in prifon, it may be obferved, that an Attorney was prefent ; and in Sluyter's cafe, the Court determined that it was not neceffary the Attorney fhould be for the party ; but that it was enough if the bufinefs was fairly tranfacted in the prefence of an Attorney. Here neither fraud nor violence are fuggefted.

Lewis, on the fame fide, ftated two queftions : 1ft. Whether, upon the facts, this judgement can be fet afide as to both Baʃʃe and Soyer ;  and 2d. Whether it can be fet afide as to one, and continued againft the other ?

1ft Point. As this was a joint debt, juftice naturally requires that the judgment fhould be confirmed ; and it being admitted, that a contract not under feal made by or, would bind both partners,  alledged that the feal creates no difference, for the cauʃa  tractủ